C-411/00

1 — Original language: French. 2 — OJ 1992 L 209, p. 1, hereinafter also referred to as 'the 4 — Bundesvergabegesetz 1997, BGBl. 11997, No 56. Previous directive'. versions are in Bundesvergabegesetz 1993, BGBl. I 1993, 3 — See 21st recital in the preamble to Directive 92/50. No 462 and BGBl. 11996, No 776.

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whilst Annex IV corresponds to Annex I B contract, the main services to be provided to the directive. The rule laid down in were computer-aided logistics, coor- Article 10 of Directive 92/50 is transposed dination of all the removal activities, and into Paragraph 3(4) of the Bundesver- the provision of a storage depot and gabegesetz. organisation of the storage. The ÖNB therefore considered that the contract con- sisted mainly of 'supporting and auxiliary transport services', which are listed in Annex IV to the Bundesvergabegesetz, and not 'land transport services', which are listed in Annex III to the Bundesvergabege- setz and so are covered by the federal law in 6. In the case in the main proceedings the full. It therefore published only a notice of applicant, Felix Swoboda GmbH ('Swo- the contract awarded. boda') is questioning precisely whether a procedure for the award of a public service contract was lawful as regards Paragraph 3(4) of the Bundesvergabegesetz. It is seek- ing a declaration from the national court that federal law was infringed because the contract was not awarded to the tenderer 9. Swoboda considers that the contract which submitted the most favourable bid. should have been awarded in accordance The observations of the contracting auth- with the Bundesvergabegesetz in full, since ority state that Swoboda did not take part the value of the services listed in Annex III in the tendering procedure in question. was in this case, it maintains, greater than the value of those listed in Annex IV.

(4) In the event that consideration of the part services leads to the conclusion that a part service listed in Annex I A to the directive which, in principle, is subject in full to the provisions of Directive 92/50/EEC is, by way of an exception, not subject in full to the (2) How far may a service which describes provisions of the directive on account a specific type of service (eg transport of the principle of predominance laid services) be broken down into individ- down in Article 10 thereof, is there an ual services in accordance with the obligation on the contracting authority scheme of Directive 92/50/EEC with- to split off non-priority part services out infringing the provisions on the and to award contracts for them separ- award of service contracts or under- ately in order to respect the priority mining the effet utile of Directive nature of the service?' 92/50/EEC?

Admissibility of the questions (3) Must the services referred to in this case (having regard to Article 10 of Directive 92/50/EEC) be classified as services listed in Annex IA to Directive 92/50/EEC (Category 2, Land trans- port services) and contracts which have 11. Since both the Commission and the as their object such services are to be defendant in the main proceedings have awarded in accordance with the provi- raised objections as to the admissibility of sions of Titles III to VI of the directive, the questions referred for a preliminary or must they be classified as services ruling, it is appropriate to address those listed in Annex I B to Directive objections first of all.

16. Although the Bundesvergabeamt does not have that capacity to issue enforceable directions to contracting authorities, it has, at least until the contract is awarded, the 14. The Commission refers to the case-law power to annul their decisions, which is of the Court of Justice, which requires that

7 — Order for reference from the Bundesvergabeamt of 9 August 5 — [1998] ECR1-73. Sec also the Opinion of Advocate General 2001 (Case C-314/01, pp. 24 to 26 of the English trans- Léger in that case. lation). 6 — Sec Case C-76/97 Tagel [1998] ECR I-S357; Case C-l 11/97 8 — See observations lodged by the Commission in Siemens and EvoBus [1998] ECR 1-5411; Case C-27/98 Fracasso and ARGE Telekom, cited above. Leitscbutz [1999] ECR 1-5697; Case C-81/98 Alcatel 9 — Order of 26 October 1995 in Joined Cases C-199/94 P and Austria and Others [1999] ECR 1-7671; Case C-94/99 C-200/94 P Pevasa and Inpesca v Commission [1995] ECR ARGE 12000] ECR I-11037; and Case C-324/98 Telaustria 1-3709, paragraph 24. Sec also Case C-21/94 European and Telefonadress [2000] ECR 1-10745. Parliament v Council [1995] ECR 1-1827, paragraph 33.

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20.1 therefore consider that, at any event, in the proceedings instituted by Swoboda the Bundesvergabeamt has the capacity of a court or tribunal, within the meaning of 18. This does not mean, however, that the Article 234 EC, enabling it to refer ques- Bundesvergabeamt will not issue a binding tions to the Court for a preliminary ruling.

