OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 20 October 2009 1(1)
Case C‑423/07
Commission of the European Communities
v
Kingdom of Spain
(Directive 93/37/EEC – Public works concessions – Infringement of the rules on advertising and the principles of equal treatment and non-discrimination)
1. The role and significance of concessions in Community law are a notoriously delicate matter, on which there are remarkably few rules. Public works concessions, which are the subject of the present case, have nevertheless been explicitly addressed by the Community legislature, (2) and the recent Directive 2004/18/EC (3) contains a whole title on the subject. (4)
2. The situation on which the Court is called upon to rule in the present case is not, however, to be assessed on the basis of the legislative framework established by that measure. Chronologically, the events at issue fall under Directive 93/37/EEC. (5) The rules on works concessions contained in that measure were much more limited and basic than the rules now in force.
3. In the present action for failure to fulfil obligations, in particular, the Commission claims that the Kingdom of Spain has infringed the Community rules on public works concessions when awarding the concession for the construction and maintenance, in particular, of two new links in the A-6 motorway from Madrid to La Coruña.
I – The relevant provisions of Community law
4. The relevant provisions of Community law in the present case are, of course, those of Directive 93/37 (also ‘the Directive’). In particular, the fifth recital in the preamble thereto states that ‘… in view of the increasing importance of concession contracts in the public works area and of their specific nature, rules concerning advertising should be included in this Directive’. Thus the intention of the Community legislature was to establish some fundamental points with respect to public works concessions, while allowing the public authorities a wider margin of discretion than they have with respect to procurement contracts.
5. Article 1 of the Directive provides that:
‘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;
…
(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 3 of the Directive reads:
‘Should contracting authorities conclude a public works concession contract, the advertising rules as described in Article 11(3), (6), (7) and (9) to (13), and in Article 15, shall apply to that contract when its value is not less than EUR 5 000 000.
…’.
7. The following provisions of Article 11 of the Directive are applicable to works concessions in accordance with Article 3:
‘…
3. Contracting authorities who wish to award a works concession contract shall make known their intention by means of a notice.
…
6. The notices referred to in paragraphs 1 to 5 shall be drawn up in accordance with the models given in Annexes IV, V and VI, and shall specify the information requested in those Annexes.
The contracting authorities may not require any conditions but those specified in Articles 26 and 27 when requesting information concerning the economic and technical standards which they require of contracts for their selection (point 11 of Annex IV B, point 10 of Annex IV C and point 9 of Annex IV D).
7. The contracting authorities shall send the notices referred to in paragraphs 1 to 5 as rapidly as possible and by the most appropriate channels to the Office for Official Publications of the European Communities. In the case of the accelerated procedure referred to in Article 14, the notice shall be sent by telex, telegram or telefax.
…
9. The notices referred to in paragraphs 2, 3 and 4 shall be published in full in the Official Journal of the European Communities and in the TED data bank in the original languages. A summary of the important elements of each notice shall be published in the other official languages of the Community, the original text alone being authentic.
10. The Office for Official Publications of the European Communities shall publish the notices not later than 12 days after their dispatch. In the case of the accelerated procedure referred to in Article 14, this period shall be reduced to five days.
11. The notice shall not be published in the official journals or in the press of the country of the contracting authority before the date of dispatch to the Official Journal of the European Communities and it shall mention this date. It shall not contain information other than that published in the Official Journal of the European Communities.
12. The contracting authorities must be able to supply evidence of the date of dispatch.
13. The cost of publication of the notices in the Official Journal of the European Communities shall be borne by the Communities. The length of the notice shall not be greater than one page of the Journal, or approximately 650 words. Each edition of the Journal containing one or more notices shall reproduce the model notice or notices on which the published notice or notices are based.’
II – The relevant provisions of national law and the facts giving rise to the case
A – The provisions of national law
8. Law No 8 of 10 May 1972 on the system of concessions for the construction, maintenance and operation of motorways (‘the Motorway Law’), in the version in force from 1996, provides in particular, in the second paragraph of Article 8(2), that:
‘… the construction of road infrastructure works, other than those included in the contract but affecting it, which are carried out in the area of impact of the motorway or which are necessary to organisation of the traffic, the project and performance of which, or merely the performance, the concessionaire is obliged to carry out as consideration for the concession, forms part of the business object of the concessionaire undertaking …’.
9. Royal Decree No 597 of 16 April 1999 fixed as 20km the area of impact of motorways.
B – The facts
10. The facts at issue concern the section of the A-6 motorway between Villalba in the south and Adanero in the north. It is a highly important toll motorway section, on which the traffic is always very heavy. The next section of the A-6 to the south of the section in question, between Madrid and Villalba, is toll-free and state-maintained.
11. The Villalba-Adanero section of the motorway has since 1968 been maintained under a concession held by Ibérica de Autopistas SA (‘Iberpistas’). At the material time that concession was due to expire in 2018.
12. The event giving rise to the relevant facts was the Spanish Government’s decision to construct two new sections of motorway to link the two cities of Ávila and Segovia, located to the west and east of the Villalba-Adanero section respectively, with the A-6 motorway.
