Opinion of the Advocate General — ECLI:EU:C:1997:402
Date: 1997-09-16
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Economic, social and territorial cohesion;Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment
1. Approximation of laws — Procedures for the award of public works contracts — Directive
93/37 — Contracting authorities — Body governed by public law — Definition — Body such
as the Austrian State printing office — Included — Public works contracts — Definition —
Works contracts awarded by the body in question — Included irrespective of the nature of the
contract
(Council Directive 93/37, Art. 1(a) and (b))
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SUMMARY — CASE C-44/96
2. Approximation of laws — Procedures for the award of public works contracts — Directive
93/37 — Contracting authorities — Body governed by public law — Definition — Undertak­
ing carrying on commercial activities and owned by a contracting authority — Excluded —
Public works contracts — Definition — Contract relating to a works project which, from the
outset, falls within the objects of an undertaking which is not a contracting authority —
Excluded
(Council Directive 93/37, Art. 1(a) and (b))
3. Economic and social cohesion — Structural operations — Community funding — Condition
— Conformity of the action concerned with the relevant Community legislation — Funding
of a works project not covered by the public procurement legislation — Not subject to compli­
ance with the relevant review procedures
(Council Regulation No 2081/93, Art. 7(1); Council Directives 89/665 and 93/37, Art. 1(b))
1. The first subparagraph of Article 1(b) of
Directive 93/37 concerning the coordina­
tion of procedures for the award of pub­
lic works contracts defines contracting
authorities as, inter alia, bodies governed
by public law; the second subparagraph
provides that the latter means any body
established for the specific purpose of
meeting needs in the general interest, not
having an industrial or commercial char­
acter, having legal personality and closely
dependent on the State, regional or local
authorities or other bodies governed by
public law.
An entity such as the Österreichische
Staatsdruckerei (Austrian State Printing
Office, OS' ) must be regarded as a body
governed by public law and thus as a
contracting authority within the meaning
of the provisions referred to above, in so
far as
— the documents which the ÖS must pro­
duce are closely linked to public order
and the institutional operation of the
State and require guaranteed supply and
production conditions which ensure that
standards of confidentiality and security
are observed, bearing in mind, in that
respect, that the condition that the body
must have been established for the 'spe­
cific' purpose of meeting needs in the
general interest, not having an industrial
or commercial character, does not mean
that it should be entrusted only, or even
primarily, with meeting such needs;
— the ÖS has legal personality;
— the Director-General of the ÖS is
appointed by a body consisting mainly of
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MANNESMANN ANLAGENBAU AUSTRIA AND OTHERS v STROHAL ROTATIONSDRUCK
members appointed by the Federal Chan­
cellery or various ministries, the OS is
subject to scrutiny by the Court of Audi­
tors, the majority of its shares are still
held by the Austrian State and a State
control service is responsible for moni­
toring the printed matter which is subject
to security measures.
Works contracts entered into by that
entity are to be considered to be public
works contracts within the meaning of
Article 1(a) of the directive whatever their
nature and irrespective of the relative
proportion, whether large or small, which
they represent of the activities of the ÖS
pursued for the purpose of meeting needs
not having an industrial or commercial
character.
2. An undertaking which carries on com­
mercial activities and in which a contract­
ing authority, within the meaning of the
first subparagraph of Article 1(b) of
Directive 93/37 concerning the coordina­
tion of procedures for the award of pub­
lic works contracts, has a majority share­
holding is not to be regarded as a body
governed by public law within the mean­
ing of the second subparagraph of that
provision — according to which it must
be a body established for the specific pur­
pose of meeting needs in the general
interest, not having an industrial or com­
mercial character — and thus as a con­
tracting authority on the sole ground that
that undertaking was established by the
contracting authority or that the con­
tracting authority transfers to it funds
derived from activities pursued in order
to meet needs in the general interest, not
having an industrial or commercial char­
acter.
Furthermore, a public works contract is
not subject to the provisions of the direc­
tive when it relates to a project which,
from the outset, falls entirely within the
objects of an undertaking which is not a
contracting authority and when the
works contracts relating to that project
were entered into by a contracting auth­
ority on behalf of that undertaking.
3. Pursuant to Article 7(1) of Regulation No
2081/93, amending Regulation No
2052/88, measures financed by the Struc­
tural Funds or receiving assistance from
the European Investment Bank or from
another existing financial instrument are
to be in conformity with the provisions
of the Treaties, with the instruments
adopted pursuant thereto and with Com­
munity policies, including those concern­
ing the rules on competition, the award of
public contracts and environmental pro­
tection and the application of the prin­
ciple of equal opportunities for men and
women. In that respect, the requirement
that the measures referred to must be in
conformity with Community law presup­
poses that those measures fall within the
scope of the relevant Community legisla­
tion.
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SUMMARY — CASE C-44/96
It follows that the aforementioned provi­
sion must be interpreted as meaning that
Community funding of a works project is
not conditional upon the recipients com­
plying with the review procedures within
the meaning of Directive 89/665 on the
coordination of the laws, regulations and
administrative provisions relating to the
application of review procedures to the
award of public supply and public works
contracts, if they are not themselves con­
tracting authorities within the meaning of
Article 1(b) of Directive 93/37 concerning
the coordination of procedures for the
award of public works contracts.
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