# C_2005257EN.01000202.xml

| 15.10.2005 | EN | Official Journal of the European Union | C 257/2 |
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15.10.2005

EN

Official Journal of the European Union

C 257/2

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Reference for a preliminary ruling from the Tribunal Supremo, Sala de lo Contencioso-Administrativo, by order of that court of 1 April 2005 in Asociación Nacional de Empresas Forestales v Transformación Agraria S.A (TRAGSA) and Administración del Estado

(Case C-295/05)

(2005/C 257/04)

Language of the case: Spanish

Reference has been made to the Court of Justice of the European Communities by order of the Tribunal Supremo, Sala de lo Contencioso-Administrativo, (Supreme Court, Chamber for contentious administrative proceedings) of 1 April 2005, received at the Court Registry on 21 July 2005, for a preliminary ruling in the proceedings between Asociación Nacional de Empresas Forestales (National Association of Forestry Companies) and Transformación Agraria S.A (TRAGSA) and Administración del Estado on the following questions:

| 1. | Does Article 86(1) of the Treaty [establishing the European Community] permit a Member State to grant ex lege to a public undertaking a legal regime which allows it to execute public works without being subject to the general rules on the award of public contracts by tender, where there are no special circumstances of urgency or public interest, both below and above the financial threshold laid down by the European Directives in this regard? |
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1.

Does Article 86(1) of the Treaty [establishing the European Community] permit a Member State to grant ex lege to a public undertaking a legal regime which allows it to execute public works without being subject to the general rules on the award of public contracts by tender, where there are no special circumstances of urgency or public interest, both below and above the financial threshold laid down by the European Directives in this regard?

ex lege

| 2. | Is such a legal regime compatible with the provisions of Council Directives 93/36/EEC (1) and 93/37/EEC of 14 June 1993, (2) European Parliament and Council Directive 97/52/EC of 13 October 1997 (3) and Commission Directive 2001/78[/EC] (4) amending the three previous directives — legislation recently recast in European Parliament and Council Directive 2004/18/EC of 31 March 2004? (5) |
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2.

Is such a legal regime compatible with the provisions of Council Directives 93/36/EEC (1) and 93/37/EEC of 14 June 1993, (2) European Parliament and Council Directive 97/52/EC of 13 October 1997 (3) and Commission Directive 2001/78[/EC] (4) amending the three previous directives — legislation recently recast in European Parliament and Council Directive 2004/18/EC of 31 March 2004? (5)

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| 3. | Are the statements contained in the judgment of the Court of Justice of the European [Communities] (6) of 8 May 2003 in Case C-349/97 Spain v Commission applicable in any event to TRAGSA and its subsidiaries, in the light of the rest of the case-law of the European Court regarding public procurement and in view of the fact that the Administration entrusts to TRAGSA a large number of works which are not subject to the rules governing free competition, and that this situation might cause considerable distortion of the relevant market? |
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3.

Are the statements contained in the judgment of the Court of Justice of the European [Communities] (6) of 8 May 2003 in Case C-349/97 Spain v Commission applicable in any event to TRAGSA and its subsidiaries, in the light of the rest of the case-law of the European Court regarding public procurement and in view of the fact that the Administration entrusts to TRAGSA a large number of works which are not subject to the rules governing free competition, and that this situation might cause considerable distortion of the relevant market?

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Spain

Commission

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(1)  Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ L 199, p. 1).

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(2)  Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ L 199, p. 54).

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(3)  European Parliament and Council Directive 97/52/EC of 13 October 1997 amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC concerning the coordination of procedures for the award of public service contracts, public supply contracts and public works contracts respectively (OJ L 328, p. 1).

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(4)  Commission Directive 2001/78/EC of 13 September 2001 amending Annex IV to Council Directive 93/36/EEC, Annexes IV, V and VI to Council Directive 93/37/EEC, Annexes III and IV to Council Directive 92/50/EEC, as amended by Directive 97/52/EC, and Annexes XII to XV, XVII and XVIII to Council Directive 93/38/EEC, as amended by Directive 98/4/EC (Directive on the use of standard forms in the publication of public contract notices) (OJ L 285, p. 1).

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(5)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, p. 114).

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(6)  [2003] ECR I–3851.

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