JUDGMENT OF THE COURT

(Second Chamber)

of 16 June 2005

in Joined Cases C-462/03 and C-463/03: Reference for a preliminary ruling from the Bundesvergabeamt Strabag AG, Kostmann GmbH v Österreichische Bundesbahnen (1)

(Public procurement contracts - Directive 93/38/EEC - Water, energy, transport and telecommunications sectors - Concepts of ‘operation’ and ‘provision’ of networks providing a service to the public in the field of transport by railway - Railway infrastructure works)

(2005/C 193/08)

Language of the case: German

In Joined Cases C-462/03 and C-463/03: reference for a preliminary ruling under Article 234 EC from the Bundesvergabeamt (Austria), made by decision of 27 October 2003, received at the Court on 4 November 2003, in the proceedings pending before that court between Strabag AG (C-462/03), Kostmann GmbH (C-463/03) and Österreichische Bundesbahnen — the Court (Second Chamber) composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, R. Silva de Lapuerta, R. Schintgen, G. Arestis and J. Klučka, Judges; P. Léger, Advocate General, R. Grass, Registrar, has given a judgment on 16 June 2005, the operative part of which is as follows:

Where a contracting entity exercising one of the activities particularly mentioned in Article 2(2) 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 contemplates, in the exercise of that activity, the award of a supply, works or service contract or the organisation of a design contest, that contract or contest is governed by the provisions of this directive.

(1)  OJ C 21 of 24.1.2004.