CELEX: 62003CJ0084
Language: en
Date: 2005-01-13
Title: Judgment of the Court (Second Chamber) of 13 January 2005.#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.#Case C-84/03.

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)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Second Chamber)13 January 2005(1)
         
         
            
         
               (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)
               
            In Case C-84/03, ACTION under Article 226 EC for failure to fulfil obligations brought on 26 February 2003,
            
            
             Commission of the European Communities,  represented by K.Wiedner and G. Valero Jordana, acting as Agents, with an address for service in Luxembourg,
            
            
            applicant,
            
            v
             Kingdom of Spain,  represented by S. Ortiz Vaamonde, acting as Agent, with an address for service in Luxembourg,
            defendant,
            
            
            THE COURT (Second Chamber),,
            
             composed of C.W.A.Timmermans, President of the Chamber, R. Schintgen, J. Makarczyk (Rapporteur), G. Arestis and J. Klučka,
            Judges, 
            
             Advocate General: J. Kokott, Registrar:  R. Grass,
             having regard to the written procedure,
            having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
         gives the following
         
         
         Judgment
         1
            
          By its application the Commission of the European Communities has brought an action for a declaration that by failing correctly
         to transpose into its national legal system Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award
         of public supply contracts (OJ 1993 L 199, p. 1) and Council Directive 93/37/EEC of 14 June 1993 concerning the coordination
         of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) and, in particular, 
         
         
         
          
         –
            by excluding from the scope of the Ley de Contratos de las Administraciones Públicas (Law on contracts awarded by public authorities)
               of 16 June 2000, in the codified version approved by the Real Decreto Legislativo 2/2000 of 16 June 2000 (BOE No 148 of 21
               June 2000; ‘the codified law’), more particularly in Article 1(3) of the codified law, entities governed by private law which
               fulfil the requirements laid down in the first, second and third indents of the second subparagraph of Article 1(b), of each
               of those directives; 
            
         
         
         
         
          
         –
            by excluding absolutely from the scope of the codified law, in Article 3(1)(c) thereof, cooperation agreements concluded between
               public authorities and the other public undertakings and, therefore, also agreements which constitute public contracts for
               the purpose of those directives; and
            
         
         
         
         
          
         –
            by permitting in Article 141(a) and Article 182(a) and (g) of the codified law, the negotiated procedure to be used in two
               cases which are not provided for in those directives,
            
         
         
          the Kingdom of Spain has failed to fulfil its obligations under the provisions of the EC Treaty and of those directives.
         
         
            
                Legal background 
               
             Community legislation  
         
         2
            
          Article 1(b) of Directive 93/37 provides: 
         ‘“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 a 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
            
          The provisions of Article 1(b) of Directive 93/36 are essentially the same. 
         
         
         
         4
            
          Under Article 6(2) to (4) of Directive 93/36:
         ‘2.     The contracting authorities may award their supply contracts by negotiated procedure in the case of irregular tenders in response
         to an open or restricted procedure or in the case of tenders which are unacceptable under national provisions that are in
         accordance with provisions of Title IV, in so far as the original terms for the contract are not substantially altered. The
         contracting authorities shall in these cases publish a tender notice unless they include in such negotiated procedures all
         the enterprises satisfying the criteria of Articles 20 to 24 which, during the prior open or restricted procedure, have submitted
         tenders in accordance with the formal requirements of the tendering procedure. 
          3.       The contracting authorities may award their supply contracts by negotiated procedure without prior publication of a tender
         notice, in the following cases: 
         
         (a)
            in the absence of tenders or appropriate tenders in response to an open or restricted procedure in so far as the original
               terms of the contract are not substantially altered and provided that a report is communicated to the Commission; 
            
         
         
         (b)
            when the products involved are manufactured purely for the purpose of research, experiment, study or development, this provision
               does not extend to quantity production to establish commercial viability or to recover research and development costs; 
            
         
         
         (c)
            when, for technical or artistic reasons, or for reasons connected with protection of exclusive rights, the products supplied
               may be manufactured or delivered only by a particular supplier; 
            
         
         
         (d)
            in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting
               authorities in question, the time-limit laid down for the open, restricted or negotiated procedures referred to in paragraph
               2 cannot be kept. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting
               authorities; 
            
         
         
         (e)
            for additional deliverers by the original supplier which are intended either as a partial replacement of normal supplies or
               installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting
               authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate
               technical difficulties in operation and maintenance. The length of such contracts as well as that of recurrent contracts may,
               as a general rule, not exceed three years. 
            
