Opinion of the Advocate General — ECLI:EU:C:2010:528
Date: 2010-09-16
Language of the case: Spanish
Subject matter: Right of establishment
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Spain

Summary of the Judgment 1. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directives 93/37 and 2004/18 – Public works contracts – Definition – Mixed contracts – Rules applicable (European Parliament and Council Directive 2004/18, Art. 1(2)(b); Council Directive 93/37, Art. 1(a)) 2. Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission – Presumptions – Not permissible (Art. 226 EC; European Parliament and Council Directive 2004/18, Art. 1(2)(b); Council Directive 93/37, Art. 1(c)) 1. The concept of ‘public works contracts’ within the meaning of Article 1(a) of Directive 93/37, concerning the coordination of procedures for the award of public works contracts, and of Article 1(2)(b) of Directive 2004/18, on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, covers ‘contracts for pecuniary interest’, concluded in writing between one or more economic operators and one or more contracting authorities and having as their object either the execution, or both the design and execution, of works related to one of the activities referred to in Annex II to Directive 93/37 or Annex I to Directive 2004/18 or of a work defined in Article 1(c) of Directive 93/37 or Article 1(2)(b) of Directive 2004/18, or the execution, by whatever means, of a work corresponding to the requirements specified by the contracting authority. A contract may be deemed to be a ‘public works contract’ only if its subject-matter corresponds to that definition. Works which are incidental to, and not the subject‑matter of, the contract do not justify its qualification as a public works contract. When a contract contains elements relating both to a public works contract and to another type of contract, it is the main object of the contract that determines which body of rules of European Union law on public contracts is, in principle, to be applied. That determination must be made in the light of the essential obligations which predominate and which, as such, characterise the transaction, as opposed to those which are only ancillary or supplementary in nature and are required by the very object of the contract. (see paras 88-91) 2. In proceedings under Article 226 EC for failure to fulfil obligations, it is for the Commission to prove that failure. It is the Commission, indeed, which must place before the Court all the information needed to enable the Court to establish that failure, and in so doing the Commission may not rely on any presumptions. When the action concerns the classification as public works contracts, within the meaning of Directive 93/37, concerning the coordination of procedures for the award of public works contracts, or Directive 2004/18, on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, of contracts concluded between a local authority and a developer, and the Commission confines itself to putting forward the argument that the urban development contracts at issue must be classified as ‘public works contracts’ on the ground that the main object of such contracts is, for the purposes of Articles 1(c) of Directive 93/37 and 1(2)(b) of Directive 2004/18, a work of urban development, without proving this, the condition precedent to a declaration of such a failure to fulfil obligations is lacking and the action must be dismissed. (see paras 92, 94, 98-99)