Alstom Transport v Eurostar International Ltd [2012] EWHC 28 (Ch)

“an association of at least two railway undertakings established in different Member States for the purpose of providing international transport services between Member States.”

“… the purpose of those directives is to avert both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by other than economic considerations.”

“This Directive shall apply to contracting entities: (a) which are contracting authorities or public undertakings and which pursue one of the activities referred to in Articles 3 to 7; (b) which, when they are not contracting authorities or public undertakings, have as one of their activities any of the activities referred to in Articles 3 to 7, or any combination thereof and operate on the basis of special or exclusive rights granted by a competent authority of a Member State.”

“111. It is the responsibility of the national courts in particular to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective. 112. That is a fortiori the case when the national court is seised of a dispute concerning the application of domestic provisions which, as here, have been specifically enacted for the purpose of transposing a directive intended to confer rights on individuals. The national court must, in the light of the third paragraph of Article 249 EC, presume that the Member State, following its exercise of the discretion afforded it under that provision, had the intention of fulfilling entirely the obligations arising from the directive concerned (see Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20). 113. Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC [authorities omitted]. 114. The requirement for national law to be interpreted in conformity with Community law is inherent in the system of the Treaty, since it permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness of Community law when it determines the dispute before it ….”

“I think that it would be wrong to apply a literal approach to the words and phrases used in it, such as in the definitions of "public contract" and "public service contract". A purposive approach should be adopted. As Lord Diplock in Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850, 881 indicated, this means that regard must be had to the context in which the Regulations were made, to their subject matter and to their purpose. Would it be inconsistent with the achievement of that purpose if the Teckal exemption were not to be held to apply to them? Was this an exemption to which Parliament must have intended them to be subject? Having regard to the background of EU law against which the Regulations were made, the definitions in the Regulations can be taken to express the same idea as those in the Directive. Thus something which amounts to a contract in domestic law can nevertheless be held, without doing undue violence to the words of the Regulations, not to be a relevant contract for the purpose of the public procurement rules.”

“… the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is “possible”, a court can modify the meaning, and hence the effect, of primary and secondary legislation. 33. Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of [the] legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry, ‘go with the grain of the legislation’. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation.”

“121. For present purposes, it is sufficient to notice that cases such as Pickstone v Freemans plc [1989] AC 66 and Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546 suggest that, in terms of section 3(1) of the 1998 Act, it is possible for the courts to supply by implication words that are appropriate to ensure that legislation is read in a way which is compatible with Convention rights. When the court spells out the words that are to be implied, it may look as if it is ‘amending’ the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute. 122. When Housman addressed the meeting of the Classical Association in Cambridge in 1921, he reminded them that the key to the sound emendation of a corrupt text does not lie in altering the text by changing one letter rather than by supplying half a dozen words. The key is that the emendation must start from a careful consideration of the writer’s thought. Similarly, the key to what it is possible for the courts to imply into legislation without crossing the border from interpretation to amendment does not lie in the number of words that have to be read in. The key lies in a careful consideration of the essential principles and scope of the legislation being interpreted. If the insertion of one word contradicts those principles or goes beyond the scope of the legislation, it amounts to impermissible amendment. On the other hand, if the implication of a dozen words leaves the essential principles and scope of the legislation intact but allows it to be read in a way which is compatible with Convention rights, the implication is a legitimate exercise of the powers conferred by section 3(1). Of course, the greater the extent of the proposed implication, the greater the need to make sure that the court is not going beyond the scheme of the legislation and embarking upon amendment. Nevertheless, what matters is not the number of words but their effect. For this reason, in the Community law context, judges have rightly been concerned with the effect of any proposed implication, but have been relaxed about its exact form. See, for example, Lord Keith of Kinkel and Lord Oliver of Aylmerton in Pickstone v Freemans plc [1989] AC 66, 112d, 126a-b.”

“… if it is not possible to interpret the Regulations in conformity with the Directive, the incompatible provisions must be disapplied and/or the Court must refrain from applying them.”

“63. As is clear from the case-law of the Court, when applying domestic law the national court must, as far as is at all possible, interpret it in a way which accords with the requirements of Community law (see, in particular, Case C-165/91 Van Munster [1994] ECR I-4661, paragraph 34, and Case C-262/97 Engelbrecht [2000] ECR I-7321, paragraph 39). 64. Where application in accordance with those requirements is not possible, the national court must fully apply Community law and protect the rights conferred thereunder on individuals, if necessary disapplying any provision in so far as its application would, in the circumstances of the case, lead to a result contrary to Community law (see, in particular, Case C-347/96 Solred [1998] ECR I-937, paragraph 30, and Engelbrecht, paragraph 40).”

