Opinion of the Advocate General — ECLI:EU:C:2015:445
Date: 2015-07-07
Language of the case: Spanish
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Spain

summary of the facts of the case in the main proceedings, see the order in Consorci Sanitari del Maresme (C‑203/14, EU:C:2015:279, paragraph 2). 3 – The questions concern, inter alia, the issue of whether public authorities must be regarded as economic operators for the purposes of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), their inclusion in the official lists of approved contractors and their certification by certification bodies established under public or private law. 4 – See, inter alia, judgments in Vaassen-Göbbels (61/65, EU:C:1966:39), Dorsch Consult (C‑54/96, EU:C:1997:413, paragraph 23); Österreichischer Gewerkschaftsbund (C‑195/98, EU:C:2000:655, paragraph 24); Syfait and Others (C‑53/03, EU:C:2005:333, paragraph 29); Emanuel (C‑259/04, EU:C:2006:215, paragraph 19); Forposta and ABC Direct Contact (C‑465/11, EU:C:2012:801, paragraph 17); Belov (C‑394/11, EU:C:2013:48, paragraph 38 and the case-law cited); and Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:1754, paragraph 23). 5 – See, inter alia, judgments in Job Centre (C‑111/94, EU:C:1995:340, paragraph 9); Victoria Film (C‑134/97, EU:C:1998:535, paragraph 14); Österreichischer Gewerkschaftsbund (C‑195/98, EU:C:2000:655, paragraph 25); Syfait and Others (C‑53/03, EU:C:2005:333, paragraph 29); and Belov (C‑394/11, EU:C:2013:48, paragraph 39). 6 – See, inter alia, judgments in Vaassen-Göbbels (61/65, EU:C:1966:39); Broekmeulen (246/80, EU:C:1981:218, paragraphs 11 and 17); Dorsch Consult (C‑54/96, EU:C:1997:413, paragraph 38); Jokela and Pitkäranta (C‑9/97 and C‑118/97, EU:C:1998:497, paragraph 24); and Abrahamsson and Anderson (C‑407/98, EU:C:2000:367, paragraph 38). See also the Opinion of Advocate General Tesauro in Dorsch Consult (C‑54/96, EU:C:1997:245, point 20). 7 – See, in this connection, the Opinion of Advocate General Ruiz-Jarabo Colomer in De Coster (C‑17/00, EU:C:2001:366, points 53 to 57 and the case-law cited). 8 – Opinion of Advocate General Tesauro in Dorsch Consult (C‑54/96, EU:C:1997:245, point 23). 9– OJ 1989 L 395, p. 33, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31). 10 – The first subparagraph of Article 2(9) provides that, ‘[w]here bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article [267 TFEU] and independent of both the contracting authority and the review body’. 11 – Regarding the concept of the procedural autonomy of the Member States and the principles of EU law which limit that autonomy, see, in particular, judgments in Club Hotel Loutraki and Others (C‑145/08 and C‑149/08, EU:C:2010:247, paragraph 74 and the case-law cited), and eVigilo (C‑538/13, EU:C:2015:166, paragraph 39). As regards the principles of effectiveness and equivalence in the context of Directive 89/665, see, in particular, my Opinion in Orizzonte Salute (C‑61/14, EU:C:2015:307, points 20 to 26, 33 and 34). 12 – Advocate General Ruiz-Jarabo Colomer strongly criticised this case-law, which he described as ‘too flexible and not sufficiently consistent’, in his Opinions in De Coster (C‑17/00, EU:C:2001:366, points 13, 14 and 58 to 64); Ing. Aigner (C‑393/06, EU:C:2007:706, points 22 to 29); and Österreichischer Rundfunk (C‑195/06, EU:C:2007:303, points 27 to 29). 13 – See, in particular, judgments in Dorsch Consult (C‑54/96, EU:C:1997:413, paragraphs 23 to 38); Mannesmann Anlagenbau Austria and Others (C‑44/96, EU:C:1998:4); HI (C‑258/97, EU:C:1999:118, paragraph 18); Unitron Scandinavia and 3-S (C‑275/98, EU:C:1999:567, paragraph 15); HI (C‑92/00, EU:C:2002:379, paragraphs 26 to 28); Felix Swoboda (C‑411/00, EU:C:2002:660, paragraphs 26 to 28); Ing. Aigner (C‑393/06, EU:C:2008:213); Forposta and ABC Direct Contact (C‑465/11, EU:C:2012:801, paragraph 18); and Bundesdruckerei (C‑549/13, EU:C:2014:2235, paragraph 22). See also the Opinion of Advocate General Léger in Mannesmann Anlagenbau Austria and Others (C‑44/96, EU:C:1997:402, points 34 to 44); the Opinion of Advocate General Saggio in HI (C‑258/97, EU:C:1998:457, points 11 to 15); the Opinion of Advocate General Mischo in Felix Swoboda (C‑411/00, EU:C:2002:238, points 13 to 20); and the Opinion of Advocate General Ruiz-Jarabo Colomer in Ing. Aigner (C‑393/06, EU:C:2007:706, points 22 to 29). 14 – See, to that effect, judgments in Broekmeulen (246/80, EU:C:1981:218, paragraphs 15 and 17), and Handels- og Kontorfunktionærernes Forbund i Danmark (109/88, EU:C:1989:383, paragraphs 7 and 9), and the Opinion of Advocate General Ruiz-Jarabo Colomer in De Coster (C‑17/00, EU:C:2001:366, point 82). 15 – It is clear from the information provided by the referring body that, in Spain, the bodies specialising in matters concerning public procurement were created by Royal Legislative Decree 3/2011 of 14 November 2011 adopting the consolidated text of the Law on Public Sector Contracts (Boletín Oficial del Estado, No 276 of 16 November 2011, p. 117729, hereinafter ‘Royal Legislative Decree 3/2011’). Royal Legislative Decree 3/2011 created the Tribunal Administrativo Central de Recursos Contractuales (the central body) and conferred power on the Autonomous Communities to create corresponding review bodies in the Autonomous Communities. 16 – Diari Oficial de la Generalitat de Catalunya No 5931 of 29 July 2011. In accordance with the first paragraph of the fourth additional provision, ‘[t]his body shall be a specialised administrative body. It shall exercise its powers in a wholly independent manner.’ 17 – Decree 221/2013 on the establishment, organisation and functioning of the Tribunal Català de Contractes del Sector Públic (Diari Oficial de la Generalitat de Catalunya No 6454 of 5 September 2013). According to the Spanish Government, these rules govern the organisation and functioning of the Tribunal Català de Contractes del Sector Públic in exactly the same way as the rules which govern the Tribunal Administrativo Central de Recursos Contractuales, laid down in Royal Legislative Decree 3/2011. 18 – Regarding this criterion of permanance, see, in particular, the judgment in Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:1754, paragraphs 25 and 26) and the Opinion of Advocate General Léger in Mannesmann Anlagenbau Austria and Others (C‑44/96, EU:C:1997:402, paragraph 38). 19 – Article 7 of Decree 221/2013. 20 – Judgments in Dorsch Consult (C‑54/96, EU:C:1997:413, paragraph 31), and Gabalfrisa and Others (C‑110/98 to C‑147/98, EU:C:2000:145, paragraph 37). 21 – Judgments in Corbiau (C‑24/92, EU:C:1993:118, paragraph 15); Wilson (C‑506/04, EU:C:2006:587, paragraph 49); RTL Belgium (C‑517/09, EU:C:2010:821, paragraph 38); and TDC (C‑222/13, EU:C:2014:2265, paragraph 29). 22 – Judgments in Wilson (C‑506/04, EU:C:2006:587, paragraphs 51 and 52 and the case-law cited); RTL Belgium (C‑517/09, EU:C:2010:821, paragraphs 39 and 40); and TDC (C‑222/13, EU:C:2014:2265, paragraphs 30 and 31). 23 – Judgments in Wilson (C‑506/04, EU:C:2006:587, paragraph 53 and the case-law cited), and TDC (C‑222/13, EU:C:2014:2265, paragraph 32). 24 – Judgment in TDC (C‑222/13, EU:C:2014:2265, paragraph 32), and order in Pilato (C‑109/07, EU:C:2008:274, paragraph 24). However, it should be noted that, in its judgment in Köllensperger and Atzwanger (C‑103/97, EU:C:1999:52, paragraphs 20 to 25), the Court abandoned that requirement and held the body making the reference to be a court or tribunal of a Member State despite the lack of specific provisions on challenges to or withdrawals by members. 25 – See point 23 of this Opinion. 26 – It should be noted that, in its judgment in Dorsch Consult (C‑54/96, EU:C:1997:413), the Court regarded as a court or tribunal of a Member State a Federal Supervisory Board whose ‘civil servant’ members were also members of the national administrative authority responsible for competition matters and simultaneously performed both functions (see the Opinion of Advocate General Tesauro in Dorsch Consult (C‑54/96, EU:C:1997:245, points 33 and 34)). 27 – It also seems to me that the guarantees that the ‘civil servant’ members in the case in Dorsch Consult (C‑54/96, EU:C:1997:413) could not be removed from office were weaker than those in the present case, which are set out in Article 8(4) of Decree 221/2013. 28 – See Articles 1 and 2 of Decree 221/2013. 29 – Judgments in RTL Belgium (C‑517/09, EU:C:2010:821, paragraph 47); Epitropos tou Elegktikou Synedriou (C‑363/11, EU:C:2012:825, paragraph 21); and TDC (C‑222/13, EU:C:2014:2265, paragraph 37). 