Stadt Euskirchen v Rhenus Veniro GmbH & Co. KG (C-253/18)

Contents

Judgment of the Court (Tenth Chamber)8 May 2019^note(Reference for a preliminary ruling — Transport — Public passenger transport services by rail and by road — Regulation (EC) No 1370/2007 — Article 5(1) and (2) — Direct award — Contracts for public passenger transport services by bus and by tram — Conditions — Directive 2014/24/EU — Article 12 — Directive 2014/25/EU — Article 28)In Case C‑253/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany), made by decision of 7 March 2018, received at the Court on 12 April 2018, in the proceedingsStadt EuskirchenvRhenus Veniro GmbH & Co. KG,interveners:SVE Stadtverkehr Euskirchen GmbH,RVK Regionalverkehr Köln GmbH,THE COURT (Tenth Chamber),composed of C. Lycourgos, President of the Chamber, E. Juhász (Rapporteur) and I. Jarukaitis, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– the Stadt Euskirchen, by S. Schaefer and J. Manka, Rechtsanwälte,– Rhenus Veniro GmbH & Co. KG, by C. Antweiler, Rechtsanwalt,– the European Commission, by W. Mölls, P. Ondrůšek and J. Hottiaux, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 5 of Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1).

2The request has been made in proceedings between the Stadt Euskirchen (City of Euskirchen, Germany) and Rhenus Veniro GmbH & Co. KG (‘Rhenus Veniro’) regarding the intended direct award of a public passenger transport service by bus and other vehicles.

Legal context

Regulation No 1370/2007

3Article 2 of Regulation No 1370/2007, headed ‘Definitions’, is worded as follows:‘For the purpose of this Regulation:(a) “public passenger transport” means passenger transport services of general economic interest provided to the public on a non-discriminatory and continuous basis;(b) “competent authority” means any public authority or group of public authorities of a Member State or Member States which has the power to intervene in public passenger transport in a given geographical area or any body vested with such authority;…(h) “direct award” means the award of a public service contract to a given public service operator without any prior competitive tendering procedure;…(j) “internal operator” means a legally distinct entity over which a competent local authority, or in the case of a group of authorities at least one competent local authority, exercises control similar to that exercised over its own departments;…’

4Article 4(7) of that regulation provides:‘Tender documents and public service contracts shall indicate, in a transparent manner, whether, and if so to what extent, subcontracting may be considered. If subcontracting takes place, the operator entrusted with the administration and performance of public passenger transport services in accordance with this Regulation shall be required to perform a major part of the public passenger transport services itself. …’

5Article 5 of that regulation, headed ‘Award of public service contracts’, provides:1. Public service contracts shall be awarded in accordance with the rules laid down in this Regulation. However, service contracts or public service contracts as defined in Directives 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),] or 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)] for public passenger transport services by bus or tram shall be awarded in accordance with the procedures provided for under those Directives where such contracts do not take the form of service concessions contracts as defined in those Directives. Where contracts are to be awarded in accordance with Directives [2004/17] or [2004/18], the provisions of paragraphs 2 to 6 of this Article shall not apply.2.Unless prohibited by national law, any competent local authority, whether or not it is an individual authority or a group of authorities providing integrated public passenger transport services, may decide to provide public passenger transport services itself or to award public service contracts directly to a legally distinct entity over which the competent local authority, or in the case of a group of authorities at least one competent local authority, exercises control similar to that exercised over its own departments. Where a competent local authority takes such a decision, the following shall apply:…(b) the condition for applying this paragraph is that the internal operator and any entity over which this operator exerts even a minimal influence perform their public passenger transport activity within the territory of the competent local authority, notwithstanding any outgoing lines or other ancillary elements of that activity which enter the territory of neighbouring competent local authorities, and do not take part in competitive tenders concerning the provision of public passenger transport services organised outside the territory of the competent local authority;…(e) if subcontracting under Article 4(7) is being considered, the internal operator shall be required to perform the major part of the public passenger transport service itself.3. Any competent authority which has recourse to a third party other than an internal operator, shall award public service contracts on the basis of a competitive tendering procedure, ……’

6Article 7 of that regulation, headed ‘Publication’, provides, in Article 7(2):‘Each competent authority shall take the necessary measures to ensure that, at least one year before the launch of the invitation to tender procedure or one year before the direct award, the following information at least is published in the Official Journal of the European Union:(a) the name and address of the competent authority;(b) the type of award envisaged;(c) the services and areas potentially covered by the award.…’

Directive 2014/23

7Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1) entered into force on 17 April 2014 and its provisions were required to be transposed by Member States prior to 18 April 2016.

