11.3.2019

Official Journal of the European Union

C 93/30

(Case C-796/18)

(2019/C 93/40)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Informatikgesellschaft für Software-Entwicklung (ISE) mbH

Defendant: Stadt Köln

Party to the proceedings: Land Berlin

Questions referred

1.Does the provision of software by one public administrative authority to another public administrative authority, which is agreed in writing and linked to a cooperation agreement, constitute a ‘public contract’ within the meaning of Article 2.1(5) of Directive 2014/24/EU (1) or a contract within the meaning of Article 12(4) of that directive which — at least initially, subject to Article 12(4)(a) to (c) thereof — comes within the scope of the directive if, although the software recipient does not have to pay a price or reimbursement costs for the software, the cooperation agreement connected with the provision of the software provides that each cooperation partner — and therefore also the software recipient — is required to make available to the other partner, free of charge, any of its own further developments of the software that it may create — but is not obliged to create — in the future?

Only if Question 1 is answered in the affirmative:

2.Pursuant to Article 12(4)(a) of Directive 2014/24/EU, does the subject matter of the cooperation of the participating contracting authorities have to be the actual public services that are to be provided to citizens and must be provided jointly, or is it sufficient if the cooperation relates to activities that in some way serve the public services that are to be provided in the same way but do not necessarily have to be provided jointly?

3.Does a so-called — unwritten — prohibition on placing a party in a position of advantage (‘Besserstellungsverbot’) apply in the context of Article 12(4) of Directive 2014/24/EU and, if so, with what content does it apply?

* 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).