Conclusions
OPINION OF ADVOCATE GENERALALBER delivered on 7 November 2002
(1)
Case C-283/00 Commission of the European CommunitiesvKingdom of Spain
((Public works contracts – Concept of contracting authority – Body governed by public law))
I ─ Introduction
1.
The present action for infringement of the Treaties relates to the definition of the personal scope of Council Directive 93/37/EEC
of 14 June 1993 concerning the coordination of procedures for the award of public works contracts
(2)
(
Directive 93/37). Spain takes the view that commercial undertakings whose capital involves public funding, but which are organised under
private law, are not covered by the term
body governed by public law within the meaning of the directive.
II ─ Legal framework
2.
According to Article 1(b) of Directive 93/37,
contracting authorities shall be the State, regional or local authorities, bodies governed by public law, associations formed by one or several of
such authorities or bodies governed by public law;
A
body governed by public law means any body:
─
established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character,
and
─
having legal personality, and
─
financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law, or subject
to management supervision by those bodies, or having an administrative, managerial or supervisory board, more than half of
whose members are appointed by the State, regional or local authorities or by other bodies governed by public law.
3.
That provision was transposed into Spanish law by Ley 13/1995 de Contratos de las Administraciones Públicas
(3)
(
Law 13/1995). Article 1(3) of that Law reads: This law shall also apply to the award of contracts by independent bodies in all cases and by other bodies governed by public
law and possessing legal personality, connected to or controlled by a public authority, if they meet the following criteria:
(a) that they were established for the specific purpose of meeting needs in the general interest, not having an industrial or
commercial character,
(b) that they carry on activity which is financed, for the most part, by public authorities or other bodies governed by public
law, or that their management is subject to supervision by those bodies, or that more than half the members of their administrative,
managerial or supervisory board are appointed by the public authorities or by other bodies governed by public law.
4.
The sixth provision supplementing Law 13/1995, entitled
Rules applicable to the award of contracts in the public sector, reads:When awarding public procurement contracts, commercial companies in the capital of which public authorities or their independent
bodies, or bodies governed by public law, have a majority holding, whether direct or indirect, shall comply with the rules
on advertising and competition, unless the nature of the transaction to be effected is incompatible with those rules.
III ─ Facts and pre-litigation procedure
5.
Sociedad Estatal de Infraestructuras y Equipamientos Penitenciarios SA (
SIEPSA) was established by the Kingdom of Spain and started business on 7 April 1992. It was originally set up for a maximum period
of eight years from start of business (Article 4 of its statutes). However, in 1998/99 the statutes were amended to the effect
that the company now exists for an unlimited period.
6.
According to Article 2 of its statutes, SIEPSA's remit is to implement programmes and measures provided for in the Plan de
Amortización y Creación de Centros Penitenciarios (Plan for the amortisation and establishment of penitentiary institutions)
approved by the Council of Ministers. They involve on the one hand selecting and purchasing appropriate sites for the construction
of new prisons either by SIEPSA itself or by third parties, including issuing invitations to tender for, implementing and
financing the planning and construction work required to bring the institutions into operation, and on the other hand selling
institutions which are surplus to requirements. The Spanish State is SIEPSA's sole shareholder. It is managed by an administrative
board whose members are chosen by the Spanish Government. SIEPSA is subject only to Spanish private law, apart from public
rules governing its budget, accounting and financial control.
7.
In connection with the construction of the Centro Educativo Penitenciario Experimental de Segovia, SIEPSA issued an invitation
to tender in which the public notice (Article 11),
(4)
the time-limit for receipt of tenders (Article 12), suitability criteria (Articles 24, 27 and 29(3)), award criteria (Articles
18 and 30) and treatment of abnormally low tenders (Article 30(4)) satisfied the requirements of Spain's Ley 13/1995, but
it is not disputed that they did not satisfy the requirements of Directive 93/37.
8.
Having carried out the pre-litigation procedure by sending a letter of formal notice on 6 November 1998 and a reasoned opinion
on 25 August 1999, but without success, the Commission brought the present action.
IV ─ Claims of the parties
9.
The Commission claims that the Court of Justice should:
(1) declare that, by not complying with the provisions of Directive 93/37/EEC as a whole and more specifically with the provisions
on public notices contained in Article 11(2), (6), (7) and (11) and those of Articles 12(1), 29(3), 18, 27 and 30(4), in connection
with the tendering procedure for the execution of works for the Centro Educativo Penitenciario Experimental in Segovia issued
by Sociedad Estatal de Infraestructuras y Equipamientos Penitenciarios SA, a company falling within the definition of contracting
authority contained in Article 1(b) of Directive 93/37/EEC, for which the amount exceeds by a considerable margin the threshold
for application of the directive, the Kingdom of Spain has failed to fulfil its obligations under Community law;
(2) order the Kingdom of Spain to pay the costs.