         
          4.       In all other cases, the contracting authorities shall award their supply contracts by the open procedure or by the restricted
         procedure.’ 
         
         
         
         5
            
          Under Article 7(3) and (4) of Directive 93/37:
         ‘3.     The contracting authorities may award their public works contracts by negotiated procedure without prior publication of a
         contract notice, in the following cases: 
         
         (a)
            in the absence of tenders or of appropriate tenders in response to an open or restricted procedure in so far as the original
               terms of the contract are not substantially altered and provided that a report is communicated to the Commission at its request;
               
            
         
         
         (b)
            when, for technical or artistic reasons or for reasons connected with the protection of exclusive rights, the works may only
               be carried out by a particular contractor; 
            
         
         
         (c)
            in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseen by the contracting
               authorities in question, the time-limit laid down for the open, restricted or negotiated procedures referred to in paragraph
               2 cannot be kept. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting
               authorities; 
            
         
         
         (d)
            for additional works not included in the project initially considered or in the contract first concluded but which have, through
               unforeseen circumstances, become necessary for the carrying-out of the work described therein, on condition that the award
               is made to the contractor carrying out such work: 
            
         
         
         
          
         
            
               –
                  when such works cannot be technically or economically separated from the main contract without great inconvenience to the
                     contracting authorities, or
                  
               
         
         
         
         
          
         
            
               –
                  when such works, although separable from the execution of the original contract, are strictly necessary to its later stages.
                     
                  
               
         
         
         
               However, the aggregate amount of contracts awarded for additional works may not exceed 50% of the amount of the main contract;
                     
                  
                  
               
         
         
         
         
         (e)
            for new works consisting of the repetition of similar works entrusted to the undertaking to which the same contracting authorities
               awarded an earlier contract, provided that such works conform to a basic project for which a first contract was awarded according
               to the procedures referred to in paragraph 4. 
            
         
         
               As soon as the first project is put up for tender, notice must be given that this procedure might be adopted and the total
                     estimated cost of subsequent works shall be taken into consideration by the contracting authorities when they apply the provisions
                     of Article 6. This procedure may only be adopted during the three years following the conclusion of the original contract.
                     
                  
                  
               
         
         
          4.       In all other cases, the contracting authorities shall award their public works contracts by the open procedure or by the restricted
         procedure.’ 
         
          National legislation  
         
         6
            
          The scope  ratione personae  of the Spanish legislation on public procurement is defined in Article 1 of the codified law, which includes all public authorities,
         whether State authorities or authorities of the autonomous communities and regional or local authorities. 
         
         
         
         7
            
          Article 1(3) of the codified law provides:
         ‘This law shall also apply to the awarding of contracts by autonomous bodies in every case and to other bodies governed by
         public law having legal personality and connected with or under the control of a public authority, which fulfil the following
         criteria: 
         (a)     they were established for the specific purpose of meeting needs in the general interest, not being of an industrial or commercial
         nature; 
         (b)     they are financed, for the most part, by public authorities or other bodies governed by public law, or are subject to management
         supervision by those bodies, or have an administrative, managerial or supervisory board, more than half of whose members are
         appointed by public authorities or by other bodies governed by public law.’ 
         
         
         
         8
            
          The sixth additional provision of the codified law, entitled ‘Rules applicable to the award of contracts in the public sector’,
         provides that ‘commercial companies in which public authorities or their autonomous bodies, or bodies governed by public law,
         hold, directly or indirectly, a majority shareholding, shall, when awarding contracts, comply with the advertising and competition
         rules, unless the nature of the operation to be carried out is incompatible with those rules’. 
         