8Article 5 of that directive, headed ‘Definitions’, provides:‘For the purposes of this Directive the following definitions apply:(1) “concessions” means works or services concessions, as defined in points (a) and (b):(a) “works concession” means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the execution of works to one or more economic operators[,] the consideration for which consists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment;(b) “services concession” means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services other than the execution of works referred to in point (a) to one or more economic operators, the consideration [for] which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment.…’

Directive 2014/24

9Article 12 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), headed ‘Public contracts between entities within the public sector’, provides:1.A public contract awarded by a contracting authority to a legal person governed by private or public law shall fall outside the scope of this Directive where all of the following conditions are fulfilled:(a) the contracting authority exercises over the legal person concerned a control which is similar to that which it exercises over its own departments;(b) more than 80% of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or by other legal persons controlled by that contracting authority; and(c) there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.A contracting authority shall be deemed to exercise over a legal person a control similar to that which it exercises over its own departments within the meaning of point (a) of the first subparagraph where it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person. Such control may also be exercised by another legal person, which is itself controlled in the same way by the contracting authority.2. Paragraph 1 also applies where a controlled legal person which is a contracting authority awards a contract to its controlling contracting authority, or to another legal person controlled by the same contracting authority, provided that there is no direct private capital participation in the legal person being awarded the public contract with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.3.A contracting authority, which does not exercise over a legal person governed by private or public law control within the meaning of paragraph 1, may nevertheless award a public contract to that legal person without applying this Directive where all of the following conditions are fulfilled[:](a) the contracting authority exercises jointly with other contracting authorities a control over that legal person which is similar to that which they exercise over their own departments;(b) more than 80% of the activities of that legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authorities or by other legal persons controlled by the same contracting authorities; and(c) there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.For the purposes of point (a) of the first subparagraph, contracting authorities exercise joint control over a legal person where all of the following conditions are fulfilled:(i) the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities. Individual representatives may represent several or all of the participating contracting authorities;(ii) those contracting authorities are able to jointly exert decisive influence over the strategic objectives and significant decisions of the controlled legal person; and(iii) the controlled legal person does not pursue any interests which are contrary to those of the controlling contracting authorities.4.A contract concluded exclusively between two or more contracting authorities shall fall outside the scope of this Directive where all of the following conditions are fulfilled:(a) the contract establishes or implements a cooperation between the participating contracting authorities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common;(b) the implementation of that cooperation is governed solely by considerations relating to the public interest; and(c) the participating contracting authorities perform on the open market less than 20% of the activities concerned by the cooperation.5. For the determination of the percentage of activities referred to in point (b) of the first subparagraph of paragraph 1, point (b) of the first subparagraph of paragraph 3 and point (c) of paragraph 4, the average total turnover, or an appropriate alternative activity-based measure such as costs incurred by the relevant legal person or contracting authority with respect to services, supplies and works for the three years preceding the contract award shall be taken into consideration.Where, because of the date on which the relevant legal person or contracting authority was created or commenced activities or because of a reorganisation of its activities, the turnover, or alternative activity[-]based measure such as costs, are either not available for the preceding three years or no longer relevant, it shall be sufficient to show that the measurement of activity is credible, particularly by means of business projections.’

Directive 2014/25

10Article 11 of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243), headed ‘Transport services’, provides:‘This Directive shall apply to activities relating to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable.As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to made available or the frequency of the service.’

11Article 28 of Directive 2014/25, headed ‘Contracts between contracting authorities’, lays down provisions which are the same, in essence, as those contained in Article 12 of Directive 2014/24, as set out in paragraph 9 of the present judgment.

The dispute in the main proceedings and the question referred for a preliminary ruling

12The City of Euskirchen is a competent authority within the meaning of Article 2(b) of Regulation No 1370/2007.

13On 8 December 2016, in accordance with Article 7(2) of that regulation, the City of Euskirchen arranged to have published in the Supplement to the Official Journal of the European Union a prior information notice concerning the intended direct award of a contract for a public passenger transport service by bus and other vehicles which did not take the form of a service concession contract, pursuant to Article 5(2) of that regulation.

14In terms of that prior information notice, that contract, which covered an annual distance of more than a million kilometres, was to be awarded to SVE Stadtverkehr Euskirchen GmbH (‘SVE’), a company wholly owned by the City of Euskirchen, for a period of 120 months from 1 January 2019.

15Since SVE had neither vehicles nor drivers to perform the public contract itself, it indicated that it intended to conclude a subcontract with RVK Regionalverkehr Köln GmbH (‘RVK’), a company providing transport services throughout the area covered by the Zweckverband Verkehrsverbund Rhein-Sieg (Joint Municipal Transport Association of Rhein-Sieg, Germany).

16RVK is 12.5% owned by Kölner Verkehrsbetriebe AG, Kreisholding Rhein Sieg GmbH, Rhein-Erft Verkehrsgesellschaft mbH, Elektrische Bahn der Stadt Bonn und des Rhein Sieg Kreises SBB GmbH (SBB GmbH) and Stadtwerke Bonn Verkehrs GmbH, as well as by the Kreis Euskirchen (District of Euskirchen, Germany) and the Rheinisch-Bergischer Kreis (District of Rhein-Berg, Germany) respectively. The remaining shares are owned by the Oberbergischer Kreis (District of Oberberg, Germany) (2.5%) and by the subcontractor itself (10%).