10.
The Kingdom of Spain contends that the Court should:
(1) dismiss the action;
(2) order the Commission to pay the costs.
V ─ Submissions of the parties
11.
The Kingdom of Spain did not address the alleged infringements of the provisions of Directive 93/37 in detail in its pleadings,
but specifically admitted in its letter of 16 July 2002 that the invitation to tender in question did not satisfy the requirements
of Directive 93/37 to which the Commission referred. The dispute therefore concerns only the question of whether SIEPSA is
to be regarded as a contracting authority within the meaning of the directive. The parties' submissions are therefore repeated
below only in so far as they relate to this question.
12.
The parties both agree that SIEPSA both has its own legal personality and is also publicly controlled. The only question in
dispute is to what extent SIEPSA meets needs not having an industrial or commercial character.
A ─
Commission
13.
The Commission takes the view that SIEPSA meets needs of a non-commercial nature in the general interest. Its analysis is
principally based on the purpose for which SIEPSA was set up, rather than on the activities which it actually carries out.
14.
The Commission bases its opinion first of all on Article 2 of SIEPSA's statutes, according to which SIEPSA was set up to carry
out projects approved by the Council of Ministers as part of the
Plan de Amortización y Creación de Centros Penitenciarios. It deals with the construction and equipment of prisons and with the sale of institutions that are no longer needed, and
thereby helps to implement State policy on prisons. The Commission underlines, referring to the judgment in
Mannesmann,
(5)
that meeting this need in the general interest is closely linked to the maintenance of public order and that the State has
a monopoly on criminal prosecution and imprisonment.
15.
Furthermore, in operational terms SIEPSA is dependent on ministerial administration. When carrying out its activities it follows
the recommendations of the general management of the prison administration, and this too is evidence that SIEPSA belongs to
the public sector.
16.
In addition, however, the Commission takes the view that SIEPSA's activities are also of a non-commercial nature. The construction
of prisons and the sale of those which are no longer needed is not an activity for which there is a general market. The only
demand for the construction of prisons is from the State, as part of the implementation of its prison policy.
17.
However, even if SIEPSA's activities were to be classified as commercial, that does not preclude the application of Directive
93/37, since any economic activity carried out is merely a means of meeting a general interest (of a non-commercial nature)
in the form of the implementation of policy on prisons.
18.
The Commission also refers to the judgment in
BFI Holding,
(6)
which states that the fact that private undertakings may also meet the same needs as the undertaking whose definition is
at issue does not mean that that body may not be regarded as a contracting authority, nor is the absence of corresponding
competition a condition for assuming a body to be public.
19.
Even the fact that the aim of SIEPSA's operations may be to make a profit does not preclude its classification as a contracting
authority. First, the wording of Directive 93/37 does not justify the assumption that bodies which make a profit are not meeting
needs of a non-commercial nature in the general interest. Therefore the fact that a profit is made is not a feature which
determines whether or not a body is commercial. Second, it is entirely doubtful whether a State enterprise such as SIEPSA
actually pursues the aim of making a profit. SIEPSA's funding is derived solely from the general State budget. It was set
up for the purpose of implementing a plan relating to the prison system, an area in which Member States do not usually regard
profit-making as a priority. The Commission points out that SIEPSA made considerable losses in 1997 and 1998.
20.
The Commission considers that the Spanish Government's reference to SIEPSA's classification under Spanish law is inappropriate.
First, the term
body governed by public law is to be interpreted according to Community law, and domestic law is thus irrelevant. If Ley 13/1995 excludes SIEPSA from
the scope of the rules of Community law on public contracts, then Directive 93/37 has not been correctly transposed.
21.
Second, the fact that under Spanish law SIEPSA, in accordance with its legal form, is a private body governed by private law
is irrelevant. Classification as a public law body does not depend on whether the rules governing the body's establishment
and activity are those of public or private law, but on the purpose for which it is established.
22.
Moreover, the wording of Directive 93/37 contradicts Spain's argument. Article 1 of the directive covers
any body fulfilling the criteria listed, and so it cannot therefore matter whether a national regulation excludes certain bodies
from the personal scope of the directive.
