The creation of a union by communities transferring their jurisdiction does not constitute a public contract
CJEU, 21 December 2016, Remondis GmbH & Co. KG North Region c. Region Hannover, aff. C-51-15
The Hanover region and the municipality of Hanover have created a trade union, to which the region has transferred its responsibility for the removal of waste. In addition, the two communities provided him, free of charge, with their respective means in carrying out the tasks of garbage collection, street cleaning and winter services. Remondis, a company active in the waste sector, has submitted a request for a public procurement audit to the German courts, arguing that the creation of the union and the transfer of missions to it by the region and the municipality constitute a public contract. It is in this context that the CJEU has been seized of questions for a preliminary ruling, allowing it to clarify the concept of public procurement in the context of relations between public entities.
Rule 1: Transfer of powers between public entities does not, in principle, constitute a public contract
One of the questions referred for a preliminary ruling concerned the possible qualification in the public market of an agreement between two communities on the basis of which they create a trade union and attribute to it certain powers that they had previously invested. In this respect, the CJEU holds that a transfer of jurisdiction from one public entity to another does not fulfill the conditions of the concept of a public contract. Indeed, the Court reiterates that only a contract entered into for consideration may constitute a public contract. The synallagmatic nature of the contract is thus an essential characteristic of a public contract. In addition, the Court emphasizes that the fact that a public authority is relieved of a jurisdiction previously vested in it removes, on its part, any economic interest in carrying out the tasks which correspond to that competence.
Rule No. 2: Reallocation of resources and assuming possible excess costs do not constitute a remuneration
In this case, the region and the municipality had reassigned to the union their means dedicated to the removal of waste. The CJEU considers that this transfer of resources is the mere consequence of the transfer of powers and can not be analyzed as the payment of a price. On the other hand, the communities committed themselves to bear the cost of the potential cost overruns in relation to the revenues that could result from the exercise of the transferred jurisdiction. The Court considers that this undertaking does not constitute either a form of remuneration, but a guarantee intended for third parties, whose necessity derives from the principle according to which a public authority can not be the subject of insolvency proceedings.
Rule 3: Conditions for a transfer of jurisdiction not to be a public contract
However, the Court sets conditions for the transfer of jurisdiction to be considered as such. First, the transfer of jurisdiction must relate to the responsibilities related to the transferred jurisdiction, including the obligation to perform the duties that that competence entails. Next, the transfer of jurisdiction must relate to the powers which are the corollary of that jurisdiction. Thus, the authority that is transferred a jurisdiction must have the power to organize the execution of the missions that fall within this competence, establish the regulatory framework relating to these missions and have financial autonomy to ensure the funding. This will not be the case if the initially competent authority retains primary responsibility for the said tasks, if it exercises financial control over them, or if it must first approve the decisions of the entity it appoints. Nevertheless, the Court emphasizes that this does not mean that the entity to which the jurisdiction has been transferred is exempt from any influence of another public entity.
JUDGMENT OF THE COURT (Third Chamber)
December 21, 2016 (*)
" Reference for a preliminary ruling - Article 4 (2) TEU - Respect for the national identities of the Member States in their fundamental political and constitutional structures, including with regard to local and regional self-government - Internal organization of the Member States - Local and regional authorities - Legal instrument establishing a new public-law entity and organizing the transfer of powers and responsibilities for the execution of public tasks - Public procurement - Directive 2004/18 / EC - Article 1 (2) (a) - Concept of "public market"
In Case C-51/15,
REFERENCE for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht Celle (Higher Regional Court of Celle, Germany), made by decision of 17 December 2014, received at the Court on 6 February 2015, in the the procedure
Remondis GmbH & Co. KG North Region
in the presence of:
Zweckverband Abfallwirtschaft Region Hannover,
THE COURT (Third Chamber),
composed of L. Bay Larsen, President of the Chamber, MM. Mr Vilaras, Mr J. Malenovský, Mr Safjan and Mr D. Šváby (Rapporteur), Judges,
Advocate General: Mr P. Mengozzi
Registrar: MK Malacek, Administrator,
having regard to the written procedure and following the hearing on 20 April 2016,
considering the comments submitted:
- for Remondis GmbH & Co. KG North Region, by Mes Mr Figgen and R. Schäffer, Rechtsanwälte,
- Region Hannover, by Mr H. Jagau, Regionspräsident, and Mre R. Van der Hout, advocaat, and by Mes T. Mühe and M. Fastabend, Rechtsanwälte,
- for the Zweckverband Abfallwirtschaft Region Hannover, by Mes W. Siederer and L. Viezens, Rechtsanwälte,
- for the French Government, by Mr D. Colas and Mrme J. Bousin, acting as Agents,
- the Austrian Government, by M. Fruhmann, acting as Agent,
- for the European Commission, by Mme A. C. Becker and A. Tokar, acting as Agents,
after hearing the Opinion of the Advocate General at the hearing on 30 June 2016,
makes the present
1- The reference for a preliminary ruling concerns the interpretation of Article 1st(2) (a) of 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, and corrigendum OJ 2004 L 351, p.44).
