| | 32004L0018: c3-12Contracts in the water, energy, transport and postal services sectors - Contracts awarded for purposes other than the pursuit of an activity covered or for the pursuit of such an activity in a third country    
| 32004L0018 - Classic (3rd generation) | Article 12 | Section 3
Excluded contracts
Article 12
Contracts in the water, energy, transport and postal services sectors
This Directive shall not apply to public contracts which, under Directive 2004/17/EC, are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and are awarded for the pursuit of those activities, or to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof.
However, this Directive shall continue to apply to public contracts awarded by contracting authorities carrying out one or more of the activities referred to in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar as the Member State concerned takes advantage of the option referred to in the second subparagraph of Article 71 thereof to defer its application. | | 32004L0017 - Utilities (3rd generation) | Article 20 | Article 20
Contracts awarded for purposes other than the pursuit of an activity covered or for the pursuit of such an activity in a third country
1. This Directive shall not apply to contracts which the contracting entities award for purposes other than the pursuit of their activities as described in Articles 3 to 7 or for the pursuit of such activities in a third country, in conditions not involving the physical use of a network or geographical area within the Community.
2. The contracting entities shall notify the Commission at its request of any activities which they regard as excluded under paragraph 1. The Commission may periodically publish in the Official Journal of the European Union for information purposes, lists of the categories of activities which it considers to be covered by this exclusion. In so doing, the Commission shall respect any sensitive commercial aspects that the contracting entities may point out when forwarding this information. | | 31993L0037 - Works (2nd generation) | Article 4.a | Article 4
This Directive shall not apply to:
(a) contracts awarded in the fields referred to in Articles 2, 7, 8 and 9 of Directive 90/531/EEC or fulfilling the conditions in Article 6 (2) of that Directive; | | 31993L0036 - Goods (2nd generation) | Article 2.1.a | Article 2
1. This Directive shall not apply to:
(a) contracts awarded in the fields referred to in Articles 2, 7, 8 and 9 of Directive 90/531/EEC or fulfilling the conditions in Article 6 (2) of that Directive; | | 31992L0050 - Services (2nd generation) | Article 1.a.ii | | (ii) contracts awarded in the fields referred to in Articles 2, 7, 8 and 9 of Directive 90/531/EEC or fulfilling the conditions in Article 6 (2) of the same Directive; | | 31993L0038 - Utilities (2nd generation) | Article 6.1+3 | Article 6
1. This Directive shall not apply to contracts or design contests which the contracting entities award or organize for purposes other than the pursuit of their activities as described in Article 2 (2) or for the pursuit of such activities in a non-member country, in conditions not involving the physical use of a network or geographical area within the Community.
.....
3. The contracting entities shall notify the Commission at its request of any activities they regard as excluded under paragraph 1. The Commission may periodically publish lists of the categories of activities which it considers to be covered by this exclusion for information in the Official Journal of the European Communities. In so doing, the Commission shall respect any sensitive commercial aspects the contracting entities may point out when forwarding this information. | | 31971L0305 - Works (1st generation) | Article 3.4-5 | 4. Public works contracts awarded by bodies which are governed by public law and which administer transport services shall not be subject to the provisions of this directive.
5. The provisions of this directive shall not apply to public works contracts awarded by the production, distribution, transmission or transportation services for water and energy. | | 31989L0440 - Fourth amendment of Works (1st generation) | Article 1.4=W-3.4.a-b+5 | 4. Article 3 ..... paragraphs 4 and 5 thereof are replaced by the following:
4. This Directive shall not apply to:
(a) works contracts awarded by carriers by land, air, sea or inland waterway;
(b) works contracts awarded by contracting authorities, in so far as those contracts concern the production, transport and distribution of drinking water, or those contracting authorities whose principal activity lies in the production and distribution of energy; | | 31977L0062 - Goods (1st generation) | Article 2.2 | 2. This directive shall not apply to:
(a) public supply contracts awarded by bodies which administer transport services;
(b) public supply contracts awarded by bodies which administer production, distribution and transmission or transport services for water or energy and telecommunications services. | | 31988L0295 - Second amendment of Goods (1st generation) | Article 3.2=G1-2.2 .a-b | 2. Paragraph 2 is replaced by the following:
2. This Directive shall not apply to:
(a) public supply contracts awarded by carriers by land, air, sea or inland waterway;
(b) public supply contracts awarded by contracting authorities in so far as those contracts concern the production, transport and distribution of drinking water or those contracting authorities whose principal activity lies in the production and distribution of energy, nor to those contracting authorities whose principal activity is to offer telecommunications services; | | A1990L0531 - Third joint amendment of Classical (1st generation) | Article 34.1=G-2.2.a & 34.2=W-3.4-5 | 1. Article 2 (2) of Directive 77/62/EEC is hereby replaced by the following:
2. This Directive shall not apply to:
(a) contracts awarded in the fields referred to in Articles 2, 7, 8 and 9 of Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (*) or fulfilling the conditions in Article 6 (2) of the said Directive;
......