23.
The reference to the distinction drawn in Directive 93/38/EEC
(7)
between bodies governed by public law on the one hand and public undertakings on the other also does not justify the assumption
that public undertakings are excluded from the scope of Directive 93/37. The Commission takes the view, referring to Article
2 of Directive 93/38, that the purpose of specifically mentioning public undertakings is to include within the scope of Directive
93/38 undertakings with exclusive rights performing substantial activities in the sectors covered by that directive. That
does not alter the meaning of the term
body governed by public law, which is the same in all four directives on public procurement. In the opinion of the Commission,
public undertakings are different from
bodies governed by public law in so far as they are set up for commercial purposes.
B ─
Spanish Government
24.
The Spanish Government, on the other hand, takes the view that Directive 93/37 does not apply to SIEPSA. SIEPSA is, according
to both the purpose for which it was set up and the tasks it performs, purely commercial in nature. It was set up to carry
out all the activities required for the proper implementation of the programmes and measures contained in the plan for the
amortisation and construction of prisons. The activities it performs are also of a purely commercial nature. Buying and selling
property and planning and organising the execution of construction work are purely commercial activities, and the sums acquired
thereby are used solely for the implementation of the plan. In that respect SIEPSA acts with the intention of making a profit,
as is typical of a commercial approach.
25.
The Spanish Government submits that the wording
body governed by public law in Directive 93/37 refers to a
public
law body. Spanish public institutions, however, have traditionally made use of certain
private
law bodies in performing their duties. These are the
State business undertakings (
Sociedades Mercantiles Estatales). Their capital is held, at least for the most part, by the State or other public bodies. However, regardless of their legal
form they are subject in their activity solely to private law, unless provisions of budget law or rules on accounting, financial
control and public procurement provide otherwise. They do not exercise any public powers. SIEPSA is one such undertaking.
26.
The Spanish legislation enacted to transpose Directive 93/37 excludes State business undertakings from the personal scope
of the rules on public procurement. Where those undertakings award contracts, they are required only to make some advertisement
of their invitations to tender and to comply with the competition rules. The SIEPSA invitation to tender at issue fulfilled
both those requirements.
27.
The Spanish Government also bases its argument on the fact that, unlike the other public procurement directives, only Directive
93/38 distinguishes between bodies governed by public law and public undertakings and declares that the rules on procurement
also apply to public undertakings. This is not the case with Directive 93/37, however, which was adopted on the same day and
is relevant in the present case, and that is why public undertakings like SIEPSA do not fall within its scope. If public undertakings
are to be subsumed under the term
body governed by public law, it then becomes difficult to understand why Directive 93/38 specifically distinguishes between those two categories.
28.
The Spanish Government further considers that the Commission's interpretation does not take sufficient account of the independent
significance of the requirement that the need should
not have an industrial or commercial character. If it were sufficient that the body meets a need in the general interest, such as contributing to the prison system, then
the requirement set out in the directive that that need must not have an industrial or commercial character would be redundant.
However, the Court found in the judgment in
BFI Holding
(8)
that this requirement has its own separate significance.
VI ─ Assessment
29.
Spain does not dispute that the invitation to tender issued by SIEPSA does not satisfy the requirements of Directive 93/37,
but it considers that the directive does not apply to SIEPSA. The following discussion will therefore consider solely whether
Directive 93/37 is applicable to SIEPSA.
30.
The answer to that question depends on whether the company is to be regarded as a body governed by public law within the meaning
of the directive. The parties both agree that SIEPSA has its own legal personality, is controlled by the State and was established
for the specific purpose of meeting needs in the general interest. However, they dispute whether those needs have a commercial
or non-commercial character.
31.
Spain focuses more on the activities actually carried out, which are the buying and selling of property, and it therefore
contends that SIEPSA meets commercial needs. The Commission, on the other hand, focuses more on the purpose of SIEPSA's operations,
which is to set up prisons. It infers from this that the need met is not of a commercial character.
32.
None of the public procurement directives
(9)
defines the concept of non-commercial needs in the general interest. Up to now the Court has, as far as can be seen, considered
the interpretation of this criterion only in
BFI Holding
(10)
and
Agorà .
(11)
33.
In
BFI Holding
it held that the absence of a commercial character is a criterion intended to clarify the meaning of the term
needs in the general interest as used in the second subparagraph of Article 1(b) of Directive 92/50.
(12)
It based its findings primarily on the practical effect of the provision.