13. By Ministerial Decree of 4 June 1999, published in the Boletín Oficial del Estado (the Spanish official journal, ‘BOE’) on 8 June 1999, specifications were issued (‘the first specifications’) for a concession comprising:
– construction of the two links between the cities of Ávila and Segovia and the A-6 motorway, and maintenance of those sections of motorway for a period of 25 to 40 years;
– maintenance and operation of the Villalba-Adanero section of the A-6 from 2018, i.e. from the expiry of Iberpistas’s current concession, for a period to be determined on the basis of the average number of vehicles passing through the section in question;
– construction of the Guadarrama bypass on the Villalba-Adanero section of the A-6 (approximately half-way between the two cities);
– widening (construction of a fourth lane in both directions) the section of motorway between Madrid and Villalba, i.e. the toll-free state-maintained section of the motorway.
14. The relevant notice was published in the Official Journal of the European Union on 16 June 1999.
15. However, new specifications (‘the second specifications’) were approved on 7 July 1999 and published in the BOE two days later. They replaced the previous specifications.
16. In particular, the Ministerial Decree approving the second specifications stated that ‘it is necessary for technical reasons to amend the abovementioned specifications, in order to redefine the object of the concession to be awarded and to make some changes in the definition of the duration of the concession’.
17. In fact, the object of the second specifications was:
– construction of the motorway sections linking Ávila and Segovia with the A-6, as provided in the first specifications, with the difference that the duration of the concession was now 22 to 37 years;
– operation of the Villalba-Adanero section of the A-6 from 2018, as provided in the first specifications, here again with some minor changes relating to the duration of the concession.
18. As we see, in the second specifications all mention of the Guadarrama bypass or of the fourth lane on the Madrid-Villalba section of the motorway has been removed.
19. The following provisions appeared in Article 5 of both sets of specifications:
‘...
13. Tenderers shall state explicitly in their tenders the measures they intend to adopt in connection with the effects of the concession on the traffic network as a whole, local tourist interests, and the upkeep of monuments of historical or artistic interest, and in connection with the conservation and maintenance of the countryside and the protection of nature, not to mention compliance with the legislation in force on the subject.
…
16. Tenderers shall inform the authorities of the measures they propose to control the traffic between towns in the areas affected by the construction of the roads that are the object of the concession, stating which of these measures the tenderer intends to execute at his own expense. The creative character and the feasibility of these proposals will carry due weight in the award procedure, in view of the high level of congestion in the areas where traffic will be affected by the roads that are the object of the concession.’
20. The criteria for the award of the concession were set out in Article 10 of the second specifications, which is the same as Article 10 of the first specifications. In particular, one of the criteria concerned the assessment of the ‘measures proposed to control traffic and preserve the environment’. The weight attached to that criterion was to be not more than 150 points out of a possible total of 1250.
21. Article 29, which is also identical in the first and second specifications, reads:
‘With respect to the sections referred to in Article 2(1) and (2) of these specifications, the concessionnaire is required to ensure that traffic does not exceed level D at any point on the motorway … and accordingly to widen the road where necessary at his own expense, without prompting and in good time.’
22. The sections mentioned in Article 29, i.e. the sections referred to in Article 2(1) and (2) of the specifications, are the sections linking Ávila and Segovia with the A-6.
23. Three tenderers participated in the procedure, including Iberpistas which, as we have seen, already held the concession for the section of the A-6 between Villalba and Adanero at the time. None of the tenderers presented a single solution; they all presented a number of variants. Iberpistas, in particular, presented at least nine different variants.
24. By Royal Decree No 1724 of 5 November 1999, the concession was awarded to Iberpistas on the terms specified in the ‘VT‑B, TGE’ variant proposed by that tenderer.
25. In particular, the winning tender submitted by Iberpistas included a number of works in addition to those explicitly requested in the second specifications:
– construction of an additional lane in both directions on the section of the A-6 between Madrid e Villalba (i.e. the state-maintained toll-free section of the A-6);
– construction of an additional lane and a new tunnel on the A-6, in the Valle de los Caídos-San Rafael section north of Villalba (i.e. in the section of the A-6 for which Iberpistas already held the concession until 2018);
– construction of an additional lane in both directions on the A-6, in the Villalba-Valle de los Caídos section (i.e. also in the section of the A-6 for which Iberpistas already held the concession until 2018).
26. The decree awarding the concession was the subject of two separate actions brought in Spain, one by a group of members of parliament and the other by a trade union and an ecological association. By two decisions of the Supreme Court, both delivered in 2003, the first action was declared to be inadmissible and the second was dismissed on the merits.
III – The prelitigation procedure
27. The prelitigation phase of the present proceedings was somewhat complex. The Commission’s first letter of formal notice, dispatched to the Spanish authorities on 30 April 2001, was based on the assumption that part of the works described, namely the widening of the state-maintained toll-free section of the A-6 between Madrid and Villalba, did not constitute a concession but a works contract, since no risk was to be borne by the successful tenderer. The Commission’s allegations therefore related to the rules governing concessions and also to the rules governing procurement contracts: on both counts, the Commission claimed failure to comply with the rules on advertising laid down in Article 11 of Directive 93/37.
28. The Kingdom of Spain replied by letter of 27 June 2001, disputing all the Commission’s statements and maintaining, inter alia, that all the works, including the works on the toll-free section of the A-6, should be regarded as part of the concession.