17In 2016, SVE accepted the offer made to it to acquire 2.5% of the shares in RVK on 1 January 2019, the commencement date of the performance of the public contract of which the award was envisaged.

18Rhenus Veniro brought an action challenging the intended direct award before the competent Vergabekammer (Public Procurement Board, Germany).

19By decision of 16 May 2017, the Vergabekammer (Public Procurement Board) prohibited the City of Euskirchen from awarding the contract to SVE.

20In that regard, the Vergabekammer (Public Procurement Board) firstly argued that SVE did not fulfil the criterion of personal performance of the transport contract, laid down in Article 5(2) of Regulation No 1370/2007. Next, it stated that RVK performed transport services in other areas than that administered by the City of Euskirchen, which was contrary to those provisions. Finally, it highlighted that RVK’s activities could not be attributed to SVE, since the latter would own only 2.5% of RVK as at 1 January 2019.

21SVE brought an action before the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany) appealing the decision of the Vergabekammer (Public Procurement Board), arguing that the latter had incorrectly applied Article 5 of Regulation No 1370/2007, since RVK was subject to the joint control of competent authorities and it performed its services within the territory of those authorities.

22The Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf) points out, by way of a preliminary point, that the outcome of the dispute depends on the answer which the Court gives to the requests for a preliminary ruling made of it in Joined Cases Verkehrsbetrieb Hüttebräucker and Rhenus Veniro (C‑266/17 and C‑267/17), relating to the question of the applicability of Article 5(2) of Regulation No 1370/2007 to public contracts which are not service concessions.

23In the event that the Court were to answer that question in the affirmative, the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf) asks whether Article 5(2) of Regulation No 1370/2007 is intended to apply where the internal operator has the major part of the contract awarded to it carried out by a company of which it owns only 2.5% of the share capital, the remainder of the share capital belonging, directly or indirectly, to other competent authorities.

24In those circumstances, the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:‘Does Article 5(2)(e) of Regulation No 1370/2007, which lays down the requirement to perform the major part of the public passenger transport service itself, prevent the internal operator from having that major part of the service performed by a company in which it has a 2.5% holding and the remaining shares are held directly or indirectly by other competent authorities?’

Consideration of the question referred

25By its question, the referring court asks the Court, in essence, whether Article 5(2) of Regulation No 1370/2007 is applicable to the direct award of a contract relating to a public passenger transport service by bus which does not take the form of a concession contract and, if it does, if that provision allows the internal operator to have the major part of that service carried out by a company of which it owns only 2.5% of the share capital.

26In that regard, it should be highlighted that the Court has already held, with regard to contracts normally falling within the substantive and temporal scope of Directive 2004/17 or Directive 2004/18, that direct awards of contracts relating to public passenger transport services by bus which did not take the form of concession contracts within the meaning of those directives were subject not to Article 5(2) of Regulation No 1370/2007, but to the direct awards regime which was developed on the basis of those directives (see, to that effect, judgment of 21 March 2019, Verkehrsbetrieb Hüttebräucker and Rhenus Veniro, C‑266/17 and C‑267/17, EU:C:2019:241, paragraphs 73 to 76).

27With regard to Directives 2014/24 and 2014/25, which repealed and replaced Directives 2004/18 and 2004/17 respectively, and which, unlike the latter two directives, no longer define the concept of ‘concession contract’, which is now governed by Directive 2014/23, the Court pointed out that those two directives (in Article 12 of Directive 2014/24 and Article 28 of Directive 2014/25) codified and made clear the case-law developed by the Court on direct awards, which demonstrates that the EU legislature intended that direct award regime to be linked to those two directives (see, to that effect, judgment of 21 March 2019, Verkehrsbetrieb Hüttebräucker and Rhenus Veniro, C‑266/17 and C‑267/17, EU:C:2019:241, paragraphs 77 and 78).

28In this case, the prior information notice relating to the intended direct award of the contract for a public passenger transport service by bus and other vehicles at issue in the main proceedings was published on 8 December 2016, when, as at that date, Directives 2014/24 and 2014/25 were already applicable, given that the period of time laid down for their transposition had expired.

29In view of the foregoing, the answer to the question referred is that Article 5(2) of Regulation No 1370/2007 must be interpreted as meaning that it does not apply to the direct award of contracts relating to public transport services by bus which do not take the form of concession contracts within the meaning of Directive 2014/23.

Costs

30Since 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. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Tenth Chamber) hereby rules: Article 5(2) of Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 must be interpreted as meaning that it is not applicable to the direct award of contracts relating to public transport services by bus which do not take the form of concession contracts within the meaning of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts.