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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Spain (Law relating to undertakings) [2005] EUECJ C-84/03 (13 January 2005) URL: https://www.bailii.org/eu/cases/EUECJ/2005/C8403.html Cite as: [2005] ECR I-139, [2005] EUECJ C-84/3, [2005] EUECJ C-84/03 |
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JUDGMENT OF THE COURT (Second Chamber)
13 January 2005 (1)
(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,
v
Kingdom of Spain, represented by S. Ortiz Vaamonde, acting as Agent, with an address for service in Luxembourg,defendant,
THE COURT (Second Chamber),
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
- 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 (BOE No 148 of 21 June 2000; -the codified law-), more particularly in Article 1(3) of the codified law, private law undertakings which fulfil 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 the codified 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 the codified 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 the provisions of the EC Treaty and of those directives.
--contracting authorities- shall be the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or bodies governed by public law; A -body governed by public law- means any body: - established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and - having a legal personality, and - financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law, or subject to management supervision by those bodies, or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law. --
-2. The contracting authorities may award their supply contracts by negotiated procedure in the case of irregular tenders in response to an open or restricted procedure or in the case of tenders which are unacceptable under national provisions that are in accordance with provisions of Title IV, in so far as the original terms for the contract are not substantially altered. The contracting authorities shall in these cases publish a tender notice unless they include in such negotiated procedures all the enterprises satisfying the criteria of Articles 20 to 24 which, during the prior open or restricted procedure, have submitted tenders in accordance with the formal requirements of the tendering procedure. 3. The contracting authorities may award their supply contracts by negotiated procedure without prior publication of a tender notice, in the following cases: (a) in the absence of tenders or 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; (b) when the products involved are manufactured purely for the purpose of research, experiment, study or development, this provision does not extend to quantity production to establish commercial viability or to recover research and development costs; (c) when, for technical or artistic reasons, or for reasons connected with protection of exclusive rights, the products supplied may be manufactured or delivered only by a particular supplier; (d) in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable 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; (e) for additional deliverers by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance. The length of such contracts as well as that of recurrent contracts may, as a general rule, not exceed three years. 4. In all other cases, the contracting authorities shall award their supply contracts by the open procedure or by the restricted procedure.-
-3. 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. 4. In all other cases, the contracting authorities shall award their public works contracts by the open procedure or by the restricted procedure.- National legislation
-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.-
Findings of the Court
Findings of the Court
First part of the third ground of complaint concerning the award of contracts following unsuccessful proceduresArguments of the parties
Findings of the Court
Second part of the third ground of complaint concerning the award of supply contracts for uniform goodsArguments of the parties
Findings of the Court
- by excluding from the scope of the codified law, more particularly in Article 1(3) thereof, the private law undertakings 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.
1 - Language of the case: Spanish.