29. Despite a meeting with the Spanish authorities and despite the submission of further documents by those authorities, the Commission delivered a reasoned opinion on 18 July 2002. In that reasoned opinion, the Commission accepted the Kingdom of Spain’s argument that only the rules on concessions should apply, and not the rules on procurement contracts; for the rest, however, the Commission confirmed the allegations concerning infringement of the rules on advertising laid down in the Directive.
30. The Spanish authorities replied to the reasoned opinion by letters of 20 September 2002 and 13 March 2003.
31. The Commission dispatched a further letter of formal notice to the Kingdom of Spain on 25 July 2003, concerning the alleged breach of fundamental principles of the Treaty, in particular the principles of equal treatment and non-discrimination.
32. The Spanish authorities replied to the further letter of formal notice on 28 October 2003, and the Commission, not being satisfied with that reply, delivered a further reasoned opinion on 24 December 2004, to which the Kingdom of Spain replied by letter of 3 March 2005.
IV – Proceedings before the Court and arguments of the parties
33. Considering that the situation of failure to fulfil obligations still obtained, the Commission brought the present action, lodged at the Registry on 13 September 2007.
34. Following the exchange of written observations, the parties presented their arguments at the hearing on 9 September 2009.
35. The Commission claims that the Court should:
– declare that, by not including, in the works to be awarded by concession which are mentioned in the notice and in the specifications relating to the award of a public concession for the construction, maintenance and operation of the motorway links to Segovia and Ávila, and for the maintenance and operation of the Villalba-Adanero section of the same motorway, works which were subsequently awarded under the concession including works in connection with the toll-free section of the A-6, the Kingdom of Spain has failed to fulfil its obligations under Article 3 and Article 11(3), (6), (7), (11) and (12) of Directive 93/37/EEC, and under the principles of the EC Treaty, in particular the principles of equal treatment and non-discrimination;
– order the Kingdom of Spain to pay the costs.
36. The Kingdom of Spain claims that the Court should:
– dismiss the application as inadmissible or, in the alternative, as unfounded;
– order the Commission to pay the costs.
V – The admissibility of the application
37. The Kingdom of Spain contends that the application is inadmissible in two respects. First, it contends that the Commission has not provided evidence that the lawyer who, together with the agent for the Commission, drafted the application is qualified to represent it in judicial proceedings. Secondly, it contends that the application has no definite object and that it does not specify the precise rules that the defendant Member State is alleged to have infringed.
38. Both of the Kingdom of Spain’s pleas are unfounded. As regards the first, suffice it to say that the Commission attached a copy of the lawyer’s certificate of registration as a member of the Bar to the application. That document is explicitly mentioned, in the guide for parties published by the Court Registry, as sufficing to meet the requirements of Article 38(3) of the Rules of Procedure. It should be added that the Commission is also represented by its own agent. As to the second plea, the Commission clearly and explicitly specified the rules which it considers were infringed. Moreover, the Kingdom of Spain considered them one by one in the defence. There is therefore no problem of admissibility, only the problem of determining whether the Commission’s claims are well founded.
39. The application is therefore admissible.
VI – The failure to fulfil obligations
A – The positions of the parties
40. The Commission claims that Spain has failed to fulfil its obligations under Community law in two respects. First, it alleges infringement of Article 3 and Article 11(3), (6), (7), (11) and (12) of Directive 93/37. Secondly, it claims that the award to Iberpistas was contrary to the fundamental principles of the Treaty and, more specifically, to the principles of equal treatment and non-discrimination.
1. The Commission’s arguments
41. The principal argument deployed by the Commission to support the claim of infringement of Directive 93/37 is based on the fact that the successful tender included works not mentioned in the specifications, and the total value of those works, in particular, was not much less than the value of the works explicitly requested.
42. The Commission also points out that the wording of the specifications, in which tenderers were requested in general terms to suggest possible solutions to the traffic problem, was not such as to lead participants to suppose that they could propose additional works on a scale and in a location comparable to the scale and location of the additional works proposed by Iberpistas. In particular, since the only works explicitly mentioned in the second specifications were the two motorways linking Segovia and Ávila with the A-6, any measures that the tenderers might propose in order to reduce traffic would only be measures directly connected with those two sections. It should therefore have been impossible to accept tenders which, like the winning tender, included works located elsewhere, such as the widening of the Villalba-Adanero section of the A-6 proposed by Iberpistas.
43. The Commission rejects the Spanish Government’s arguments that it was clear from the decision to cancel the first specifications and replace them with a second set of specifications, in which some works were no longer explicitly mentioned, that the participants should have proposed alternative solutions for the works included in the original specifications and subsequently abandoned. According to the Commission, nothing in the wording of the second specifications suggested that they should be interpreted in that way. Moreover, it claims, the variants presented by the other participants in the procedure were confined to the two A-6 links with the cities of Ávila and Segovia.
44. Lastly, according to the Commission, the conduct of the Kingdom of Spain infringed fundamental principles of the Treaty, in particular the principles of equal treatment and non-discrimination.
2. The Spanish Government’s position
45. The Kingdom of Spain strongly disputes the allegations: in particular, it contends that not only has the Commission failed to produce any evidence of a failure to fulfil obligations, it has also presented a distorted picture of the facts.
46. The Spanish Government draws attention, first, to the seriousness of the situation with regard to traffic on the A-6 motorway at the time when the notice was published. In addition to being well known, for it had been the subject of numerous articles in the press, that seriousness had also been clearly stated and described in official Spanish Government documents, including the documents on which the invitation to tender was based.