         
         
         9
            
          Article 3(1) of the codified law excludes from its scope ‘cooperation agreements between the State authorities, on the one
         hand, and the Social Security, autonomous communities, local bodies, their autonomous bodies and any other public body, on
         the other hand, or between these bodies’.
         
         
         
         10
            
          Articles 141(a) (concerning works contracts) and 182(a) (concerning supply contracts) of the codified law provide that that
         negotiated procedure may be used without prior publication of a tender notice where the contract has not been awarded during
         an open or restricted procedure, or where the candidates have not been allowed to submit tenders, so long as there has been
         no alteration of the contract’s original conditions, except the price, which may not be increased by more than 10%.
         
         
         
         11
            
          Article 182(g) of the codified law states that the negotiated procedure may be used without prior publication of a tender
         notice in the procedures which concern goods whose uniformity has been declared necessary for their joint use by the administration,
         in so far as the choice of the type of goods in question was made previously and independently, pursuant to an invitation
         to tender, in accordance with the provisions of this chapter.
         
          Pre-litigation procedure  
         
         12
            
          Taking the view that the successive laws transposing Directives 93/36 and 93/37 into Spanish law were partly incompatible
         with them, the Commission sent a letter of formal notice to the Kingdom of Spain on 17 September 1997 and a supplementary
         letter of formal notice on 24 July 2000.
         
         
         
         13
            
          Following notification of the codified law by the Spanish authorities, the Commission took the view that certain contentious
         aspects of the transposition had been resolved.
         
         
         
         14
            
          Nevertheless, since in its view Directives 93/36 and 93/37 continued to be transposed incorrectly into Spanish law, the Commission
         sent a reasoned opinion to the Kingdom of Spain on 24 January 2001 and a supplementary reasoned opinion on 31 January 2002,
         calling on the Kingdom of Spain to take the measures necessary to comply within two months from the notification of the last
         reasoned opinion.
         
         
         
         15
            
          Since the Kingdom of Spain’s response to the supplementary reasoned opinion was deemed to be unsatisfactory, the Commission
         decided to bring the present proceedings.
         
          The action  
         
         16
            
          In support of its action the Commission relies on three grounds of complaint.
         
         
         
         17
            
          By its first ground of complaint the Commission alleges that the Kingdom of Spain has excluded entities governed by private
         law, a priori, from the scope of the codified law, even though they may be bodies governed by public law for the purposes
         of the second subparagraph of Article 1(b) of Directives 93/36 and 93/37.
         
         
         
         18
            
          By its second ground of complaint the Commission alleges that the Kingdom of Spain has excluded from the codified law cooperation
         agreements concluded between bodies governed by public law, although those agreements may constitute public contracts for
         the purpose of Directives 93/36 and 93/37.
         
         
         
         19
            
          By its third ground of complaint the Commission alleges that the Kingdom of Spain has permitted the use of the negotiated
         procedure in two cases which are not provided for by Directives 93/36 and 93/37, that is the award of contracts following
         procedures which have been declared unsuccessful and the award of supply contracts for uniform goods.
         
          First ground of complaint: exclusion of entities governed by private law fulfilling the conditions laid down in the first,
               second and third indents of the second subparagraph of Article 1(b) of Directives 93/36 and 93/37 from the scope of the codified
               law  Arguments of the parties 
         
         20
            
          The Commission argues that the scope  ratione personae  of the codified law does not coincide with that of Directives 93/36 and 93/37, in so far as the national law applies exclusively
         to bodies subject to a public law regime for the purposes of Spanish law, while the legal form of the body at issue falls
         outside the definition of ‘body governed by public law’ set out in those directives. 
         
         
         
         21
            
          Relying on the judgment in Case C-44/96  Mannesmann Anlagenbau Austria and  Others  [1998] ECR I-73, paragraphs 17 to 35, the Commission recalls that the Court has held that a ‘body governed by public law’
         must be understood as a body which fulfils the three cumulative conditions set out in the second subparagraph of Article 1(b)
         of Directive 93/37.
         
