22.2.2014

Official Journal of the European Union

C 52/17

(Case C-425/12) (<span class="super">1</span>)

(Procedures for awarding public contracts in the water, energy, transport and telecommunications sectors - Directive 93/38/EEC - Directive not transposed into national law - Whether the State may rely on that directive against a body holding a public service concession in the case where that directive has not been transposed into national law)

2014/C 52/28

Language of the case: Portuguese

Referring court

Parties to the main proceedings

Applicant: Portgás — Sociedade de Produção e Distribuição de Gás SA

Defendant: Ministério da Agricultura, do Mar, do Ambiente e do Ordenamento do Território

Re:

Request for a preliminary ruling — Tribunal Administrativo e Fiscal do Porto — Portugal — Interpretation of Articles 2(1)(b), 4(1) and 14(1)(c)(i) of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84), as amended by Directive 98/4/EC of the European Parliament and of the Council of 16 February 1998 (OJ 1998 L 101, p. 1) — Direct effect — Whether the State may rely on that directive against a body holding a public service concession in the case where that directive has not been transposed into national law.

Operative part of the judgment

Articles 4(1), 14(1)(c)(i) and 15 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 98/4/EC of the European Parliament and of the Council of 16 February 1998, must be interpreted as meaning that they cannot be relied on against a private undertaking solely on the ground that, in its capacity as the exclusive holder of a public-interest service concession, that undertaking comes within the group of persons covered by Directive 93/38, in circumstances where that directive has not yet been transposed into the domestic system of the Member State concerned.

Such an undertaking, which has been given responsibility, pursuant to a measure adopted by the State, for providing, under the control of the State, a public-interest service and which has, for that purpose, special powers going beyond those which result from the normal rules applicable in relations between individuals, is obliged to comply with the provisions of Directive 93/38, as amended by Directive 98/4, and the authorities of a Member State may therefore rely on those provisions against it.

(<span class="super">1</span>) OJ C 389, 15.12.2012.