47. The Spanish Government maintains essentially that, although the only work explicitly mentioned in the specifications was the construction of the links between the cities of Ávila and Segovia and the A-6, it was perfectly obvious in view of the well-known traffic problems that the tenderers could have proposed measures to reduce traffic, physically based both on the Villalba-Adanero section of the A-6, to be awarded in a concession to the winning tenderer as from 2018, and also on the section of the A-6 between Madrid and Villalba. As regards the latter section in particular, a section which as we have seen is toll-free and state-maintained, the Spanish Government contends that the option of taking measures on that section is guaranteed under national law. In particular, it contends that the Motorway Law allows measures to be taken to reduce traffic outside the ‘area of impact’ of a motorway. In any case, the area of impact of a motorway is now fixed as 20 km, so the section of the A-6 south of Villalba is in any case within the area of impact of the Villalba-Adanero section of the A-6, the explicit subject of the concession.
48. In particular, according to the Kingdom of Spain, the fact that tenderers could propose traffic control measures of this kind is also clear from Article 5(13) and (16) of the specifications.
49. It claimed that the decision to cancel the first specifications and replace them with the second specifications was prompted by a wish to leave more scope for creative proposals from the tenderers as to possible solutions for the traffic problem. The fact that the decree approving the new specifications merely stated that the new version of the specifications was necessary for general technical reasons, without any reference to the need for tenderers to substitute their own solutions for the works removed from the first specifications, was explained by the habitually summary nature of all ministerial decrees approving specifications.
50. The Spanish Government insists that the arguments it presents to the Court were accepted by the national courts and by the Supreme Court in particular. Since it is a matter of verifying matters of fact and not points of law, it considers that the Court should rely, particularly where the interpretation of the specifications is concerned, on the national court’s findings in this connection; however, the Spanish Government acknowledges in the rejoinder that the conclusions reached by the Supreme Court are not binding on the Court.
51. The Kingdom of Spain also points out that Iberpistas did not execute the proposed works directly but issued a call for tenders in that connection and that the requirements with respect to advertising and observance of the principles of equal treatment and non-discrimination were accordingly satisfied, at least in that subsequent phase of the work. The Spanish Government refers in particular, in this connection, to the judgment in Ordine degli architetti (6), in which the Court held that a situation in which a call for tenders is not issued by the public authority but by the person to whom the public authority has entrusted the execution of the works, may be compatible with the Community rules on public works contracts.
B – Assessment
1. Preliminary observations
52. From a legal point of view, the matter at issue in the present case is a public works concession. As we have seen, the Community legislation defines a public works concession as a contract which has the same characteristics as a works contract, with the important difference that the consideration for the work consists of the right to exploit the completed work. That right of operation may, moreover, also be accompanied by a payment to the concessionnaire; the payment must not, however, constitute the principal element in the consideration, for that would imply the existence of a contract in addition to a concession. (7)
53. Concessions are subject to far less extensive restrictions and requirements under Community law than are contracts. In particular, as we saw in the account of the relevant Community provisions, of all the provisions relating to procurement contracts, the only rules applicable to concessions are those on advertising.
54. However, while the transactions at issue in the present case are undoubtedly to be described as works concessions and not as contracts, it is equally agreed that the works in question must be preceded by a specific notice and that they cannot be regarded merely as a natural ‘extension’ of the existing concession, held by Iberpistas, for the section of the A-6 motorway between Villalba and Adanero. (8) That premiss is not contested by either of the parties.
2. Irrelevant elements
55. Before proceeding to examine the legal questions which are at the centre of the present case, it is essential, in my view, to clear the field of a number of elements which have been discussed at length by the parties but which are, in fact, irrelevant to the resolution of the dispute.
a) The rulings of the Supreme Court
56. First of all, the Kingdom of Spain’s references to the Supreme Court decisions dismissing two actions brought at national level against the award of the concession, are irrelevant. As the Spanish Government conceded in the rejoinder and at the hearing, the case-law of the Court confirming that the national courts alone are responsible for assessing matters of fact and limiting the intervention of the Community court to questions of law relates exclusively to cases referred for a preliminary ruling, in which the final outcome of the national case is the result of collaboration between national judicial authorities and Community courts. In a case concerning alleged failure by a Member State to comply with Community law, however, the Court may assess any element brought to its attention and relevant to the subject of the proceedings.
57. Moreover, for the purposes of a case concerning alleged failure to fulfil obligations, the State is the only reference point for the Court, and the State is held to be responsible for all breaches of Community law attributable to it, even if they are in fact caused by constitutionally independent bodies, for example. In that context, even a judicial interpretation supported by the supreme court of a Member State has been held by the Court to be in breach of Community law. (9) It is therefore clear that the scheme based on the idea of collaboration between the national court and the Community court, cooperating with a view to resolving the dispute, is not applicable in cases of failure to fulfil obligations. That, it must be said, does not imply any lack of respect or regard for the functions of the national courts: they simply have no active role in proceedings pursuant to Article 226 EC.