2- This application was made in the context of a dispute between Remondis GmbH & Co. KG North Region (hereinafter "Remondis") in the Hannover Region (Hanover Region, Germany) concerning the legality of the transfer by the latter of the waste removal and treatment missions for which it was responsible at the Zweckverband Abfallwirtschaft Region Hannover (trade union of the Hannover Region, Germany, hereinafter the "Union of HR Communities").
The legal framework
3- According to Article 1st(2) (a) of Directive 2004/18, which is applicable to the dispute in the main proceedings, for the purposes of the dispute, 'the' public contracts' are for-hire contracts concluded in writing between one or more economic operators and one or more contracting authorities, whose object is the performance of works, the supply of goods or the provision of services within the meaning of this Directive ".
4- Directive 2014/24 / EU of the European Parliament and of the Council of 26 February 2014 on the award of public contracts and repealing Directive 2004/18 / EC (OJ 2014 L 94, p. Directive 2004/18 with effect from 18 April 2016.
5- Recital 4 of Directive 2014/24 states:
" The increasingly diverse forms of public action have made it necessary to define more clearly the very concept of public procurement. This clarification should not, however, extend the scope of this Directive to that of Directive 2004/18 / EC. The Union's public procurement rules are not intended to cover all forms of expenditure of public funds, but only those for the acquisition of works, supplies or services for consideration by means of public funds. a public contract. [...]
6- Article 1stparagraph 6 of that directive provides:
" Agreements, decisions or other legal instruments which organize the transfer of powers and responsibilities for the performance of public tasks between contracting authorities or groups of contracting authorities and which do not provide for the payment of contractual services shall be considered as falling within the internal organization of the Member State concerned and, as such, are in no way affected by this Directive. "
7- In accordance with federal waste legislation and the Niedersächsische Abfallgesetz (Lower Saxon Waste Law), both in its version in force at the time of the creation of the Union of HR Communities, a stakeholder in the In the main proceedings, as in the version currently in force, the task of waste treatment falls to the local authorities designated by the latter law or to the unions founded by those communities.
8- The Niedersächsische Zweckverbandsgesetz (Lower Saxony Trade Unions Act), in the version in force at the time of the creation of the Syndicat de collectivités RH, provided, in Article 1st, that the municipalities and the associations of communes can meet in unions (voluntary unions) or be united in unions (compulsory unions) for the common execution of certain missions which they have the right or the obligation of undertake. In this case, in accordance with Article 2 (1) of this Law, the rights and obligations relating to the performance of these tasks shall be transmitted to the trade union.
9- Under Article 4 of the said law, such unions constitute public-law entities which administer themselves and on their own responsibility.
10- Article 29 (1) of that law requires local and regional authorities which are members of a trade union to pay annual contributions in so far as the other receipts of the trade union are not sufficient to cover the costs related to its tasks.
11- The Niedersächsisches Gesetz über die kommunale Zusammenarbeit (Lower Saxony law on inter-municipal co-operation), currently in force, contains comparable provisions. It follows, in particular, that the communities transferring missions to a union are, to that extent, relieved of the obligation to perform them.
