Commission of the European Communities v Kingdom of Spain.
Date: 2003-05-15
48.  It follows that, in order to determine whether that exclusion constitutes a correct transposition of Article 1(1) of Directive 89/665, it is necessary to ascertain whether the term   "contracting authority"   which appears in that provision refers only to bodies governed by public law, as the Spanish Government maintains, or whether bodies constituted under private law may also be covered by that term.
50.  Since Directive 89/665 applies to review procedures brought against decisions taken by contracting authorities under Directives 92/50, 93/36 and 93/37, its scope   ratione personae   is bound to coincide with that of those directives.
51.  It follows that, in order to determine whether the Spanish legislation adopted to implement Article 1(1) of Directive 89/665 provides a correct transposition of the term   "contracting authority"   which appears in that article, it is necessary to refer to the definition of that term and, more particularly, to that of   "body governed by public law"   used, in essentially identical wording, in the second subparagraph of Article 1(b) of Directives 92/50, 93/36 and 93/37.
52.  The Court has already stated, in connection with the second subparagraph of Article 1(b) of Directive 93/37, that, in order to be defined as a body governed by public law within the meaning of that provision, an entity must satisfy the three cumulative conditions set out therein, according to which it must be a body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, which has legal personality and is closely dependent on the State, regional or local authorities or other bodies governed by public law (Case C-44/96   Mannesmann Anlagenbau Austria and Others   [1998] ECR I-73, paragraphs 20 and 21).
53.  Moreover, the Court has repeatedly held that, in the light of the dual objective of opening up competition and transparency pursued by the directives on the coordination of the procedures for the award of public contracts, the term   "contracting authority"   must be interpreted in functional terms (see, in particular, Case C-237/99   Commission   v   France   [2001] ECR I-939, paragraphs 41 to 43, and Case C-470/99   Universale-Bau and Others   [2002] ECR I-11617, paragraphs 51 to 53). The Court has also stated that, in the light of that dual purpose, the term   "body governed by public law"   must be interpreted broadly (Case C-373/00   Adolf Truley   [2003] ECR-1931, paragraph 43).
54.  It is from that point of view that the Court, for the purposes of settling the question whether various private law entities could be classified as bodies governed by public law, has proceeded in accordance with settled case-law and merely ascertained whether those entities fulfilled the three cumulative conditions set out in the second subparagraph of Article 1(b) of Directives 92/50, 93/36 and 93/37, considering that the method in which the entity concerned has been set up was irrelevant in that regard (see to this effect, in particular,   Mannesmann Anglagenbau Austria and Others  , cited above, paragraphs 6 and 29; Case C-360/96   BFI Holding   [1998] ECR I-6821, paragraphs 61 and 62; and   Commission   v   France  , cited above, paragraphs 50 and 60).
55.  It is apparent from the rules thus identified in the case-law of the Court that an entity's private law status does not constitute a criterion for precluding it from being classified as a contracting authority within the meaning of Article 1(b) of Directives 92/50, 93/36 and 93/37 and, accordingly, of Article 1(1) of Directive 89/665.
56.  Furthermore, it should be pointed out that the effectiveness of Directives 92/50, 93/36 and 93/37 as well as of Directive 89/665 would not be fully preserved if the application of those directives to an entity which fulfils the three aforementioned conditions could be excluded solely on the basis of the fact that, under the national law to which it is subject, its legal form and rules which govern it fall within the scope of private law.
58.  Furthermore, it cannot be maintained that to reach that conclusion is to disregard the industrial or commercial character of the needs in the general interest which those companies meet, because that aspect is necessarily taken into consideration for the purpose of determining whether or not the entity concerned meets the condition set out in the first indent of the second subparagraph of Article 1(b) of Directives 92/50, 93/36 and 93/37.
60.  It therefore follows from the above that, to the extent that it automatically excludes companies governed by private law from the scoperatione personae   of Directive 89/665, the Spanish legislation at issue in the present case is not a correct transposition of the term   "contracting authority"   appearing in Article 1(1) of that directive, as defined in Article 1(b) of Directives 92/50, 93/36 and 93/37.
69.  Referring   inter alia   to Case C-282/95 P   Guérin automobiles   v   Commission   [1997] ECR I-1503, the Spanish Government points out that that conception is referred to in Community case-law itself. The Court has also held that the preparatory nature of the act against which the action is brought is one of the grounds of inadmissibility of an action for annulment, and that that is a ground which the Court may examine of its own motion (Case 346/87   Bossi   v   Commission   [1989] ECR 303).
98.  In the judgment in   Commission   v   Greece  , cited above, which concerned the compliance with Directive 89/665 of national legislation which restricted interim judicial protection to proceedings for suspension of the operation of an administrative act and made the suspension conditional on bringing an action for the annulment of the contested act, the Court had the opportunity to define the scope of the obligations arising in that regard under that directive. In particular, it found that, under Article 2 of Directive 89/665, the Member States are under a duty more generally to empower their review bodies to take, independently of any prior action, any interim measures, including measures to suspend or to ensure the suspension of the procedure for the award of the public contract in question  (Commission   v   Greece  , cited above, paragraph 11).