1.

The present case arises from a request for a preliminary ruling made by the Tribunal Català de Contractes del Sector Públic (Spain) (Catalan Public Sector Contracts Board) in the context of a special administrative appeal relating to public procurement.

2.

In the course of the proceedings before the Court of Justice, doubts arose concerning the Court’s jurisdiction in light of the characteristics of the Tribunal Català de Contractes del Sector Públic. Of the criteria established in the Court’s case-law for deciding whether a body making a reference is a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU, the criterion of the ‘compulsory jurisdiction’ of the referring body aroused the Court’s concern in particular.

3.

The Tribunal Català de Contractes del Sector Públic is in fact a specialised collegiate administrative body with jurisdiction to hear special appeals relating to public procurement matters. Being a specialised body, it is not a court stricto sensu under national law, although its decisions are final in so far as concerns administrative remedies. Moreover, bringing an appeal before that body is optional, which raises the question of whether it may be regarded as a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU. That question requires the Court to interpret, in particular, its complex case-law relating to the ‘compulsory jurisdiction’ of the referring body.

4.

In accordance with the request made by the Court following its decision to open the oral procedure and the reallocation of the case, this Opinion will specifically address this criterion of the ‘compulsory jurisdiction’ of the referring body, which the Court wishes to consider in particular, and briefly examine the remaining criteria. I shall therefore not deal with the substantive questions asked by the referring body.

5.

The Consorci Sanitari del Maresme wished to participate in the tendering procedure relating to nuclear magnetic resonance services organised by the Corporació de Salut del Maresme i la Selva. On 10 December 2013, it brought a special appeal before the Tribunal Català de Contractes del Sector Públic challenging the decision of the assessment board of the contracting authority, so that it might be admitted to the tendering procedure. ( 2 )

6.

In the context of that special appeal, the Tribunal Català de Contractes del Sector Públic decided to refer five questions to the Court of Justice for a preliminary ruling. ( 3 )

7.

By decision of 13 January 2015, the Court referred the case to the Sixth Chamber and decided, pursuant to Article 76(2) of its Rules of Procedure, not to hold a hearing. The Court also decided that the case would be determined without the Opinion of an Advocate General.

8.

However, the judicial status of the body making the request for a preliminary ruling gave rise to uncertainty regarding the Court’s jurisdiction.

9.

Accordingly, on 9 February 2015, the Court requested clarification from the Tribunal Català de Contractes del Sector Públic, which replied by letter of 12 February 2015, received at the Court on 17 February 2015.

10.

The Court took the view that it was necessary for it to hear detailed argument on whether the Tribunal Català de Contractes del Sector Públic could be regarded as a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU and reallocated the case to the Grand Chamber. The Court decided that it was necessary to organise a hearing in order to permit the parties to express their views, if any, on the admissibility of the request for a preliminary ruling made by the Tribunal Català de Contractes del Sector Públic and consequently ordered the reopening of the oral procedure for the purpose of examining its jurisdiction in this case.

11.

The hearing was held on 12 May 2015 in the presence of the Spanish Government and the European Commission. The Italian Government, which had submitted written observations on the substantive questions, was not represented at the hearing.

12.

According to the settled case-law of the Court, in order to determine whether a body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. ( 4 ) Moreover, a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. ( 5 )

13.

It must be emphasised in this connection that the fact that a national body is not described as a court or tribunal stricto sensu under national law is not in itself conclusive, since the notion of a ‘court or tribunal’ within the meaning of Article 267 TFEU is an autonomous concept of EU law. Indeed, the Court has held that that concept may also include bodies that are not courts or tribunals under national law ( 6 ) and are not part of the judicial system of a Member State. ( 7 ) Thus, the Court attaches importance not to the formal designation of the body in question, but rather to its substantive characteristics, ( 8 ) and this calls for an assessment of the structural and functional characteristics of the referring body.

14.

At the hearing, the Spanish Government confirmed that the Tribunal Català de Contractes del Sector Públic is a ‘review body’ within the meaning of the first subparagraph of Article 2(9) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, ( 9 ) which may, according to that provision, be non-judicial in character. ( 10 ) It is also clear from the information provided to the Court that decisions of the Tribunal Català de Contractes del Sector Públic conclude the ‘administrative proceedings’.

15.

