Opinion of the Advocate General — ECLI:EU:C:2002:207
Date: 2002-03-21
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Preliminary rulings — Jurisdiction of the Court — Limits — Obviously irrelevant 
questions and hypothetical questions in a context which precludes any useful 
answer — Questions not related to the purpose of the main proceedings 
(Art. 234 EC) 
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SUMMARY — CASE C-373/00 
2. Community law — Interpretation — Principle of uniform interpretation 
3. Approximation of laws — Procedures for the award of public supply contracts — 
Directive 93/36 — Contracting authorities — Body governed by public law — 
Needs in the general interest — Meaning — Needs in the general interest, not having 
an industrial or commercial character — To be determined by the national court — 
Account taken of all the relevant legal and factual circumstances 
(Council Directive 93/36, Art. 1(b)) 
4. Approximation of laws — Procedures for the award of public supply contracts — 
Directive 93/36 — Contracting authorities — Body governed by public law — 
Criterion of management supervision by public authorities — Mere review insufficient 
(Council Directive 93/36, third indent of Art. 1(b)) 
1. The Court may refuse to rule on a 
question referred for a preliminary 
ruling by a national court only where 
it is quite obvious that the interpre­
tation of Community law that is sought 
bears no relation to the actual facts of 
the main action or its purpose, where 
the problem is hypothetical, or where 
the Court does not have before it the 
factual or legal material necessary to 
give a useful answer to the questions 
submitted to it. 
(see para. 22) 
2. The need for uniform application of 
Community law and the principle of 
equality require that the terms of a 
provision of Community law which 
makes no express reference to the law 
of the Member States for the purpose 
of determining its meaning and scope 
must normally be given an autonomous 
and uniform interpretation throughout 
the Community; that interpretation 
must take into account the context of 
the provision and the purpose of the 
legislation in question. 
(see para. 35) 
3. In order for a body to be designated as 
a 'body governed by public law' and, 
therefore, a 'contracting authority' 
within the meaning Article 1(b) of 
Directive 93/36 coordinating pro­
cedures for the award of public supply 
contracts, that body must meet needs in 
the general interest which are not 
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ADOLF TRULEY 
industrial or commercial in character, 
have legal personality and depend 
heavily, for its financing, management 
or supervision, on the State, regional or 
local authorities or other bodies gov­
erned by public law. 
The term 'needs in the general interest' 
in the abovementioned article is an 
autonomous concept of Community 
law which must be interpreted in the 
light of the context of that article and 
the aims of Directive 93/36. The sec­
ond subparagraph of Article 1 of 
Directive 93/36 makes no express ref­
erence to the law of the Member States. 
Although the third subparagraph of 
that article refers to Annex I to Direc­
tive 93/37 coordinating procedures for 
the award of public works contracts, 
which lists the bodies and categories of 
such bodies governed by public law 
which, in each Member State, fulfil the 
criteria laid down in the second sub­
paragraph of Article 1(b), that annex 
itself contains no definition of the term 
'needs in the general interest' and the 
list in that annex is in no way exhaus­
tive as its accuracy varies considerably 
from one Member State to another. 
The activities of funeral undertakers 
may indeed be regarded as meeting a 
need in the general interest. First, such 
activities are linked to public policy in 
so far as the State has a clear interest in 
exercising close control over the issue 
of certificates such as birth and death 
certificates and, second, the State may 
be justified in retaining influence over 
those activities on manifest grounds of 
hygiene and public health. The fact 
that a regional or local authority is 
legally obliged to arrange funerals — 
and, where necessary, to bear the costs 
of those funerals — where they have 
not been arranged within a certain 
period after a death certificate has been 
issued constitutes evidence that there is 
such a need in the general interest. 
With respect to the question whether 
the activity of funeral undertaker meets 
a need in the general interest not 
having an industrial or commercial 
character within the meaning of 
Article 1(b) of Directive 93/36, the 
existence of significant competition, 
although not entirely irrelevant, does 
not, of itself, allow the conclusion to be 
drawn that there is no need in the 
general interest not having an indus­
trial or commercial character. The 
national court must assess whether or 
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SUMMARY — CASE C-373/00 
not there is such a need, taking account 
of all the relevant legal and factual 
circumstances, such as those prevailing 
at the time of establishment of the body 
concerned and the conditions under 
which it exercises its activity. 
(see paras 34-40, 45, 51-53, 57, 
60-61, 65-66, operative part 1-3) 
4. A mere review does not satisfy the 
criterion of management supervision 
by the State, regional or local auth­
orities or other bodies governed by 
public law in the third indent of the 
second subparagraph of Article 1(b) of 
Directive 93/36 coordinating pro­
cedures for the award of public supply 
contracts since, by definition, such 
supervision does not enable the public 
authorities to influence the decisions of 
the body in question in relation to 
public contracts. 
That criterion is, however, satisfied 
where the public authorities supervise 
not only the annual accounts of the 
body concerned but also its conduct 
from the point of view of proper 
accounting, regularity, economy, effi­
ciency and expediency and where those 
public authorities are authorised to 
inspect the business premises and facil­
ities of that body and to report the 
results of those inspections to a 
regional authority which holds, 
through another company, all the 
shares in the body in question. 
(see paras 70, 74, operative part 4) 
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