The dispute in the main proceedings and the questions referred for a preliminary ruling
12- In accordance with federal legislation and the legislation of Land Niedersachsen (Land of Lower Saxony, Germany) with regard to waste, the region of Hanover and Stadt Hannover (city of Hanover) had jurisdiction over and waste treatment in the territories of, respectively, the former Landkreis Hannover (Hanover district) and the city of Hanover.
13- In the perspective of a reorganization envisaged by these two communities, initially on November 29, 2002, the city of Hanover transferred its own competence to the region of Hanover. In a second step, on the following 19 December, the said authorities adopted together the Verbandsordnung of the Zweckverbandes Abfallwirtschaft Region Hannover (Regulation on the Hanover Community Trade Union, hereinafter the "Regulation on the Syndicat de collectivités RH"), by which they organized the operation of this union, a new public-law entity that the two founding communities invested with various powers, some of which were initially common to these communities and others specific to each, and which was substituted for the Hanover region for waste removal. This entity was incorporated on 1st January 2003.
14- In order to enable the accomplishment of the missions of which the Union of HR Communities was invested, pursuant to Article 5 of the Regulation on the Syndicat de collectivités RH, the region of Hanover and the city of Hanover provided the latter with , free of charge, their respective entities responsible for the accomplishment of the tasks of removal of waste, cleaning of the road and winter services, and the region of Hanover has yielded 94,9 % shares of Abfallentsorgungsgesellschaft Region Hannover mbH, a waste treatment company for this region, until then fully owned by this region.
15- For the same purpose, Article 4 (5) of the Regulation on the Syndicat de collectivités RH also enables the latter to use the services of third parties for the performance of its tasks and to take, for that purpose , holdings in companies and entities, as permitted by Article 22 of the Kreislaufwirtschaftsgesetz (Waste Recycling Act).
16- Article 4 (4) of that regulation provides that the Syndicat de collectivités RH shall dispose of the waste in order to upgrade it and may conclude contracts with mixed systems. (Dual system) to collect packaging, which can be transferred to Abfallentsorgungsgesellschaft Region Hannover.
17- In accordance with Article 4 (6) of that regulation, that trade union is empowered to adopt statutory and regulatory provisions relating in particular to the imposition of fees.
18- According to Article 7 of the Regulation on the Syndicat de collectivités RH, the assembly of the latter is composed of the persons in charge of the administration of the Hanover region and the city of Hanover, who are bound by the instructions given by the community they represent. These officials have the right to vote at this meeting with respect to the skills that have been transferred by the community they represent.
19- Article 8 of this by-law provides that the said assembly is competent, inter alia, to modify it and elect the person responsible for the management of the Syndicat de collectivités RH.
20- In accordance with Article 16 of the Regulation, this union must, in the long term, at least cover its costs through its revenue. However, in the event of a shortfall in revenues relative to its costs, the communities that constitute it are required to pay a contribution determined annually to offset the losses.
21- It follows from the order for reference that the transfer of mission linked to the creation of a voluntary or compulsory union results in a loss of competence in this respect on the part of the member communities of the union.
22- In 2011, the ninth year of operation of the Syndicat de collectivites RH, the latter and Abfallentsorgungsgesellschaft Region Hannover achieved, jointly, a turnover of 189,020,912 euros, of which 11,232,173.89 euros (or , approx. 6 %) from commercial transactions with third parties. According to the forecasts for the year 2013, the corresponding amounts would be respectively 188,670,370.92 euros and 13,085,190.85 euros.
23- Remondis, a commercial company active in the waste sector, has submitted a request for a public procurement audit which is currently before the national court.
