Asociación Nacional de Empresas Forestales (Asemfo) v Transformación Agraria SA (Tragsa) and Administración del Estado.
Date: 2007-04-19
29. It is appropriate in the first place to recall that, according to settled case-law, even though it is true that it is not for the Court to rule on the compatibility of national rules with the provisions of Community law in proceedings brought under Article 234 EC since the interpretation of such rules is a matter for the national courts, the Court does have jurisdiction to supply the latter with all the guidance as to the interpretation of Community law necessary to enable them to rule on the compatibility of such rules with the provisions of Community law (Case C-506/04 Wilson  [2006] ECR I-0000, paragraphs 34 and 35, and the case-law there cited).
30. Secondly, under equally settled case-law, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of Community law, the Court of Justice is bound, in principle, to give a ruling (see, in particular, Case C‑286/02 Bellio F.lli  [2004] ECR I‑3465, paragraph 27, and Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio  [2006] ECR I‑0000, paragraphs 16 and 17, and the case-law there cited).
31. Thirdly, it is settled case-law that a reference from a national court may be refused only if it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Case C-238/05 Asnef-Equifax and Administración del Estado  [2006] ECR I-0000, paragraph 17, and the case-law there cited).
32. Furthermore, the Court has also held that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Case C‑205/05 Nemec  [2006] ECR I‑0000, paragraph 25, and Confederación Española de Empresarios de Estaciones de Servicio , paragraph 26, and the case-law there cited).
33. In that regard, according to the case-law of the Court, it is essential that the national court should give at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and on the link it establishes between those provisions and the national legislation applicable to the dispute ( Nemec , paragraph 26, and Joined Cases C-94/04 and C-202/04 Cipolla and Others  [2006] ECR I-0000, paragraph 38).
40. It follows from the clear terms of Article 86(1) EC that it has no independent effect in the sense that it must be read in conjunction with the relevant rules of the Treaty.
49. In this case it is appropriate to hold , first of all, that, under Article 88(1) and (2) of Ley 66/1997 Tragsa is a State company the share capital of which may also be held by the Autonomous Communities. Article 88(4) and the first subparagraph of Article 3(1) of Royal Decree 371/1999 state that Tragsa is an instrument and a technical service of the General State Administration and of the administration of each of the Autonomous Communities concerned.
53. In that regard, it is appropriate to observe that, in paragraph 205 of the judgment in Spain v Commission , the Court held, in a different context from that of the main proceedings, that being an instrument and technical service of the Spanish Administration, Tragsa is required to implement, itself or using its subsidiaries, only work entrusted to it by General Administration of the State, the Autonomous Communities or the public bodies subject to them.
54. It must be observed that, if, which it is for the referring court to establish, Tragsa has no choice, either as to the acceptance of a demand made by the competent authorities in question, or as to the tariff for its services, the requirement for the application of the directives concerned relating to the existence of a contract is not met.
55. In any event, it is important to recall that, according to the Court’s settled case-law, a call for tenders, under the directives relating to public procurement, is not compulsory, even if the contracting party is an entity legally distinct from the contracting authority, where two conditions are met. First, the public authority which is a contracting authority must exercise over the distinct entity in question a control which is similar to that which it exercises over its own departments and, second, that entity must carry out the essential part of its activities with the local authority or authorities which control it (see Case C‑107/98 Teckal  [1999] ECR I‑8121, paragraph 50; Case C‑26/03 Stadt Halle and RPL Loclau [2005] ECR I-1 paragraph 49; Case C-84/03 Commission v Spain  [2005] ECR I-139, paragraph 38; Case C-29/04 Commission  v Austria [2005] ECR I-9705, paragraph 34; and Case C-340/04 Carbotermo and Consorzio Alisei  [2006] ECR I-4137, paragraph 33).
57. As regards the first condition, relating to the public authority’s control, it follows from the Court’s case-law that the fact that the contracting authority holds, alone or together with other public authorities, all of the share capital in a successful tenderer tends to indicate, generally, that that contracting authority exercises over that company a control similar to that which it exercises over its own departments ( Carbotermo and Consorzio Alisei , paragraph 37).
62. As regards the second condition, relating to the fact that the essential part of Tragsa’s activities must be carried out with the authority or authorities which own it, it follows from the case-law that, where several authorities control an undertaking, that condition may be met if that undertaking carries out the essential part of its activities, not necessarily with any one of those authorities, but with all of those authorities together ( Carbotermo and Consorzio Alisei , paragraph 70).