1 By application lodged at the Court Registry on 6 March 1992, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by maintaining in force certain provisions constituting an exclusion from the field of application of the national rules on public procurement, certain provisions allowing the award of privately negotiated contracts, certain provisions relating to the rules on participation and criteria for qualitative selection, certain provisions relating to technical standards and certain provisions relating to award criteria, the Kingdom of Spain has failed to fulfil its obligations under Articles 30 and 59 of the Treaty, Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682) and Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts (OJ 1977 L 13, p. 1).
2 In Spain Directives 71/305 and 77/62 were transposed into national law by Royal Legislative Decree 931/1986 of 2 May 1986 amending the Law on State Contracts (Ley de Contratos del Estado, hereinafter "the LCE", BOE No 114 of 13 May 1986, p. 16920) and by Royal Decree 2528/1986 of 28 November 1986, amending the General Regulation on the Award of State Contracts (Reglamento General de Contratación del Estado, hereinafter "the RGCE", BOE No 297 of 12 December 1986, p. 40546).
3 The Commission took the view that several provisions of the LCE and the RGCE, together with other provisions capable of affecting the system of public procurement in Spain, contained in the amended version of the local regulations (Royal Legislative Decree 781/1986 of 18 April 1986, BOE No 96 and 97 of 22 and 23 April 1986), the Law of 24 November 1939 on the Organization and Protection of National Industry (Jefatura del Estado, BOE of 15 December 1939, hereinafter "the Law of 24 November 1939") and Royal Decree 946/1978 of 14 April 1978 relating to a procedure for the evaluation and control of pharmaceutical services (BOE No 108 of 8 May 1978, hereinafter "Royal Decree 946/1978") were contrary, as the case may be, to Articles 30 or 59 of the Treaty and/or to Directives 71/305 or 77/62. The Commission therefore initiated against the Kingdom of Spain the procedure provided for in Article 169 of the Treaty and subsequently brought this action before the Court.
4 During the course of the proceedings before the Court, the Commission withdrew that part of its application which related to the Law of 24 November 1939 and to Article 11 of Royal Decree 946/1978 on the ground that they had since been repealed.
5 The provisions of national legislation with regard to which the Court is called upon to give judgment are therefore: ° Article 2, point 3, of the LCE and Article 2, point 3, of the RGCE, which exclude from the field of application of the national rules on public supply contracts, and thus from that of Directive 77/62, certain transactions concluded by the administrative authorities with individuals; ° Article 2, point 8, of the LCE and Article 2, point 8, of the RGCE, which exclude from the field of application of the national rules on public works and supply contracts, and consequently from that of both directives, "contracts for which a law expressly lays down an exception"; ° Article 29 bis, paragraph 1, points 1 and 3, of the LCE and Article 93 ter of the RGCE, which exempt certain contracts from the requirement of publication in the Official Journal of the European Communities, laid down in Directive 71/305; ° various provisions of national legislation relating to privately negotiated contracts which are alleged to conflict with the provisions of both directives, namely Article 37, paragraph 1, points 1, 2, 7 and 8 and Article 87, paragraph 4, points 1, 2 and 5 of the LCE, Articles 117 and 247 of the RGCE and Article 120 of the amended text of the local regulations; ° certain provisions of national legislation laying down, in contravention of the terms of both directives and of Article 30 or 59 of the Treaty, the criteria for qualitative selection and the rules for the participation of undertakings in public procurement, namely Article 24, paragraph 1, point 1, Article 25, paragraph 1, points 1 and 3, Article 284, paragraph 5, Article 287, paragraph 2, Article 312, paragraph 2, Article 320, paragraph 3, point 5, and Article 341 of the RGCE; ° finally Article 244 of the RGCE, which lays down certain rules in the technical field which are alleged to be contrary to Article 7 of Directive 77/62.