“It follows that, in circumstances such as those of the case in the main proceedings, it is for the referring court to ensure observance of the principle of effectiveness under Directive 89/665 by applying its national law in such as way as to enable a tenderer harmed by a decision of the contracting authority adopted in breach of Community law to safeguard the possibility of raising pleas in law alleging that breach in support of applications for review of other decisions of the contracting authority, by availing itself, where appropriate, of the possibility afforded, according to the referring court, by Article 5 of Law No 2248/1865 of disapplying the national rules governing such applications so far as limitation periods are concerned.”

“50. It must be recalled here that, … Directive 2000/78 merely gives expression to, but does not lay down, the principle of equal treatment in employment and occupation, and that the principle of non-discrimination on grounds of age is a general principle of European Union law in that it constitutes a specific application of the general principle of equal treatment (see, to that effect, Mangold, paragraphs 74 to 76). 51. In those circumstances, it for the national court, hearing a dispute involving the principle of non-discrimination on grounds of age as given expression in Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle (see, to that effect, Mangold, paragraph 77).”

“85. … I think it is perfectly logical that the Court considered in Mangold that the fact that the time-limit for the transposition of Directive 2000/78 had not expired could not undermine the effectiveness of the principle of non-discrimination on grounds of age and, in order to ensure that effectiveness, the national court had to disapply provisions of national law which were contrary to Community law. Moreover, the fact that the main proceedings were between private parties could not preclude the general principle of Community law in question from being relied on to exclude national legislation, since the Court has already on several occasions taken a more significant step by recognising that provisions of the Treaty containing specific expressions of the general principle of equal treatment and non-discrimination have horizontal direct effect. 86. The Court must now decide whether it wishes to maintain the same approach for situations which arose after the expiry of the time-limit for the transposition of Directive 2000/78. In my opinion, it should do so, because to adopt another position would depart from the logic which underlies Mangold. 87. In so far as Directive 2000/78 is intended to facilitate the specific application of the prohibition of age discrimination and, in particular, to improve judicial protection for workers who may have been wronged by a breach of that prohibition, it cannot, including – and all the more so – after the expiry of the period granted to the Member States for its transposition, affect the scope of that prohibition. It is difficult in that regard to imagine that the consequences of the primacy of Community law are weakened after the expiry of the time-limit for the transposition of Directive 2000/78. Most of all, it cannot be accepted that the protection of individuals against discrimination which is contrary to Community law is reduced after the expiry of that period even though the purpose of the rule in question is to increase their protection. To my mind, therefore, it should be possible to rely on Directive 2000/78 in proceedings between private parties in order to exclude a national provision which is contrary to Community law. 88. To adopt such an approach in the present case would not force the Court to reverse its earlier case-law concerning the absence of horizontal direct effect of directives. All that is at stake in the present case is the exclusion of a national provision contrary to Directive 2000/78, namely the last sentence of Paragraph 622(2) of the BGB, to allow the national court to apply the remaining provisions of that paragraph, namely the periods of notice calculated on the basis of the length of the employment relationship. Directive 2000/78 is not therefore to be applied to independent private conduct not subject to any particular State rule, such as the decision of an employer to take on workers over the age of 45 or under the age of 35. Only that situation would call into question the appropriateness of recognising that the directive has genuine horizontal direct effect. 89. Furthermore, if the Court wishes to maintain its general unwillingness to disconnect ‘substitution’ direct effect from the right to plead the exclusion of national legislation, the specific nature of the directives intended to counteract discrimination allows it, in my view, to adopt a solution of more limited scope which, at the same time, has the merit of being consistent with the case-law it has developed in regard to the general principle of equal treatment and non-discrimination. From that point of view, it is because it implements that principle in regard to the prohibition of age discrimination that the right to plead Directive 2000/78 in proceedings between private parties is strengthened.”

“… it is the general principle of European Union law prohibiting all discrimination on grounds of age, as given expression in Directive 2000/78, which must be the basis of the examination of whether EU law precludes national legislation such as that at issue in the main proceedings.”

“In these Regulations a utility is a relevant person specified in one of the Parts of Schedule 1 carrying out an activity in that Part.”

“The provision or operation of a network providing a service to the public in the field of transport by railway.”

