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Judgment of the Court (Second Chamber) of 13 January 2005.#Commission of the European Communities v Kingdom of Spain.#Failure to fulfil obligations - Directives 93/36/EEC and 93/37/EEC - Public contracts - Award procedure for public supply and public works contracts - Scope - Definition of contracting authority - Inter-administrative cooperation agreements - Definition of contract - Use of the negotiated procedure in cases not provided for by the directive.#Case C-84/03.

ECLI:EU:C:2005:14

62003CJ0084

January 13, 2005
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(Failure to fulfil obligations – Directives 93/36/EEC and 93/37/EEC – Public contracts – Award procedure for public supply and public works contracts – Scope – Definition of contracting authority – Inter-administrative cooperation agreements – Definition of contract – Use of the negotiated procedure in cases not provided for by the directive)

Judgment of the Court (Second Chamber), 13 January 2005

Summary of the Judgment

1.Approximation of laws – Award procedures for public supply and public works contracts – Directives 93/36 and 93/37 – Contracting authorities – Body governed by public law – Concept – National legislation excluding bodies governed by private law from fulfilling the conditions laid down in the directives – Not permissible

(Council Directives 93/36, Art. 1(b), and 93/37, Art. 1(b))

2.Approximation of laws – Award procedures for public supply and public works contracts – Directives 93/36 and 93/37 – Public contract – Concept – National legislation excluding cooperation agreements concluded between bodies governed by public law – Not permissible

(Council Directives 93/36, Art. 1(a), and 93/37, Art. 1(a))

3.Approximation of laws – Award procedures for public supply and public works contracts – Directives 93/36 and 93/37 – Derogation from common rules – Strict interpretation – Use of the negotiated procedure – Limits

(Council Directives 93/36 and 93/37)

1.National legislation on public contracts which excludes from its scope private law bodies, even though they fulfil the cumulative requirements in the light of which the concept of ‘body governed by public law’ is defined and which are laid down in the second subparagraph of Article 1(b) of Directives 93/36 coordinating procedures for the award of public supply contracts and 93/37 concerning the coordination of procedures for the award of public works contracts constitutes an incorrect transposition of the definition of ‘body governed by public law’ and, accordingly, of ‘contracting authority’ in the first subparagraph of Article 1(b).

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 those conditions, 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.

(see paras 27-28, 31, operative part)

2.National legislation on public contracts which excludes, a priori, from its scope cooperation agreements concluded between public authorities and other public undertakings, and therefore, also the agreements which constitute public contracts for the purpose of those directives constitutes an incorrect transposition of Directives 93/36 coordinating procedures for the award of public supply contracts and 93/37 concerning the coordination of procedures for the award of public works contracts.

In order for there to be a public supply contract or a public works contract within the meaning of Article 1(a) of the directive, 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.

(see paras 38, 40, operative part)

3.The derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in connection with public supply contracts and public works contracts must be interpreted strictly. In order not to deprive Directives 93/96 coordinating procedures for the award of public supply contracts and 93/37 concerning the coordination of procedures for the award of public works contracts of their effectiveness, Member States cannot, therefore, provide for the use of the negotiated procedure in cases not provided for in those directives, or add new conditions to the cases expressly provided for by those directives which make that procedure easier to use.

(see paras 48, 58, operative part)

(Failure to fulfil obligations – Directives 93/36/EEC and 93/37/EEC – Public contracts – Award procedure for public supply and public works contracts – Scope – Definition of contracting authority – Inter-administrative cooperation agreements – Definition of contract – Use of the negotiated procedure in cases not provided for by the directive)

In Case C-84/03, ACTION under Article 226 EC for failure to fulfil obligations brought on 26 February 2003,

Commission of the European Communities, represented by K.Wiedner and G. Valero Jordana, acting as Agents, with an address for service in Luxembourg,

applicant,

Kingdom of Spain, represented by S. Ortiz Vaamonde, acting as Agent, with an address for service in Luxembourg,

defendant,

THE COURT (Second Chamber),

composed of C.W.A.Timmermans, President of the Chamber, R. Schintgen, J. Makarczyk (Rapporteur), G. Arestis and J. Klučka, Judges,