24- Remondis considers that the global operation consisting in the foundation of this union and the concomitant transfer of missions to it by the territorial communities which are members of it constitute a public contract within the meaning of Article 1st(2) (a) of Directive 2004/18, even if, initially, this operation did not fall within the rules on public procurement, since it fell within the scope of the exception identified by the judgment of 18 November 1999, Teckal (C-107/98, EU: C: 1999: 562, paragraph 50). Indeed, the two conditions required under this exception were met, namely, first, the exercise, by the public entity that awards a contract, on the person it instructs to perform this market, a control similar to that which this entity exercises over its own services and, on the other hand, the realization, by this person, of the bulk of its activity with the said public entity. However, according to Remondis, given the significant turnover that the Syndicat de collectivites RH has been making since 2013 with third-party entities, this union would no longer carry out most of its activity with the communities that manage it. have founded. It concludes that the said overall transaction must now be regarded as an unlawful award of public contracts and, therefore, as void. Therefore, the region of Hanover, which would be the competent body for the removal of waste, should organize a public procurement procedure to the extent that it does not want to perform this task itself.
25- The Hanover region and the Syndicat de collectivités RH consider that the latter's constitution and the transfer of powers to it do not fall within the scope of public procurement law.
26- Indeed, this constitution and transfer would have made a statutory decision, and not a contract or an administrative agreement. In addition, these authorities refer to Directive 2014/24, in particular Article 1 thereof.stparagraph 6 on mechanisms for the transfer of powers and responsibilities for the execution of public missions.
27- The referring court states that the fate of the dispute in the main proceedings depends first of all on whether the operation which consisted, for the Hanover region and the city of Hanover, in founding the Syndicat de collectivités RH and to transfer certain missions to it has constituted a public contract within the meaning of Article 1st(2) (a) of Directive 2004/18. In that regard, it does not doubt the onerous nature of this operation, having regard, on the one hand, to the transfer, free of charge, of the means previously used by these two local authorities for the execution of the tasks transferred to that union and on the other hand, to the commitment of the said communities to cover any excess costs of the said union in relation to its revenues.
28- That court states that it could nevertheless be considered that such an operation did not constitute the award of a public contract. Indeed, there is no contract and no company is concerned. Moreover, it would be a measure of internal organization of the State guaranteed by the constitutional rule of municipal autonomy, consisting in the reallocation of powers between local authorities, at the end of which the communities initially responsible for the performance of the missions concerned are fully discharged.
29- However, that court has doubts as to the relevance of that opinion in the light of the Court's case-law, in particular the judgment of 13 June 2013, Piepenbrock (C-386/11, EU: C: 2013: 385). , from which it would appear that the very existence of a delegation of mission, involving the discharge of the initially competent community, does not affect the qualification of a public contract.
30- Moreover, it follows from that judgment that only two exceptions to the application of the rules on public procurement must be taken into consideration, namely that identified in the judgment of 18 November 1999 in Teckal (C-107 / 98, EU: C: 1999: 562), and so-called "horizontal" intercommunal cooperation. Consequently, it may be argued that, since the creation of a community syndicate accompanied by the transfer of powers to it does not fall within any of those exceptions, public procurement law would be applicable to this type of contract. operations.
31- However, in the opposite direction, the national court points out, first, that such an operation proceeds strictly from a horizontal agreement between several public entities, and not from an agreement concluded between those entities and the communities.
32- On the other hand, the creation of a union of local authorities can not only be decided freely by them, but also be imposed on the communities concerned by their supervisory authority. However, in such a case, there is no contract, so it would be difficult to see a public contract. The question then arises as to whether an operation of the same nature, namely a transfer of powers to a public-sector union, could be treated differently depending on the voluntary or forced nature of the transfer.
33- The referring court also questions the consequences which would follow from the finding that a global operation such as that at issue in the main proceedings constitutes a public contract, in particular as to whether such a market should be the exception identified in the judgment of 18 November 1999, Teckal (C-107/98, EU: C: 1999: 562), or, rather, as cooperation between local and regional authorities with a view to the execution of missions that fall to them.