“network” in relation to a service in the field of transport, means a system operated in accordance with conditions laid down by or under the law in any part of England, Wales or Northern Ireland including such conditions as the routes to be served, the capacity to be made available and the frequency of the service;”

“the provision or operation of a system operated in accordance with conditions laid down by or under the law, including such conditions as the routes to be served, the capacity to be made available and the frequency of service, providing a service to the public in the field of transport by railway.”

“With regard to those sectors where the supply or management of a network is the relevant activity for the purposes of this Directive, it is a common requirement that the network is used for providing a service to the public. This requirement is needed so as to limit the application of the Directive to entities having a genuine public utility function. Cases like those in the transport sector of a company owning a school-bus system should not be covered. It follows that ‘to the public’ means to the public at large, with no other limitations concerning the potential users of the transport service than those related to public order in general.”

“394. The first category of situations covered are those in which a service is provided to the public through a technical network which, by its very existence, limits the scope for competition. Once one network is in place the prospects for competition through an alternative network or new entrants are in practice small. They are non-existent when the natural monopoly or oligopoly receives legal reinforcement through the grant of special or exclusive rights or through mechanisms of public authorization which exclude new entrants. …. 396. The second category of cases is in many ways analogous to the first: networks providing a service to the public in the field of transport. Indeed, when the service is provided by a single technical network such as a railway or a metro, the situation is exactly the same. However, in the transport field, the network concept needs to be somewhat broader to include also those systems in which the ‘network’ is not a technical system like a railway for trains or trams but, as in the case of a municipal bus service, a system of interconnecting routes along which vehicles pass in accordance with conditions laid down by public authorities. Where the State restricts access to such networks, the operating entities, whether they are public or private, are insulated from market forces and subject to State influence, not least as regards their procurement. Accordingly, the proposals cover entities providing services to the public in the field of transport by railway, tramway or trolleybus as well as bus services provided under operating conditions laid down by a public authority including conditions on the routes to be served.”

“14. 'public telecommunications network' shall mean the public telecommunications infrastructure which enables signals to be conveyed between defined network termination points by wire, by microwave, by optical means or by other electromagnetic means; … 15. 'public telecommunications services' shall mean telecommunications services the provision of which the Member States have specifically assigned notably to one or more telecommunications entities; 'Telecommunications services' shall mean services the provision of which consists wholly or partly in the transmission and routing of signals on the public telecommunications network by means of telecommunications processes, with the exception of radio-broadcasting and television;”

“the provision or operation of public telecommunications networks or the provision of one or more public telecommunications services.”

“‘Contracting authorities’ are State, regional or local authorities, bodies governed by public law, associations formed by one or several such authorities or one or several of such bodies governed by public law. ‘A body governed by public law’ means any body: - established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, - having legal personality and - financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law;” - established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, - having legal personality and - financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law;”

“a corporation established, or a group of individuals appointed to act together, for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and— (i) financed wholly or mainly by another contracting authority; (ii) subject to management supervision by another contracting authority; or (iii) more than half of the board of directors or members of which, or, in the case of a group of individuals, more than half of those individuals, are appointed by another contracting authority;” (i) financed wholly or mainly by another contracting authority; (ii) subject to management supervision by another contracting authority; or (iii) more than half of the board of directors or members of which, or, in the case of a group of individuals, more than half of those individuals, are appointed by another contracting authority;”

“47. According to settled case-law, needs in the general interest, not having an industrial or commercial character, within the meaning of … the Community directives relating to the coordination of procedures for the award of public contracts are generally needs which are satisfied otherwise than by the availability of goods and services in the market place and which, for reasons associated with the general interest, the State chooses to provide itself or over which it wishes to retain a decisive influence (see, inter alia, BFI Holding, paras 50 and 51, Agorà and Excelsior, para 37, and Adolf Truley, para 50). … 49. In particular, it must be ascertained whether the body in question carries on its activities in a situation of competition, since the existence of such competition may, as the Court has previously held, be an indication that a need in the general interest has an industrial or commercial character (see, to that effect, BFI Holding, paras 48 and 49). 50. However, it also follows from the wording of that judgment that the existence of significant competition does not of itself permit the conclusion that there is no need in the general interest not having an industrial or commercial character (see Adolf Truley, para 61). The same applies to the fact that the body in question aims specifically to meet the needs of commercial undertakings. Other factors must be taken into account before reaching such a conclusion, in particular the question of the conditions in which the body in question carries on its activities. 51. If the body operates in normal market conditions, aims to make a profit, and bears the losses associated with the exercise of its activity, it is unlikely that the needs it aims to meet are not of an industrial or commercial nature. In such a case, the application of the Community directives relating to the coordination of procedures for the award of public contracts would not be necessary, moreover, because a body acting for profit and itself bearing the risks associated with its activity will not normally become involved in an award procedure on conditions which are not economically justified.”