Advocate General: J. Kokott, Registrar: R. Grass,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

The contracting authorities may award their public works contracts by negotiated procedure without prior publication of a contract notice, in the following cases:

(a)

in the absence of tenders or of appropriate tenders in response to an open or restricted procedure in so far as the original terms of the contract are not substantially altered and provided that a report is communicated to the Commission at its request;

(b)

when, for technical or artistic reasons or for reasons connected with the protection of exclusive rights, the works may only be carried out by a particular contractor;

(c)

in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseen by the contracting authorities in question, the time-limit laid down for the open, restricted or negotiated procedures referred to in paragraph 2 cannot be kept. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authorities;

(d)

for additional works not included in the project initially considered or in the contract first concluded but which have, through unforeseen circumstances, become necessary for the carrying-out of the work described therein, on condition that the award is made to the contractor carrying out such work:

when such works cannot be technically or economically separated from the main contract without great inconvenience to the contracting authorities, or

when such works, although separable from the execution of the original contract, are strictly necessary to its later stages.

However, the aggregate amount of contracts awarded for additional works may not exceed 50% of the amount of the main contract;

(e)

for new works consisting of the repetition of similar works entrusted to the undertaking to which the same contracting authorities awarded an earlier contract, provided that such works conform to a basic project for which a first contract was awarded according to the procedures referred to in paragraph 4.

As soon as the first project is put up for tender, notice must be given that this procedure might be adopted and the total estimated cost of subsequent works shall be taken into consideration by the contracting authorities when they apply the provisions of Article 6. This procedure may only be adopted during the three years following the conclusion of the original contract.

In all other cases, the contracting authorities shall award their public works contracts by the open procedure or by the restricted procedure.

National legislation

The scope ratione personae of the Spanish legislation on public procurement is defined in Article 1 of the codified law, which includes all public authorities, whether State authorities or authorities of the autonomous communities and regional or local authorities.

Article 1(3) of the codified law provides:

‘This law shall also apply to the awarding of contracts by autonomous bodies in every case and to other bodies governed by public law having legal personality and connected with or under the control of a public authority, which fulfil the following criteria:

(a) they were established for the specific purpose of meeting needs in the general interest, not being of an industrial or commercial nature;

(b) they are financed, for the most part, by public authorities or other bodies governed by public law, or are subject to management supervision by those bodies, or have an administrative, managerial or supervisory board, more than half of whose members are appointed by public authorities or by other bodies governed by public law.’

The sixth additional provision of the codified law, entitled ‘Rules applicable to the award of contracts in the public sector’, provides that ‘commercial companies in which public authorities or their autonomous bodies, or bodies governed by public law, hold, directly or indirectly, a majority shareholding, shall, when awarding contracts, comply with the advertising and competition rules, unless the nature of the operation to be carried out is incompatible with those rules’.

Article 3(1) of the codified law excludes from its scope ‘cooperation agreements between the State authorities, on the one hand, and the Social Security, autonomous communities, local bodies, their autonomous bodies and any other public body, on the other hand, or between these bodies’.

Articles 141(a) (concerning works contracts) and 182(a) (concerning supply contracts) of the codified law provide that that negotiated procedure may be used without prior publication of a tender notice where the contract has not been awarded during an open or restricted procedure, or where the candidates have not been allowed to submit tenders, so long as there has been no alteration of the contract’s original conditions, except the price, which may not be increased by more than 10%.

Article 182(g) of the codified law states that the negotiated procedure may be used without prior publication of a tender notice in the procedures which concern goods whose uniformity has been declared necessary for their joint use by the administration, in so far as the choice of the type of goods in question was made previously and independently, pursuant to an invitation to tender, in accordance with the provisions of this chapter.

Pre-litigation procedure

Taking the view that the successive laws transposing Directives 93/36 and 93/37 into Spanish law were partly incompatible with them, the Commission sent a letter of formal notice to the Kingdom of Spain on 17 September 1997 and a supplementary letter of formal notice on 24 July 2000.

Following notification of the codified law by the Spanish authorities, the Commission took the view that certain contentious aspects of the transposition had been resolved.