58. It should also be noted that, in any event, it is by no means easy to draw a clear line in the present case between matters of fact and points of law. In citing the Supreme Court rulings that the concession notices were compatible with Community law, the Kingdom of Spain refers to actual legal conclusions drawn by that judicial body, rather than to matters of fact.
b) The identity of the persons responsible for the action
59. The identity of the persons whose complaint, according to the Kingdom of Spain, was responsible for the action brought by the Commission, is likewise irrelevant. In particular, it is claimed that they were the persons who brought the actions dismissed at national level by the Supreme Court. Even if it is accepted that they were in fact the same persons, it is clear that that cannot carry any weight in the context of the proceedings before the Court.
60. The fact that they were not participants in the procedure associated with the award of the concession but members of parliament, a trade union and an ecological association certainly suggests that the motives for choosing to bring an action and/or make a complaint were economic, political or idealistic. The fact remains, however, that the only purpose of an action for infringement is to determine objectively whether or not a Member State has failed to fulfil its obligations under Community law. It is not for the Court to judge the personal reasons of the complainants at the origin of the proceedings, especially as the decision to bring an action for failure to fulfil obligations is taken by the Commission alone, at its own discretion and of its own motion. In this connection, it is settled case-law not only that the Commission does not have to show that there is a specific interest in bringing an action, but also that the considerations on which the decision to bring an action for failure to fulfil obligations is based are completely irrelevant. (10)
c) The organisation of a call for tenders by Iberpistas
61. Nor is it relevant that, as the Kingdom of Spain mentions in the defence, Iberpistas, having been awarded the concession, decided not to execute the additional works directly but to organise a call for tenders, as required in the circumstances under Article 20 of the specifications.
62. The reason supporting that argument, which the Kingdom of Spain actually explained more clearly in the prelitigation procedure than in the observations submitted to the Court, was that the judgment in Ordine degli Architetti (11) might be applicable.
63. In that case, the Court held, in particular, with regard to the execution of infrastructure works by a developer who had concluded a development agreement with the municipal authorities, that Directive 93/37 still has full effect, even if the procedures laid down in the Directive are applied not by the municipal authorities but by the developer. (12)
64. It should also be noted that the situation examined by the Court in Ordine degli Architetti was completely different from the situation at issue in the present proceedings. In that case, the problem concerned the interpretation of certain provisions of Italian law under which the infrastructure contributions payable when building permission was granted could be reduced or waived on certain conditions. This applied, in particular, when the holder of the permit undertook to execute the infrastructure works directly.
65. The Court, taking the view that the reduction in the contribution in return for executing the infrastructure works directly was to all intents and purposes payment for execution of the works, held that Directive 93/37 was applicable, while stating, as we have seen, that it still had full effect, even if the procedures laid down in the Directive were applied not by the municipal authorities but by the infrastructure developer.
66. The decisive element in the case of Ordine degli Architetti, was, as we have seen, the fact that the municipal authorities had no power to choose the other party to the contract for themselves, for in the nature of things the other party to the contract was the holder of the building permit. Consequently, to accept that Directive 93/37 should be applied by the developer was in fact the only way to ensure that the Community legislature’s objectives with respect to public contracts were achieved.
67. In the present case, on the contrary, Iberpistas, far from being a mandatory contractor for the Spanish Government, was chosen and was awarded the concession as the winner in the relevant procedure. It is therefore clear that, in this case, the Community rules on the choice of contractor could have applied from the first phase of the procedure, i.e. in the selection of the concessionnaire. The situation is therefore not comparable to that examined in Ordine degli Architetti, and the judgment in that case cannot apply, even by analogy, in the present case. (13)
d) The value of the additional works
68. The Kingdom of Spain and the Commission differ sharply on the value of the additional works compared with the total value of the concession.
69. In the application, in particular, the Commission calculated that the value of the additional works was equal to 87% of the value of the principal works, i.e. the works explicitly mentioned in the notice. The Kingdom of Spain, for its part, disputes that figure, noting in particular that the value of the principal works must include the operation of the Villalba-Adanero section of the A-6 from 2018. According to the Kingdom of Spain, the value of the additional works proposed by Iberpistas in the winning tender amounted to just over 27% of the value of the principal works.
70. In my view, however, it is unnecessary, for the purposes of the decision on the application in the present case, to calculate the precise value in numerical terms of the additional works as compared with the principal content of the concession.
71. On the one hand, Article 61 of the new Community directive on public contracts cited by the parties, namely Directive 2004/18, is irrelevant. That provision establishes that, for up to 50% of the amount of the original works concession contract and on certain specific conditions, the advertising rules applicable to public works concessions shall not apply ‘to additional works not included in the concession project initially considered or in the initial contract but which have, through unforeseen circumstances, become necessary for the performance of the work described therein, which the contracting authority has awarded to the concessionaire …’.
72. First, as already noted, Directive 2004/18 is not applicable ratione temporis to the facts at issue. Secondly, even if that provision were to be regarded merely as the consolidation of a preexisting legal principle (an interpretation which, incidentally, seems to me to be somewhat shaky), the fact remains that Article 61 of that Directive refers to works ‘which have, through unforeseen circumstances, become necessary for the performance of the work described’. That is a situation which clearly did not arise in the present case. The provision contained in Article 61 refers to unforeseen situations arising after the award of the contract, not to matters already in existence before that award was made.
73. On the other hand, apart from their differences on the calculation of the precise value of the additional works, it seems to me reasonable to conclude that the Commission and the Kingdom of Spain agree on one incontrovertible fact: in the general scheme of the situation presented to the Court for examination, the additional works were of considerable importance, certainly not of marginal or secondary importance compared with the principal object of the concession.