(*) OJ No L 297, 29. 10. 1990, p. 1.
2. Article 3 (4) and (5) of Directive 71/305/EEC is hereby replaced by the following:
4. This Directive shall not apply to contracts awarded in the fields referred to in Articles 2, 7, 8 and 9 of Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in water, energy, transport and telecommunications sectors (*) or fulfilling the conditions in Article 6 (2) of the said Directive.
(*) OJ No L 297, 29. 10. 1990, p. 1. | | A1993L0038 - Fifth joint amendment of Classical (1st generation) | Article 43=G-2.2.a | Article 43
Article 2 (2) of Directive 77/62/EEC is hereby replaced by the following:
'2. This Directive shall not apply to:
(a) contracts awarded in the fields referred to in Articles 2, 7, 8 and 9 of Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (1) or fulfilling the conditions in Article 6 (2) of the said Directive;
.....
(1) OJ No L 297, 29. 10. 1990, p. 1.' | | 31990L0531 - Utilities (1st generation) | Article 6.1+3 | Article 6
1. This Directive shall not apply to contracts which the contracting entities award for purposes other than the pursuit of their activities as described in Article 2 (2) or for the pursuit of such activities in a non-member country, in conditions not involving the physical use of a network or geographical area within the Community.
.....
3. The contracting entities shall notify the Commission at its request of any activities they regard as excluded under paragraph 1. The Commission may periodically publish lists of the categories of activities which it considers to be covered by this exclusion, for information in the Official Journal of the European Communities. In so doing, the
Commission shall respect any sensitive commercial aspects the contracting entities may point out when forwarding this information. |
| Case | Pte | Ref | Text | C-393/06
Ing. Aigner | 23-33 | U3-2.2-impl
U3-20.1 | 23. By this question, the referring court asks whether a contracting entity within the meaning of Directive 2004/17, which carries on activities in one of the sectors listed in Articles 3 to 7 of that directive, is required to apply the procedure laid down in that directive for the award of contracts to the activities carried out by that entity in parallel, under competitive conditions, in sectors not governed by those provisions.
24. In order to answer that question, it must be noted that Directives 2004/17 and 2004/18 have noteworthy differences with regard both to the entities subject to the rules laid down in those respective directives and to their nature and scope.
25. With regard, firstly, to the entities to which the rules of those directives apply, it should be noted that, unlike Directive 2004/18 which, by virtue of the first subparagraph of Article 1(9) thereof, applies to contracting authorities', Directive 2004/17 refers, in Article 2 thereof, to contracting entities'. It is apparent from Article 2(2)(a) and (b) that Directive 2004/17 applies not only to contracting entities which are contracting authorities', but also to those which are public undertakings' or undertakings which operate on the basis of special or exclusive rights granted by a competent authority of a Member State', in so far as all those entities pursue one of the activities listed in Articles 3 to 7 thereof.
26. Secondly, it follows from Articles 2 to 7 of Directive 2004/17 that the coordination for which it provides does not extend to all spheres of economic activity, but relates to specifically defined sectors, which, moreover, is confirmed by the fact that that directive is commonly referred to as the sectoral directive'. However, the scope of Directive 2004/18 includes almost all sectors of economic life, thus justifying its being commonly known as the general directive'.
