Case C-84/03

Commission of the European Communities

v

Kingdom of Spain

(Failure to fulfil obligations – Directives 93/36/EEC and 93/37/EEC – Public contracts – Award procedure for public supply and public works contracts – Scope – Definition of contracting authority – Inter-administrative cooperation agreements – Definition of contract – Use of the negotiated procedure in cases not provided for by the directive)

Judgment of the Court (Second Chamber), 13 January 2005

Summary of the Judgment

1. Approximation of laws – Award procedures for public supply and public works contracts – Directives 93/36 and 93/37 – Contracting authorities – Body governed by public law – Concept – National legislation excluding bodies governed by private law from fulfilling the conditions laid down in the directives – Not permissible

(Council Directives 93/36, Art. 1(b), and 93/37, Art. 1(b))

2. Approximation of laws – Award procedures for public supply and public works contracts – Directives 93/36 and 93/37 – Public contract – Concept – National legislation excluding cooperation agreements concluded between bodies governed by public law – Not permissible

(Council Directives 93/36, Art. 1(a), and 93/37, Art. 1(a))

3. Approximation of laws – Award procedures for public supply and public works contracts – Directives 93/36 and 93/37 – Derogation from common rules – Strict interpretation – Use of the negotiated procedure – Limits

(Council Directives 93/36 and 93/37)

1. National legislation on public contracts which excludes from its scope private law bodies, even though they fulfil the cumulative requirements in the light of which the concept of ‘body governed by public law’ is defined and which are laid down in the second subparagraph of Article 1(b) of Directives 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 constitutes an incorrect transposition of the definition of ‘body governed by public law’ and, accordingly, of ‘contracting authority’ in the first subparagraph of Article 1(b).

In order to determine whether a private law body is to be classified as a body governed by public law it is only necessary to establish whether the body in question satisfies those conditions, since an entity’s private law status does not constitute a criterion for precluding it from being classified as a contracting authority for the purposes of those directives.

(see paras 27-28, 31, operative part)

2. National legislation on public contracts which excludes, a priori, from its scope cooperation agreements concluded between public authorities and other public undertakings, and therefore, also the agreements which constitute public contracts for the purpose of those directives constitutes an incorrect transposition of Directives 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.

In order for there to be a public supply contract or a public works contract within the meaning of Article 1(a) of the directive, it is sufficient, in principle, if the contract was concluded between a local authority and a person legally distinct from it. The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities.

(see paras 38, 40, operative part)

3. The derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in connection with public supply contracts and public works contracts must be interpreted strictly. In order not to deprive Directives 93/96 coordinating procedures for the award of public supply contracts and 93/37 concerning the coordination of procedures for the award of public works contracts of their effectiveness, Member States cannot, therefore, provide for the use of the negotiated procedure in cases not provided for in those directives, or add new conditions to the cases expressly provided for by those directives which make that procedure easier to use.

(see paras 48, 58, operative part)