         
         
         22
            
          Relying on the judgments of the Court (in particular, the judgments in Case 31/87  Beentjes  [1988] ECR 4635 and Case C-360/96  BFI Holding  [1998] ECR I-6821, the Commission submits that the definition of a contracting authority in Article 1 of Directives 93/36
         and 93/37 must be interpreted in functional terms.
         
         
         
         23
            
          Furthermore, the Commission asserts that the interpretation given by the Spanish Government of a ‘body governed by public
         law’ means that a Community concept which must be given a uniform interpretation throughout the Community ceases to be autonomous.
         
         
         
         24
            
          The Spanish Government opts for a literal interpretation of the definition of ‘body governed by public law’. It argues that
         Directives 93/36 and 93/37 do not include commercial companies under public control in that definition. In support of its
         arguments, it relies on 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), which distinguishes between the notion
         of ‘body governed by public law’, which is the same in the public contracts directives, and ‘public undertaking’, whose definition
         corresponds to the definition of public commercial company.
         
         
         
         25
            
          Furthermore, the Spanish Government rejects any solution of a general nature. It submits that a genuine delimitation of the
         definition of ‘body governed by public law’ may be made only after defining ‘needs in the general interest’ and, in particular,
         needs ‘not having an industrial or commercial character’, by means of a detailed examination of each body.
         
         
         
         26
            
          The Commission replies that Directive 93/38 is a special regulation, and that its exceptional character precludes its use
         in interpreting general provisions, in this case Directives 93/36 and 93/37.
         
          Findings of the Court 
         
         27
            
          It must be observed that according to settled case-law the definition of ‘body governed by public law’, a concept of Community
         law which must be given an autonomous and uniform interpretation throughout the Community, is defined in functional terms
         exclusively under the three cumulative conditions in the second subparagraph of Article 1(b) of Directives 93/36 and 93/37
         (see, to that effect,  Mannesmann Anlagenbau Austria and Others , paragraphs 20 and 21; Case C-470/99  Universale-Bau and Others  [2002] ECR I-11617, paragraphs 51 to 53; Case C-214/00  Commission  v  Spain  [2003] ECR I-4667, paragraphs 52 and 53; and Case C-283/00  Commission  v  Spain  [2003] ECR I-11697, paragraph 69). 
         
         
         
         28
            
          It follows that 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 the three cumulative conditions laid down in the second
         subparagraph of Article 1(b) of Directives 93/36 and 93/37, 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 (Case C‑214/00  Commission  v  Spain , paragraphs 54, 55 and 60). 
         
         
         
         29
            
          The Court has also stated that that interpretation does not amount to a disregard for the industrial or commercial character
         of the general interest needs which the body concerned satisfies, since that factor is necessarily taken into consideration
         in order to determine whether or not it satisfies the condition laid down in the first indent of the second subparagraph of
         Article 1(b) of Directives 93/36 and 93/37 (see, to that effect, Case C-283/00  Commission  v  Spain , paragraph 75). 
         
         
         
         30
            
          Furthermore, that conclusion is not invalidated by the want of an express reference in Directives 93/36 and 93/37 to the specific
         category of ‘public undertakings’ which is used in Directive 93/38 (see, to that effect, Case C-283  Commission  v  Spain , paragraph 76). 
         
         
         
         31
            
          Thus it follows from the foregoing that the Spanish legislation constitutes an incorrect transposition of the definition of
         ‘contracting authority’ in Article 1(b) of Directives 93/36 and 93/37, in so far as it excludes the bodies of private law
         from its scope, even though they may satisfy the conditions laid down in the first, second and third indents of the second
         subparagraph of Article 1(b) of those directives.
         
         
         
         32
            
          In those circumstances the Commission’s first ground of complaint must be upheld.
         