30 – See judgments in Corbiau (C‑24/92, EU:C:1993:118, paragraphs 16 and 17); Belov (C‑394/11, EU:C:2013:48, paragraphs 49 and 51); and TDC (C‑222/13, EU:C:2014:2265, paragraph 37); and order in MF 7 (C‑49/13, EU:C:2013:767, paragraph 19). 31 – See Article 29 of Decree 221/2013. See also, in this connection, the judgment in Westbahn Management (C‑136/11, EU:C:2012:740, paragraph 30), in which the Court regarded as a court or tribunal of a Member State within the meaning of Article 267 TFEU the Schienen-Control Kommission (Austrian Rail Supervisory Commission), which is governed by the ordinary law of administrative procedure and whose decision cannot be set aside by administrative decisions but may be the subject of proceedings before the Verwaltungsgerichtshof (Higher Administrative Court). The Court adopted a similar approach, inter alia, in its judgment in Österreichischer Rundfunk (C‑195/06, EU:C:2007:613, paragraphs 20 to 22). See, on this point, the Opinion of Advocate General Ruiz-Jarabo Colomer in Österreichischer Rundfunk (C‑195/06, EU:C:2007:303, points 32 and 34). 32 – According to the Spanish Government, a draft law, which has already been made public, removes this option. If the draft law is approved, it will become necessary first to bring a special appeal before a review body, such as the Tribunal Català de Contractes del Sector Públic. 33 – According to the Spanish Government, this option is thus available only to the tenderer and never to the contracting authority, which cannot override the tenderer’s decision. However, that factor is not conclusive, inasmuch as the fact that a defendant (the contracting authority) is obliged to accept the applicant’s (the tenderer’s) choice of forum is an inherent part of jurisdiction (see, to that effect, the Opinion of Advocate General Szpunar in Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:246, point 39 and the case-law cited)). On the other hand, it appears to me that the contractor’s entitlement to choose between bringing a special appeal before the referring body and initiating an administrative-law action means that the contractor itself will be bound by that decision as well as the authority, since the special appeal will become compulsory for the parties. It therefore seems to me that the special appeal is a procedure to which lis pendens may apply, even though that has not been expressly stated in the information furnished to the Court. The principle of lis pendens is a general procedural principle according to which proceedings are not admissible if the same matter is also sub judice elsewhere (judgments in France v Parliament (358/85 and 51/86, EU:C:1988:431, paragraph 12); Italy v Commission (C‑138/03, C‑324/03 and C‑431/03, EU:C:2005:714, paragraph 64); and Diputación Foral de Vizcaya and Others v Commission (C‑465/09 P to C‑470/09 P, EU:C:2011:372, paragraph 58); and the Opinion of Advocate General Kokott in Belov (C‑394/11, EU:C:2012:585, point 43)). 34 – Boletín Oficial del Estado, No 276 of 31 October 2007, p. 44436. 35 – Judgments in Epitropos tou Elegktikou Synedriou (C‑363/11, EU:C:2012:825, paragraph 21), and Belov (C‑394/11, EU:C:2013:48, paragraph 40 and the case-law cited). 36 – Judgment in Belov (C‑394/11, EU:C:2013:48, paragraph 41 and the case-law cited). 37 – C‑54/96, EU:C:1997:413. 38 – See, in this connection, the judgment in Almelo (C‑393/92, EU:C:1994:171, paragraph 21) and the Opinion of Advocate General Lenz in X (228/87, EU:C:1988:276, point 6), in which the term used was ‘binding jurisdiction’, the Opinion of Advocate General Lenz in Handels- og Kontorfunktionærernes Forbund i Danmark (109/88, EU:C:1989:228, point 17), in which the term used was ‘mandatory jurisdiction’, and the Opinion of Advocate General Darmon in Almelo (C‑393/92, EU:C:1994:42, points 30 and 32). In the judgment in Vaassen-Göbbels (61/65, EU:C:1966:39), the persons in question were ‘bound to take any disputes ... to the [referring body] as the proper judicial body’. In Advocate General Gand’s Opinion in Vaassen-Göbbels (61/65, EU:C:1966:25), the expression ‘sole tribunal’ was used. See also, in this connection, the Opinion of Advocate General Léger in Mannesmann Anlagenbau Austria and Others (C‑44/96, EU:C:1997:402, points 36, 37 and 40), and also footnote 40 to this Opinion. 