(13)
34.
In the judgment in
Agorà, referring to the bodies listed in Annex I to Council Directive 71/305/EEC of 26 July 1971 concerning the co-ordination of
procedures for the award of public works contracts
(14)
in the version of Directive 93/37, it held that
... the needs in question are generally, first, those which are met otherwise than by the availability of goods or services
in the market place and, secondly, those which, for reasons associated with the general interest, the State itself chooses
to provide or over which it wishes to retain a decisive influence.
(15)
35.
It also held in both judgments that the term needs in the general interest does not exclude needs which are or can be satisfied
by private undertakings as well, but that the existence of significant competition, and in particular the fact that the entity
concerned is faced with competition in the marketplace, may be indicative of the absence of a need in the general interest,
not having an industrial or commercial character.
(16)
36.
In my Opinions in
Agorà,
(17)
Universale Bau,
(18)
Truley
(19)
and
Korhonen
(20)
I also suggested that the nature of the need should be ascertained by examining whether the entity in question has to bear
any losses itself, in other words whether it bears the economic responsibility for its decisions in awarding contracts. If
so, it must be assumed that it is guided by economic considerations in reaching its decisions, and its activity must then
be assumed to be commercial. If, on the other hand, a publicly funded body stands behind the entity to offset any losses it
incurs, there is a risk that the entity could also be influenced by considerations other than purely economic ones when awarding
a contract. In such a case there is a threat to the free movement of goods and services, which is why the meaning and purpose
of the directives on public procurement demand that they should apply to the entity. The Court confirmed this approach in
its judgment in
Agorà .
(21)
37.
Against the background of this case-law we may conclude the following with regard to SIEPSA. We have to agree with the Spanish
Government that the requirement for the needs to be of a non-commercial nature has its own independent significance. For the
directive to apply to SIEPSA it is not sufficient that it meets a need in the general interest in constructing prisons.
38.
On the other hand, the purpose for which SIEPSA was set up is entirely relevant in deciding whether it meets needs of a non-commercial
nature. The wording of Directive 93/37 requires the body to have been established for the specific purpose of meeting needs
of a non-commercial nature. It follows that the body is outside the scope of the directive if it was established in order
to meet needs of a commercial nature. It is not sufficient that it meets needs of a commercial nature as well. Rather, it
must be a body offering goods and services on the open market and thus competing with other private and public economic operators.
On the other hand, the directive does apply to bodies which carry out commercial activities, but which were actually established
in order to meet other needs in the general interest.
(22)
39.
There is no open market for the goods and services offered by SIEPSA in planning and constructing prisons. Because of the
State's penal monopoly there is only one single taker for those services, the Spanish State, which is alone in needing prisons.
This argues against the assumption that SIEPSA meets needs of a commercial nature.
40.
SIEPSA also meets a need in connection with which the Spanish State ensures that it has considerable influence over the way
in which SIEPSA meets that need. It implements the Plan de Amortización y Creación de Centros Penitenciarios approved by the
government and in doing so works under the instruction of the State administration. On the basis of the case-law referred
to earlier, this circumstance too argues in favour of the assumption that it meets needs of a non-commercial nature.
41.
The fact that SIEPSA has to buy property as part of its activities does not alter this conclusion. The acquisition of new
property and the sale of redundant property is merely a means by which SIEPSA carries out its business of setting up prisons
for the Spanish State. It is not its purpose to trade in real property.
42.
From the parties' submissions it is not entirely clear whether SIEPSA has to bear any losses incurred itself, or whether they
are offset from the national budget. The Spanish Government submits that it is SIEPSA's aim to make a profit from its activities.
The Commission disputes this and provides evidence that SIEPSA made substantial losses in 1997 and 1998. However, its submissions
do not indicate who was required to bear the losses incurred.
43.
Whether or not SIEPSA operates with the intention of making a profit does not ultimately appear, on the basis of previous
case-law, to be conclusive for its classification. In the view of the Court of Justice the aim of making a profit may at best
be an indication of commercial activity. In
Agorà
it regarded Ente Fiera as a body meeting needs of a commercial nature, even though it was non-profit-making.
(23)
44.