27. In such circumstances, it must be stated at this early stage that the general scope of Directive 2004/18 and the restricted scope of Directive 2004/17 require the provisions of the latter to be interpreted narrowly.
28. The boundaries between the fields of application of those two directives are also drawn by explicit provisions. Thus, Article 20(1) of Directive 2004/17 provides that the latter does not apply to contracts which the contracting entities award for purposes other than the pursuit of their activities as described in Articles 3 to 7 thereof. The equivalent of that provision in Directive 2004/18 is Article 12(1), which provides that that directive does not apply to public contracts which are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of Directive 2004/17.
29. Thus, the field of application of Directive 2004/17 is strictly circumscribed, which does not permit the procedures laid down therein to be extended beyond that field of application.
30. Consequently, the abovementioned provisions leave no room for application, in the context of Directive 2004/17, of the approach known as contagion theory' which was developed following the judgment in Mannesmann Anlagenbau Austria and Others. That judgment was given by the Court in the context of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54), that is to say in an area which at present falls within the ambit of Directive 2004/18.
31. Accordingly, as rightly observed by, inter alia, the Hungarian, Austrian and Finnish Governments and by the Commission of the European Communities, only those contracts awarded by an entity which is a contracting entity' within the meaning of Directive 2004/17, in connection with and for the exercise of activities in the sectors listed in Articles 3 to 7 of that directive, fall within the field of application thereof.
32. Moreover, that is the conclusion which emerges also from Joined Cases C462/03 and C463/03 Strabag and Kostmann [2005] ECR I5397, paragraph 37). In that judgment, the Court held that, if a contract does not concern the exercise of one of the activities governed by the sectoral directive, it will be governed by the rules laid down in the directives concerning the award of public supply, works or service contracts, as applicable.
33. Having regard to the foregoing, the answer to the first question must be that a contracting entity, within the meaning of Directive 2004/17, is required to apply the procedure laid down in that directive only for the award of contracts which relate to activities carried out by that entity in one or more of the sectors listed in Articles 3 to 7 of that directive. | C-462/03 & C-463/03
Strabag | 34-39 | U2-2.2
U2-6.1-impl | 34. By its two first questions, which may appropriately be dealt with together, the Bundesvergabeamt in substance raises the issue of the material scope of Directive 93/38. It is clear, both from the explanations given in the orders for reference and from the observations submitted to the Court, that by its questions concerning the meaning of the expressions operation' and provision' of transport networks, that body seeks to ascertain whether the infrastructure projects at issue in the main proceedings are among the activities mentioned in Article 2(2)(c) of the directive and whether the contracting entity may, as a result, derogate from the ordinary rules governing the award of procurement contracts laid down in Directive 93/37 in favour of those contained in Directive 93/38, authorising more extensive use of the negotiated procedure.
35. On this point it is first to be noted, that, according to Article 2(2)(a) of Directive 93/38, the latter applies to contracting entities which are public authorities or public undertakings and which exercise one of the activities referred to in paragraph 2 of that article.
36. Second, Article 4(1) of that directive makes it apparent that when awarding supply, works or service contracts, or organising design contests, the contracting entities are to apply procedures which are adapted to the provisions of the directive.
37. As the Commission has correctly noted in its written observations, reading those two provisions together shows that the applicability of Directive 93/38 depends on the activity exercised by the contracting entity concerned and on the links between that activity and the contract planned by that entity. If the latter carries on one of the activities listed in Article 2(2) of Directive 93/38, and in so doing contemplates, which it is a matter for the national court to verify, the award of a supply, works or service contract or the organisation of a design contest, the provisions of this directive will apply to that contract or contest. If the contracting entity does not carry on one of those activities, the contract or contest will be governed by the rules laid down in the directives concerning the award of public supply, works or service contracts as the case may be.
38. Furthermore, that interpretation is expressly supported both by the very wording of Article 6(1) of Directive 93/38, which states that the directive is not to apply to contracts or design contests which the contracting entities award or organise for purposes other than the pursuit of their activities as described in Article 2(2) of that directive and by reading the 13th recital in the preamble thereto, which states that the directive is not to extend to activities of those entities which either fall outside the water, energy, transport or telecommunications sectors or which fall within those sectors but are nevertheless directly exposed to competitive forces on markets to which entry is unrestricted.
