European Commission v Kingdom of Spain.

• Jurisdiction: European Union
• Celex Number: 62008CJ0306
• ECLI: ECLI:EU:C:2011:347
• Date: 26 May 2011
• Docket Number: C-306/08
• Court: Court of Justice (European Union)
• Procedure Type: Recours en constatation de manquement - non fondé

Case C-306/08

European Commission

v

Kingdom of Spain

(Failure of a Member State to fulfil obligations – Directives 93/37/EEC and 2004/18/EC – Procedures for the award of public works contracts – Urban development legislation of the Autonomous Community of Valencia)

Summary of the Judgment

1. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Directives 93/37 and 2004/18 – Public works contracts – Definition – Mixed contracts – Rules applicable

(European Parliament and Council Directive 2004/18, Art. 1(2)(b); Council Directive 93/37, Art. 1(a))

2. Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission – Presumptions – Not permissible

(Art. 226 EC; European Parliament and Council Directive 2004/18, Art. 1(2)(b); Council Directive 93/37, Art. 1(c))

1. The concept of ‘public works contracts’ within the meaning of Article 1(a) of Directive 93/37, concerning the coordination of procedures for the award of public works contracts, and of Article 1(2)(b) of Directive 2004/18, on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, covers ‘contracts for pecuniary interest’, concluded in writing between one or more economic operators and one or more contracting authorities and having as their object either the execution, or both the design and execution, of works related to one of the activities referred to in Annex II to Directive 93/37 or Annex I to Directive 2004/18 or of a work defined in Article 1(c) of Directive 93/37 or Article 1(2)(b) of Directive 2004/18, or the execution, by whatever means, of a work corresponding to the requirements specified by the contracting authority. A contract may be deemed to be a ‘public works contract’ only if its subject-matter corresponds to that definition. Works which are incidental to, and not the subject‑matter of, the contract do not justify its qualification as a public works contract.

When a contract contains elements relating both to a public works contract and to another type of contract, it is the main object of the contract that determines which body of rules of European Union law on public contracts is, in principle, to be applied. That determination must be made in the light of the essential obligations which predominate and which, as such, characterise the transaction, as opposed to those which are only ancillary or supplementary in nature and are required by the very object of the contract.

(see paras 88-91)

2. In proceedings under Article 226 EC for failure to fulfil obligations, it is for the Commission to prove that failure. It is the Commission, indeed, which must place before the Court all the information needed to enable the Court to establish that failure, and in so doing the Commission may not rely on any presumptions.

When the action concerns the classification as public works contracts, within the meaning of Directive 93/37, concerning the coordination of procedures for the award of public works contracts, or Directive 2004/18, on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, of contracts concluded between a local authority and a developer, and the Commission confines itself to putting forward the argument that the urban development contracts at issue must be classified as ‘public works contracts’ on the ground that the main object of such contracts is, for the purposes of Articles 1(c) of Directive 93/37 and 1(2)(b) of Directive 2004/18, a work of urban development, without proving this, the condition precedent to a declaration of such a failure to fulfil obligations is lacking and the action must be dismissed.

(see paras 92, 94, 98-99)

JUDGMENT OF THE COURT (Third Chamber)

26 May 2011 (*)

(Failure of a Member State to fulfil obligations – Directives 93/37/EEC and 2004/18/EC – Procedures for the award of public works contracts – Urban development legislation of the Autonomous Community of Valencia)

In Case C‑306/08,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 9 July 2008,

European Commission, represented by A. Alcover San Pedro, D. Kukovec and M. Konstantinidis, acting as Agents,

applicant,

v

Kingdom of Spain, represented by M. Muñoz Pérez, acting as Agent,

defendant,

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, D. Šváby (Rapporteur), R. Silva de Lapuerta, E. Juhász and T. von Danwitz, Judges,

Advocate General: N. Jääskinen,

Registrar: R. Şereş, Administrator,

having regard to the written procedure and further to the hearing on 6 May 2010,

after hearing the Opinion of the Advocate General at the sitting on 16 September 2010,

gives the following

Judgment

1 By its action, the European Commission seeks a declaration that by awarding ‘integrated action programmes’ (‘IAPs’) pursuant, successively, to Law 6/1994 of 15 November 1994 regulating urban development activities in the Valencian Community (Ley 6/1994, de 15 de noviembre, Reguladora de la Actividad Urbanística de la Communidad Valenciana (‘the LRAU’)) and to Valencian Urban Development Law 16/2005 of 30 December 2005 (Ley 16/2005, de 30 de diciembre, Urbanística Valenciana (‘the LUV’)), the Kingdom of Spain has failed to fulfil its obligations under Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54), as amended by Commission Directive 2001/78/EC of 13 September 2001 (OJ 2001 L 285, p. 1; ‘Directive 93/37’), and under Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), respectively.

Legal context

European Union legislation

Directive 92/50/EEC

2 The 16th recital in the preamble to 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) states:

‘… public service contracts, particularly in the field of property management, may from time to time include some works; … it results from Directive 71/305/EEC that, for a contract to be a public works contract, its object must be the achievement of a work; …, in so far as these works are incidental rather than the object of the contract, they do not justify treating the contract as a public works contract’.

3 Article 8 of Directive 92/50 provides:

‘Contracts which have as their object services listed in Annex IA shall be awarded in accordance with the provisions of Titles III to VI.’

4 Category No 12 in Annex IA to Directive 92/50 mentions, among others, ‘[a]rchitectural services; engineering services and integrated engineering services; urban planning and landscape architectural services; related scientific and technical consulting services; technical testing and analysis services’.

Directive 93/37

5 Article 1 of Directive 93/37 provides:

‘For the purpose of this Directive:

(a) “public works contracts” are contracts for pecuniary interest concluded in writing between a contractor and a contracting authority as defined in (b), which have as their object either the execution, or both the execution and design, of works related to one of the activities referred to in Annex II or a work defined in (c) below, or the execution, by whatever means, of a work corresponding to the requirements specified by the contracting authority;

…

(c) a “work” means the outcome of building or civil engineering works taken as a whole that is sufficient of itself to fulfil an economic and technical function;

(d) “public works concession” is a contract of the same type as that indicated in (a) except for the fact that the consideration for the works to be carried out consists either solely in the right to exploit the construction or in this right together with payment;

…’

6 Article 6(6) of Directive 93/37 requires contracting authorities to observe the principle of non-discrimination.

7 Articles 11 and 12 of Directive 93/37 set forth the common advertising rules and provide, in particular, for the publication in full of contract notices in the Official Journal of the European Communities and the time-limits for the receipt of tenders and for the dispatch of the contract documents and additional information.

8 Articles 24 to 29 of Directive 93/37 lay down the qualitative selection criteria applicable to contractors among which are criteria concerning the evaluation of the technical abilities of contractors.

Directive 2004/18

9 Recital 10 in the preamble to Directive 2004/18 is in the following terms:

‘A contract shall be deemed to be a public works contract only if its subject-matter specifically covers the execution of activities listed in Annex I, even if the contract covers the provision of other services necessary for the execution of such activities. Public service contracts, in particular in the sphere of property management services, may, in certain circumstances, include works. However, in so far as such works are incidental to the principal subject-matter of the contract, and are a possible consequence thereof or a complement thereto, the fact that such works are included in the contract does not justify the qualification of the contract as a public works contract.’

10 Article 1 of Directive 2004/18 provides:

‘1. For the purposes of this Directive, the definitions set out in paragraphs 2 to 15 shall apply.

2(a) “Public contracts” are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within...