34. In that context, the Oberlandesgericht Celle (Higher Regional Court of Celle, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
- An agreement between two local authorities on the basis of which these two communities form, by statutory regulation, an association of public authorities with a view to carrying out common tasks, with their own legal personality, which now assumes, by implementing its competences certain missions which hitherto had been incumbent upon the participating communities, is it a public contract within the meaning of Article 1st(2) (a) of Directive 2004/18, where the transfer of tasks relates to services within the meaning of that Directive and takes place for remuneration, the [trade union] trade union shall broader than the missions previously incumbent on the participating communities and that the transfer of missions is not one of the two categories of contracts which, although granted by public entities, fall outside the scope of public procurement, according to the case-law of the Court, by reference, as a last resort, to the judgment of 13 June 2013, Piepenbrock (C-386/11, EU: C: 2013: 385, paragraph 33 et seq. )?
- In so far as the first question is answered in the affirmative, the question whether the establishment of such an association of public authorities and the transfer to it of missions, in conjunction with that constitution, do not, exceptionally, fall within whether the scope of EU public procurement law is determined by the inference drawn from the case-law of the Court in respect of contracts concluded between a public entity and a person which is legally distinct from it, according to which application of Union public procurement law is excluded where the entity exercises control over the person concerned similar to that exercised over its own services and that person carries out the main part of its activities for the entity or the entities that hold the shares, by reference, inter alia, to the judgment of 18 November 1999, Teckal (C-107/98, EU: C: 1999: 562, paragraph 50), or, conversely, -he d apply the teaching inferred from the case-law of the Court in respect of contracts by which it is agreed that public entities should cooperate with one another for the purpose of performing a general-interest task incumbent upon all those entities, with reference to the judgment of 19 December 2012, Ordine degli Ingegneri della Provincia di Lecce and Others (C-159/11, EU: C: 2012: 817, paragraph 34 et seq.) [...]?
The questions referred
On the first question
35-By its first question, the national court asks, in essence, whether Article 1st(2) (a) of Directive 2004/18 must be interpreted as a public contract an agreement between two local authorities, such as that at issue in the main proceedings, on the basis of which the latter adopt a regulation Statutory establishing a syndicate of communities, a legal person under public law, and attributing to this new public entity certain powers that these communities were invested until now and are now specific to this union of communities.
36- According to Article 1st(2) (a) of Directive 2004/18, a public contract is a contract for valuable consideration concluded in writing between one or more economic operators and one or more contracting authorities and whose purpose is to carry out works, supply of products or provision of services within the meaning of that Directive.
37- For the purposes of the possible qualification of a public contract, in the light of this definition, of a transaction which involves several phases, this operation must be examined in its entirety and taking into account its purpose (see, to that effect, 10 November 2005, Commission v Austria, C-29/04, EU: C: 2005: 670, paragraph 41).
38. In the present case, it is therefore necessary to take into consideration, as a whole, the various phases of the operation at issue in the main proceedings. In that regard, it is apparent from the order for reference that the Hanover Region and the City of Hanover jointly decided to create, by means of a regulatory act, a new public-law entity with a view to conferring on it certain powers, some of which are common and partly specific to each of these communities. At the same time, they have given this new entity certain capacities to enable it to perform the tasks corresponding to these competences. In effect, they provided the means which they themselves had previously allocated to the exercise of those powers and undertook to cover any budget deficits of that entity, which also had the right to imposing royalties and collecting the royalties and the right to engage in certain activities that do not correspond to the exercise of the powers transferred to it, while being of the same nature as certain activities the fulfillment of which derives this exercise. Finally, the new entity is characterized by an autonomous functioning, but must respect the decisions of an assembly composed of representatives of the two founding authorities of the latter, which constitutes an organ of this entity and which is competent, in particular, to elect the person responsible for the management of that entity.
39. In that context, it must be observed, as a preliminary point, that the indication given by the national court that the activities at issue in the main proceedings constitute 'services' within the meaning of Directive 2004/18 only to clarify that the application of this Directive can not be rejected in this respect. On the other hand, the fact that an activity falling within the remit of a public authority constitutes a service covered by that directive is not sufficient in itself to make it applicable, the public authorities being free to decide whether to resort to the market for the fulfillment of the public interest tasks incumbent upon them (see, to that effect, judgment of 9 June 2009, Commission v Germany, C-480/06, EU: C: 2009: 357, cited case law).
