Gestión Hotelera Internacional SA v Comunidad Autónoma de Canarias, Ayuntamiento de Las Palmas de Gran Canaria and Gran Casino de Las Palmas SA.
Date: 1994-04-19
12 It should be noted in that regard that, as the Court has consistently held, it is solely for the national court before which the dispute has been brought, and which must assume the responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling to enable it to deliver judgment and the relevance of the question which it submits to the Court (see in particular the judgment in Case C-127/92 Enderby [1993] ECR I-5535, paragraph 10).
13 Moreover, as the Court has consistently held, the interpretation of a directive may be useful to the national court for the purpose of enabling it to ensure that the statute which implements it in domestic law is interpreted and applied in accordance with the requirements of Community law (see the judgment in Case 111/75 Mazzalai [1976] ECR 657, paragraph 10).
23 It follows from the foregoing analysis that the main object of the award of the contracts was, first, the installation and opening of a casino and, secondly, the operation of a hotel business. It is common ground that those contracts, considered as such, do not fall within the scope of Directive 71/305.
24 It is next apparent, first, that the documents mentioned above did not contain any description of the subject-matter of the works to be carried out, either as regards the installation and opening of the casino or as regards the operation of the hotel, secondly, that there was no provision for remuneration for those works and thirdly, that the successful tenderer was not in a position to carry them out itself, by reason of the strict definition of its object in Article 2(1)(c) of Annex I.
25 The question which arises for the national court is whether a mixed contract relating both to the performance of works and to the assignment of property falls within the scope of Directive 71/305.
26 The answer must be that, where the works to be carried out in the hotel and the casino are merely incidental to the main object of the award, the award, taken in its entirety, cannot be characterized as a public works contract within the meaning of Directive 71/305.
27 Corroboration for that interpretation is to be found in Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (Official Journal 1992 L 209, p. 1). According to the sixteenth recital in the preamble to that directive, it follows from Directive 71/305 that, for a contract to be a public works contract, its object must be the achievement of a work and that, in so far as those works are incidental rather than the object of the contract, they do not justify treating the contract as a public works contract.
28 It is for the national court to determine whether the works are incidental to the main object of the award.
29 The answer to the first question must therefore be that a mixed contract relating both to the performance of works and to the assignment of property does not fall within the scope of Directive 71/305 if the performance of the works is merely incidental to the assignment of property.
Question 2