39. Having regard to the foregoing considerations, the answer to be given to the two first questions referred in each of the cases in the main proceedings is that where a contracting entity exercising one of the activities mentioned in Article 2(2) of Directive 93/38 contemplates, in the exercise of that activity, the award of a supply, works or service contract or the organisation of a design contest, that contract or contest is governed by the provisions of this directive. | C-462/03 & C-463/03
Strabag | 40-43 | U2-2.2
U2-6.1-impl | 40. By its third question, which is worded identically in the two cases in the main proceedings, the national body seeks to ascertain, in substance, whether it is bound to refrain from applying a provision of domestic law that, contrary to the tenor of Article 2(2)(c) of Directive 93/38, provides that the provision of networks providing a service to the public in the field of transport by railway also constitutes an activity falling within a sector covered by that directive.
41. That question relies on the premiss that infrastructure works such as those at issue in the main proceedings do not fall within the material ambit of Directive 93/38, given that, according to the Bundesvergabeamt, such work must be treated as provision' of transport networks and that such activity does not appear among those expressly listed in Article 2(2)(c) of that directive.
42. Now that premiss is mistaken. As has been noted in paragraph 37 above, the applicability of Directive 93/38 depends on the activity exercised by the contracting entity concerned and on the links between that activity and the contract planned by that entity.
43. In the circumstances there is no need to answer the third question. | C-126/03
Germany | 21 | S2-1.a.ii
U2-2.2.a.i
U2-2.2.a.ii
U2-2.2.a.iii
U2-2.2.b
U2-2.2.c
U2-2.2.d
U2-7 | 21. The German Government also submits that, inasmuch as it was awarded for the purpose of resale to third parties, the contract at issue is excluded from the scope of Directive 92/50 by reason of Article 1(a)(ii) of that directive, read in conjunction with Article 7 of 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). In that regard, as the Advocate General observes at point 34 of his Opinion, it must be held that Article 1(a)(ii) of Directive 92/50 excludes from its scope contracts awarded in the fields covered by Directive 93/38, because the Community legislature wished those contracts to be covered only by Directive 93/38. The exception laid down in Article 7 of Directive 93/38 would therefore apply only if the contract at issue fell within the scope of that directive. Inasmuch as that contract does not come within the activities referred to in Article 2(2) of Directive 93/38, the exception laid down in Article 7 of that directive cannot apply in the present case. | C-328/92
Spain | 12-14 | G1-2.2
G1-3.a
G1-3.b
G1-3.c | It is sufficient to point out that, in paragraph 10 of its judgment in Case C-71/92 Commission v Spain [1993] ECR I-5923, the Court observed that the only permissible exceptions to the application of Directive 77/62 are those which are expressly and exhaustively mentioned in it.
However, Article 2(2) and Article 3 of Directive 77/62, which list the public supply contracts to which that directive does not apply, do not refer to contracts relating to pharmaceutical products and specialities. Moreover, as the Court held in that same judgment (paragraph 11), none of the exceptions authorized by the directive is defined by reference to the type of product in question or the legal rules applicable to it. | C-71/92
Spain | 10-11
22 | G1-2.2
G1-3.a
G1-3.b
G1-3.c
W1-3.4-5
W1-4.i1
W1-4.i2
W1-4.i3 | It is apparent from the ninth recital in the preamble to Directive 77/62 that: "... provision must be made for exceptional cases where measures concerning the coordination of procedures may not necessarily be applied, but such cases must be expressly limited". It follows that the only permitted exceptions to the application of Directive 77/62 are those which are exhaustively and expressly mentioned therein.
Articles 2(2) and 3 of Directive 77/62, which list the public supply contracts to which it does not apply, do not include those relating to the products referred to in Article 2, point 3, of the LCE and Article 2, point 3, of the RGCE. Moreover, as the Commission has correctly emphasized, none of the exceptions authorized by the directive is defined by reference to the type of, or the legal arrangements relating to, the product concerned, in contrast to the contested provisions of the Spanish legislation.