“Eurotunnel wishes to see a major development in freight and passenger train traffic between the UK and Continental Europe. The capacity available in the Tunnel allows for such development, in particular for trains which would operate in the Tunnel at a speed around 140km./h.”

“[EIL] was indeed loss-making for more or less all of its existence. It was expected to be loss making at the time of the refinancing of LCR, and effectively the losses were financed… out of the original government-backed – government guaranteed bonds that LCR issued.”

“… an additional objective, as well as putting Eurostar on a firm financial footing – and I think the phrase “to make it viable and stand-alone, viable and fully commercial” etc, is used in various documents – the further objective was to open up High Speed 1 to make sure that other operators would be able to come in and operate on it, on a level playing field with [EIL], but that [EIL] was then able to compete with those on a level playing field. So there was a whole series of objectives in the restructuring, not just to sort out [EIL]’s balance sheet.”

“a person over whom one or more contracting authorities are able to exercise directly or indirectly a dominant influence by virtue of— (a) their ownership of that person; (b) their financial participation in that person; or (c) the rights accorded to them by the rules which govern that person;” (a) their ownership of that person; (b) their financial participation in that person; or (c) the rights accorded to them by the rules which govern that person;”

“For the purposes of the definition of “public undertaking” a contracting authority is considered to be able to exercise a dominant influence over a person when it directly or indirectly— (a) possesses the majority of the issued share capital of that person or controls the majority of the voting power attached to the issued share capital of that person; or (b) may appoint— (i) more than half of the individuals who are ultimately responsible for managing that person’s affairs; (ii) more than half of its members; or (iii) in the case of a group of individuals, more than half of those individuals.” (a) possesses the majority of the issued share capital of that person or controls the majority of the voting power attached to the issued share capital of that person; or (b) may appoint— (i) more than half of the individuals who are ultimately responsible for managing that person’s affairs; (ii) more than half of its members; or (iii) in the case of a group of individuals, more than half of those individuals.”

“… the variety of ways in which national authorities can influence the behaviour of these entities, including participation in their capital and representation in the entities’ administrative, managerial or supervisory bodies.”

“(58) A typical situation of negative sole control occurs where one shareholder holds 50 % in an undertaking whilst the remaining 50 % is held by several other shareholders (assuming this does not lead to positive sole control on a de facto basis), or where there is a supermajority required for strategic decisions which infact confers a veto right upon only one shareholder, irrespective of whether it is a majority or a minority shareholder”

“(62) Joint control exists where two or more undertakings or persons have the possibility of exercising decisive influence over another undertaking. Decisive influence in this sense normally means the power to block actions which determine the strategic commercial behaviour of an undertaking. Unlike sole control, which confers upon a specific shareholder the power to determine the strategic decisions in an undertaking, joint control is characterized by the possibility of a deadlock situation resulting from the power of two or more parent companies to reject proposed strategic decisions. It follows, therefore, that these shareholders must reach a common understanding in determining the commercial policy of the joint venture and that they are required to cooperate”

“(65) Joint control may exist even where there is no equality between the two parent companies in votes or in representation in decision-making bodies or where there are more than two parent companies. This is the case where minority shareholders have additional rights which allow them to veto decisions which are essential for the strategic commercial behaviour of the joint venture. These veto rights may be set out in the statute of the joint venture or conferred by agreement between its parent companies. The veto rights themselves may operate by means of a specific quorum required for decisions taken at the shareholders' meeting or by the board of directors to the extent that the parent companies are represented on this board. It is also possible that strategic decisions are subject to approval by a body, e.g. supervisory board, where the minority shareholders are represented and form part of the quorum needed for such decisions. (66) These veto rights must be related to strategic decisions on the business policy of the joint venture. They must go beyond the veto rights normally accorded to minority shareholders in order to protect their financial interests as investors in the joint venture. This normal protection of the rights of minority shareholders is related to decisions on the essence of the joint venture, such as changes in the statute, an increase or decrease in the capital or liquidation. A veto right, for example, which prevents the sale or winding-up of the joint venture does not confer joint control on the minority shareholder concerned. (67) In contrast, veto rights which confer joint control typically include decisions on issues such as the budget, the business plan, major investments or the appointment of senior management. The acquisition of joint control, however, does not require that the acquirer has the power to exercise decisive influence on the day-to-day running of an undertaking. The crucial element is that the veto rights are sufficient to enable the parent companies to exercise such influence in relation to the strategic business behaviour of the joint venture. Moreover, it is not necessary to establish that an acquirer of joint control of the joint venture will actually make use of its decisive influence. The possibility of exercising such influence and, hence, the mere existence of the veto rights, is sufficient.”