6 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. Article 2, point 3, of the LCE and Article 2, point 3, of the RGCE
7 The Commission considers that by excluding from the national rules on public procurement "transactions effected by the administrative authorities with individuals as regards goods or rights, dealings in which are governed (' mediatizado' ) by legal provisions, or products controlled (' intervenidos' ), subject to a monopoly (' estancados' ) or prohibited (' prohibidos' )", Article 2, point 3, of the LCE and Article 2, point 3, of the RGCE are incompatible with Directive 77/62 in two respects. First, those provisions are so general and their wording so unclear that they give rise to legal uncertainty and do not comply with the requirement that directives must be correctly transposed. Secondly, in breach of the directive, those provisions exclude public supply contracts from its field of application.
8 To demonstrate the compatibility of the contested provisions with Directive 77/62 the Spanish Government contends in the first place that Article 2, point 3, of the LCE and the corresponding provision of the RGCE are reference provisions which can be applied and produce legal consequences only in relation to the legislative provisions to which they refer. Contrary to the Commission' s contention, those provisions serve to increase legal certainty inasmuch as they list exhaustively the contracts excluded from their field of application and require any exclusion to be laid down by law.
9 Those arguments must be rejected.
10 It is apparent from the ninth recital in the preamble to Directive 77/62 that: "... provision must be made for exceptional cases where measures concerning the coordination of procedures may not necessarily be applied, but such cases must be expressly limited". It follows that the only permitted exceptions to the application of Directive 77/62 are those which are exhaustively and expressly mentioned therein.
11 Articles 2(2) and 3 of Directive 77/62, which list the public supply contracts to which it does not apply, do not include those relating to the products referred to in Article 2, point 3, of the LCE and Article 2, point 3, of the RGCE. Moreover, as the Commission has correctly emphasized, none of the exceptions authorized by the directive is defined by reference to the type of, or the legal arrangements relating to, the product concerned, in contrast to the contested provisions of the Spanish legislation.
12 In those circumstances those provisions cannot be regarded as effecting a correct transposition of Directive 77/62 into national law. That finding is confirmed by the fact that the Spanish Government, without citing specific laws, has indicated that, by virtue of the contested provisions, contracts relating to products such as medicinal products, postage stamps, stamped paper, tobacco, electricity and gas are excluded from the application of the rules on public procurement.
13 Secondly, the Spanish Government contends that the contested provisions are justified in the light of other provisions of Community law, in particular Articles 36, 90(2) and 223 of the Treaty.
14 That argument cannot be upheld either.
15 It is true that national rules applicable to trade in certain products, which are compatible with Community law by virtue of the aforementioned provisions of the Treaty, must also be observed in connection with the award of public supply contracts. However, that fact is not such as to justify a priori a general failure to apply the rules relating to the award of such contracts as far as those products are concerned.
16 The Spanish Government contends, in the third place, that the exclusion of certain contracts provided for in Article 2, point 3, of the LCE and the corresponding provision of the RGCE may be justified by Article 6(1)(b) of Directive 77/62, according to which authorities awarding contracts may award their supply contracts without applying the open or restricted procedures referred to in Article 4(1) and (2), "when, for technical or artistic reasons, or for reasons connected with protection of exclusive rights, the goods supplied may be manufactured or delivered only by a particular supplier".
17 In that respect it is sufficient to note that the contracts covered by that provision, even though they need not be awarded according to the open or restricted procedures, are not excluded from the field of application of the directive but remain subject, in accordance with Article 4(3) thereof, to Article 7 on common rules in the technical field.
18 It follows from the foregoing considerations that the Commission' s complaint with regard to Article 2, point 3, of the LCE and Article 2, point 3, of the RGCE must be regarded as well founded. Article 2, point 8, of the LCE and Article 2, point 8, of the RGCE
19 The Commission considers that Article 2, point 8, of the LCE and Article 2, point 8, of the RGCE, which exclude from the field of application of the national rules on public procurement "contracts for which a law expressly lays down an exception", constitute a further exclusion of a general nature which is contrary to both Directive 71/305 and Directive 77/62.
20 The Spanish Government contends, on the other hand, that the contested provisions are merely reference provisions which in themselves are not contrary to Community law.
