UAB „LitSpecMet“ v UAB Vilniaus lokomotyvų remonto depas.
Date: 2017-10-05
25


By reason of the spirit of cooperation in relations between the national courts and the Court of Justice in the context of the procedure for a preliminary ruling, the lack of such preliminary findings by the referring court does not lead to the request being inadmissible if, in spite of those failings, the Court, having regard to the information available from the file, considers that it is in a position to provide a useful answer to the referring court. That is the case, in particular, where the order for reference contains sufficient relevant information for it to be determined whether the conditions for application of a measure of secondary legislation are likely to be satisfied. Nevertheless, the answer provided by the Court is given subject to the proviso that the referring court has found that those conditions are met (see, by analogy, judgment of 11 December 2014, Azienda sanitaria locale n. 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 48).
30


As the Court has consistently held, the conditions set out in that article are cumulative, so that if a single one of those conditions is unfulfilled a body cannot be regarded as a ‘body governed by public law’ and, therefore, as a ‘contracting authority’ within the meaning of Directive 2004/18 (see, to that effect, judgments of 22 May 2003, Korhonen and Others, C‑18/01, EU:C:2003:300, paragraph 32, and of 10 April 2008, Ing. Aigner, C‑393/06, EU:C:2008:213, paragraph 36 and the case-law cited.
31


The concept of ‘contracting authority’, including that of ‘body governed by public law’, must, in the light of the objectives of the directives on public procurement, seeking to exclude both the risk of preferring national tenderers or bidders in any contract award made by the contracting authorities and the possibility that a body financed or controlled by the State, regional authorities or other bodies governed by public law may be guided by considerations other than economic ones, must be interpreted in functional terms and broadly (see, to that effect, judgment of 15 May 2003, Commission v Spain, C‑214/00, EU:C:2003:276, paragraph 53 and the case-law cited).
34


It is clear from the wording of the second subparagraph, (a), of Article 1(9) of Directive 2004/18 that the requirement laid down therein must be satisfied by the entity whose classification is being examined and not by another entity, even if the latter is the parent company of the former which supplies the latter with goods or services. It is therefore not sufficient that an undertaking was established by a contracting authority or that its activities are financed by funds derived from activities pursued by a contracting authority in order for it to be regarded as a contracting authority itself (judgment of 15 January 1998, Mannesmann Anlagenbau Austria and Others, C‑44/96, EU:C:1998:4, paragraph 39).
36


Accordingly, it is necessary to determine, first of all, whether VLRD was established for the specific purpose of meeting needs in the general interest, the activity of which meets such needs before, if necessary, examining whether or not those needs have an industrial or commercial character (see, to that effect, judgment of 22 May 2003, Korhonen and Others, C‑18/01, EU:C:2003:300, paragraph 40).
40


It must be noted that it is irrelevant that, in addition to the activities intended to meet needs in the general interest, the entity in question also carries out other activities for profit on the competitive market (see, to that effect, judgments of 15 January 1998, Mannesmann Anlagenbau Austria and Others, C‑44/96, EU:C:1998:4, paragraph 25, and of 10 April 2008, Ing. Aigner, C‑393/06, EU:C:2008:213, paragraph 47 and the case-law cited).
44


As the Court has held, if, with regard to the activities intended to meet needs in the general interest, the body operates in normal market conditions, aims to make a profit and bears the losses associated with the exercise of its activity, it is unlikely that the needs it seeks to meet are not of an industrial or commercial nature (judgment of 16 October 2003, Commission v Spain, C‑283/00, EU:C:2003:544, paragraphs 81 and 82 and the case-law cited).