In the first place, as the Court has stated in paragraph 10 of this judgment, the only permitted exceptions to the application of Directive 77/62 are those exhaustively and expressly mentioned therein. That applies equally to Directive 71/305, the seventh recital in the preamble to which is identical to the ninth recital, previously quoted, in the preamble to Directive 77/62. | C-247/89
Portugal | 42-43 | W1-2.2.a | It is therefore not possible to accept the Commission' s argument, based on Article 2(2)(a) of Directive 77/62, that the concept of body which administers transport services should be interpreted restrictively.
In the light of all the foregoing considerations, and without its being necessary to rule on the other pleas in law advanced by the Portuguese Government in its defence, it must be held that ANA-EP, being a body which administers transport services within the meaning of Article 2(2)(a) of Directive 77/62, did not, at the time of the tendering procedure in issue, come within the scope of the directive and that accordingly the action for a declaration that Portugal has failed to fulfil its obligations under the Treaty is unfounded. | 45/87
Ireland | 10 | W1-3.5
W1-3.5
W1-na [NPL1C1-1.4] | 8 The Irish Government argues that the provisions of Directive 71/305 do not apply to the contract in question. It points out that Article 3 (5 ) of the directive provides that the directive is not to apply to "public works contracts awarded by the production, distribution, transmission or transportation services for water and energy ". There is no doubt that the contract in this case was a public works contract to be awarded by a public distribution service for water .
9 The Commission does not deny that fact but points out that Ireland requested the publication of the relevant notice in the Official Journal by reference to the obligatory publication of contract notices laid down by the directive. The Commission, in common with the Spanish Government, which intervened in support of its conclusions, considers that, having voluntarily brought itself within the scope of the directive, Ireland was obliged to comply with its provisions.
10. With regard to this point, the Irish Government's argument must be accepted. The actual wording of Article 3 (5) is wholly unambiguous, in so far as it excludes public works contracts of the type at issue from the scope of the directive. According to the preamble to the directive, that exception to the general application of the directive was laid down in order to avoid the subjection of distribution services for water to different systems for their works contracts, depending on whether they come under the State and authorities governed by public law or whether they have separate legal personality. There is no reason to consider that the exception in question no longer applies, and the reasons underlying it are no longer valid, where a Member State has a contract notice published in the Official Journal of the European Communities, whether through an error or because it initially intended to seek a contribution from the Community towards the financing of the work. | 45/87-R2
Ireland | 18-19 | W1-3.5
ECT-243 [ex 186] | 18 It does not appear that the first submission relied on by the commission can establish a prima facie case for the interim measures applied for. It is clear from the sixth recital in the preamble to directive 71/305/EEC read in conjunction with article 5 (3 ) [actually 3.5], which provides that : "the provisions of this directive shall not apply to public works contracts awarded by the production, distribution, transmission or transportation services for water and energy", that the public works contract no 4 of the Dundalk water supply augmentation scheme does not fall within the scope of that directive and is not subject to the requirements laid down therein.
19 As regards the commission’s second submission, it should be pointed out that once it is found that prima facie directive 71/305/EEC did not apply to the public works contract in question, Ireland’s arguments against the applicability of article 30 of the EEC treaty which it bases on the judgment in iannelli & volpi spa v meroni become wholly irrelevant. Furthermore, as the commission has rightly pointed out, secondary community legislation such as a directive cannot derogate from a directly applicable provision of the EEC treaty such as article 30. |
| Case | Pte | Ref | Text | N-981111
Vestergaard | 1 | W1-3.4-5
ECT-28 [ex 30] | 1. Dundalk-dommen angik et udbud af et projekt til transportering af drikkevand i rørledninger. I udbudet, der var blevet bekendtgjort i EF-tidende, var indeholdt en bestemmelse om, at rørledningerne skulle være i overensstemmelse med en nærmere angivet irsk standard. EF-domstolen statuerede, at udbudet ikke stred mod reglen om udformning af tekniske specifikationer i det dagældende bygge- og anlægsdirektiv, fordi de arbejder, som udbudet angik, i direktivet var undtaget fra udbudspligten. EF-domstolen statuerede imidlertid videre, at den omtalte bestemmelse i udbudet var en overtrædelse af Traktatens artikel 30 om varernes frie bevægelighed. | N-981110
Dansk Taxi Forbund | 1+K1-2 | S2-1.a.ii
U2-2.2.c-impl
U2-6.1+3
KNL1C1-5.1.s1.p3-impl | 1. Efter karakteren af den ydelse, indklagede udbød, samt den måde, hvorpå de efter individuelt indgåede kontakter forventedes opfyldt, finder Klagenævnet, at udbudet burde være sket efter reglerne i Tjenesteydelsesdirektivet. Klagenævnet finder dog ikke grundlag for at tilsidesætte det skete udbud.
