10.1.2009

Official Journal of the European Union

C 6/12

(Case C-451/08)

(2009/C 6/20)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Helmut Müller GmbH

Defendant: Bundesanstalt für Immobilienaufgaben

Questions referred

1.Is it a requirement, in order for there to be a public works contract under Art. 1(2)(b) of European Parliament and Council Directive 2004/18/EC of 31 March 2004 (1) on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, that the works be physically carried out for the public contracting authority and bring it an immediate economic benefit?

2.In so far as, according to the definition of a public works contract in Article 1(2)(b) of Directive 2004/18/EC, the element of procurement is indispensable: Is procurement to be regarded as having taken place, in accordance with the second variant of the provision, if the intended works for the public contracting authority fulfil a particular public purpose (for example the development of part of a town) and the public contracting authority has the legal right under the contract to ensure that the public purpose is achieved and that the necessary works will be available?

3.Does the concept of a public works contract in accordance with the first and second variants of Article 1(2)(b) of Directive 2004/18/EC require that the contractor be directly or indirectly obliged to provide the works. If so, must there be a legally enforceable obligation?

4.Does the concept of a public works contract in accordance with the third variant of Article 1(2)(b) of Directive 2004/18/EC require that the contractor be obliged to carry out works, or that works form the subject-matter of the contract?

5.Do contracts by which, through the requirements specified by the public contracting authority, it is intended to ensure that the works to be carried out for a particular public purpose be available, and by which (by contractual stipulation) the contracting body is given the legal power to ensure (in its own indirect interest) the availability of the works for the public purpose, fall within the third variant of Article 1(2)(b) of Directive 2004/18/EC?

6.Is the concept of ‘requirements specified by the contracting authority’ in Article 1(2)(b) of Directive 2004/18/EC fulfilled, if the works are to be carried out in accordance with plans examined and approved by the public contracting authority?

7.Must there be held to be no public works concession under Article 1(3) of Directive 2004/18/EC, if the concessionaire is or will become the owner of the land on which the works are to be carried out, or the concession is granted for an indeterminate period?

8.Does Directive 2004/18/EC — with the legal consequence of an obligation on the public contracting authority to invite tenders — apply if a sale of land by a third party and the award of a public works contract take place at different times and on the conclusion of the land sale the public works contract has not yet been awarded, but at the last-mentioned time there was, on the part of the public authority, the intention to award such a contract?

9.Are separate but related transactions concerning a sale of land and a public works contract to be regarded from the point of view of the law on the awarding of contracts as a unity, if at the time the land sale contract was entered into the award of a public works contract was intended and the participants deliberately created a close connection between the contracts from a substantive — and possibly also temporal — point of view (see Case C-29/04 Commission v Austria [2005] I 9722)?

(1) OJ 2004 L 134, p. 114.