On the question of who is economically responsible for SIEPSA's decisions, too, account should be taken of the fact that it
was established in order to implement the Spanish Government's decisions concerning the institutions required for its prison
system. This concerns the practical requirements for implementing State prison policy, a need which the State has to meet
somehow. The Spanish State established SIEPSA for this purpose and entrusted it with carrying out the tasks associated with
it. In this respect it is to be assumed that the Spanish State also has an interest in SIEPSA's continued existence, since
if it becomes insolvent, the State itself must once again directly meet the needs which SIEPSA was fulfilling. The State's
interest in SIEPSA's continuation is evident from the extension of the period for which the undertaking was established. The
company, originally set up for only eight years from the start of its activities, has since been converted into a company
of unlimited duration (see point 5 above). That interest in SIEPSA's continuation provides grounds for assuming that the Spanish
State as the sole shareholder will do everything to prevent SIEPSA from becoming insolvent.
(24)
So even if there is no official mechanism for offsetting any losses, SIEPSA will probably ultimately not have to bear sole
responsibility for the economic consequences of its actions. There could therefore be a risk that, when awarding contracts,
it might be influenced by considerations other than purely economic ones, which is sufficient for Directive 93/37 to be applied
in order to ensure the free movement of goods and services.
45.
As a preliminary finding, therefore, it must be concluded that, according to the criteria developed in earlier case-law, the
needs met by SIEPSA are of a non-commercial nature.
46.
The Spanish Government further bases its position on the fact that, under Spanish law, SIEPSA is subject only to private law.
The legislation enacted to transpose the public procurement directives excludes all State business undertakings from the application
of those directives.
47.
It should be pointed out here that drawing a distinction according to the field of law to which the entity in question is
subject is consistent with the wording of Article 1(b) of Directive 93/37. That provision talks about bodies
governed by public law, which suggests that bodies governed by private law are in principle excluded from the scope of the directive.
48.
However, such an interpretation does not take sufficient account of the indents following those words, which list the criteria
to be used for deciding whether a body is governed by public law. Those criteria, which must all be satisfied,
(25)
require that the body be
financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law, or subject
to management supervision by those bodies, or having an administrative, managerial or supervisory board, more than half of
whose members are appointed by the State, regional or local authorities or by other bodies governed by public law. It follows from this that it is a body which is controlled and directed by the public authorities. In spite of the wording
body
governed by public law, it does not depend on which branch of law the body is subject to, public or private.
49.
In my Opinions in
Truley
(26)
and
Korhonen
(27)
I explained why I consider that it is not compatible with the spirit and purpose of the public procurement directives to
interpret needs in the general interest according to how the Member State concerned itself defines its sphere of activity.
The independent nature of Community law and the aim of its uniform application argue in favour of understanding and interpreting
the term as an autonomous concept of Community law. This view is supported by the spirit and purpose of the public procurement
directives, which is to contribute to the establishment and functioning of the single market.
50.
The following example may illustrate this line of thought. If the branch of law to which the body was subject under national
provisions were the deciding factor, the authorities of a Member State could easily evade the application of the public procurement
directives. It would be sufficient to set up a company, a
Procurement PLC, say, to which only private law was applicable, and to establish as the purpose of its business the procurement of office
furniture, paper etc. for the State authorities. Although the State would be the sole shareholder and could influence all
the decisions taken by the company, it would not be required to issue invitations to tender for contracts because
Procurement PLC was subject to private rather than public law. That is clearly not consistent with the spirit and purpose of the public procurement
directives.
51.
The determination of the personal scope of Directive 93/37 cannot therefore depend on whether the body is subject to public
or private law under domestic law. It is therefore immaterial in the present proceedings that SIEPSA is subject only to private
law in Spain.
52.
Lastly, the Spanish Government compares the wording of the sectoral Directive 93/38 with the wording of the other public procurement
directives, pointing out that the sectoral directive refers to
public undertakings as well as to
public authorities. The definition of
public authorities is identical to that of
contracting authorities in the other procurement directives. Since Directives 93/36, 93/37 and 93/38 were adopted on the same date, the terms
public authorities and
contracting authorities are, it argues, to be interpreted as meaning the same. The Spanish Government infers from this that
public undertakings cannot be
contracting authorities within the meaning of Directive 93/37. Because the term
public undertakings is not used in Directive 93/37, it does not apply to them.
53.
It is true that the wording of Directive 93/37 does not specifically determine whether it is applicable to
public undertakings. However, such undertakings may be subsumed under the legal definition of
contracting authorities. As the example of SIEPSA shows, they too may have been established for the specific purpose of meeting needs in the general
interest (of a non-commercial nature), they too may have their own legal personality and ─ as follows from the legal definition
given in Article 1(2) of Directive 93/38 ─ they too are characterised by the fact that
the public authorities may exercise directly or indirectly a dominant influence by virtue of their ownership of [them], their
financial participation therein, or the rules which govern [them]. The question therefore arises whether it may be inferred from the absence of specific rules on
public undertakings in Directive 93/37 that it does not apply to
public undertakings.