          Second ground of complaint: exclusion of cooperation agreements concluded between bodies governed by public law from the scope
               of the codified law  Arguments of the parties  
         
         33
            
          The Commission states that the codified law excludes from its scope cooperation agreements concluded either between the general
         State administration and the Social Security, autonomous communities, local bodies, their autonomous bodies and any other
         public body, or between public bodies themselves. It argues that that absolute exclusion constitutes an incorrect transposition
         of Directives 93/36 and 93/37, as some of those agreements may be of the same kind as the public contracts covered by them.
         
         
         
         34
            
          The Commission maintains that this exclusion is not found in Directives 93/36 and 93/37.
         
         
         
         35
            
          The Commission relies on the definition of a contract set out in Article 1(a) of Directives 93/36 and 93/37 and the case-law
         of the Court, according to which, in order to show the existence of a contract, it must be determined whether there has been
         an agreement between two separate persons (judgment in Case C-107/98  Teckal  [1999] ECR I-8121, paragraph 49). It takes the view, therefore, that, in the light of the above, inter-administrative cooperation
         agreements may be contracts within the meaning of Directives 93/36 and 93/37.
         
         
         
         36
            
          The Spanish Government asserts that the agreements are the normal way for bodies governed by public law to establish relations
         between each other. It maintains that those relations are marginal to the contract. Furthermore, it questions whether the
         judgment in  Teckal  is well founded and submits that the principle in Article 6 of 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) is implicitly included in the other
         directives on public contracts.
         
          Findings of the Court  
         
         37
            
          According to the definitions given in Article 1(a) of Directives 93/36 and 93/37, public supply or public works contracts
         are contracts for pecuniary interest concluded in writing between a supplier or a contractor and a contracting authority within
         the meaning of Article 1(b) of the directives, for the purchase of products or the performance of a certain type of works.
         
         
         
         38
            
          In accordance with Article 1(a) of Directive 93/36, 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.
         (judgment in  Teckal , paragraph 50). 
         
         
         
         39
            
          Having regard to the fact that the elements constituting the definition of a contract in Directives 93/36 and 93/37 are identical,
         except for the purpose of the contract in question, the approached adopted in  Teckal  must be applied to inter-administrative agreements covered by Directive 93/37.
         
         
         
         40
            
          Consequently, in so far as it excludes, a priori, from the scope of the codified law relations between public authorities,
         their public bodies and, in a general manner, non-commercial bodies governed by public law, whatever the nature of those relations,
         the Spanish law at issue in this case constitutes an incorrect transposition of Directives 93/36 and 93/37.
         
         
         
         41
            
          In those circumstances the Commission’s second complaint must be upheld.
         
          Third ground of complaint: use of the negotiated procedure laid down in the codified law in two cases not provided for by
               Directives 93/36 and 93/37 
         
         42
            
          The Commission takes the view that the codified law authorises use of the negotiated procedure in two cases which are not
         provided for by Directives 93/36 and 93/37: the award of contracts following procedures declared unsuccessful and the award
         of supply contracts for uniform goods.
         
          First part of the third ground of complaint concerning the award of contracts following unsuccessful procedures  Arguments of the parties 
         
         
         43
            
          In the Commission’s view, by permitting an increase of the original tender price of up to 10% in relation to the earlier open
         or restricted procedures, Articles 141(a) and 182(a) of the codified law contravene Directives 93/36 and 93/37, since they
         allow a substantial alteration of one of the original conditions of the contract, namely the price. 
         
         
         
         44
            
          The Commission maintains that the list of cases in respect of which the negotiated procedure may be used is limited. The interpretation
         of the concept of ‘non‑substantial alteration’ must therefore be restrictive.
         
         
         
         45
            
          The Spanish Government complains that the Commission has not indicated which price modifications must be regarded as substantial
         and which do not merit such a classification. For the purposes of legal certainty, the Spanish legislature transformed the
         vague notion of ‘substantial modifications to the original conditions of the contract’ into a well-defined notion.
         
         
         
         46
            
          In response, the Commission asserts that, in the context of an action for failure to fulfil obligations, it is neither bound
         to define the limits of the infringement nor to indicate measures which would enable the failure to fulfil obligations to
         be eliminated. Furthermore, it states that the aim of the national legislature in seeking to define the concepts contained
         in the directives can only result in failure to apply them.
         