“(6) The proposed transaction aims at combining the Polish activities of RBI and EFG Eurobank and ultimately consists in the merger between RBPL 3 and Polbank 4. To this end the operation is structured in a series of transactional steps, set out in the Investment Agreement executed on 3.2.2011, including: a) the acquisition of a 70%-stake by RBI in Polbank, and b) the concurrent contribution of the respective shareholdings of RBI and EFG Eurobank in Polbank (EFG Eurobank: 30% and RBI: 70%) to RBPL in exchange for new shares in RBPL. As a result EFG Eurobank will become a 13%-shareholder in RBPL next to RBI which will hold the remainder of the shares (i.e. 87%). Following the implementation of these steps Polbank will merge into RBPL. Eurobank will hold 13% of this entity, next to RBI's 87%, but will retain joint control by virtue of the signed agreements. (7) Under the terms of the Shareholder Agreement ("SHA"), which will be signed after the implementation of the two transactional steps mentioned above, EFG Eurobank will appoint [...] out of [...] members of the Supervisory Board of the combined entity and it should be consulted by RBI for the appointment of the chairman of this Board and of the CEO (President of the management board, whose members are appointed by the Supervisory Board). In addition, EFG Eurobank will have veto rights over strategic matters 5 and in particular in relation to the approval, replacement or modifications of the joint business plan (which includes a budget). EFG Eurobank will be able to exercise decisive influence and therefore joint control over the combined entity. [Emphasis added] fn 5 – All decisions relating to the so called "Reserved Matters" shall require the prior written consent of at least one of the members of the Supervisory Board appointed by EFG Eurobank. In case of deadlock situations the issue will be referred to the respective CEO of EFG Eurobank and RBI for resolution.”

“‘special or exclusive rights’ means rights granted by a competent authority by way of any legislative, regulatory or administrative provision, the effect of which is to limit the exercise of activities specified in the second column of Schedule 1 to one or more entities, and which substantially affects the ability of other entities to carry out such activities.”

“Nor may rights granted by a Member State in any form, including by way of acts of concession, to a limited number of undertakings on the basis of objective, proportionate and non-discriminatory criteria that allow any interested party fulfilling those criteria to enjoy those rights be considered special or exclusive rights.”

“Further or alternatively, [EIL] was and remained subject to Directive [17] and/or the Regulations throughout the procurement by reason of the facts that (a) when it sought offers (and thereafter), it operated on the basis of special and exclusive rights (as set out in paragraph 9 above); and/or (b) from 6 June 2009 until 31 August 2010 (at which stage the shareholders became as set out in paragraph 7(2) above), it was a public undertaking as all its shares (other than one special share held by the Secretary of State for Transport) were held by LCR, which was wholly owned by the Secretary of State for Transport (as set out in the Agreed Statement of Facts) and, therefore, the UK State and/or LCR exercised a dominant influence over it.”

“43. …. it is clear from Article 1(a) of Directive 93/37 that a contract which satisfies the conditions set out in that provision cannot cease to be a public works contract when the rights and obligations of the contracting authority are transferred to an undertaking which is not a contracting authority. The aim of Directive 93/37, which lies in the effective realisation of freedom of establishment and freedom to provide services in the field of public works contracts, would be undermined if the application of the rules in the directive could be excluded on the sole ground that the rights and obligations of a contracting authority in the context of a call for tenders are transferred to an undertaking which does not satisfy the conditions set out in Article 1(b) of Directive 93/37. 44. The contrary would be true only if it were to be established that, from the outset, the whole of the project at issue fell within the objects of the undertaking concerned and the works contracts relating to that project were entered into by the contracting authority on behalf of that undertaking. 45. It is for the national court to ascertain whether that is the case here.”

“As the Court noted in paragraph 34 of Mannesmann Anlagenbau Austria … , the principle of legal certainty requires that the Community rules be clear and their application foreseeable for all those concerned. As a result of that requirement, and of those pertaining to the protection of the interests of tenderers, it is necessary for a body which on the date of the commencement of the procurement procedure constitutes a 'contracting authority' for the purposes of Directives 92/50, 93/36 and 93/37 to remain, as far as that procurement is concerned, subject to the requirements of those directives until the relevant procedure has been completed.”