Opinion of Advocate General Gulmann delivered on 30 June 1993

1 Original language. Dutch

2 OJ, Lnglish Special Kdmon 1971 (II), p. 682.

3 OJ 1977 L 13, p. 1.

4 Directive 89/440/EEC, OJ 1989 L. 210, p. 1, Directive 71/305 was most recently amended by Directive 93/4/I-.FC, OJ 1993 L 38, p 31

5 Directive 88/295/ELC, OJ 1988 L. 127, p. 1

6 They arc in particular the Royal Legislative Decree No 781/1986 of 18 April 1986 on local regulations, the Law of 24 November 1939 on the organization and protection of national industry and Royal Decree No 946/1978 of 14 April 1978 on a procedure for evaluating and monitoring pharma ccutical services.

7 See the Royal Legislative Decree No 931/1986 of 2 May 1986 and Royal Decree No 2528/1986 of 28 November 1986 respectively.

8 See inter alia the judgment of the Court in Case 91/79 Commission v Italy [1980] ECR 1099 at paragraph 6.

9 See the judgment of the Court in Case C-119/89 Commission v Spain [1991] ECR 1-641 at paragraph 10. Sec also inter alia the judgments in Case 257/86 Commission v Italy [1988] ECR 3249 at paragraph 12, in Case 29/84 Commission v Germany [1985] ECR 1661 at paragraph 23, in Case 143/83 Commission v Denmark [1985] ECR 427 at paragraph 10 and in Case 102/79 Commission v Belgium [1980] ECR 1473 at paragraph 11.

10 Sec the judgment in Case C-339/87 Commission v Netherlands [1990] ECR 1-851 at paragraph 6. Sec also inter alia the judgments in Case 247/85 Commission v Belgium [1987] ECR at paragraph 9 and in Case 239/85 Commission v Belgium [1986] ECR 3645 at paragraph 7.

11 See inter alia the judgments in Case 247/85 Commission v Belgium [1987] ECR 3029 at paragraphs 28 and 34, in Case 252/85 Commission v France [1988] ECR 2243 at paragraph 11 and in Case C-339/87 Commission v Netherlands [1990] ECR 1-851 at paragraphs 15 and 28.

12 Article 2(2) of the directive provides that public supply contracts awarded by bodies which administer transport services or by bodies concerned with water, energy and telecommunications arc not covered by the directive. Article 3 concerns contracts awarded pursuant inter alia to international agreements.

13 [1987] LCR 1039.

14 Sec the judgments in Case 14/83 Von Colion una Kamann v Land Nordrhein Wcslfalen [1984] ECR 1891 at paragraph 26 and in Case C 106/89 Marlcasmg [1990] ECR 1-4135 at paragraph 8.

15 Sec section 5.

16 Sec paragraph 14.

17 In Spanish the provision is worded as follows: Las de reconocida urgencia, surgida como consecuencia de necesidades apremiantes que demandaran una pronta ejecución que no pueda lograrse por medio de la tramitación urgente regulada en el articulo 26 de esta Ley, y previo acuerdo del órgano de contratación (my emphasis).

18 In Spanish the provisions read as follows: En la medida estrictamente necesaria, cuando una imperiosa urgencia resultante de acontecimientos imprevistos para los poderes adjudicadores no sea compatible con los plazos requeridos por otros procedimientos (my emphasis).

19 Sec in this respect the judgment of the Court in Case C 24/91 Commuiion v Spam [1992; ECR I 1989. at para graph 13, where the Court declared that the conditions for the application of Article 9(d) of Directive 71/305 arc con current.

20 The Spanish Government has added that although it will not ordinarily be possible, by application of normal procedures, to make up for the periods prescribed for implementation which have already expired, the possibility of applying them is expressly provided for in Article 87, paragraph 4, point 5, of the LCE.

21 Finally no decisive significance can be attached to the faci ihat Article 87, paragraph 4, point 5, of the LCE provides a possibility of applying the normal procedures, since thai is a matter of discretion for the awarding authorities and not a duly arising when the conditions for urgency arc not spccilically met.

22 [1982] ECR 417.

23 [1988] ECR 4635.

24 Sec paragraph 17 of Beentjes v Netherlands State in which the Court declared that: Article 20 provides that the suitability of contractors is to be checked by the authorities awarding contracts in accordance with the criteria of economic ana financial standing and of technical knowledge or ability referred to in Articles 25 to 28. The purpose of these articles is not to delimit the power of the Member States to fix the level of financial and economic standing and tcchni cal knowledge required in order to take part in procedures for the award of public works contracts but to determine the references or evidence which may be furnished in order to establish the contractor's financial and economic standing and technical knowledge or ability ... Nevertheless, it is clear from these provisions that the authorities awarding contracts earl check the suitability of the contractors only on the hasis of criteria relating to their economic and financial standing and their technical knowledge and ability (my emphasis).