40. In addition, it must first of all be recalled that the division of powers within a Member State enjoys the protection conferred by Article 4 (2) TEU, according to which the Union is required to respect the national identities of the Member States, inherent in their fundamental political and constitutional structures, including with regard to local and regional self-government (see, to that effect, judgment of 12 June 2014, Digibet and Albers, C-156 / 13, EU: C: 2014: 1756, item 34).
41. Furthermore, since the division of powers is not fixed, the protection conferred by Article 4 (2) TEU also concerns the reorganization of powers within a Member State, as pointed out by Advocate General at points 41 and 42 of his Opinion. Such reorganisations, which can take the form of reallocations of powers from one public authority to another by a higher authority or voluntary transfers of powers between public authorities, result in a previously competent authority being discharged or relieves himself of the obligation and the right to perform a particular public mission while another authority is now vested with that obligation and right.
42. In the second place, it must be held that such a reallocation or transfer of powers does not fulfill all the conditions imposed by the definition of the concept of a public contract.
43. Only a contract concluded for consideration may constitute a public contract covered by Directive 2004/18, since that cost implies that the contracting authority which concludes a public contract receives under that directive, for a consideration, a service to be of direct economic interest to that contracting authority (see, to that effect, Helmut Müller, C-451/08, EU: C: 2010: 168, paragraphs 47 to 49). The synallagmatic nature of the contract is thus an essential characteristic of a public contract, as the Advocate General pointed out in point 36 of his Opinion.
44. Irrespective of the fact that a decision on the conferral of public powers does not fall within the sphere of economic transactions, the very fact that a public authority is relieved of a jurisdiction previously vested in it disappears. on its part, any economic interest in carrying out the tasks that correspond to this competence.
45. Accordingly, the reassignment of the means used for the exercise of jurisdiction, which are transmitted by the authority which ceases to be competent to that which becomes competent, can not be analyzed as a payment of a price, but constitutes, on the contrary, a logical consequence, even necessary, of the voluntary transfer or the imposed reassignment of this competence from the first authority to the second.
46- Similarly, the fact that the authority initiating the transfer of a jurisdiction or deciding on the reassignment of a jurisdiction undertakes to bear the burden of any excess costs by in relation to the revenue that may result from the exercise of that power. This is a guarantee for third parties, the necessity of which derives, in this case, from the principle according to which a public authority can not be the subject of insolvency proceedings. The existence of such a principle is itself a matter for the internal organization of a Member State.
47. It is important, however, to emphasize, thirdly, that in order to be regarded as an act of internal organization and thus to be subject to the freedom of the Member States guaranteed by Article 4 (2) TEU, a transfer competence between public authorities must fulfill certain conditions.
48. In that regard, a situation such as that at issue in the main proceedings is, of course, not identical to the situation described in the judgment of 20 October 2005 in Case C-264/03 Commission v France. : 2005: 620). In the latter case, the question was whether the type of mandate concerned constituted a punctual transfer of public authority to an entity for carrying out a project which, in principle, fell within the competence of the another entity, not a transfer of that competence itself. Nevertheless, these various types of transfers are of the same nature, although of different sizes, so that the essential teaching of this judgment on this subject can be extrapolated in this case.
49. As the Advocate General pointed out in point 53 of his Opinion, to be regarded as such, a transfer of power must relate not only to the responsibilities relating to the transferred jurisdiction, in particular the obligation to accomplish the missions that this competence implies, but also on the powers which are the corollary of this one. This requires that the public authority which is vested with competence has the power to organize the execution of the missions falling within this competence as well as to establish the regulatory framework relating to these missions and that it disposes of financial autonomy to ensure the financing of these missions. On the other hand, this is not the case if the initially competent authority retains primary responsibility for the same tasks, if it retains financial control over them or if it has to approve in advance the decisions envisaged by the Commission. entity it joins.