In my view, those aspects derived from national law are not conclusive if the characteristics of the referring body demonstrate that it fulfils the criteria established in the case-law of the Court in order to be regarded as a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU, that is to say, the criteria which I mentioned in point 12 of this Opinion.

16.

In so far as concerns the particular legal framework for public procurement, in view of the importance of this area for the internal market, and in particular for the observance of the fundamental freedoms of movement, the EU legislature has harmonised national law in this field to a large extent. Exceptionally, the judicial protection afforded to individuals has also been substantially harmonised by the provisions of Directive 89/665 and consequently that is no longer a matter solely for the procedural autonomy of the Member States, as limited by the principles of effectiveness and equivalence. ( 11 )

17.

Accordingly, the third subparagraph of Article 1(1) of Directive 89/665 provides that the Member States are to take the measures necessary to ensure that, as regards contracts falling within the scope of Directive 2004/18, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f of Directive 89/665 where such decisions have infringed EU law in the field of public procurement or national rules transposing that law. Such remedies may include actions before national courts as well as applications to quasi-judicial bodies as referred to in the first subparagraph of Article 2(9) of Directive 89/665.

18.

Given that, the question arises of whether account must be taken, when interpreting the concept of a ‘court or tribunal’ for the purposes of Article 267 TFEU, of the fact that the body in question has been established in order to enable the Member State to fulfil its obligations under Directive 89/665. In fact, it is often such bodies of a quasi-judicial nature that are called upon to interpret EU public procurement law, often almost exclusively so, where their decisions are not in practice appealed before an ordinary court.

19.

It should be noted that, in its case-law on the interpretation of Article 267 TFEU, which has been established in judgments for the most part handed down after the adoption of Directive 89/665, the Court has already applied the criteria for defining a ‘court or tribunal’ within the meaning of Article 267 TFEU in a flexible fashion. ( 12 ) This has enabled a variety of review bodies, including bodies created by the Member States in the public procurement sector, to refer questions to the Court for a preliminary ruling. ( 13 ) Adopting this flexible approach to its requirements for considering a body to be a ‘court or tribunal’, the Court has also held to be a court or tribunal for the purposes of Article 267 TFEU administrative bodies that act at last instance in various fields of EU law. ( 14 )

20.

Since the Court has, it seems to me, already adopted in this area an interpretation of Article 267 TFEU that is sufficiently flexible to ensure that provisions of EU law are interpreted uniformly at national level, I take the view that the provisions of Directive 89/665 and the fact that the Tribunal Català de Contractes del Sector Públic has express jurisdiction in public procurement matters have no particular bearing on the application of Article 267 TFEU to the present case.

21.

As regards the question whether the Tribunal Català de Contractes del Sector Públic was established by law, it is clear both from the reply which that body gave to the Court’s request for information and from the submissions made by the Spanish Government at the hearing that the Tribunal Català de Contractes del Sector Públic was created by the Autonomous Community of Catalonia in the exercise of the special legislative competence provided for under Spanish law. ( 15 )

22.

The Tribunal Català de Contractes del Sector Públic was originally established as a single-member body named the ‘Órgano Administrativo de Recursos Contractuales de Cataluña’ (the Administrative Body for Contractual Appeals of Catalonia) by the fourth additional provision of Law 7/2011 of 27 July 2011 on fiscal and financial measures. ( 16 ) Because of the increasing volume and special nature of the cases falling within the competence of the Órgano Administrativo de Recursos Contractuales de Cataluña, it was transformed into a collegiate body, named the Tribunal Català de Contractes del Sector Públic, by Decree 221/2013 of 3 September 2013. ( 17 ) That decree contains provisions concerning, in particular, the establishment, jurisdiction and composition of the Tribunal Català de Contractes del Sector Públic. Thus, the criterion of the body’s establishment by law is clearly satisfied.

23.

Moreover, as a component in the system for judicial resolution of disputes in the area of public procurement, the Tribunal Català de Contractes del Sector Públic satisfies the requirement for permanence. ( 18 ) Indeed, although the members of that body are appointed for a renewable term of five years, ( 19 ) it is nevertheless permanent as a body governed by public law and therefore not an ad hoc body convened for the purposes of an individual dispute.

24.