10 — See the Opinion of Advocate General Léger in Mannes- mann Anlagenbau Austria, cited above, point 40. 11 — OJ 1989 L 395, p. 33.

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21. The ÖNB questions Swoboda's capac- could therefore simply answer the ques- ity to bring the case in the main proceed- tions referred to it by a reasoned order ings, contending that it does not have the containing a reference to that judgment. capacity of tenderer or unsuccessful candi- date, which is required under national law in order to bring such an action. Since Swoboda cannot claim damages, the find- ing that there has been an infringement of Directive 92/50 would be purely declara- tory and would have no substantive effect 24. It should be stressed that Article 104(3) on the case in the main proceedings. of the Rules of Procedure of the Court of Justice merely enables the Court to answer questions referred for a preliminary ruling by means of a reasoned order. It is under no obligation to do so.

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aspect linking it with a cross-border situ- service to be provided should be situated ation. The ONB refers in particular in either side of a border is a requirement support of this argument to Case C-108/98 which is excessive in relation to the direc- RI. SAN., 13 in which, it maintains, the tive's objective, which is the opening up of Court ruled that a tendering procedure was markets, even those located entirely within not subject to the application of Commu- a single Member State, to potential ten- nity law where it had no foreign aspect to derers established in other Member States. it.

29. I shall now consider the questions referred by the national court. In order to 27. That is a manifestly incorrect interpre- follow the logical course of my reasoning I tation of the Court's judgment. In RI. SAN. shall answer the fourth question before the Court ruled that Article 55 of the EC tackling the third. Treaty (now Article 45 EC) did not apply in a situation in the main proceedings in which all the facts were confined to within one Member State. However, it did not rule on the applicability of Directive 92/50 with regard to the requirement of a foreign aspect.

First question

31. In its order for reference the Bundes ver- 34. The ruling contained in that judgment gabeamt refers to the judgment in Gestion is corroborated by the 16th recital in the Hotelera Internacional 14 and notes that preamble to Directive 92/50: that judgment laid down a principle of predominance, under which the main object of the contract absorbs the suppor- ting services associated with it for the purpose of determining which of the direc- tives on the award of public contracts is applicable to a particular contract. '... public service contracts, particularly in the field of property management, may from time to time include some works;... it results from Directive 71/305/EEC that, for a contract to be a public works contract, its object must be the achievement of a work;... in so far as these works are inci- dental rather than the object of the contract, they do not justify treating the 32. It does not seem to me that the contract as a public works contract'. reference to that judgment is relevant to resolving the question referred to the Court in this case.

determining which arrangements apply. 39. Although I agree with the Austrian The relevant arrangements are those Government that the CPC nomenclature described in the annex to which the services alone determines how services are to be having a predominating value within the classified, it does seem to me that the CPC contract as a whole are assigned. Article 10 classification is sufficiently specific to makes no reference to the main object of enable Article 10 of Directive 92/50 to be the contract. Directive 92/50 thus appears applied in full without any need to refer to to be sufficiently clear on that point. There the main object of the contract. A contract is therefore no need to introduce an addi- may well serve a single purpose and be tional criterion in respect of the main object subdivided, for the purpose of determining of a contract in order to determine which the arrangements applying to it, into the arrangements will apply with regard to various part services which comprise it, award of the contract. each of which corresponds to a different CPC code.

37. The observations submitted by the Austrian Government in this connection 40. The claim that 'all the public procure- do not, to my mind, call that view into ment directives operate on the basis of a question. single type of service' amounts to a denial that Article 10 of Directive 92/50 has any rationale or effet utile.