21 That argument cannot be upheld.
22 In the first place, as the Court has stated in paragraph 10 of this judgment, the only permitted exceptions to the application of Directive 77/62 are those exhaustively and expressly mentioned therein. That applies equally to Directive 71/305, the seventh recital in the preamble to which is identical to the ninth recital, previously quoted, in the preamble to Directive 77/62.
23 Moreover it follows that, as the Court has consistently held (see, in particular, the judgment in Case C-131/88 Commission v Germany [1991] ECR I-825, paragraph 6), the transposition of a directive into national law does not necessarily require that its provisions be incorporated formally and verbatim in express specific legislation; a general legal context may, depending on the content of the directive, be adequate for the purpose provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned may ascertain the full extent of their rights and, where appropriate, rely on them before the national courts. Those requirements of clarity and precision are all the more imperative where, as in this case, exceptions to or derogations from the rules laid down by a directive are to be transposed into national law.
24 In addition, as the Commission has pointed out without being challenged by the Spanish Government, all the exceptions exhaustively and expressly listed by Directives 71/305 and 77/62 have been incorporated in express, specific provisions of the LCE or the RGCE. Consequently a provision allowing other exceptions to be introduced by other laws is likely to create an ambiguous legal situation making it impossible for those concerned to ascertain their rights and obligations without ambiguity.
25 In those circumstances, the general exception laid down in Article 2, point 8, of the LCE and in Article 2, point 8, of the RGCE by reference to other unspecified laws does not constitute a transposition into national law corresponding fully to the requirements of clarity and certainty in legal situations which directives seek to fulfil (see, in particular, the judgment in Case 102/79 Commission v Belgium [1980] ECR 1473, paragraph 11).
26 It follows that the Commission' s complaint with regard to those provisions is also well founded. Article 29 bis, paragraph 1, points 1 and 3, of the LCE and Article 93 ter of the RGCE
27 The Commission claims that Directive 71/305 contains no exception of the kind laid down by Article 29 bis, paragraph 1, points 1 and 3, of the LCE and Article 93 ter of the RGCE, exempting from the requirement of publication in the Official Journal of the European Communities, set out in Article 12 of Directive 71/305, contracts "concerning industrial installations of the mechanical, electrical or energy-producing variety, with the exception of any part of such installations as comes within the sphere of building or civil engineering" and those "concerning excavation, shaft-sinking, dredging and waste disposal works carried out in connection with the extraction of minerals (mining and quarrying industries)". In view of the exhaustive nature of the exceptions laid down, those provisions of national legislation are therefore alleged to be contrary to Directive 71/305.
28 The Spanish Government denies that the contracts in question come within the field of application of Directive 71/305. In that respect it contends in particular that such contracts are not "public works contracts", as defined in Article 1(a) thereof.
29 That point of view must be upheld.
30 It follows from Article 1(a) of Directive 71/305 that "public works contracts" within the meaning of the directive are those "which have as their object one of the activities referred to in Article 2 of the Council Directive" (71/304/EEC) "of 26 July 1971 concerning the abolition of restrictions on freedom to provide services in the field of public works contracts and on the award of public works contracts to contractors acting through agencies or branches" (OJ, English Special Edition 1971 (II), p. 678). According to Article 2(2) of the latter directive, it specifically does not apply to the works mentioned by the contested provisions of the Spanish legislation.
31 However, the Commission argues that the reference to Article 2 of Directive 71/304, contained in Article 1(a) of Directive 71/305, must be regarded as relating exclusively to paragraph 1 of that provision. It takes the view that Directive 71/304, which reaffirms the fundamental principle of the abolition of restrictions on freedom to provide services, laid down in Article 59 of the Treaty, cannot in any event restrict the field of application of Directive 71/305, particularly as, since the expiry of the transitional period, Article 2(2) of Directive 71/304 has had no practical effect by reason of the fact that Article 59 of the Treaty, as the Court has recognized, is directly applicable.
32 That line of argument cannot be upheld either.
33 As the Advocate General states in section 27 of his Opinion, although the prohibition of restrictions on freedom to provide services, laid down by the Treaty, applies in principle to all fields of Community law, it is nevertheless for the Council to supplement that prohibition, which follows directly from the Treaty, with rules coordinating or harmonizing national provisions which do not conflict with the prohibition, and consequently to determine the field of application of such rules.