          Findings of the Court 
         
         
         47
            
          As is clear, in particular, from the twelfth recital in the preamble to Directive 93/36 and the eighth recital in the preamble
         to Directive 93/37, the negotiated procedure is exceptional in nature and, therefore, must be applied only in cases which
         are set out in an exhaustive list. To that end Articles 6(3)(a) of Directive 93/36 and Article 7(3)(a) of Directive 93/37
         exhaustively list the cases in which the negotiated procedure may be used without prior publication of a tender notice.
         
         
         
         48
            
          According to settled case-law, the derogations from the rules intended to ensure the effectiveness of the rights conferred
         by the Treaty in connection with public works contracts must be interpreted strictly (judgments in Case C-57/94  Commission  v  Italy  [1995] ECR I-1249, paragraph 23, and Case C-318/94  Commission  v  Germany  [1996] ECR I-1949, paragraph 13). To prevent the directives at issue being deprived of their effectiveness, the Member States
         cannot, therefore, provide for the use of the negotiated procedure in cases not provided for in Directives 93/36 and 93/37,
         or add new conditions to the cases expressly provided for by those directives which make that procedure easier to use.
         
         
         
         49
            
          In the present case it cannot be denied that, in so far as they authorise the use of the negotiated procedure where it has
         not been possible to award the contract during an open or restricted procedure or where the candidates were not allowed to
         tender, provided that there were no modifications of the original conditions of the contract apart from the price, which cannot
         be increased by more than 10%, Articles 141(a) and 182(a) of the codified law do indeed add a new condition to the provisions
         of Directives 93/36 and 93/37 which is capable of undermining both their scope and their exceptional character. Such a condition
         cannot be regarded as a non‑substantial alteration of the original terms of the contracts as provided for in Article 6(3)(a)
         of Directive 93/36 and Article 7(3)(a) of Directive 93/37.
         
         
         
         50
            
          In those circumstances it must be held that Articles 141(a) and 182(a) of the codified law constitute an incorrect transposition
         of Article 6(3)(a) of Directive 93/36 and Article 7(3)(a) of Directive 93/37.
         
          Second part of the third ground of complaint concerning the award of supply contracts for uniform goods  Arguments of the parties 
         
         
         51
            
          The Commission submits that the procedure set out in Article 182(g) of the codified law disregards the provisions of Article
         6(2) and (3) of Directive 93/36, which sets out the cases in which the negotiated procedure may be applied.
         
         
         
         52
            
          In this case, the Spanish law provides that the negotiated procedure may be used without prior publication of a tender notice
         in respect of goods whose uniformity has been held to be necessary for their common use by the administration. The use of
         that procedure is possible in so far as the type of goods has been chosen in advance and independently, pursuant to a call
         for tenders.
         
         
         
         53
            
          The Spanish Government contends that the calls for tenders seeking to determine the type of uniform goods are similar to framework
         contracts.
         
         
         
         54
            
          Furthermore, the Spanish Government contends that the calls for tenders at issue do not differ in any way from the tendering
         procedures following an agreement or framework agreement provided for by another article of the codified law, which is not
         subject to any comment by the Commission. It takes the view, therefore, that the codified law is in accordance with the directives
         on public contracts. 
         
         
         
         55
            
          Having set out the definition of the framework agreements, the Commission asserts that those agreements are not covered by
         Directive 93/36.
         
          Findings of the Court 
         
         
         56
            
          As regards the award of supply contracts for uniform goods, referred to in Article 182(g) of the codified law, the negotiated
         procedure may be used only in the cases exhaustively listed in Article 6(2) and (3) of Directive 93/36. Article 6(4) states,
         moreover, that ‘in all other cases, the contracting authorities shall award their supply contracts by the open procedure or
         by the restricted procedure’.
         