54.
The provision on
public undertakings in Article 1 of Directive 93/38 indeed only makes sense if they do not come under
public authorities within the meaning of that article. And since the definition of
public authorities is identical to that of
contracting authorities in the other procurement directives, it must also be assumed that these provisions are to be interpreted in the same way.
Then, however, bodies covered by the term
public undertaking could not be
contracting authorities within the meaning of Directive 93/37. The wording of the provisions therefore initially supports the Spanish Government's
position.
55.
However, in schematic terms it should be pointed out that Directive 93/38 is a special set of rules applicable only to certain
economic sectors: the water, energy, transport and telecommunications sectors. Directives 92/50, 93/36 and 93/37, on the other
hand, apply to all public activities. Directive 93/38 is an exception in that respect. However, exceptional rules are in principle
not an appropriate basis for interpreting general rules. This argues against the Spanish Government's restrictive interpretation
of the term
contracting authorities within the meaning of Directive 93/37 and in favour of the inclusion of
public undertakings within the scope of that directive.
56.
The historical development of the provisions on public procurement also argues against the Spanish Government's interpretation.
57.
It is true that Directives 93/36, 93/37 and 93/38 were all adopted on 14 June 1993. It is therefore to be assumed that the
legislature intended the terms to be used in the same way. However, the question then arises ─ if we follow the Spanish Government's
approach ─ why it did not also use the term
public authorities in Directives 93/36 and 93/37 if the definition of that term was the same as that of
contracting authorities in the other two directives.
58.
On the other hand, it should be pointed out that the terminology used in Directives 93/36 and 93/37 is consistent with that
used in Directive 92/50 on public service contracts. That suggests that the terminology used in Directive 93/38 should be
seen as a special set of rules compared with the other provisions on public procurement, and that no conclusions are to be
drawn from it for the interpretation of the other directives.
59.
The development of public procurement law as a whole also argues in favour of this approach. The field of public works contracts
governed by Directive 93/37 was already covered by Directives 71/304/EEC
(28)
and 71/305/EEC and was adapted by Directive 89/440/EEC.
(29)
The public supply contracts regulated in Directive 93/36 were already covered by Directive 77/62/EEC,
(30)
as amended by Directives 80/767/EEC
(31)
and 88/295/EEC.
(32)
The field covered by Directive 93/38, on the other hand, was regulated for the first time considerably later, in Directive
90/531/EEC.
(33)
The chronology of these developments is another argument against referring to the rules contained in Directive 93/38 for
the interpretation of Directive 93/37.
60.
The legal definition given in Article 1(b) of Directive 93/37, including that of the term
contracting authorities, goes back to an amendment proposed by the European Parliament during consultations on the Commission's proposed amendment
of Directive 71/305. In its proposal the Commission had spoken only of
legal persons.
(34)
In order to ensure that the directive on works contracts applied as extensively as possible, Parliament introduced the expression
organ governed by public law,
(35)
later amended to
body. The inclusion of the legal definition was intended to replace the lists to be drawn up under Article 1(b) of Directive 71/305
which defined the class of contracting authorities. It was designed to ensure the comprehensive application of the directive.
(36)
The intention was to extend the scope of the directive to construction work carried out by third parties which was funded
wholly or in part and directly or indirectly from the public purse.
(37)
61.
It can thus be established that the term
contracting authorities existed long before Directive 93/38 was adopted. If the legislature did not follow the terminology generally used in public
procurement when it adopted the sectoral directive, no conclusions can be drawn from that special set of rules for the interpretation
of terms used consistently in the other directives. In that respect the fact that the three 1993 directives were adopted at
the same time does not prove that the legislature would have expressly referred to
public undertakings in Directives 93/36 and 93/37 too if it had intended to include them in the personal scope of those directives.
62.
The spirit and purpose of Directive 93/37 also argue against the interpretation which the Spanish Government draws from a
comparison with Directive 93/38. As explained earlier, the legislature's intention was to replace the lists of contracting
authorities by a generally valid definition in order to make it clear that the provisions apply to all bodies meeting certain
criteria, even if they are not on the list of contracting authorities. It is contrary to this intention to try to exclude
an entire area of public activity such as that of
public undertakings solely because it is not specifically mentioned.
