CJEC, 2nd chamber, May 30, 2002, No C-358/00

THE COURT (Second Chamber)

1. By order of 2 August 2000, received at the Court on 27 September 2000, the Oberlandesgericht (Higher Regional Court) Düsseldorf referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Articles 1 and 8 of Council Directive 92-50-EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), as amended by European Parliament and Council Directive 97-52-EC of 13 October 1997 (OJ 1997 L 328, p. 1).

2. That question was raised in proceedings brought by Buchhändler-Vereinigung GmbH ('Buchhändler-Vereinigung') against Saur Verlag GmbH & Co. KG ('Saur Verlag') and the Deutsche Bibliothek (German Library) concerning the intention of the Deutsche Bibliothek to conclude a public service concession contract for the reproduction and distribution of the German National Bibliography in printed form and on CD-Rom.

The Community rules

3. The eighth recital in the preamble to Directive 92-50 states:

'... the provision of services is covered by this directive only in so far as it is based on contracts; ... the provision of services on other bases, such as law or regulations, or employment contracts, is not covered'.

4. Article 1 of Directive 92-50 states:

'For the purposes of this directive:

(a) public service contracts shall mean contracts for pecuniary interest concluded in writing between a service provider and a contracting authority, to the exclusion of:

...'.

5. Article 8 of the directive provides:

'Contracts which have as their object services listed in Annex I A shall be awarded in accordance with the provisions of Titles III to VI.'

6. Category 15 of Annex I A to Directive 92-50 covers 'publishing and printing services on a fee or contract basis'.

The main proceedings and the question referred for a preliminary ruling

7. It is apparent from the order for reference that, in accordance with the Gesetz über die Deutsche Bibliothek (German Library Act), the tasks of the Deutsche Bibliothek, a public-law institution having legal capacity which is directly accountable to the federal authority, include the establishment of the German National Bibliography, in other words, compilation of an inventory of German literature which is updated annually. It must also reproduce and market the bibliographical indexes which it has to compile.

8. On 3 March 2000, the Deutsche Bibliothek, by a restricted procedure, invited tenders for a contract for the reproduction and distribution of the German National Bibliography in printed form and on CD-Rom. The main contractual obligations provided for in that invitation were that the Deutsche Bibliothek was to compile the bibliographical indexes and make these available to the chosen contractor, which was to have the exclusive right to reproduce and distribute the German National Bibliography in printed form and as a CD-Rom. The invitation stipulated that the contractor was to reproduce and distribute the bibliography on its own account and to pay the Deutsche Bibliothek a fee on the basis of the publishing proceeds, for each copy sold. Moreover, the Deutsche Bibliothek was to have rights of supervision and codetermination with respect to the reproduction and distribution of the bibliography.

9. The Deutsche Bibliothek intended to award the contract to Buchhändler-Vereinigung. Saur Verlag objected to that by means of an application pursuant to the Gesetz gegen Wettbewerbsbeschränkungen (Act Prohibiting Restraints of Competition; 'the GWB') in which it complained of the infringement of certain provisions governing awards of public contracts.

10. By order of 26 May 2000, the Second Federal Procurement Chamber ruled on the application of Saur Verlag. It prohibited the Deutsche Bibliothek from awarding the contract to Buchhändler-Vereinigung on the basis of its previous assessment and ordered it to re-assess the bids of the two tenderers, taking into account the findings of that chamber, and to inform the tenderers which of them was to receive the contract at the latest 10 working days before awarding it.

11. Buchhändler-Vereinigung lodged an appeal against that order with the court making the present reference, claiming that the application of Saur Verlag was inadmissible on the ground that the contract in question is not covered by the public procurement rules but is a service concession.

12. In its order for reference, the Oberlandesgericht Düsseldorf states that the answer to the question whether a publishing contract of the kind at issue in the main proceedings is a contract governed by German law on the award of public contracts, namely Paragraphs 97 to 129 of the GWB, is primarily determined by whether such a contract falls within the scope of Directive 92-50.

13. The referring court finds that the contract constitutes a public service concession. It bases this finding on the fact that the contract involves the transfer of the right to exploit a particular service to the private undertaking, which bears the risk associated with that activity. It adds that the service provided by the undertaking is not paid for by the Deutsche Bibliothek by way of a fixed amount but that, on the contrary, a fee must be paid to the Deutsche Bibliothek by the undertaking itself. Furthermore, according to the referring court, the service tendered is performed in the public interest since the activity of the Deutsche Bibliothek, by reason of its nature, its purpose and the rules to which it is subject, falls within the responsibility of the State and since it is assigned to a private contractor subject to a right of supervision and codetermination of the Deutsche Bibliothek.

14. The referring court therefore concludes that the appeal pending before it can be granted only if service concessions fall within the scope of Directive 92-50. The court indicates that it is aware of the fact that a preliminary ruling concerning that question was sought from the Court of Justice in the proceedings which gave rise to the judgment of 7 December 2000 in Case C-324-98 Telaustria and Telefonadress [2000] ECR I-10745, which was still pending before the Court at the time of the order for reference.

15. However, having regard to Article 8 of Directive 92-50 in conjunction with Category 15 of Annex I A to Directive 92-50, which refers to 'publishing and printing services on a fee or contract basis', the referring court is uncertain whether public service concessions, even if in general they do not fall within the scope of Directive 92-50, are in any event subject to procurement law when they have as their object 'publishing' and 'printing'.

16. In those circumstances, the Oberlandesgericht Düsseldorf decided to stay proceedings and refer to the Court the following question for a preliminary ruling:

'Does Directive [92-50, as amended by Directive 97-52] also apply to a contract:

(a) by which the contracting authority confers on the contractor the exclusive publishing rights (right of reproduction and distribution) in a bibliography compiled by it - in this case the German National Bibliography,

(b) which requires the contractor to reproduce and market the bibliography on his own account and to pay the contracting authority an appropriate fee on the basis of the publishing proceeds for each copy sold, and

(c) in which the contracting authority reserves rights of supervision and codetermination with regard to the reproduction and distribution of the bibliography?'