39 – C‑54/96, EU:C:1997:413. 40 – The Opinion of Advocate General Léger in Mannesmann Anlagenbau Austria and Others (C‑44/96, EU:C:1997:402, point 36) offers a similar interpretation of the criterion prior to the judgment in Dorsch Consult (C‑54/96, EU:C:1997:413). According to that Opinion, among the criteria to be considered were the existence of a ‘compulsory reference to the body in the event of a dispute’ and of ‘competence to resolve disputes by adopting a binding decision’. In its judgment in Mannesmann Anlagenbau Austria and Others (C‑44/96, EU:C:1998:4), the Court did not address the question of admissibility, but, on examining the questions referred, implicitly regarded the referring body as a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU. 41 – Judgment in Dorsch Consult (C‑54/96, EU:C:1997:413, paragraphs 28 and 29). In its judgment in Gabalfrisa and Others (C‑110/98 to C‑147/98, EU:C:2000:145, paragraphs 35 and 36), the Court again gave consideration to these two aspects of compulsory jurisdiction, both of which were present. Similarly, in its judgment in Torresi (C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 20), the Court found to be ‘compulsory’ the jurisdiction of a body whose jurisdiction was laid down by statute and was not optional and whose decisions were enforceable. Once again, the two aspects were present. See also, in this connection, the judgment in Almelo (C‑393/92, EU:C:1994:171, paragraph 21), and the Opinion of Advocate General Darmon in Almelo (C‑393/92, EU:C:1994:42, points 30 and 32); the Opinion of Advocate General Kokott in Belov (C‑394/11, EU:C:2012:585, point 47), and the Opinion of Advocate General Bot in TDC (C‑222/13, EU:C:2014:1979, point 31). 42 – See the Opinion of Advocate General Ruiz-Jarabo Colomer in Emanuel (C‑259/04, EU:C:2006:50, point 29); the Opinion of Advocate General Kokott in Belov (C‑394/11, EU:C:2012:585, points 48 and 49); and the Opinion of Advocate General Szpunar in Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:246, point 40). The Court regarded as a court or tribunal of a Member State, within the meaning of Article 267 TFEU, the bodies in question in its judgment in Emanuel (C‑259/04, EU:C:2006:215), and Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:1754). In its judgment in Belov (C‑394/11, EU:C:2013:48, paragraph 54), the question of the ‘compulsory jurisdiction’ of the referring body was not examined because its decision were not judicial in nature. 43 – C‑259/04, EU:C:2006:215. 44 – In addition, the decisions of the appointed person were, in principle, final, subject exceptionally to an application for judicial review (judgment in Emanuel, C‑259/04, EU:C:2006:215, paragraphs 21 to 25). 45 – C‑377/13, EU:C:2014:1754. 46 – Judgment in Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:1754, paragraph 29). See also the Opinion of Advocate General Szpunar in Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:246, points 38 to 40). Also, in its judgment in Broekmeulen (246/80, EU:C:1981:218), the Court allowed a question referred for a preliminary ruling from a professional body even though the applicant had the alternative possibility of bringing the case before an ordinary court. However, it should be noted that that alternative had never been used in practice (see paragraphs 15 and 17 of that judgment). Moreover, in the case which gave rise to the judgment in TDC (C‑222/13, EU:C:2014:2265), the economic operator was, in theory, free either to appeal to the Teleklagenævnet, a permanent public dispute resolution body, or to bring an action directly before the courts exercising general jurisdiction. According to Advocate General Bot, the existence of that choice did not preclude the Teleklagenævnet from being recognised as exercising compulsory jurisdiction (Opinion of Advocate General Bot in TDC (C‑222/13, EU:C:2014:1979, points 33 and 38)). However, the Court did not examine whether the Teleklagenævnet’s jurisdiction was compulsory because it did not meet the criterion of independence (paragraph 38 of the judgment). 