3. The Commission’s application: preliminary observations
74. Although, as I observed earlier, the Commission’s application is not inadmissible, it is somewhat imprecise, particularly in identifying the provisions allegedly infringed. In particular, the Commission claims in the application that the Kingdom of Spain has infringed Article 3 and also, in general, Article 11(3), (6), (7), (11) and (12) of Directive 93/37, as well as the Treaty.
75. In response to the objections raised by the Kingdom of Spain in the defence, the Commission explained in the reply that the application should in fact be regarded as referring to Article 3(1) and, by extension, to the provisions of Article 11 referred to in Article 3(1).
76. In particular, since the Commission does not dispute the fact that the notice was published, or the times and conditions of publication, it follows that the provisions of the Directive that were allegedly infringed were, essentially, Article 11(3) and (6). To be precise, the alleged infringement consisted of the considerable disparity between the object of the notice published and the object of the concession actually awarded to Iberpistas. In other words, the Kingdom of Spain is accused of having published an incomplete notice or, alternatively, of having failed to publish a notice of all the works included in the concession awarded to Iberpistas but not in the published notice.
77. It should also be noted that the provisions of the Directive are to be regarded as the practical application, in the context of public works contracts and concessions, of the principles of the Treaty, in particular the prohibition of discrimination and the duty to observe the principle of equal treatment. (14) The Commission’s claims against the Kingdom of Spain in respect of infringement of the Directive and breach of the Treaty can therefore be considered together.
78. That being established, we can now concentrate on the principal problem, namely the claim that the specifications published by the Spanish authorities were incomplete. To that end, the precise requirements in connection with the publication of public works concession notices must first be identified. Once that aspect has been clarified, it remains to be seen whether the requirements were fulfilled in the present case.
4. The requirements in connection with concession notices
79. The first aspect to be clarified therefore concerns the general requirements which a public works concession notice must fulfil.
80. A public works contract notice must certainly contain a full description of all the works to be executed. This is a natural corollary of the fact that tenderers have to propose a price for the execution of the works – which obviously presupposes a precise knowledge of the works in question – and also of the more general principle, which I have just mentioned, that the provisions of the Directive constitute the specific application of the principles of the Treaty on equal treatment and non-discrimination. Moreover, the Court has held that observance of the principle of equal treatment of tenderers requires all tenders to comply with the tender conditions. (15)
81. In my view, that fundamental principle on advertising is also applicable to concessions, and concession notices must accordingly give full details of all the works that are the object of the concession. Various considerations support this view.
82. First, there are obvious reasons connected with transparency and equal treatment. These two principles, as we have seen, are derived directly from the Treaty, and the Court has held that they are generally applicable to all concessions, including concessions subject to specific rules. (16)
83. Secondly, the Directive provides that, of the rules relating to procurement contracts, the only rules applicable to concessions are those on advertising, or rather some of them. To admit the proposition that even the few rules applicable to concessions are to be subject to an interpretation which is different from and stricter than the interpretation required in the case of contracts would, in my view, greatly reduce the effectiveness of the legislation applicable to concessions.
84. The fact that the model notice for concessions (provided in Annex VI to the Directive) is much shorter than the model notice for contracts (provided in Annex V to the Directive) does not mean that the description of the works to be executed can be couched in significantly different terms. Moreover, the two model notices are almost identical in the part requiring a description of the object of the contract and the object of the concession (Section II in both models).
85. The case-law of the Court also contains rulings which equate the advertising rules applicable to procurement contracts to those applicable to concessions, without mentioning any kind of difference between them. (17)
86. The fact that a notice is required to give a full description of the works to be executed does not, of course, preclude a measure of creativity and freedom in the tenders that may be submitted. However, observance of the principle of equal treatment requires that, in that case, potential tenderers must be in a position to know that such a margin of discretion is available and to be aware of its limits. It may be apposite, in this connection, to cite a passage from the Commission interpretative communication on concessions under Community law (18) (‘the interpretative communication’), which in my view is absolutely correct and acceptable:
‘Furthermore, in certain cases, the grantor may be unable to specify his requirements in sufficiently precise technical terms and will look for alternative offers likely to provide various solutions to a problem expressed in general terms. In such cases, however, in order to ensure fair and effective competition, the specifications must always state in a non-discriminatory and objective manner what is asked of the candidates and above all the way in which they must draw up their bids. In this way, each candidate knows in advance that he has the possibility of proposing various technical solutions. More generally, the specifications must not contain elements that infringe the abovementioned rules and principles of the Treaty. The requirements of the grantor may also be determined in collaboration with companies in the sector, provided that this does not restrict competition.
87. Moreover, with respect to contracts, Article 19 of the Directive explicitly provides, through the mechanism of variants, for tenderers to be allowed a certain measure of freedom in the presentation of their tenders. In Traunfellner, however, the Court interpreted that provision somewhat strictly in order to ensure compliance with the principle of equal treatment of tenderers, ruling inter alia that reference to a provision of national legislation cannot satisfy the requirement laid down in the second paragraph of Article 19 of the Directive that the contracting authority is under an obligation to set out in the contract documents the minimum specifications with which variants must comply. (19)
88. The Kingdom of Spain’s argument that the ruling in Traunfellner is not applicable in the present case, inasmuch as it refers to variants and not to additional works, does not seem to me to be convincing. First, even if it is accepted that the distinction between variants and additional works is well-founded, the fact remains that the ruling in Traunfellner is based on the essential objective of ensuring equal treatment of tenderers, and that objective cannot be held to be less important in the case of additional works than it is in the case of variants. In any event, that case-law, in so far as it refers to Article 19 of the Directive, i.e. to a provision that is not applicable to works concessions, is not directly applicable in the present case and should rather be regarded as an indication and a guide, albeit an extremely persuasive one.