purpose, but which could be subdivided port' classification, namely the arrange- into part services, to ascertain which of the ments for priority services. Subdivision of annexes to Directive 92/50 each part ser- the contract into part services would result vice is assigned to. Under Article 10 of that in the application of Article 10 of Directive directive the contract is to be awarded in 92/50 and, hence, in the relevant arrange- accordance with the provisions of Titles III ments being those for supporting transport to VI of the directive where the value of the services, which are the predominant ser- services listed in Annex I A is greater than vices in terms of value. 'Supporting and the value of the services listed in Annex I auxiliary transport services' have their own B. Conversely, if the value of the services classification in the CPC and are listed in listed in Annex IB is greater than the value Annex I B to Directive 92/50. of those listed in Annex I A, the contract will be awarded in accordance with Articles 14 and 16 only of Directive 92/50. Thus the main purpose of the contract will have no bearing on the choice of the relevant arrangements. 45. The national court states in this con- nection that the provision of those suppor- ting services, although predominant in terms of value, is necessary only because of the existence of the service which it regards as being the main service, that is to say, transport. It also makes the point that the consequence of such subdivision is to make the distance covered by the transport Second question the factor which determines the arrange- ments to which the overall contract is subject, since that distance directly influences the value of the transport element in the contract. This is detrimental 43. In the light of the explanations given by to legal certainty for tenderers since the the Bundesvergabeamt in the grounds of its classification of the contract would depend order for reference, it seems to me that the on an external factor which it is difficult to national court is seeking in its second determine. question to ascertain, for the purpose of determining the arrangements applicable to a particular type of contract, to what extent Directive 92/50 permits the subdivision of that contract into various part services. 46. It seems to me that the answer to the second question is to be found in the considerations set out above in respect of the first question.

... services consisting in the transport of injured and sick persons with a nurse in attendance come within both Annex I A, Category No 2, and Annex I B, Category 49. One cannot, on the pretext of seeking No 25, to Directive 92/50, so that a to apply the directive in full to a particular contract for those services is covered by contract, disregard the fact that the Article 10 of Directive 92/50'. contract is made up of services correspond- ing to several different codes in the CPC classification, especially as Directive 92/50, due to the existence of Article 10, offers a clear solution to such a situation. 51. In my view, therefore, as regards ser- vices corresponding to different CPC refer- ences, it is necessary to separate them in order to determine which arrangements apply to the contract as a whole, even 50. Thus, as the ÖNB correctly states, in where the result of that subdivision will be Tögel which concerned a service compris- to make a priority service subject only to a ing the transport of patients, the Court did limited application of Directive 92/50. Far not consider that transport alone deter- from depriving Directive 92/50 of any effet mined the arrangements applicable to the utile, this is in direct accordance with the contract on the pretext that the health wishes of the Community legislature services were necessary only if the transport expressed in Articles 9 and 10 of that had actually taken place. On the contrary, directive. it held in paragraphs 39 and 40 of the judgment that:

52. Far from being detrimental to legal certainty for traders, the automatic appli- '... CPC reference number 93, appearing in cation of that system and rigorous com- Category No 25 (Health and social ser- pliance with CPC references as classifi-

Fourth question 56. I am, however, of the view that the contracting authority could be required to make such a division where the unity of the contract concerned appeared to be artificial 53. In the fourth question, the Bundesver- or illogical and was indeed designed merely gabeamt is seeking to know whether Direc- to avoid application in full of the directive tive 92/50, in order to permit application to priority services. thereof in full to priority part services, requires the contracting authority for a contract whose predominant value is rep- resented by non-priority part services to divide the contract into two, that is to say, to award one contract for the priority services and another for the non-priority 57. Directive 92/50 does not cover such a services. situation directly. However, Article 7 of the directive restricts the applicability of the directive to contracts the estimated value of which is not less than ECU 200 000 and, in order to prevent any manipulation of that condition for the 54. In the light of the answers given to the directive's applicability, Article 7(3) pro- preceding questions, I am of the view that vides: Article 10 of Directive 92/50 precludes any obligation to divide up such contracts.

'The selection of the valuation method shall not be used with the intention of avoiding 55. To require the separation of non-prior- the application of this directive, nor shall ity service contracts from a contract for any procurement requirement for a given priority services would in any event mean amount of services be split up with the that Article 10 of Directive 92/50 had no intention of avoiding the application of this scope at all. It is precisely the case of a article.'