K1. Det af indklagede, Århus Amt foretagne udbud af handicapkørsel burde være sket efter udbudsreglerne i Tjenesteydelsesdirektivet.
K2. Det af indklagede foretagne udbud ophæves ikke.
[Sagsfremstillingen: Ved udbudsbekendtgørelse afsendt til EU–Tidende den 5. december 1997 udbød blandt andre indklagede (Århus Amt) som offentligt udbud efter reglerne i Forsyningsvirksomhedsdirektivet handicapkørslen i Århus Amt.]
[Note that KNL refers only to the type of service procured and not to the field of activity of the procuring authority] | N-970912
Abtech | 1 | U2-6.1+3-impl | 1. Det er muligvis tvivlsomt, om sagen skal bedømmes i henhold til EU's forsyningsvirksomhedsdirektiv 93/38, hvilket forudsætter, at etablering af læskærme er et naturligt led i Sydbus' busdrift. Da parterne imidlertid er enige om, at sagen skal bedømmes efter forsyningsvirksomhedsdirektivet, og da spørgsmålet er uden reel betydning for sagens afgørelse, lægger Klagenævnet til grund, at sagen er omfattet af forsyningsvirksomhedsdirektivet. | N-951025
Siemens | 1-2 | G2-2.1.a-impl
U2-6.1+3-impl
U2-34.2-impl | 1. Efter indholdet af kommunens udbudsbrev af 11. november 1994 og de forklaringer, som afdelingsingeniør Preben Thomsen og især akademiingeniør Niels Chresten Johannessen har afgivet om det anlæg, der blev udbudt, finder klagenævnet – ligesom parterne – at udbuddet skulle være sket efter Rådets direktiv nr. 93/36/EØF om samordning af fremgangsmåderne ved offentlige indkøb. Klagenævnet træffer derfor afgørelse i overensstemmelse med klagerens påstand I,1 og II,1.
[From facts and procedure: Afdelingsingeniør Preben Thomsen, Esbjerg Kommune, har forklaret, at kommunen i 1989 anskaffede et signalanlæg, som i de følgende år blev udvidet. I 1994 besluttede kommunen i samråd med Vejdirektoratet på baggrund af bl.a. erfaringer fra udlandet at anskaffe et overordnet styresystem til signalsystemet med henblik på ved minimering af stop og ventetid samt benzinforbrug at sikre en optimal trafikafvikling og en minimal miljøpåvirkning.]
2. Som følge heraf annullerer klagenævnet endvidere kommunens beslutning om at foretage udbud efter Rådets direktiv nr. 93/38/EØF om fremgangsmåderne ved tilbudsgivning inden for vand- og energiforsyning samt transport og telekommunikation. Klagenævnet bemærker i øvrigt, at det er i strid med det pågældende direktiv, at kommunen har forbeholdt sig at vælge »frit« ud fra de angivne kriterier. | N-920812
Niels Fryland | 1 | G1A2-3.2=G1-2.2 | Efter Rådsdirektiv af 21. september 1976 (77/62) som affattet ved Rådsdirektiv af 22. marts 1988 (88/295) art. 2 er offentlige indkøbsaftaler, som indgås af land, luft, sø og flodtransportvirksomheder, ikke omfattet af direktivet. |
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