Opinion of the Advocate General — ECLI:EU:C:2000:671
Date: 2000-12-07
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 
1. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — Purpose — Effectiveness 
(Council Directive 93/37, Art. 1(a)) 
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SUMMARY — CASE C-399/98 
2. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — Public works contracts — Criteria for assessment 
(Council Directive 93/37, Art. 1(a), (b) and (c)) 
3. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — Scope — National rule allowing direct execution of infrastructure 
works — Included — Condition 
(Council Directive 93/37) 
4. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — Public works contracts — Definition — Existence of a con­
tract — Public authorities concerned not able to choose the other party to the 
contract under a development plan — No effect — Conditions 
(Council Directive 93/37, Art. 1(a)) 
5. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — Public works contracts — Definition — Pecuniary nature of the 
contract 
(Council Directive 93/37, Art. 1(a)) 
6. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — Public works contracts — Definition — Contractor — Classifi­
cation not dependent on direct performance with own resources 
(Council Directive 93/37, Art. 1(a)) 
7. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — Application of the rules concerning publicity provided for under 
the Directive by persons other than the contracting authority — Whether permissi­
ble — Conditions 
(Council Directive 93/37, Art. 1(a), (b) and (c) and Art. 3(4)) 
8. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — National rule providing for the direct execution of infrastructure 
works of a value equal to or exceeding the ceiling fixed by the Directive by a holder of a 
building permit or approved development plan by way of set-off against a 
contribution — Not permissible 
(Council Directive 93/37) 
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ORDINE DEGLI ARCHITETTI AND OTHERS 
9. Preliminary rulings — Admissibility of reference •— Request not specifying the 
legislative context 
(Art. 234 EC) 
1. Since the existence of a 'public works 
contract' is a condition for application 
of Directive 93/37 concerning the coor­
dination of procedures for the award of 
public works contracts, Article 1(a) 
must be interpreted in such a way as 
to ensure that the Directive is given full 
effect. It is clear that the Directive aims 
to abolish restrictions on the freedom 
of establishment and on the freedom to 
provide services in respect of public 
works contracts in order to open up 
such contracts to genuine competition. 
The development of such competition 
entails the publication at Community 
level of contract notices. Exposure to 
Community competition in accordance 
with the procedures provided for by the 
Directive ensures that the public autho­
rities cannot indulge in favouritism. 
(see para. 52) 
2. Directive 93/37 concerning the coordi­
nation of procedures for the award of 
public works contracts gives definitions 
of 'contracting authority' (Arti­
cle 1(b)), 'works' (Article 1(a) and 
Annex II) and 'a work' (Article 1(c)). 
The definition given by the Community 
legislature confirms that those elements 
are closely related to the aim of the 
Directive. They must play a decisive 
role, therefore, when it falls to be 
determined whether a 'public works 
contract' exists for the purposes of the 
Directive. 
This means that in circumstances invol­
ving the execution, or the design and 
execution, of works or the execution of 
a work for a contracting authority 
within the meaning of the Directive, 
the assessment of the situation in terms 
of the other elements referred to in 
Article 1(a) of the Directive must be 
made in such a way as to ensure that 
the Directive is not deprived of prac­
tical effect, particularly where that 
situation displays special characteris­
tics because of the provisions of 
national law applicable to it. 
(see paras 53-55) 
3. The fact that a provision of national 
law allowing direct execution of infra­
structure works forms part of a set of 
urban development regulations that are 
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SUMMARY — CASE C-399/98 
of a special nature and pursue a specific 
aim, separate from that of Directive 
93/37 concerning the coordination of 
procedures for the award of public 
works contracts, is not sufficient to 
exclude the direct execution of works 
from the scope of the Directive when 
the elements needed to bring it within 
its scope are present. 
(see para. 66) 
4. It does not follow from the fact that, 
under a development plan, the munici­
pal authorities in question are not free 
to choose the other party to the con­
tract since by law that person must be 
the owner of the land in question that 
the relationship between the authorities 
and the developer does not constitute a 
contract, since it is the development 
agreement concluded between them 
which determines in each case the 
various infrastructure works to be 
undertaken, together with the related 
terms and conditions, including the 
requirement that the projects for such 
works be approved by the municipality. 
(see para. 71) 
5. The pecuniary nature of the contract 
within the meaning of Article 1(a) of 
Directive 93/37 concerning the coordi­
nation of procedures for the award of 
public works contracts relates to the 
consideration due from the public 
authority concerned in return for the 
execution of the works which are the 
object of the contract referred to in 
Article 1(a) of the Directive and which 
will be at the disposal of the public 
authority. 
(see para. 77) 
6. Article 1(a) of Directive 93/37 concern­
ing the coordination of procedures for 
the award of public works contracts 
does not require that, in order to be 
classed as a contractor, a person who 
enters into a contract with a contract­
ing authority must be capable of direct 
performance using his own resources. 
The person in question need only be 
able to arrange for execution of the 
works in question and to furnish the 
necessary guarantees in that connec­
tion. 
(see para. 90) 
7. In order to comply with Directive 
93/37 concerning the coordination of 
procedures for the award of public 
works contracts in cases concerning the 
execution of infrastructure works, the 
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ORDINE DEGLI ARCHITETTI AND OTHERS 
municipal authorities constituting a 
local authority within the meaning of 
Article 1(b) of the Directive need not 
themselves apply the award-of-contract 
procedures laid down therein. The 
Directive would still be given full effect 
if the national legislation allowed the 
municipal authorities to require the 
developer holding the building permit, 
under the agreements concluded with 
them, to carry out the work contracted 
for in accordance with the procedures 
laid down in the Directive so as to 
discharge their own obligations under 
the Directive. In such a case, the 
developer must be regarded, by virtue 
of the agreements concluded with the 
municipality exempting him from the 
infrastructure contribution in return 
for the execution of public infrastruc­
ture works, as the holder of an express 
mandate granted by the municipality 
for the construction of that work. 
Article 3(4) of the Directive expressly 
allows for the possibility of the rules 
concerning publicity to be applied by 
persons other than the contracting 
authority in cases where public works 
are contracted out. 
(see paras 57, 100) 
8. Directive 93/37 concerning the coordi­
nation of procedures for the award of 
public works contracts precludes 
national urban development legislation 
under which, without the procedures 
laid down in the Directive being 
applied, the holder of a building permit 
or approved development plan may 
execute infrastructure works directly, 
by way of total or partial set-off 
against the contribution payable in 
respect of the grant of the permit, in 
cases where the value of that work is 
the same as or exceeds the ceiling fixed 
by the Directive. 
(see para. 103 and operative part) 
9. When the national court has not iden­
tified the provisions of Community law 
of which it seeks an interpretation, nor 
specified precisely which aspects of the 
relevant national legislation raise diffi­
culties in terms of Community law 
when applied in the case before it, it 
is not possible to identify the specific 
problem arising in the main proceed­
ings concerning the interpretation of 
Community law and therefore the 
question referred for a preliminary 
ruling must be held inadmissible. 
(see paras 105-107) 
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