11.1.2014

Official Journal of the European Union

C 9/9

(Case C-221/12) (<a id="ntc1-C_2014009EN.01000901-E0001" href="#ntr1-C_2014009EN.01000901-E0001"> (<span class="super">1</span>)</a>

(Request for a preliminary ruling - Article 49 TFEU - Freedom of establishment - Article 56 TFEU - Freedom to provide services - Principles of equal treatment and non-discrimination - Obligation of transparency - Scope - Agreement concluded by public entities of one Member State and an undertaking of that Member State - Transfer, by those entities, of their television provision activities and, for a fixed period, the exclusive right to use their cable networks, to an undertaking in that Member State - Possibility for an economic operator of that same State to rely on Articles 49 TFEU and 56 TFEU before the courts of that Member State - No invitation to tender - Justification - Existence of an earlier agreement - Transaction intended to put an end to litigation concerning the interpretation of that agreement - Risk of depreciation of the transferred activity)

2014/C 9/12

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: Belgacom NV

Defendants: Interkommunale voor Teledistributie van het Gewest Antwerpen (Integan), Inter-Media, West-Vlaamse Energie- en Teledistributiemaatschappij (WVEM), Provinciale Brabantse Energiemaatschappij CVBA (PBE)

Re:

Request for a preliminary ruling — Raad van State van België — Interpretation of Articles 49 and 56 TFEU — Scope — Principle of transparency — Agreement concluded between a public body and an undertaking of the same Member State concerning the assignment of certain rights from the public body to the undertaking, without any advertising or invitation to other undertakings to submit bids

Operative part of the judgment

1.Articles 49 TFEU and 56 TFEU must be interpreted as meaning that an economic operator in a Member State may, before the courts of that Member State, allege an infringement of the obligation of transparency under those articles occurring at the time of conclusion of an agreement whereby one or more public entities of that Member State have either granted to an economic operator of that same Member State a licence for services of certain cross-border interest or granted an economic operator the exclusive right to engage in an economic activity of cross-border interest.

Articles 49 and 56 TFEU must be interpreted as meaning that:

—the wish not to disregard certain rights which public entities have granted to an economic operator under a pre-existing agreement concerning the use of cable networks belonging to them cannot justify an extended scope being given to that agreement which is contrary to European Union law in the form of a direct grant of a service concession or an exclusive right to engage in an activity of certain cross-border interest, including when it is for the purpose of putting an end to a dispute which has arisen between the parties concerned, for reasons entirely outside their control, as to the scope of that agreement;

—grounds of an economic nature, such as the wish to avoid the depreciation of an economic activity, are not overriding reasons in the public interest liable to justify the direct grant of a licence for services relating to that activity or of an exclusive right to engage in that activity of certain cross-border interest, by way of derogation from the principles of equal treatment and non-discrimination enshrined in those articles.

(<a id="ntr1-C_2014009EN.01000901-E0001" href="#ntc1-C_2014009EN.01000901-E0001">(<span class="super">1</span>)</a> OJ C 243, 11.8.2012)