25 In paragraph 9 of Transporoute v Minister of Public Works the Court declared: ... Article 27 states that the authority awarding contracts may invite the contractor to supplement the certificates and documents submitted only within the limits of Articles 23 to 26 of the directive, according to which Member States may request references other than those expressly mentioned in the directive only for the purpose of assessing the financial and economic standing of the contractors as provided for in Article 25 of the directive (my emphasis). That case raised the question whether it was compatible with the rules of the directive to require the contractor to be in possession of a government establishment permit from trie Member State in which the invitation to tender was issued. The Court stated in paragraph 10: Since the establishment permit in question is intended ... to establish not the financial and economic standing of undertakings but the qualifications and good standing of those in charge of them ... the permit constitutes a means of proof which does not come within the closed category of those authorized by the directive (my emphasis). On those grounds the Court concluded as follows: Council Directive 71/305 must be interpreted as precluding a Member State from requiring a tenderer in another Member State to furnish proof by any means, for example by an establishment permit, other than those prescribed in Articles 23 to 26 of that directive that he satisfies the criteria laid down Ín those provisions and relating to his good standing and qualifications. The fact that the directives do not contain an exhaustive list of the documents which may be required as proof of tenderers' economic and financial standing is confirmed in the judgment in Joined Cases 27, 28 and 29/86 CEI v Association Intercommunale pour les Autoroutes des Ardennes ( Bellini') [1987] ECR 3347 at paragraphs 10, 11 and 17.

26 The Court came to that conclusion inter alia on the ground that the directive docs not lay down a uniform and exhaustive body of Community rules; within the framework of the common rules which it contains, the Member States remain free to maintain or adopt substantive and procedural rules in regard to public works contracts on condition that they comply with all the relevant provisions of Community law... (paragraph 20).

27 Sec paragraphs 28 to 31 in Beentjes v Netherlands State. Sec also as regards that case-law the Commission communication of 22 September 1989 entitled Public contracts, regional and social aspects, OJ 1989 C 311, p. 7, points 43 to 64. See also the judgment of the Court Ín Case C-360/89 Commission v Italy [1992] ECR 1-3401 concerning a provision of Italian legislation according to which in the selection of candidates invited by the awarding authority to tender under the rules relating to restricted procedures (cf. Article 22 of Directive 71/305), preference was to be given to temporary associations and consortia, members of which were undertakings carrying out their principal business in the region in which the work was performed. The Court simply stated that that was a criterion for selection which was not mentioned in Articles 23 to 26 of the directive and which was accordingly contrary to Article 22 of the directive. Although the Court went no further than to consider whether the criterion in question was compatible with the directive in the light of the principles set out in the Beentjes judgment, it scarcely represents a change in the case-law.

28 The parties have discussed the significance of the fact that Article 24 of Directive 71/305 lists the professional or trade registers of only six Member States, whilst Article 21 of Directive 77/62 lists those registers in only nine Member States. The Commission has indicated that Article 24 of Directive 71/305 was supplemented by the Acts of Accession of 1972, 1979 and 1985 and that Article 21 of Directive 77/62 may be applied by analogy as a matter of course to the three remaining Member States. I can fully accept the Commission's view on this point and do not propose to deal further with the point.

29 My view is that it is possible to find support for this interpretation in the judgment in the Transporotue case. In that judgment the Court decided that the purpose of the demand for an establishment permit was to provide evidence of the qualifications and good standing of those in charge of undertakings and that that requirement was therefore contrary to Directive 71/305, which contains an exhaustive list of the evidence which may be demanded to prove these qualities. However, the Court did not explain in any greater detail why an establishment permit such as that at issue was to be regarded as concerning a tenderer's good standing. My conclusion is that all evidence concerning not only the tenderers' good standing and solvency in the strict sense but their general capacity for concluding public contracts must be compatible with the exhaustive list of the means of proof in Article 23 in conjunction with Article 24 on proof of enrolment in the professional or trade register in the undertaking's country of origin.

30 Sec most recently the judgment in Case C-17/92 federación ile Distribuidores Cinematográficos [1993] ECR 1-2239. paragraphs 13 and 16.

31 Sec the judgment in Case C-288/89 Collectieve Antennevoorzicmng Gouda [1991] ECR 1-4035 at paragraphs 12 to 15.

32 The Commission regards it as clear that the provision imposes the condition of a negative certificate to the effect that the contractor has not been classified on the list of contractors recognized in Spain. The Spanish Government does not contest that interpretation of the provision.

33 In its application the Commission had claimed that the contested provision also applied, by virtue of Article 109 of the LCE, to public supply contracts. However, the Spanish Government stated that the rules on classification had not actually been extended so as to apply also to public supply contracts. Subsequently, and in reply to a question from the Court, the Commission stated that it did not contend that Article 284, paragraph 5, of the RGCE was contrary to Directive 77/62.

34 Sec the judgment in Joined Cases 27/86 to 29/86 CEI v Association Intercommunale pour les Autoroutes des Ardennes (Belim,) Į1987; ECR 3347 al paragraphs 24 and 25.

35 Sec the judgment in Trtinsporoutc al paragraphs 12 and 13.

36 In its application the Commission had stated that the contested provision applied also, by virtue of Articles 320 and 330 of the RGCE, to public supply contracts. As previously mentioned, the Spanish Government stated that the rules on classification had not been extended so as to apply also io public supply contracts. Subsequently, and in reply io a question from lhe Court, the Commission stated thai it did not contend that Article 287, paragraph 2, was contrary to the provisions of Directive 77/62.

37 Sec the judgment in Case C-360/89 Commission v Italy [1992] ECR I-3401 at paragraphs 10, 11 and 12.

38 As regards Spanish contractors, it seems that the requirement for classification is compulsory. Thus the Spanish Government has stated that the requirement of classification is compulsory for public contracts to a value of more than PTA 20 million and that the possibility of proving technical and financial capacity by means other than classification docs not apply to Spanish contractors. I understand these statements as meaning that for contracts of the value mentioned only non Spanish contractors may choose between classification and giving provisional security.

39 Sec the judgment in Tninsporoute at paragraphs 12 and 13.

40 [1991] ECR I-1433.