         
         
         57
            
          The provision at issue, introduced by the Spanish legislature, does not correspond either to the case mentioned in Article
         6(2) of Directive 93/36 or to one of the five situations listed in Article 6(3) in which the use of a negotiated procedure
         without prior publication of a tender notice is expressly permitted. It must be stated, moreover, that the concept of ‘framework
         agreement’ does not come within the scope of those exceptions.
         
         
         
         58
            
          Furthermore, the Court has consistently held that the provisions which authorise derogations from the rules intended to ensure
         the effectiveness of the rights conferred by the Treaty in the field of public supply contracts must be strictly interpreted
         (judgment in Case C‑71/92  Commission  v  Spain  [1993] ECR I-5923, paragraph 36). It is, therefore, for the Member States to show that their legislation constitutes a faithful
         transposition of the cases expressly provided for by the directive. In the present case, such evidence has not been provided
         by the Spanish Government.
         
         
         
         59
            
          Accordingly, to the extent that it authorises use of the negotiated procedure without prior publication of a tender notice
         for the procedures involving goods whose uniformity has been held to be necessary for their common use by the public authorities,
         provided that the choice of the type of goods has been made in advance, pursuant to a call for tenders, the law at issue constitutes
         an incorrect transposition of Article 6(2) and (3) of Directive 93/36.
         
         
         
         60
            
          In those circumstances the Commission’s third complaint must be upheld.
         
         
         
         61
            
          In the light of the foregoing considerations, it must be held that, by failing to transpose correctly into its national legal
         system Directive 93/36 and Directive 93/37 and, in particular,
         
         
         
          
         –
            by excluding from the scope of the codified law, more particularly in Article 1(3) thereof, the entities governed by private
               law fulfilling the requirements laid down in the first, second and third indents of the second subparagraph of Article 1(b)
               of each of those directives; 
            
         
         
         
         
          
         –
            by excluding absolutely from the scope of that law, in Article 3(1)(c) thereof, cooperation agreements concluded between public
               authorities and the other public undertakings and, therefore, also agreements which constitute public contracts for the purpose
               of those directives; and
            
         
         
         
         
          
         –
            by permitting, in Article 141(a) and Article 182(a) and (g) of that law, the negotiated procedure to be used in two cases
               which are not provided for in those directives,
            
         
         
          the Kingdom of Spain has failed to fulfil its obligations under those directives.
         
         
         Costs
         62
            
          Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party’s pleadings. Since the Commission has asked for costs and the Kingdom of Spain has been
         unsuccessful, the latter must be ordered to pay the costs.
         
         
         
         
         
         
            
            
         
         
          On those grounds the Court (Second Chamber) hereby:
         
            
            
             
               1.
                   Declares that by failing to transpose correctly into its national legal system Council Directive 93/36/EEC of 14 June 1993
                     coordinating procedures for the award of public supply contracts and Council Directive 93/37/EEC of 14 June 1993 concerning
                     the coordination of procedures for the award of public works contracts and, in particular, 
                  
               
            
            
            
             
               –
                   by excluding from the scope of the Ley de Contratos de las Administraciones Públicas (Law on contracts awarded by public authorities)
                     of 16 June 2000, in the codified version approved by the Real Decreto Legislativo 2/2000 of 16 June 2000, more particularly
                     in Article 1(3) thereof, the entities governed by private law fulfilling the requirements laid down in the first, second and
                     third indents of the second subparagraph of Article 1(b) of each of those directives; 
                  
               
            
            
            
             
               –
                   by excluding absolutely from the scope of that law, in Article 3(1)(c) thereof, cooperation agreements concluded between public
                     authorities and the other public undertakings and, therefore, also agreements which constitute public contracts for the purpose
                     of those directives; and 
                  
               
            
            
            
             
               –
                   by permitting, in Article 141(a) and Article 182(a) and (g) of that law, the negotiated procedure to be used in two cases
                     which are not provided for in those directives, 
                  
               
            
             the Kingdom of Spain has failed to fulfil its obligations under those directives; 
             2.       Orders the Kingdom of Spain to pay the costs. 
            
            
            [Signatures]
      
      
          1 –
            
            Language of the case: Spanish.