63.
As explained earlier, the reason why Directive 93/37 is applicable is also valid for
public undertakings within the meaning of Directive 93/38. They too are undertakings which, although organised as private companies, are controlled
and directed by the public authorities. That influence on the part of the public authorities justifies their inclusion in
the scope of the directive.
64.
Unlike the other procurement directives, Directive 93/38 relates only to certain sectors. In 1990 ─ when those areas were
first regulated ─ the bodies operating in the relevant market in those sectors were organised in many different ways. Water
and electricity supplies and transport and telecommunications services were provided partly by public bodies and partly by
private companies given exclusive rights by the Member States. The privatisation of broad areas of public services was only
just beginning. In order to be able to cover the many different forms of organisation and structure in existence at that time,
the legislature did not use the traditional term
contracting authorities, but introduced the terms
public authorities and
public undertakings. This first of all made it clear that it did not depend on the form of organisation, and secondly it ensured that the sectoral
directive applied to all bodies operating in those fields, provided that they fulfilled the criteria. This directive thus
pursued exactly the same aim as with the definition of the term
contracting authorities, including
bodies governed by public law, in the other public procurement directives.
65.
The fact that the fields regulated by Directive 93/38 are subject to considerable change is clear from two Commission communications.
In 1998 it stated in its communication on
Public procurement in the European Union:
(38)
Following the liberalisation of some of the sectors covered by Directive 93/38/EEC, it is necessary to examine the degree
of openness to competition of the liberalised sectors with a view to deciding whether the constraints the directive imposes
on contracting entities are still justified.
They were introduced because of the lack of competition resulting from the State's decision to grant a monopoly or a privileged
position to an operator.
In return for this preferential treatment by the State, the operators concerned had to comply with certain advertising and
procedural requirements when awarding contracts. If a sector is found to be effectively open to competition, the constraints
imposed by the directive should be removed.The Commission was the prime mover in the process of liberalisation in the sectors covered by Directive 93/38/EEC ... It must
now take account of the changes that have occurred and the new factors that are emerging on the market, by excluding from
the scope of the Directive entities operating under real competitive conditions in the same way as private entities which
base their decisions on purely economic criteria.
66.
In 1999 the Commission declared that Directive 93/38 was largely inapplicable to the telecommunications sector.
(39)
These considerations confirm that Directive 93/38 contains special rules taking account of particular circumstances on the
market in the relevant sectors at the time. It therefore does not give a generally applicable definition of the operators
concerned, but regulates a special case.
67.
It consequently cannot be inferred from the fact that Directive 93/37 does not expressly include
public undertakings in its scope that they do not come under the term
contracting authorities. This plea by the Spanish Government must therefore also be dismissed.
68.
It must therefore be concluded that SIEPSA is a body governed by public law within the meaning of Article 1(b) of Directive
93/37. As the Spanish Government has admitted the individual infringements of the tendering rules complained of by the Commission,
the decision given should be in accordance with the form of order sought by the Commission.
VII ─ Costs
69.
In the light of the foregoing the application must be granted. Under Article 69 of the Rules of Procedure, the unsuccessful
party must be ordered to pay the costs if they are applied for by the successful party. As the Spanish Government has been
unsuccessful in its application and the Commission has made such an application, Spain must be ordered to pay the costs of
the proceedings.
VIII ─ Conclusion
70.
In the light of the foregoing I propose that the Court of Justice should give the following decision:
(1) The Kingdom of Spain has failed to fulfil its obligations under Community law by failing to comply with all the provisions
of Directive 93/37/EEC, in particular the provisions on public notices contained in Article 11(2), (6), (7) and (11) and those
of Articles 12(1), 29(3), 18, 27 and 30(4), in connection with the call for tenders for the execution of works for the Centro
Educativo Penitenciario Experimental in Segovia issued by Sociedad Estatal de Infraestructuras y Equipamientos Penitenciarios
SA.
(2) The Kingdom of Spain must pay the costs of the proceedings.
1 –
Original language: German.
2 –
OJ 1993 L 199, p. 54.
3 –
BOE No 119 of 19 May 1995, p. 14601. The Law was published on 16 June 2000 in a newly codified version (Texto Refundido de
la Ley de Contratos de las Administraciones Públicas, BOE No 148 of 21 June 2000, p. 1775). The content of the provisions
referred to was not amended.
4 –
Articles without any further reference are those of Directive 93/37.
5 –
Case C-44/96
Mannesmann Anlagenbau Austria
[1998] ECR I-73, paragraph 24.