Nevertheless, since in its view Directives 93/36 and 93/37 continued to be transposed incorrectly into Spanish law, the Commission sent a reasoned opinion to the Kingdom of Spain on 24 January 2001 and a supplementary reasoned opinion on 31 January 2002, calling on the Kingdom of Spain to take the measures necessary to comply within two months from the notification of the last reasoned opinion.

Since the Kingdom of Spain’s response to the supplementary reasoned opinion was deemed to be unsatisfactory, the Commission decided to bring the present proceedings.

The action

In support of its action the Commission relies on three grounds of complaint.

By its first ground of complaint the Commission alleges that the Kingdom of Spain has excluded entities governed by private law, a priori, from the scope of the codified law, even though they may be bodies governed by public law for the purposes of the second subparagraph of Article 1(b) of Directives 93/36 and 93/37.

By its second ground of complaint the Commission alleges that the Kingdom of Spain has excluded from the codified law cooperation agreements concluded between bodies governed by public law, although those agreements may constitute public contracts for the purpose of Directives 93/36 and 93/37.

By its third ground of complaint the Commission alleges that the Kingdom of Spain has permitted the use of the negotiated procedure in two cases which are not provided for by Directives 93/36 and 93/37, that is the award of contracts following procedures which have been declared unsuccessful and the award of supply contracts for uniform goods.

First ground of complaint: exclusion of entities governed by private law fulfilling the conditions laid down in the first, second and third indents of the second subparagraph of Article 1(b) of Directives 93/36 and 93/37 from the scope of the codified law

Arguments of the parties

The Commission argues that the scope ratione personae of the codified law does not coincide with that of Directives 93/36 and 93/37, in so far as the national law applies exclusively to bodies subject to a public law regime for the purposes of Spanish law, while the legal form of the body at issue falls outside the definition of ‘body governed by public law’ set out in those directives.

Relying on the judgment in Case C-44/96 Mannesmann Anlagenbau Austria and Others [1998] ECR I-73, paragraphs 17 to 35, the Commission recalls that the Court has held that a ‘body governed by public law’ must be understood as a body which fulfils the three cumulative conditions set out in the second subparagraph of Article 1(b) of Directive 93/37.

Relying on the judgments of the Court (in particular, the judgments in Case 31/87 Beentjes [1988] ECR 4635 and Case C-360/96 BFI Holding [1998] ECR I-6821, the Commission submits that the definition of a contracting authority in Article 1 of Directives 93/36 and 93/37 must be interpreted in functional terms.

Furthermore, the Commission asserts that the interpretation given by the Spanish Government of a ‘body governed by public law’ means that a Community concept which must be given a uniform interpretation throughout the Community ceases to be autonomous.

The Spanish Government opts for a literal interpretation of the definition of ‘body governed by public law’. It argues that Directives 93/36 and 93/37 do not include commercial companies under public control in that definition. In support of its arguments, it relies on Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84), which distinguishes between the notion of ‘body governed by public law’, which is the same in the public contracts directives, and ‘public undertaking’, whose definition corresponds to the definition of public commercial company.

Furthermore, the Spanish Government rejects any solution of a general nature. It submits that a genuine delimitation of the definition of ‘body governed by public law’ may be made only after defining ‘needs in the general interest’ and, in particular, needs ‘not having an industrial or commercial character’, by means of a detailed examination of each body.

The Commission replies that Directive 93/38 is a special regulation, and that its exceptional character precludes its use in interpreting general provisions, in this case Directives 93/36 and 93/37.

Findings of the Court

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).

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).

29The 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).

30Furthermore, that conclusion is not invalidated by the want of an express reference in Directives 93/36 and 93/37 to the specific category of ‘public undertakings’ which is used in Directive 93/38 (see, to that effect, Case C-283 Commission v Spain, paragraph 76).

31Thus it follows from the foregoing that the Spanish legislation constitutes an incorrect transposition of the definition of ‘contracting authority’ in Article 1(b) of Directives 93/36 and 93/37, in so far as it excludes the bodies of private law from its scope, even though they may satisfy the conditions laid down in the first, second and third indents of the second subparagraph of Article 1(b) of those directives.