89. Another useful indication, applicable essentially by analogy, is also to be found in the case-law in which the Court held – again pursuant to the principle of equal treatment of tenderers – that the award criteria, once stated, must remain the same throughout the entire procedure. (20)
90. In conclusion, a notice relating to the award of a public works concession must contain a full statement of the works that are the object of the concession. Variants and additional works are admissible if the option of executing such works, and the limits within which that option may be exercised, are stated in the concession notice.
5. The interpretation of the second specifications
91. The requirements which the content of works concession notices must satisfy in order to fulfil the obligations with respect to advertising laid down in Community law having thus been clarified, it remains to be determined whether, in the present case, the concession notice satisfied those requirements.
92. In my view, the answer should be that it did not, and that the content of the second specifications does not correspond sufficiently closely to the works in the concession awarded to Iberpistas.
93. First, as we have seen, the Spanish Government contends that the choice to cancel the first specifications and replace them with the second specifications was prompted by a wish to leave more scope for tenderers to use their initiative in order to identify appropriate solutions for the traffic problem. The Spanish Government also contends that it would have been easy for potential participants in the procedure to realise that this was the case. However, those arguments cannot be accepted.
94. It should be noted that the opening passage in the second specifications simply states that ‘it is necessary for technical reasons to amend the said specifications, in order to redefine the object of the concession to be awarded and to make some changes in the definition of the duration of the concession’. This is a very general statement, which certainly does not specify the precise reason for revising the specifications (except for the change in the duration of the concession). At the very least, if the basic reason for the decision to cancel the preceding specifications was to leave more scope for tenderers to use their initiative in order to solve the traffic problems, this could and should have been explicitly stated. However, it was not.
95. Nor is it possible to accept the Spanish Government’s argument that the option of proposing additional works such as the works proposed by Iberpistas was implicit in various provisions of the specifications. The provisions in question are Article 5(13) and (16) and Article 29 of the notice.
96. As regards Article 29, suffice it to say that this provision explicitly refers only to the two A-6 links with Ávila and Segovia. (21)
97. Similar observations apply to Article 5(16) of the specifications, which expressly states that the measures concerning traffic that could have been proposed to the authorities related to the ‘areas affected by the construction of the roads that are the object of the concession’. Thus, it is clear from the reference to the ‘construction’ of the roads in question that the area referred to in that provision is confined to the A-6 links with Ávila and Segovia.
98. As regards Article 5(13) of the specifications, it should be noted that that provision refers generally to measures that tenderers might propose in connection with a whole range of factors that normally have to be taken into account in the execution of road works: i.e. not only traffic, but also the possible impact on the landscape, the environment, tourism, etc. Clearly such a general provision, which refers to operations that are merely accessory to the works explicitly mentioned in the specifications, cannot be regarded as a sufficient indication of the fact that the object of the specifications was a number of construction works of major importance, including economic importance, located outside the construction areas explicitly mentioned in the notice.
99. Moreover, Article 5(13) refers to the ‘effects’ of the concession on the traffic problem as a whole, but does not refer to the location of the measures to be taken to reduce that problem. Due attention must therefore be paid to the Commission’s argument that, in view of the content of the specifications, those measures could only have been interpreted by participants in the procedure as being located in the area of the construction works explicitly provided for.
100. Lastly, is must not be forgotten that the abovementioned provisions were identical in the first and second specifications. It cannot therefore be maintained that, taking that into account, a potential participant in the procedure could have supposed that the Spanish authorities’ choice to cancel the first notice, deleting some of the works, was prompted by a wish to obtain alternative proposals in connection with the works that had been ‘cancelled’.
101. As regards the additional arguments presented by the Kingdom of Spain concerning the possibility of interpreting the second specifications in the light of other pertinent provisions of Spanish law, designed to allow tenderers wide scope for the exercise of freedom and creative ability, I have the following observations to make.
102. First, for the reasons stated earlier, I consider that the principles established in the case-law of the Court on advertising in the case of contracts are also, in principle, applicable with respect to concessions. In that context, as we have seen, a notice which contained an explicit reference to national legislation in connection with the admissibility of variants was held to be unlawful. (22)
103. Secondly, even on the absurd assumption that, contrary to all the case-law of the Court, a notice could be accepted implicitly on the basis of national legislation, the fact remains that, in my opinion, Article 8 of the Motorway Law does not support the Kingdom of Spain’s position. In fact, far from allowing potential tenderers a wide measure of creative freedom in the tenders to be submitted, that measure refers to works, not provided for in the original object of the concession, which ‘the concessionnaire is required to carry out as consideration for the concession’. In other words, the works in question appear to be works that are in any case explicitly required, not works freely proposed and executed by the concessionnaire. It therefore appears to be unnecessary to determine whether, under the national legislation, all the additional works proposed by Iberpistas are located within the ambit of the works explicitly mentioned as the object of the concession.