6 –
Case C-360/96
BFI Holding
[1998] ECR I-6821, paragraph 47.
7 –
Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy,
transport and telecommunications sectors, OJ 1993 L 199, p. 84.
8 –
. BFI Holding, cited in footnote 6, paragraphs 32 to 36.
9 –
Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, OJ 1993 L 199,
p. 1; Directive 93/37, cited in point 1; Directive 93/38, cited in footnote 7; Council Directive 92/50/EEC of 18 June 1992
relating to the coordination of procedures for the award of public service contracts, OJ 1992 L 209, p. 1.
10 –
. BFI Holding, cited in footnote 6.
11 –
Joined Cases C-223/99 and C-260/99
Agorà and Excelsior
[2001] ECR I-3605.
12 –
. BFI Holding, cited in footnote 6, paragraph 32.
13 –
. BFI Holding, cited in footnote 6, paragraph 35.
14 –
OJ, English Special Edition 1971 (II), p. 682.
15 –
. Agorà, cited in footnote 11, paragraph 37, referring to
BFI Holding, cited in footnote 6, paragraphs 50 and 51.
16 –
. Agorà, cited in footnote 11, paragraph 38;
BFI Holding, cited in footnote 6, paragraph 49.
17 –
Opinion in Joined Cases C-223/99 and C-260/99
Agorà and Excelsior
[2001] ECR I-3605, point 67.
18 –
Opinion in Case C-470/99
Universale Bau
[2002] ECR I-11617, point 27.
19 –
Opinion in Case C-373/00
Truley
[2003] ECR I-1931, point 95.
20 –
Opinion in Case C-18/01
Korhonen and Others
[2003] ECR I-5321, point 77.
21 –
. Agorà, cited in footnote 11, paragraph 40.
22 –
See the description given in the Commission's guide to the Community rules on the awarding of public works contracts, p. 10,
published on the Commission's website at
www.europa/internal_market
under the heading
public procurement.
23 –
. Agorà, cited in footnote 11, paragraphs 40 and 43.
24 –
See, on similar facts, my Opinion in
Korhonen, cited in footnote 20, points 80 and 81.
25 –
On this point, see
BFI Holding, cited in footnote 6, paragraph 29.
26 –
Cited in footnote 19, points 42 to 44.
27 –
Cited in footnote 20, point 57.
28 –
Council Directive 71/304/EEC of 26 July 1971 concerning the abolition of restrictions on freedom to provide services in respect
of public works contracts and on the award of public works contracts to contractors acting through agencies or branches, OJ,
English Special Edition 1971 (II), p. 678.
29 –
Council Directive 89/440/EEC of 18 July 1989 amending Directive 71/305/EEC concerning coordination of procedures for the award
of public works contracts, OJ 1989 L 210, p. 1.
30 –
Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts, OJ 1977
L 13, p. 1.
31 –
Council Directive 80/767/EEC of 22 July 1980 adapting and supplementing in respect of certain contracting authorities Directive
77/62/EEC coordinating procedures for the award of public supply contracts, OJ 1980 L 215, p. 1.
32 –
Council Directive 88/295/EEC of 22 March 1988 amending Directive 77/62/EEC relating to the coordination of procedures on the
award of public supply contracts and repealing certain provisions of Directive 80/767/EEC, OJ 1988 L 127, p. 1.
33 –
Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy,
transport and telecommunications sectors, OJ 1990 L 297, p. 1.
34 –
Proposal for a Council Directive amending Directive 71/305/EEC concerning the coordination of procedures for the award of
public works contracts, COM(86) 679 final of 23 December 1986, pp. 6 and 22.
35 –
Proposed amendment No 4, report by the Committee on Economic and Monetary Affairs and Industrial Policy, European Parliament
session documents 1988/89, Document A2-37/88, p. 6, and the statement of reasons, p. 31.
36 –
See the abovementioned report, statement of reasons, p. 31.
37 –
See the statement by the rapporteur, Mr Beumer, at the European Parliament session on 17 May 1988, European Parliament Verbatim
Report of Proceedings, No 2-365, p. 83.
38 –
COM(98) 143 final of 11 March 1998, point 2.1.2.1, p. 7.
39 –
Communication from the Commission pursuant to Article 8 of Directive 93/38/EEC: List of services regarded as excluded from
the scope of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in
the water, energy, transport and telecommunications sectors, pursuant to Article 8 thereof, OJ 1999 C 156, p. 3.