34 It follows from the foregoing considerations that the Commission' s complaint with regard to Article 29 bis, paragraph 1, points 1 and 3, of the LCE and Article 93 ter of the RGCE must be rejected. Article 37, paragraph 1, points 1, 2, 7 and 8, and Article 87, paragraph 4, points 1, 2 and 5, of the LCE, Articles 117 and 247 of the RGCE and Article 120 of the amended local regulations
35 The Commission considers that various provisions of Spanish legislation authorizing the award of privately negotiated contracts, that is to say, for public works contracts, Article 37, paragraph 1, points 1, 2, 7 and 8, of the LCE and Article 117, paragraph 1, points 1, 2, 7 and 8, of the RGCE and, for public supply contracts, Article 87, paragraph 4, points 1, 2 and 5 of the LCE, Article 247, paragraph 4, points 1, 2 and 5 of the RGCE and Article 120, paragraph 1, points 1, 2 and 6 of the amended local regulations, are contrary to Article 9 of Directive 71/305 and Article 6 of Directive 77/62 respectively, on the ground that the cases to which they relate do not correspond, or do not exactly correspond, to those listed by the said provisions of the two directives.
36 It should be stressed first of all that the provisions of Article 9 of Directive 71/305 and of Article 6 of Directive 77/62, which authorize derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in the field of public works and supply contracts, must be strictly interpreted (see, as regards Article 9 of Directive 71/305, the judgment in Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14). For the same reasons, the abovementioned provisions specifying the cases in which privately negotiated contracts may be concluded must be regarded as exhaustive.
37 It follows from a comparison of the provisions of Spanish legislation at issue with the relevant provisions of the Community directives, made by the Advocate General in sections 37 to 59 of his Opinion, that the Spanish rules either allow the award of privately negotiated contracts in cases not envisaged by the directives or impose for the procedure for privately negotiated contracts conditions less strict than those resulting from the corresponding provisions of the directives.
38 It follows that the Commission' s complaint with regard to the contested provisions of Spanish legislation allowing the award of privately negotiated contracts is well founded. Article 24, paragraph 1, point 1, and Article 25, paragraph 1, points 1 and 3, of the RGCE
39 The Commission claims that the evidential requirements laid down by Article 25, paragraph 1, points 1 and 3, of the RGCE in order to establish, as required by Article 24, paragraph 1, point 1, thereof, the legal personality and capacity of tenderers to enter into contracts and to assume obligations are not provided for by Directives 71/305 and 77/62 and cannot therefore justify the exclusion of tenderers who do not fulfil them. It takes the view, moreover, that in so far as those provisions apply to works contracts they are also contrary to Article 59 of the Treaty, inasmuch as they apply only to foreign undertakings or impose on them burdens in addition to those which they already bear in their country of origin and which are not justified by any objective in the public interest.
40 The Court considers that this complaint in fact relates only to Article 25, paragraph 1, points 1 and 3, of the RGCE, inasmuch as those provisions prescribe certain methods of attesting the legal capacity of tenderers. Moreover, the Commission expressly conceded at the hearing that it did not deny that the requirement that tenderers should have legal capacity was, in itself, compatible with Community law.
41 With regard to the complaint as thus clarified, it should be pointed out that in its judgment in Case 76/81 Transporoute v Minister of Public Works ([1982] ECR 417, paragraph 9) the Court has already stated that Directive 71/305 does not authorize the Member States to seek references other than those expressly mentioned in the directive except for the purpose of assessing the financial and economic standing of the contractors as provided for in Article 25 thereof. That finding applies by analogy to Directive 77/62, the relevant rules of which correspond in substance to those of Directive 71/305.
42 However, the documentary evidence envisaged in that respect by Article 25, paragraph 1, points 1 and 3, of the RGCE is not intended to establish the financial and economic standing of undertakings, nor does it form part of the evidence production of which may be required by virtue of the other relevant provisions of the two directives.