104. Nor does the interpretative communication provide any arguments that might support the Spanish Government’s position. In particular, as we have seen, although the Commission accepts in that communication that tenderers may be accorded a wide measure of freedom and creativity in their tenders, it also explicitly states that ‘the specifications must always state in a non-discriminatory and objective manner what is asked of the candidates’. (23)
105. Also, the Commission has presented convincing evidence that, despite the Kingdom of Spain’s arguments to the contrary, the other tenderers did not interpret the passage concerning the need to propose measures to reduce traffic in the same way as Iberpistas did. In particular, the other tenderers proposed solutions, all based on the execution of additional works closely connected with the construction works explicitly requested in the specifications. This is clearly not in itself decisive, since the other tenderers’ assessment of the specifications certainly cannot bind the conclusion to be reached by the Court. Also, the possibility that the other tenderers misinterpreted the specifications cannot be ruled out. At all events, it is nevertheless an element to be borne in mind for the purpose of forming a full picture of the facts.
106. Lastly, a final observation concerns the practical consequences of the interpretation of the specifications adopted by Iberpistas and endorsed by the Kingdom of Spain. On the basis of the winning tender, Iberpistas executed, in addition to the links between the A-6 motorway and the cities of Ávila and Segovia, a number of additional works on the Villalba-Adanero section of the said motorway, a section for which a concession already existed, held by Iberpistas and valid until 2018, at the time of the procedure at issue in the present case. Well, I do not see how a tenderer other than Iberpistas could, in fact, propose on its own initiative, without any indication to that effect in the specifications, to execute works in a section of the motorway operated by Iberpistas.
VII – Conclusion
107. In the light of the foregoing considerations, I propose that the Court should:
– declare that, by not including, in the works to be awarded by concession listed in the specifications relating to the award of a public concession for the construction, maintenance and operation of the motorway links to Segovia and Ávila, and for the maintenance and operation of the Villalba-Adanero section of the same motorway, certain works which were subsequently awarded under the concession, the Kingdom of Spain has failed to fulfil its obligations under Directive 93/37/EEC concerning the coordination of procedures for the award of public works contracts, and in accordance with the principles of the Treaty on equal treatment and non-discrimination;
– order the Kingdom of Spain to pay the costs.
1 – Original language: Italian.
2 – In the case of service concessions, on the contrary, there are no specific rules apart from certain important principles established by the case-law of the Court. In particular, it is settled case-law that although there are no explicit measures on the subject, service concessions must comply with the fundamental rules of the Treaties, in general, and the principle of non-discrimination on grounds of nationality, in particular. On the services referred to in Directive 93/38/EEC, see Case C‑324/98 Telaustria and Telefonadress [2000] ECR I‑10745, paragraph 60. On the services referred to in Directive 92/50/EEC, see Case C‑458/03 Parking Brixen [2005] ECR I‑8585, paragraph 46 and the case-law cited therein.
3 – 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).
4 – Title III, comprising Articles 56 to 65.
5 – 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).
6 – Case C‑399/98 Ordine degli Architetti and Others [2001] ECR I‑5409.
7 – In certain specific cases, the distinction between contract and concession may be difficult to establish. This is, in the final analysis, a matter for the national court to determine: see Parking Brixen, cited in footnote 2 above, paragraph 32.
8 – See, in this connection, Joined Cases C‑187/04 and C‑188/04 Commission v Italy [2005] ECR I-0000, paragraph 23.
9 – Case C‑129/00 Commission v Italy [2003] ECR I‑14637, paragraphs 29 to 32.
10 – See, for example, Case C‑33/04 Commission v Luxembourg [2005] ECR I‑10629, paragraphs 65 to 67, and the case-law cited therein.
11 – Cited in footnote 6 above.
12 – Ibidem, paragraph 100.
13 – On the specific nature of the judgment in Ordine degli Architetti and the fact that it is not applicable in a situation where the contractor can be chosen, see Case C‑264/03 Commission v France [2005] ECR I‑8831, paragraph 57.
14 – See Case C‑243/89 Commission v Denmark (‘Storebaelt’) [1993] ECR I‑3353, paragraph 33, and Case C‑19/00 SIAC [2001] ECR I‑7725, paragraph 33. The judgments in those cases refer to the preceding directive, Directive 71/305, but the purpose of the provisions is clearly the same. See also, for example, Case C‑87/94 Commission v Belgium (‘Walloon Buses’) [1996] ECR I‑2043, paragraphs 51 and 52, and, in more general terms, Parking Brixen, cited in footnote 2 above, paragraph 48.
15 – Commission v Denmark, cited in footnote 14 above, paragraph 37.
16 – See footnote 2 above.
17 – Joined Cases C‑187/04 and C‑188/04 Commission v Italy, cited in footnote 8 above, paragraph 19.
18 – OJ 2000 C 121, p. 2.
19 – Case C‑421/01 Traunfellner [2003] ECR I‑11941, paragraphs 27 to 29.
20 – Commission v Belgium, cited in footnote 14 above, paragraphs 88 and 89, and SIAC, cited in footnote 14 above, paragraphs 41 to 43.
21 – See points 21 and 22 above.
22 – Traunfellner, cited in footnote 19 above.
23 – See point 34 above.