| | 32004L0017: u3-23.2Not apply to contracts    
| 32004L0017 - Utilities (3rd generation) | Article 23.2 | 2. Provided that the conditions in paragraph 3 are met, this Directive shall not apply to contracts awarded:
(a) by a contracting entity to an affiliated undertaking, or
(b) by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out activities within the meaning of Articles 3 to 7, to an undertaking which is affiliated with one of these contracting entities. | | 31993L0038 - Utilities (2nd generation) | Article 13.1.1.a-b | 1. This Directive shall not apply to service contracts which:
(a) a contracting entity awards to an affiliated undertaking;
(b) are awarded by a joint venture formed by a number of contracting entities for the purpose of carrying out a relevant activity within the meaning of Article 2 (2) to one of those contracting entities or to an undertaking which is affiliated with one of these contracting entities, |
| Case | Pte | Ref | Text | C-340/04
Carbotermo | 50-57 | U2-13 | 50. The order for reference indicates that the contract at issue in the main proceedings falls within the scope of Directive 93/36 .
51. The issue is thus whether the exception provided for in Article 13 of Directive 93/38 should be applied by analogy in the scope of application of Directive 93/36 .
52. The exception provided for in Article 13 relates only to service contracts and does not include supply contracts.
53. Article 13 of Directive 93/38 covers entities, particularly joint ventures and undertakings whose annual accounts are consolidated and whose methods of operating are different from those of the contracting authorities covered by Directive 93/36 .
54. That article, moreover, contains a mechanism for notifying the Commission, which cannot be transposed to Directive 93/36 because there is no legal basis for doing so.
55. As exceptions must be interpreted restrictively, the Court does not find it appropriate to extend the application of Article 13 of Directive 93/38 to the scope of application of Directive 93/36 .
56. This finding is supported by the fact that, during the reform of the public procurement directives in 2004, the Community legislature, whilst maintaining that exception in Article 23 of Directive 2004/17 /EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1), chose not to incorporate an analogous exception in Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), which replaced Directive 93/36 .
57. In the light of all of the foregoing, the answer to the first part of the second question must be that Article 13 of Directive 93/38 must not be applied in the assessment of the requirement relating to the inapplicability of Directive 93/36 , according to which the undertaking to which a supply contract was awarded directly must carry out the essential part of its activities with the controlling authority. |
|
|