62. That judgment in fact pre-dated the adoption of Directive 92/50. The rule laid down in Article 2 of the directive, which 59. That would be the case if the overall states that a contract that covers the supply contract thus constituted did not serve a of both services and products falls within single purpose and clearly failed to meet the the scope of the services directive if the requirements of technical and economic value of the services in question is greater unity. than that of the products, was not yet in force. Thus it was a case in which, by making such an artificial combination of contracts the Italian State was totally avoiding the application of Community law to the contract as a whole. Such a 60. In Commission v Italy, 18the Court situation can no longer arise, because the ruled that by not separating contracts for contract, which exceeded the threshold of the purchase of data-processing equipment, ECU 200 000, would necessarily fall within on the one hand, and for the design and the scope of either Directive 77/62 or operation of a data-processing system, on Directive 92/50. the other, the Italian Republic had failed to fulfil its obligations. The two elements, the purchase of equipment, on the one hand, and the provision of computer services, on the other, clearly served to achieve a single purpose. However, the Court considered that they could be separated and that the Italian Government was in fact seeking to 63. With regard to the contract at issue in avoid the application of Council Directive the main proceedings, and in the light of 77/62/EEC of 21 December 1976 coor- the information available to the Court, it dinating procedures for the award of public does not appear to constitute an artificial supply contracts to the contract for the combination of priority and non-priority purchase of the equipment. 19 services. Indeed, as the defendant and the Austrian Government have stated, with sound arguments, it would have been 18 — Case C-3/88 [1989] ECR 4035. illogical, from both the technical and the 19 — OJ 1977 L 13, p. 1. economic viewpoint, to award two

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70. Moreover, the coordination and logis- weighing and sampling services; and freight tics activities, to which the contracting receiving and acceptance services (includ- authority attributes 32.13% of the total ing local pick-up and delivery)'. value of the contract, are probably also to be classified in CPC Division 74, more precisely in subclass 74800 'Freight trans- port agency services', the explanatory note to which reads:

72. In the Commission's view, all the services comprising the contract in the main proceedings, since they constitute a single homogeneous service provision, 'Freight brokerage services, freight for- should be assigned to that subclass. The warding services (primarily transport final note 'including local pick-up and organisation or arrangement services on delivery' implies that all the services the behalf of the shipper or consignee), ship ÖNB required of its co-contractor should and aircraft space brokerage services, and be included in subclass 74900. freight consolidation and break-bulk ser- vices'.

— CPC Class 8129 'Non-life insurance services', subclasses 81294 'Freight insurance services', 81295 'Fire and other property damage insurance ser- vices' and 81299 'Other insurance services n.e.c.' appear to me to be relevant. Insurance services are listed 74. That interpretation is confirmed, more- in Annex I A to Directive 92/50 (Cate- over, by the explanatory note to CPC gory 6); subclass 71234 'Transportation of fur- niture', which covers road transport ser- vices 'Over any distance'. So, whether the distance covered by the transport is short or long, it is still a transport service that is involved, which has its own CPC reference — CPC Division 94, more particularly, and cannot come under 'Supporting and subclass No 94020 'Refuse disposal auxiliary transport services'. services' which includes biter alia col- lection, transport and disposal of industrial or commercial waste. That CPC reference also comes under Annex I A to Directive 92/50 (Cate- gory 16).

75. Road transport services under CPC reference number 712 are assigned to Annex I A of Directive 92/50 (Category 77. Lastly, I am of the view that the wages 2). It is possible to include the transport of the staff of the service providers should services carried out in performance of the be included in the services to which they contract at issue in the main proceedings correspond and of which they form an under subclass 71234 'Transportation of integral part. Indeed, it would be difficult

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that directive the contract is to be awarded in accordance with the provisions of Titles I I Ito VI of the directive where the value of the services listed in Annex I A is greater than the value of the services listed in Annex I B. Conversely, if the value of the services listed in Annex I B is greater than the value of the services listed in Annex I A, the contract is to be awarded in accordance only with Articles 14 and 16 of the directive.

(2) As regards services corresponding to different CPC references, it is necessary to separate them in order to determine which arrangements apply to the contract as a whole, even where the consequence of such separation would be to make a priority service subject only to a limited application of Directive 92/50.

(3) Some of the services mentioned in the statement of facts come under Annex I A and others under Annex I B to Directive 92/50. In the light of the allocation of those services as described in the order for reference, the services assigned to CPC reference number 74 'Supporting and auxiliary transport services' appear to represent the greater share of the contract in terms of value. Since that reference number appears in Annex I B to Directive 92/50 (Category 20) the whole contract should, under Article 10 of the directive, be awarded in accordance with Articles 14 and 16 of that directive, subject to the assessments to be made by the national court.

(4) Where a contract as a whole has a clear economic and technical unity, contracting authorities are by no means required to avoid the application of Article 10 of Directive 92/50 by awarding separate contracts for non-priority part services, on the one hand, and priority part services, on the other, which serve to achieve the same purpose.