23.2.2008

Official Journal of the European Union

C 51/15

(Case C-220/06)

(Public procurement - Liberalisation of postal services - Directives 92/50/EEC and 97/67/EC - Articles 43 EC, 49 EC and 86 EC - National legislation allowing public authorities to conclude agreements for the provision of both reserved and non-reserved postal services with a publicly owned company, namely the provider of universal postal service in the Member State concerned, without regard to the rules governing the award of public service contracts)

(2008/C 51/25)

Language of the case: Spanish

Referring court

Parties to the main proceedings

Applicant: Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia

Defendant: Administración General del Estado

Re:

Reference for a preliminary ruling — Audiencia Nacional, Sala de lo Contencioso-Administrativo — Interpretation of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14), as amended by Directive 2002/39/EC (OJ 2002 L 176, p. 21) — Agreement concluded without regard to the rules governing the award of public service contracts between a department of the State administration and a publicly owned company covering, in particular, the provision of postal services, including those not reserved to the universal service providers

Operative part of the judgment

1) Community law must be interpreted as not precluding legislation of a Member State that allows public authorities to entrust, without regard to the rules governing the award of public service contracts, the provision of postal services reserved, in a manner consistent with Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, to a public limited company whose capital is wholly state-owned and which, in that State, is the provider of the universal postal service.

2) Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by Commission Directive 2001/78/EC of 13 September 2001, must be interpreted as precluding legislation of a Member State that allows public authorities to entrust, without regard to the rules governing the award of public service contracts, the provision of non-reserved postal services within the meaning of Directive 97/67 to a public limited company whose capital is wholly state-owned and which, in that State, is the provider of the universal postal service, in so far as the contracts to which that legislation applies

—reach the relevant threshold as provided for in Article 7(1) of Directive 92/50, as amended by Directive 2001/78, and

—constitute contracts within the meaning of Article 1(a) of Directive 92/50, as amended by Directive 2001/78, concluded in writing for pecuniary interest,

which are matters for the national court to establish.

3) Articles 43 EC, 49 EC and 86 EC, as well as the principles of equal treatment, non-discrimination by reason of nationality and transparency, must be interpreted as precluding legislation of a Member State that allows public authorities to entrust, without regard to the rules governing the award of public service contracts, the provision of non-reserved postal services within the meaning of Directive 97/67 to a public limited company whose capital is wholly state-owned and which, in that State, is the provider of universal postal services, in so far as the contracts to which that legislation applies

—do not reach the relevant threshold as provided for in Article 7(1) of Directive 92/50, as amended by Directive 2001/78, and

—do not in actual fact constitute a unilateral administrative measure creating obligations solely for the provider of the universal postal service and departing significantly from the normal conditions of a commercial offer made by that company,

which are matters for the national court to establish.

(1) OJ C 178, 29.7.2006.