Commission of the European Communities v Kingdom of Spain.
Date: 2005-01-13
27. It must be observed that according to settled case-law the definition of ‘body governed by public law’, a concept of Community law which must be given an autonomous and uniform interpretation throughout the Community, is defined in functional terms exclusively under the three cumulative conditions in the second subparagraph of Article 1(b) of Directives 93/36 and 93/37 (see, to that effect, Mannesmann Anlagenbau Austria and Others , paragraphs 20 and 21; Case C-470/99 Universale-Bau and Others  [2002] ECR I-11617, paragraphs 51 to 53; Case C-214/00 Commission  v Spain  [2003] ECR I-4667, paragraphs 52 and 53; and Case C-283/00 Commission  v Spain  [2003] ECR I-11697, paragraph 69).
28. It follows that in order to determine whether a private law body is to be classified as a body governed by public law it is only necessary to establish whether the body in question satisfies the three cumulative conditions laid down in the second subparagraph of Article 1(b) of Directives 93/36 and 93/37, since an entity’s private law status does not constitute a criterion for precluding it from being classified as a contracting authority for the purposes of those directives (Case C‑214/00 Commission  v Spain , paragraphs 54, 55 and 60).
29. The Court has also stated that that interpretation does not amount to a disregard for the industrial or commercial character of the general interest needs which the body concerned satisfies, since that factor is necessarily taken into consideration in order to determine whether or not it satisfies the condition laid down in the first indent of the second subparagraph of Article 1(b) of Directives 93/36 and 93/37 (see, to that effect, Case C-283/00 Commission  v Spain , paragraph 75).
38. In accordance with Article 1(a) of Directive 93/36, it is sufficient, in principle, if the contract was concluded between a local authority and a person legally distinct from it. The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities. (judgment in Teckal , paragraph 50).
39. Having regard to the fact that the elements constituting the definition of a contract in Directives 93/36 and 93/37 are identical, except for the purpose of the contract in question, the approached adopted in Teckal  must be applied to inter-administrative agreements covered by Directive 93/37.
40. Consequently, in so far as it excludes, a priori, from the scope of the codified law relations between public authorities, their public bodies and, in a general manner, non-commercial bodies governed by public law, whatever the nature of those relations, the Spanish law at issue in this case constitutes an incorrect transposition of Directives 93/36 and 93/37.
47. As is clear, in particular, from the twelfth recital in the preamble to Directive 93/36 and the eighth recital in the preamble to Directive 93/37, the negotiated procedure is exceptional in nature and, therefore, must be applied only in cases which are set out in an exhaustive list. To that end Articles 6(3)(a) of Directive 93/36 and Article 7(3)(a) of Directive 93/37 exhaustively list the cases in which the negotiated procedure may be used without prior publication of a tender notice.
48. According to settled case-law, the derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in connection with public works contracts must be interpreted strictly (judgments in Case C-57/94 Commission  v Italy  [1995] ECR I-1249, paragraph 23, and Case C-318/94 Commission  v Germany  [1996] ECR I-1949, paragraph 13). To prevent the directives at issue being deprived of their effectiveness, the Member States cannot, therefore, provide for the use of the negotiated procedure in cases not provided for in Directives 93/36 and 93/37, or add new conditions to the cases expressly provided for by those directives which make that procedure easier to use.
58. Furthermore, the Court has consistently held that the provisions which authorise derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in the field of public supply contracts must be strictly interpreted (judgment in Case C‑71/92 Commission  v Spain  [1993] ECR I-5923, paragraph 36). It is, therefore, for the Member States to show that their legislation constitutes a faithful transposition of the cases expressly provided for by the directive. In the present case, such evidence has not been provided by the Spanish Government.