50. In that regard, a situation such as that at issue in the main proceedings is clearly different from that at the heart of the case giving rise to the judgment of 13 June 2013 in Piepenbrock (C-386/11, EU: C: 2013: 385), in which a local authority limited itself to entrusting to another territorial entity, for financial compensation, the performance of certain material tasks which it reserved the power to control the execution, as well as the Court of Justice. found in paragraph 41 of that judgment.
51. A transfer of jurisdiction can not therefore exist if the newly competent public authority does not exercise this power autonomously and under its own responsibility.
52. As the Advocate General pointed out in point 56 of his Opinion, such autonomy of action does not mean that the newly competent body must be exempted from any influence on the part of any other public entity. Indeed, an entity that transfers a jurisdiction may retain some control over missions related to this public service. However, such an influence excludes, in principle, any interference with the practical arrangements for carrying out the tasks falling within the transferred competence. In a situation such as that in the main proceedings, such influence may be exercised through an organ, such as a general assembly, composed of representatives of the previously competent local authorities.
53. Autonomy of action does not mean that an imposed reassignment or a voluntary transfer of jurisdiction must be irreversible. As has been pointed out in paragraph 39 of this judgment, the division of powers within a Member State can not be regarded as fixed, so that successive reorganisations can be envisaged. It should also be noted that the situations at issue in Commission v France (C-264/03, EU: C: 2005: 620) were not permanent, since were one-off transfers of public authority to an entity for the purpose of carrying out a project which, in principle, fell within the competence of another entity, which retained that competence in principle, situations which should have been regarded as outside the law of public procurement if they had not presented the characteristics identified by the Court in paragraph 54 of that judgment, which led to the conclusion that there was no real transfer in this case. Accordingly, as the Advocate General pointed out in point 54 of his Opinion, there is nothing to prevent a power transferred or reallocated in the course of a reorganization of public services from being subsequently effected. subject to a new transfer or reallocation on the occasion of a subsequent reorganization.
54. Lastly, in order to deal with all the aspects referred to by the referring court, it must be borne in mind that authorization or prohibition, for public entities of the Member States or certain categories of them, of exercising an activity on the market, apart from their action in the public interest, is subject to the internal regulation of the Member States, which is responsible for assessing whether such activity is compatible or not with the institutional and statutory objectives of those entities ( see, to that effect, judgment of 23 December 2009, CoNISMa, C-305/08, EU: C: 2009: 807, paragraph 48). Thus, the fact that public entities concerned by a transfer of competence may or may not engage in certain activities on the market also falls within the internal organization of the Member States and, moreover, has no effect on the nature of such a transfer. provided that the conditions specified in paragraphs 47 to 51 of this judgment are fulfilled.
55. In the light of all those considerations, the answer to the first question must be as follows:
- Article 1st(2) (a) of Directive 2004/18 must be interpreted as not constituting a public contract an agreement between two local authorities, such as that at issue in the main proceedings, on the basis of which they adopt a statutory by-law establishing a syndicate of communities, a legal person under public law, and transferring to this new public entity certain powers that these communities had previously invested and which are now specific to this union of communities,
- however, such a transfer of powers concerning the performance of public tasks exists only if it concerns both the responsibilities related to the transferred competence and the powers which are the corollary of it, so that the newly competent public authority has decision-making and financial autonomy, which it is for the national court to verify.
On the second question
56 - In the light of the answer given to the first question, there is no need to answer the second question.
57. Since the proceedings are, in so far as the parties to the main action are concerned, an action brought before the national court, the decision on costs is a matter for that court. The costs incurred in submitting observations to the Court, other than those of the said parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
Article 1st(2) (a) of 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 must be interpreted as not constituting a public contract an agreement between two local authorities, such as the one at issue in the main proceedings, on the basis of which the latter adopt a statutory regulation establishing a syndicate of local authorities, a legal person public, and transferring to this new public entity certain skills that these communities had previously invested and which are now peculiar to this union of communities.
However, such a transfer of powers concerning the performance of public tasks exists only if it concerns both the responsibilities related to the transferred competence and the powers which are the corollary of it, so that the newly competent public authority has decision-making and financial autonomy, which it is for the national court to verify.