47 – Admittedly, in its recent order in Emmeci (C‑427/13, EU:C:2014:2121, paragraphs 28 to 31), the Court took into account the optional nature of the remedy and held that the referring body could not be regarded as a court or tribunal of a Member State within the meaning of Article 267 TFEU. However, it must be emphasised that, in that case, the decisions of the referring body were not binding and consequently its jurisdiction was in no way compulsory in the sense ascribed to that term in the judgment in Dorsch Consult (C‑54/96, EU:C:1997:413). The same situation pertained in the case which gave rise to the order in Cafom and Samsung (C‑161/03, EU:C:2003:413, paragraphs 14 and 15). 48 – See, in this connection, footnotes 41 and 47 of this Opinion. Nevertheless, at the hearing, the Commission asserted that interpreting this case-law a contrario could result in the conclusion that it is necessary for the legal remedy in question to be the only reasonable remedy. According to the Commission, account would nevertheless have to be taken of the particular legal context in which the referring body sought a ruling from the Court of Justice (judgment in Belov (C‑394/11, EU:C:2013:48, paragraph 41)) in order to avoid such an interpretation. In any event, I do not think that an interpretation a contrario of this point is possible, since the Court has never stated that the list of criteria established in the case-law is exhaustive. It has, on the other hand, already held that the inter partes nature of the procedure is not an absolute requirement (see point 24 of this Opinion). 49 – However, in its judgment in Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:1754, paragraph 27), the Court confirmed that this criterion was relied on in its case-law relating to arbitration tribunals appointed by contract. 50 – Judgments in Nordsee (102/81, EU:C:1982:107, paragraphs 10 to 12); Denuit and Cordenier (C‑125/04, EU:C:2005:69, paragraphs 13 and 16 and the case-law cited); and Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:1754, paragraph 27). See also the order in Merck Canada (C‑555/13, EU:C:2014:92, paragraph 17). 51 – Judgments in Handels- og Kontorfunktionærernes Forbund i Danmark (109/88, EU:C:1989:383, paragraphs 7 to 9) and Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:1754, paragraphs 28 and 29). See also the order in Merck Canada (C‑555/13, EU:C:2014:92, paragraphs 18 and 19). 52 – See, to that effect, the judgment in Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:1754, paragraph 29). 53 – See, to that effect, the Opinion of Advocate General Kokott in Belov (C‑394/11, EU:C:2012:585, point 48). On the other hand, if an administrative-law action were brought only after a decision had been given by a special body, such as the Tribunal Català de Contractes del Sector Públic, the problem would not arise because, at that stage, the action before the ordinary administrative courts would unquestionably be compulsory. Nevertheless, it should be noted that, according to the Spanish Government, the decisions of review bodies such as the Tribunal Català de Contractes del Sector Públic are rarely appealed before the administrative courts and thus the decisions of such review bodies are often final. 54 – It should not be forgotten that, in civil matters, alternative jurisdictions may exist. See, for examples, Articles 7 and 8 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p.1), which list a number of alternative fora in civil matters. 55 – On the specialisation of courts, see the Opinion of Advocate General Szpunar in Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:246, point 50). 56 – In accordance with Article 26 of Decree 221/2013, the Tribunal Català de Contractes del Sector Públic may find that a determination made by a contracting authority is unlawful and, where appropriate, annul it and also order the contracting authority to pay compensation to the party concerned for damage suffered. It also has substantive jurisdiction to decide on the adoption of provisional measures before a special appeal in a public procurement matter is lodged and to resolve questions relating to invalidity that are based on specific cases in which contracts are null and void. 57 – I would reiterate that, according to the Spanish Government, such decisions are rarely appealed (see point 53 of this Opinion).