43 Accordingly the complaint alleging infringement of Directives 71/305 and 77/62 must be held to be well founded and consequently it is unnecessary to inquire whether the contested provisions are also contrary to Article 59 of the Treaty. Article 284, paragraph 5, of the RGCE
44 The Commission considers that by requiring contractors from other Member States who wish to furnish proof of their capacity by means other than classification in Spain in the official list of recognized contractors referred to in Article 28(1) of Directive 71/305 to produce a certificate issued by the Advisory Committee for Public Contracts to the effect that they have not been classified or that their classification has not been suspended or cancelled, Article 284, paragraph 5, of the RGCE imposes a condition, not envisaged by Directive 71/305 and therefore contrary thereto, upon the contractor' s option to use such means. That condition is also alleged to be contrary to Article 59 of the Treaty in so far as it imposes an administrative burden on the contractors concerned, which deprives of any practical effect the right of such persons to attest their capacity by means other than classification.
45 It should be stressed in the first place that there is nothing in Article 28 of Directive 71/305 to support the view that registration in the official list of contractors recognized in the State in which the contract is to be awarded may be required of contractors established in other Member States. On the contrary, Article 28(3) entitles contractors registered in an official list in any Member State whatever to use such registration, within the limits laid down in that provision, as an alternative means of proving before the awarding authority of another Member State that they satisfy the criteria for qualitative selection listed in Articles 23 to 26 of the directive (see the judgments in Transporoute, previously cited, paragraphs 12 and 13, and in Joined Cases 27 to 29/86 CEI v Association Intercommunale pour les Autoroutes des Ardennes [1987] ECR 3347, paragraph 24). Undertakings therefore have the choice of furnishing proof of their capacity either by such registration or by the means and documents mentioned in Article 23 to 26.
46 Furthermore, Directive 71/305 does not make the exercise of that choice subject to any condition of the type envisaged in Article 284, paragraph 5, of the RGCE and does not mention the certificate referred to by that provision as one of the documents which undertakings intending to furnish proof of their capacity by means other than registration in an official list of recognized contractors may be requested to produce.
47 It follows that the Commission' s complaint alleging infringement of Directive 71/305 must be regarded as well founded and that consequently there is no need to inquire whether the provision at issue is also contrary to Article 59 of the Treaty. Article 287, paragraph 2, of the RGCE
48 According to the Commission, Article 287, paragraph 2, of the RGCE is contrary to Directive 71/305 and to Article 59 of the Treaty inasmuch as it provides that for the purpose of classification of contractors in Spain, "preference shall be given to an assessment of the personal, material and financial means permanently available to the undertakings on the national territory".
49 It should be emphasized, in the first place, that Article 28(4) of Directive 71/305 provides that "for the registration of contractors of other Member States in such a list" (the official list of recognized contractors) "no further proofs and statements may be required other than those requested of nationals and, in any event, only those provided for under Articles 23 to 26".
50 Secondly, those provisions do not envisage the production of proof or statements relating to the matters referred to in Article 287, paragraph 2, of the RGCE. With regard to Article 26(c) and (d) of Directive 71/305, on which the Spanish Government relies, it is important to note that although that provision makes it possible to require statements of the tools, plant and technical equipment available to the contractor for carrying out the work and of the firm' s average annual manpower and the size of its managerial staff for the past three years, it makes no distinction as to whether or not those items are situated on the territory of the State in which the contract is to be awarded.
51 Hence the complaint alleging infringement of Directive 71/305 must be considered well founded, and there is no need to inquire whether Article 287, paragraph 2, of the RGCE is contrary to Article 59 of the Treaty. Article 312, paragraph 2, and Article 320, paragraph 3, point 5, of the RGCE
52 As regards Article 312, paragraph 2, of the RGCE, it is sufficient to state that the Spanish Government does not dispute that that provision, which defines the probative value in Spain of classification certificates issued by another Member State, takes no account of the provisions of Article 26(b) and (d) of Directive 71/305 and is therefore contrary to the first subparagraph of Article 28(3) thereof.
