Opinion of the Advocate General — ECLI:EU:C:2002:368
Date: 2002-06-13
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Spain

Summary of the Judgment 
1. Approximation of laws — Review procedures in respect of the award of public supply 
and public works contracts — Directive 89/665 — Contracting authorities — Body 
governed by public law — Definition — National legislation excluding commercial 
companies under public control — Not permissible 
(Council Directives 89/665, Art. (1)(1)(b), 92/50, Art. 1(b), second subpara., 93/36, 
Art. 1(b), second subpara., and 93/37, Art. 1(b), second subpara.) 
I - 4667 
SUMMARY — CASE C-214/00 
2. Approximation of laws — Review procedures in respect of the award of public supply 
and public works contracts — Directive 89/665 — Reviewable decisions — 
National legislation which, with certain exceptions, excludes procedural acts — 
Whether permissible — Criteria 
(Council Directive 89/665, Art. 1) 
3. Approximation of laws — Review procedures in respect of the award of public supply 
and public works contracts —· Directive 89/665 — Interim measures — Require­
ment that proceedings on the merits be brought beforehand — Not permissible 
(Council Directive 89/665, Art. 2(1)(a)) 
1. National legislation that automatically 
excludes commercial companies under 
public control from the scope ratione 
personae 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 is not a correct 
transposition of the term 'contracting 
authority' appearing in Article 1(1)(b) 
of t h a t d i rec t ive , as defined in 
Article 1(b) of Directives 92/50 relating 
to the coordination of procedures for 
the award of public service contracts, 
93/36 coordinating procedures for the 
award of public supply contracts and 
93/37 concerning the coordination of 
procedures for the award of public 
works contracts. 
Since the scope ratione personae of 
Directive 89/665 is bound to coincide 
with that of those directives, it is 
necessary to refer to the definition of 
that term and, more particularly, to 
that of 'body governed by public law' 
used in the second subparagraph of 
Article 1(b) of those directives. 
An entity's private law status does not 
constitute a criterion for precluding it 
from being classified as a contracting 
authority within the meaning of that 
article, since the application of those 
directives to an entity which fulfils the 
three cumulative conditions set out 
therein, according to which it must be 
a body established for the specific 
purpose of meeting needs in the general 
interest, not having an industrial or 
commercial character, which has legal 
personality and is closely dependent on 
the State, regional or local authorities 
or other bodies governed by public law, 
cannot be excluded solely on the basis 
of the fact that, under the national law 
to which it is subject, its legal form and 
rules which govern it fall within the 
scope of private law. 
(see paras 50-52, 55-57, 60) 
I - 4668 
COMMISSION v SPAIN 
2. National rules providing that pro­
cedural acts are not open to adminis­
trative appeal or administrative appeal 
proceedings unless they decide, directly 
or indirectly, the substance of the case, 
make it impossible to continue the 
procedure or to put up a defence, or 
cause irreparable harm to legitimate 
rights or interests, provide adequate 
judicial protection within the meaning 
of Directive 89/665 on the coor­
dination of the laws, regulations and 
administrative provisions relating to 
the application of review procedures 
to the award of public supply and 
public works contracts. That directive 
seeks to ensure that adequate pro­
cedures exist in all the Member States 
to permit the setting aside of decisions 
taken by contracting authorities in 
infringement of Community law on 
the award of public contracts or of 
national rules transposing that law, 
and also the compensating of persons 
names by such an infringement, and the 
review procedures to which it refers 
must be conducted effectively and as 
rapidly as possible and must be avail­
able to any person having or having 
had an interest in obtaining a particular 
public contract and who has been or 
risks being harmed by an alleged 
infringement. 
(see paras 77-80) 
3. Under Article 2(1)(a) 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 
publ ic supply and public works 
contracts, the Member States are under 
a duty to empower their review bodies 
to take, independently of any prior 
action, any interim measures, including 
measures to suspend or to ensure the 
suspension of the procedure for the 
award of the public contract in ques­
tion. 
In that regard, national legislation 
which, as a general rule, requires pro­
ceedings on the merits to be brought 
beforehand as a condition for the 
adoption of an interim measure against 
a decision of a contracting authority, 
cannot be regarded as a system of 
interim judicial protection which is 
adequate to remedy effectively any 
infringements that might have been 
committed by the contracting auth­
orities and therefore as consistent with 
the requirements of Directive 89/665. 
(see paras 98-100, 102, operative part 1) 
I - 4669