Findings of the Court

17. By its question, the referring court essentially asks whether a concession contract for public publishing services is excluded from the scope of Directive 92-50 even though, by reason of its specific object, it is covered by Annex I A to that directive to which Article 8 thereof refers.

18. Since it is considered that the answer to the question referred for a preliminary ruling could be clearly deduced from its case-law, the Court of Justice, in accordance with Article 104(3) of its Rules of Procedure, informed the referring court that it proposed to give its decision by reasoned order and invited the interested parties referred to in Article 20 of the EC Statute of the Court of Justice to submit any observations in that regard.

19. In the observations which they submitted under Article 104(3) of the Rules of Procedure, Buchhändler-Vereinigung, the Deutsche Bibliothek and the Commission did not object to the Court's intention to give its decision by reasoned order.

20. First of all, it should be stated, as the referring court did, that a contract which has as its object the services referred to in paragraph 8 of this order may be covered by Directive 92-50.

21. Secondly, in paragraphs 39 and 40 of the judgment in Telaustria and Telefonadress, cited above, which concerned a concession contract for the production and publication of telephone directories, the Court stated first of all that the contract had as its specific object services covered by various categories of Annex XVI A to Council Directive 93-38-EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84) and that it was therefore covered by that directive.

22. In order to determine whether such a contract is covered by the definition of 'contracts for pecuniary interest concluded in writing' in Article 1(4) of Directive 93-38, the Court then retraced the history of the directives governing public service contracts, including Directive 92-50.

23. In particular, in paragraph 46 of the judgment in Telaustria and Telefonadress, the Court pointed out that, both in its proposal 91-C 23-01 of 13 December 1990 for a Council Directive relating to the coordination of procedures on the award of public service contracts (OJ 1991 C 23, p. 1) and in its amended proposal 91-C 250-05 of 28 August 1991 for a Council Directive relating to the coordination of procedures on the award of public service contracts (OJ 1991 C 250, p. 4), which resulted in the adoption of Directive 92-50 which covers public service contracts in general, the Commission had expressly proposed that 'public service concessions' be included within the scope of that directive.

24. In paragraph 47 of the judgment in Telaustria and Telefonadress, the Court pointed out, first, that, since that inclusion was justified by the intention 'to ensure coherent award procedures', the Commission had stated, in the 10th recital in the preamble to the proposal of 13 December 1990, that 'public service concessions should be covered by this directive in the same way as Directive 71-305-EEC applies to public works concessions'. Second, the Court explained that, although the reference to Council Directive 71-305-EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682) was withdrawn from the 10th recital in the preamble to the proposal of 28 August 1991, that proposal none the less expressly maintained the purpose of ensuring 'coherent award procedures' in that recital.

25. However, as the Court pointed out in paragraph 48 of the judgment in Telaustria and Telefonadress, during the legislative process the Council eliminated all references to public service concessions, in particular because of the differences between the Member States as regards the delegation of the management of public services and modes of delegation, which could have created a situation of very great imbalance in the opening-up of the public concession contracts (see paragraph 6 of document No 4444-92 ADD 1 of 25 February 1992, entitled 'Statement of reasons of the Council' and annexed to the common position of the same date).

26. Finally, in the light of those considerations, which it then compared to the evolution of the scope of the directives on public works contracts, the Court found, in paragraph 57 of the judgment in Telaustria and Telefonadress, that public service concession contracts do not come within the scope of Directive 93-38 and are therefore not included in the concept of 'contracts for pecuniary interest concluded in writing' appearing in Article 1(4) of that directive.

27.

The Court concluded therefrom, in the second indent of paragraph 58 of the judgment in Telaustria and Telefonadress, that, although it is covered by Directive 93-38, a contract such as the one at issue in that case, the consideration for which consists in the right of the successful tenderer to exploit for payment his own service, is excluded from the scope of that directive under Community law as it stands at present.

28. Although the judgment in Telaustria and Telefonadress was delivered in respect of a contract which had as its object services relating to one of the specific sectors governed by Directive 93-38, it can clearly be deduced from that judgment that public service concessions are excluded not only from the scope of Directive 93-38 but also from the scope of Directive 92-50 which is intended to apply to services in general.

29. Having regard both to the fact that there is no specific provision relating to public service concessions in Directive 92-50 and to the history of that directive's adoption, as it is related by the Court in paragraphs 46, 47 and 48 of the judgment in Telaustria and Telefonadress, it must be concluded that the Community legislature knowingly excluded such concessions from the scope of that directive. Therefore, the interpretation of the concept, appearing in Article 1(4) of Directive 93-38, of 'contracts for pecuniary interest concluded in writing' which was adopted in that judgment applies equally to the identical concept appearing in Article 1 of Directive 92-50.

30. The answer to the referring court's question must therefore be that a concession contract for public publishing services is excluded, under Community law as it stands at present, from the scope of Directive 92-50 even though, by reason of its specific object, it is covered by Annex I A to that directive to which Article 8 thereof refers.

Costs

31. The costs incurred by the French, Italian, Netherlands and Austrian Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Second Chamber),

ruling on the question referred to it by the Oberlandesgericht Düsseldorf by order of 2 August 2000, hereby orders:

A concession contract for public publishing services is excluded, under Community law as it stands at present, from the scope of Council Directive 92-50-EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by European Parliament and Council Directive 97-52-EC of 13 October 1997, even though, by reason of its specific object, it is covered by Annex I A to that directive to which Article 8 thereof refers.