Commission of the European Communities v Kingdom of Spain.
Date: 2003-10-16
69.  A preliminary point to be noted is that, according to settled case-law, in order to be defined as a body governed by public law within the meaning of the second paragraph of Article 1(b) of the Directive an entity must satisfy the three cumulative conditions set out therein, requiring it to be a body established for the specific purpose of meeting needs in the general interest not having an industrial or commercial character, to possess legal personality and to be closely dependent on the State, regional or local authorities or other bodies governed by public law (Mannesmann Anlagenbau Austria and Others  , paragraphs 20 and 21, and Case C-214/00   Commission   v   Spain   [2003] ECR I-4667, paragraph 52).
72.  More specifically, in order to determine whether that exclusion constitutes correct transposition of the concept of   "contracting authority"   employed in Article 1(1) of Directive 89/665, the Court, considering that the ambit   ratione personæ   of that directive coincided with that of the Directive, referred to the scope of the concept of   "body governed by public law"   employed in the second paragraph of Article 1(b) of the Directive (Commission   v   Spain  , paragraphs 48, 50 and 51).
73.  In that context the Court noted that, in accordance with established case-law, in light of the dual purpose of opening up competition and of transparency pursued by the Directive, that concept must be given an interpretation as functional as it is broad (Commission   v   Spain  , paragraph 53).
74.  It is from that point of view that the Court has held that, following settled case-law, for the purposes of settling the issue of the classification of an entity governed by public law within the meaning of the second paragraph of Article 1(b) of the Directive, it is necessary to establish only whether or not the body concerned fulfils the three conditions set out in that provision, for that body's status as a body governed by private law does not constitute a criterion capable of excluding it from being classified as a contracting authority for the purposes of the Directive (Commission   v   Spain  , paragraphs 54 and 55).
75.  In addition, the Court has stated that that interpretation, the only one capable of maintaining the full effectiveness of the Directive, does not disregard the industrial or commercial character of the general-interest needs which the body concerned is intended to meet, for that aspect is necessarily taken into consideration for the purpose of determining whether or not that body satisfies the condition laid down in the first indent of the second paragraph of Article 1(b) of the Directive (Commission   v   Spain  , paragraphs 56 and 58).
77.  With regard on the other hand to the relevance of the Spanish Government's argument that SIEPSA does not fall within any of the categories of Spanish bodies governed by public law listed in Annex I to the Directive, the Court has held in Case C-373/00   Adolf Truley   [2003] ECR I-1931, paragraph 39, that that list is in no way exhaustive, as its accuracy varies considerably from one Member State to another.  The Court concluded therefrom that, if a specific body does not appear in that list, its legal and factual situation must be determined in each individual case in order to assess whether or not it meets a need in the general interest (Adolf Truley  , paragraph 44).
79.  The Court has thus held that concept is one of Community law and must accordingly be given an autonomous and uniform interpretation throughout the Community, the search for which must take account of the background to the provision in which it appears and of the purpose of the rules in question (see, to that effect,   Adolf Truley  , paragraphs 36, 40 and 45).
80.  According to settled case-law, needs in the general interest, not having an industrial or commercial character, within the meaning of Article 1(b) of the Community directives coordinating the award of public contracts are generally needs which are satisfied otherwise than by the supply of goods and services in the marketplace and which, for reasons associated with the general interest, the State chooses to provide itself or over which it wishes to retain a decisive influence (see, inter alia,   Adolf Truley  , paragraph 50, and Case C-18/01   Korhonen   [2003] ECR I-5321, paragraph 47).
81.  The case-law makes it equally clear that in determining whether or not there exists a need in the general interest not having an industrial or commercial character account must be taken of relevant legal and factual circumstances, such as those prevailing when the body concerned was formed and the conditions in which it carries on its activity, including, inter alia, lack of competition on the market, the fact that its primary aim is not the making of profits, the fact that it does not bear the risks associated with the activity, and any public financing of the activity in question (Adolf Truley  , paragraph 66, and   Korhonen  , paragraphs 48 and 59).
82.  As a matter of fact, as the Court found in   Korhonen  , paragraph 51, if the body operates in normal market conditions, aims at making a profit and bears the losses associated with the exercise of its activity, it is unlikely that the needs it aims at meeting are not of an industrial or commercial nature.
92.  In those circumstances, it is possible that in a procedure for the award of public contracts SIEPSA should allow itself to be guided by other than purely economic considerations.  It is precisely in order to guard against such a possibility that it is essential to apply the Community directives on public contracts (see, to this effect, inter alia,   Adolf Truley  , paragraph 42, and   Korhonen  , paragraphs 51 and 52).