53 The same applies to Article 320, paragraph 3, point 5, of the RGCE, which provides that the technical ability of suppliers may be evidenced by product quality certificates issued by Spanish official institutes or agencies. The Spanish Government admits that that provision is contrary to Article 23(1)(e) of Directive 77/62, which permits a requirement that such certificates are to be produced by the person concerned but not that they are to be drawn up by an agency of the State in which the contract is to be awarded.
54 In those circumstances, the complaint relating to Article 312, paragraph 2, and Article 320, paragraph 3, point 5, of the RGCE must be regarded as well founded and consequently there is no need to inquire whether Article 320, paragraph 3, point 5, also conflicts with Article 30 of the Treaty, as the Commission has claimed. Article 341 of the RGCE
55 The Commission considers that Article 341 of the RGCE, which authorizes the government to exempt contractors who have obtained classification in Spain from giving provisional security in the case of tenders for works contracts, is incompatible with Directive 71/305 and with Article 59 of the Treaty in so far as such an exemption constitutes a financial incentive to obtain classification and has the effect of restricting in practice the right of undertakings to tender without being classified.
56 It should be borne in mind that, as the Court has stated in paragraph 45 of this judgment, Directive 71/305 entitles contractors to furnish proof of their capacity either by the means referred to in Articles 23 to 26 of the directive or by their registration in an official list of recognized contractors, which need not necessarily be that of the State in which the contract is to be awarded. The exercise of that right is impaired by a provision such as Article 341 of the RGCE, which makes it possible to exempt only contractors registered in such a list from giving provisional security.
57 However, the Spanish Government contends that the giving of provisional security fulfils a function comparable to that of the requirement of classification itself, which is to guarantee the performance of the contracts concluded, with the result that exemption cannot be granted to contractors who have furnished proof of their capacity by a method other than classification.
58 That argument cannot be upheld.
59 As the Commission has correctly stated, subparagraphs (d) and (g) of the first paragraph of Article 23 of Directive 71/305, which make it possible to exclude from participation in a contract any contractor who has been guilty of grave professional misconduct or has been guilty of serious misrepresentation with regard to the criteria laid down for qualitative selection, provide the authorities awarding contracts with sufficient means to ensure, with the same effectiveness as classification itself or the threat of its suspension, the performance of the contracts concluded. There is therefore no need to restrict the grant of the exemption in question to those contractors who have furnished proof of their capacity by classification in Spain.
60 It follows from the foregoing considerations that the Commission' s complaint with regard to Article 341 of the RGCE is well founded and there is consequently no need to inquire whether that provision also conflicts with Article 59 of the Treaty. Article 244 of the RGCE
61 The first point to note is that the Spanish Government has acknowledged that this provision did not correctly transpose into national law the order of preference of the standards by reference to which the technical specifications in public supply contracts are to be defined, as laid down in Article 7(1) of Directive 77/62. The fact invoked by the Spanish Government that that provision was substantially amended by Council Directive 88/295/EEC of 22 March 1988 amending Directive 77/62/EEC coordinating procedures for the award of public supply contracts and repealing certain provisions of Directive 80/767/EEC (OJ 1980 L 127, p. 1), which granted the Kingdom of Spain an additional period for its implementation, is not such as to justify that acknowledged failure to fulfil its obligations. In any event the period prescribed for the transposition of Directive 88/295 into Spanish law expired on 1 March 1992.
62 Furthermore, Article 244, paragraph 2, of the RGCE requires the words "or equivalent" to be included only in the case of references to trade marks, patents or types, whereas Article 7(2) of Directive 77/62 requires the inclusion of those words also in cases in which the technical specifications mention goods of a specific origin or make.
63 In those circumstances the Commission' s complaint relating to Article 244 of the RGCE must be regarded as well founded.
64 In the light of all the foregoing considerations, it must be held in terms of the form of order sought by the Commission that the Kingdom of Spain has failed to fulfil its obligations under Directives 71/305 and 77/62, except in so far as concerns the Law of 24 November 1939, Article 11 of Royal Decree 946/1978, Article 29 bis, paragraph 1, points 1 and 3, of the LCE and Article 24, paragraph 1, point 1, and Article 93 ter of the RGCE.