32In those circumstances the Commission’s first ground of complaint must be upheld.

Second ground of complaint: exclusion of cooperation agreements concluded between bodies governed by public law from the scope of the codified law

Arguments of the parties

33The Commission states that the codified law excludes from its scope cooperation agreements concluded either between the general State administration and the Social Security, autonomous communities, local bodies, their autonomous bodies and any other public body, or between public bodies themselves. It argues that that absolute exclusion constitutes an incorrect transposition of Directives 93/36 and 93/37, as some of those agreements may be of the same kind as the public contracts covered by them.

34The Commission maintains that this exclusion is not found in Directives 93/36 and 93/37.

35The Commission relies on the definition of a contract set out in Article 1(a) of Directives 93/36 and 93/37 and the case-law of the Court, according to which, in order to show the existence of a contract, it must be determined whether there has been an agreement between two separate persons (judgment in Case C-107/98 Teckal [1999] ECR I-8121, paragraph 49). It takes the view, therefore, that, in the light of the above, inter-administrative cooperation agreements may be contracts within the meaning of Directives 93/36 and 93/37.

36The Spanish Government asserts that the agreements are the normal way for bodies governed by public law to establish relations between each other. It maintains that those relations are marginal to the contract. Furthermore, it questions whether the judgment in Teckal is well founded and submits that the principle in Article 6 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) is implicitly included in the other directives on public contracts.

Findings of the Court

37According to the definitions given in Article 1(a) of Directives 93/36 and 93/37, public supply or public works contracts are contracts for pecuniary interest concluded in writing between a supplier or a contractor and a contracting authority within the meaning of Article 1(b) of the directives, for the purchase of products or the performance of a certain type of works.

38In 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).

39Having 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.

40Consequently, 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.

41In those circumstances the Commission’s second complaint must be upheld.

Third ground of complaint: use of the negotiated procedure laid down in the codified law in two cases not provided for by Directives 93/36 and 93/37

Arguments of the parties

42The Commission takes the view that the codified law authorises use of the negotiated procedure in two cases which are not provided for by Directives 93/36 and 93/37: the award of contracts following procedures declared unsuccessful and the award of supply contracts for uniform goods.

First part of the third ground of complaint concerning the award of contracts following unsuccessful procedures

Arguments of the parties

43In the Commission’s view, by permitting an increase of the original tender price of up to 10% in relation to the earlier open or restricted procedures, Articles 141(a) and 182(a) of the codified law contravene Directives 93/36 and 93/37, since they allow a substantial alteration of one of the original conditions of the contract, namely the price.

44The Commission maintains that the list of cases in respect of which the negotiated procedure may be used is limited. The interpretation of the concept of ‘non‑substantial alteration’ must therefore be restrictive.

45The Spanish Government complains that the Commission has not indicated which price modifications must be regarded as substantial and which do not merit such a classification. For the purposes of legal certainty, the Spanish legislature transformed the vague notion of ‘substantial modifications to the original conditions of the contract’ into a well-defined notion.

46In response, the Commission asserts that, in the context of an action for failure to fulfil obligations, it is neither bound to define the limits of the infringement nor to indicate measures which would enable the failure to fulfil obligations to be eliminated. Furthermore, it states that the aim of the national legislature in seeking to define the concepts contained in the directives can only result in failure to apply them.

Findings of the Court

47As 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.

48According 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.

49In the present case it cannot be denied that, in so far as they authorise the use of the negotiated procedure where it has not been possible to award the contract during an open or restricted procedure or where the candidates were not allowed to tender, provided that there were no modifications of the original conditions of the contract apart from the price, which cannot be increased by more than 10%, Articles 141(a) and 182(a) of the codified law do indeed add a new condition to the provisions of Directives 93/36 and 93/37 which is capable of undermining both their scope and their exceptional character. Such a condition cannot be regarded as a non‑substantial alteration of the original terms of the contracts as provided for in Article 6(3)(a) of Directive 93/36 and Article 7(3)(a) of Directive 93/37.

50In those circumstances it must be held that Articles 141(a) and 182(a) of the codified law constitute an incorrect transposition of Article 6(3)(a) of Directive 93/36 and Article 7(3)(a) of Directive 93/37.

