C-410/04, ANAV v. Bari and AMTAB

The Court of Justice yesterday held that national legislation which allows a public authority to award a contract for the provision of a public service directly to a company of which it wholly owns the share capital is not incompatible with Articles 43, 49 and 86 EC or the principles of equal treatment and non-discrimination on grounds of nationality and transparency.

This is provided however that the public authority exercises over that company a control which is similar to that exercised over its own departments. Furthermore, the company concerned must carry out the essential part of its activities with the controlling authority.

This judgement is a further refinement of the Court’s Teckal- case law and comes as no suprise after recent cases such as Stadt Halle, Telaustria and Telefonadress, Coname, and (especially) Parking Brixen (links below).

In the present case the municipality of Bari had, on 17 July 2003, initiated a tendering procedure for the award of the service contract for public transport in that municipality, but had abandoned that procedure a couple months later, to subsequently award the service contract in question directly to AMTAB Servizio, a company wholly owned by the Municipality. ANAV applied for annulment of this later decision on the ground that it constituted an infringement of Community law. The national court referred for a preliminary ruling.

The Court, referring to the case law mentioned below, held that public service concessions are excluded from the scope of Council Directive 92/50/EEC, as replaced by Directive 2004/18/EC (Article 17 of which expressly excludes service concessions from its scope of application), but reiterated that the public authorities concluding those concessions must nevertheless comply with the fundamental rules of the EC Treaty, in general, and Articles 43 EC, 49 EC and 86 EC, and the principles of equal treatment, non-discrimination on grounds of nationality and transparency, in particular.

The Court however reiterated that these principles do not apply “if the control exercised over the concessionaire by the concession-granting public authority is similar to that which the authority exercises over its own departments and if, at the same time, that entity carries out the essential part of its activities with the controlling authority.” (para. 24, see also Parking Brixen, para. 62)

Text of Judgement

Relevant case law
Case C‑324/98, Telaustria and Telefonadress [2000] ECR I-10745
Case C-107/98, Teckal, ECR [1999] I-8121
Case C-26/03, Stadt Halle, [2005] ECR I-1