Opinion of the Advocate General — ECLI:EU:C:1999:344
Date: 1999-07-01
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 
1. Preliminary rulings — Jurisdiction of the Court — Extraction of the relevant points of 
Community law — Jurisdiction of the national courts — Application of provisions as 
interpreted 
(EC Treaty, Art. 177 (now Art. 234 EC)) 
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SUMMARY — CASE C-107/98 
2. Approximation of laws — Procedures for the award of public supply contracts — 
Directive 93/36 — Scope — Contracts awarded by a contracting authority to a distinct 
and independent body — Covered — Where the successful tenderer is itself a 
contracting authority — Irrelevant 
(Council Directives 92/50, Art. 6, and 93/36) 
1. Where, under the procedure provided 
for by Article 177 of the Treaty (now 
Article 234 EC), questions are formu­
lated imprecisely, the Court may 
extract — from all the information 
provided by the national court and 
from the documents concerning the 
main proceedings — the points of 
Community law requiring interpreta­
tion, having regard to the subject-
matter of the dispute. In order to 
provide the national court with a 
satisfactory answer, the Court may 
deem it necessary to consider provi­
sions of Community law which the 
national court has not mentioned in its 
question. On the other hand, by virtue 
of the division of functions provided 
for under the above provision, it is for 
the national court to apply the rules of 
Community law, as interpreted by the 
Court, to a specific case. No such 
application is possible without a com­
prehensive appraisal of the facts of the 
case. 
2. Directive 93/36 coordinating proce­
dures for the award of public supply 
contracts is applicable in cases where a 
contracting authority, such as a local 
authority, plans to conclude in writing, 
with an entity which is formally dis­
tinct from it and independent of it in 
regard to decision-making — which is 
not the position where the local author­
ity exercises over a legally distinct 
person a form of control similar to 
that exercised over its own depart­
ments and, at the same time, the person 
carries out the essential part of its 
activities together with the controlling 
local authority or authorities — a con­
tract for pecuniary interest for the 
supply of products, whether or not 
that entity is itself a contracting author­
ity. 
The only permitted exceptions to the 
application of Directive 93/36 are 
those which are exhaustively and 
expressly mentioned therein. That 
Directive does not contain any provi­
sion comparable with Article 6 of 
Directive 92/50 relating to the coordi­
nation of procedures for the award of 
public service contracts , which 
excludes from its scope public con­
tracts awarded, under certain condi­
tions, to contracting authorities. 
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