Second part of the third ground of complaint concerning the award of supply contracts for uniform goods

Arguments of the parties

51The Commission submits that the procedure set out in Article 182(g) of the codified law disregards the provisions of Article 6(2) and (3) of Directive 93/36, which sets out the cases in which the negotiated procedure may be applied.

52In this case, the Spanish law provides that the negotiated procedure may be used without prior publication of a tender notice in respect of goods whose uniformity has been held to be necessary for their common use by the administration. The use of that procedure is possible in so far as the type of goods has been chosen in advance and independently, pursuant to a call for tenders.

53The Spanish Government contends that the calls for tenders seeking to determine the type of uniform goods are similar to framework contracts.

54Furthermore, the Spanish Government contends that the calls for tenders at issue do not differ in any way from the tendering procedures following an agreement or framework agreement provided for by another article of the codified law, which is not subject to any comment by the Commission. It takes the view, therefore, that the codified law is in accordance with the directives on public contracts.

55Having set out the definition of the framework agreements, the Commission asserts that those agreements are not covered by Directive 93/36.

Findings of the Court

56As regards the award of supply contracts for uniform goods, referred to in Article 182(g) of the codified law, the negotiated procedure may be used only in the cases exhaustively listed in Article 6(2) and (3) of Directive 93/36. Article 6(4) states, moreover, that ‘in all other cases, the contracting authorities shall award their supply contracts by the open procedure or by the restricted procedure’.

57The provision at issue, introduced by the Spanish legislature, does not correspond either to the case mentioned in Article 6(2) of Directive 93/36 or to one of the five situations listed in Article 6(3) in which the use of a negotiated procedure without prior publication of a tender notice is expressly permitted. It must be stated, moreover, that the concept of ‘framework agreement’ does not come within the scope of those exceptions.

58Furthermore, 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.

Accordingly, to the extent that it authorises use of the negotiated procedure without prior publication of a tender notice for the procedures involving goods whose uniformity has been held to be necessary for their common use by the public authorities, provided that the choice of the type of goods has been made in advance, pursuant to a call for tenders, the law at issue constitutes an incorrect transposition of Article 6(2) and (3) of Directive 93/36.

In those circumstances the Commission’s third complaint must be upheld.

In the light of the foregoing considerations, it must be held that, by failing to transpose correctly into its national legal system Directive 93/36 and Directive 93/37 and, in particular,

by excluding from the scope of the codified law, more particularly in Article 1(3) thereof, the entities governed by private law fulfilling the requirements laid down in the first, second and third indents of the second subparagraph of Article 1(b) of each of those directives;

by excluding absolutely from the scope of that law, in Article 3(1)(c) thereof, cooperation agreements concluded between public authorities and the other public undertakings and, therefore, also agreements which constitute public contracts for the purpose of those directives; and

by permitting, in Article 141(a) and Article 182(a) and (g) of that law, the negotiated procedure to be used in two cases which are not provided for in those directives,

the Kingdom of Spain has failed to fulfil its obligations under those directives.

Costs

Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has asked for costs and the Kingdom of Spain has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds the Court (Second Chamber) hereby:

Declares that by failing to transpose correctly into its national legal system Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts and Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts and, in particular,

by excluding from the scope of the Ley de Contratos de las Administraciones Públicas (Law on contracts awarded by public authorities) of 16 June 2000, in the codified version approved by the Real Decreto Legislativo 2/2000 of 16 June 2000, more particularly in Article 1(3) thereof, the entities governed by private law fulfilling the requirements laid down in the first, second and third indents of the second subparagraph of Article 1(b) of each of those directives;

by excluding absolutely from the scope of that law, in Article 3(1)(c) thereof, cooperation agreements concluded between public authorities and the other public undertakings and, therefore, also agreements which constitute public contracts for the purpose of those directives; and

by permitting, in Article 141(a) and Article 182(a) and (g) of that law, the negotiated procedure to be used in two cases which are not provided for in those directives,

the Kingdom of Spain has failed to fulfil its obligations under those directives;

Orders the Kingdom of Spain to pay the costs.

[Signatures]

*1 Language of the case: Spanish.

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