As regards, first of all, the inter partes nature of the procedure initiated by special application to the Tribunal Català de Contractes del Sector Públic, it must be recalled at the outset that the requirement that the procedure be inter partes is not an absolute requirement. ( 20 ) However, in accordance with Article 46 of Royal Legislative Decree 3/2011, the parties do have the opportunity to make submissions and present evidence to the body having jurisdiction to settle the dispute. In so far as the Tribunal Català de Contractes del Sector Públic is concerned, in accordance with Article 14 of Decree 221/2013, the procedure applicable to special appeals in public procurement matters is governed by the basic rules of the legislation relating to public procurement, by the rules implementing that legislation, by the procedural rules set out in Decree 221/2013 and by the legal rules governing public authorities and general administrative procedure.

25.

Moreover, since in special appeals in public procurement matters the Tribunal Català de Contractes del Sector Públic clearly has before it cases involving a contracting authority as respondent and a tenderer as appellant, I consider that the requirement that the procedure be inter partes is satisfied in this case.

26.

Secondly according to the information provided by the referring body itself, it carries out reviews of the legality of decisions in public procurement matters. It must be borne in mind that bodies such as the Tribunal Català de Contractes del Sector Públic have been established in Spain in order to fulfil the obligations arising under Directive 89/665, in particular the obligation to ensure that decisions taken by contracting authorities in procedures for the award of public contracts are amenable to effective review on the ground of infringement of EU public procurement law or national rules transposing that law. Thus, the Tribunal Català de Contractes del Sector Públic, as a body having jurisdiction to hear such actions, clearly applies rules of law.

27.

In accordance with the case-law of the Court, the concept of independence, which is inherent in the task of adjudication, implies above all that the body in question acts as a third party in relation to the authority which adopted the contested decision. ( 21 ) There are two aspects to that concept. The first aspect, which is external, entails the body being protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them. The second aspect, which is internal, is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject-matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law. ( 22 )

28.

Those guarantees of independence and impartiality require rules — particularly as regards the composition of the body and the appointment and length of service of its members and the grounds for the withdrawal, rejection and removal of its members — in order to dismiss any reasonable doubt in the minds of individuals as regards the imperviousness of that body to external factors and its neutrality with respect to the interests before it. ( 23 ) The condition regarding the independence of the body making the reference is regarded, in case-law, as being met only if the grounds for the removal of members of that body are determined by express legislative provisions. ( 24 )

29.

It seems to me that the requirements for the independence of the referring body are satisfied in this case. Indeed, Article 2 of Decree 221/2013, which is entitled ‘Legal nature’ and concerns the establishment of the Tribunal Català de Contractes del Sector Públic, provides that ‘[t]he Tribunal is a specialised collegiate administrative body. In exercising its powers it shall act in a wholly independent manner and with complete objectivity and impartiality. It shall have no hierarchical superiors and shall not receive instructions from any relevant public authorities’.

30.

As regards the composition of the referring body, Article 5 of Decree 221/2013 provides that it is to be composed of a chairman and two persons sitting as assessors, who are appointed by the person responsible for the competent service for establishing the criteria for, and directing and monitoring the award of public contracts. The requirements which must be satisfied in order to be a member are listed in Article 6 of Decree 221/2013. I would point out that members are appointed for a renewable term of five years, ( 25 ) during which period the officials appointed as members of the Tribunal remain on secondment, that is to say, they devote themselves entirely to their duties within the Tribunal Català de Contractes del Sector Públic. ( 26 ) Under Article 8(4) of Decree 221/2013, the members of the Tribunal are appointed on a permanent basis. However, they may be dismissed or have their appointment revoked on certain grounds expressly set out in Article 8. ( 27 ) Article 11 of Decree 221/2013 contains the specific rules governing the reasons for the withdrawal or rejection of members.

31.

Although there is a connection between the Tribunal Català de Contractes del Sector Públic and ‘the competent service for establishing the criteria for, and directing and monitoring the award of public contracts’, it has no hierarchical superiors and does not receive instructions from any relevant public authorities. ( 28 ) When reaching decisions, the Tribunal Català de Contractes del Sector Públic acts as a third party in relation to the interests at stake and possesses the necessary impartiality. ( 29 )

32.

Lastly, it must be observed that the Tribunal Català de Contractes del Sector Públic does not have the status of defendant in the event that its decisions are challenged. ( 30 ) Admittedly, the decisions and acts of the Tribunal may form the subject-matter of an administrative-law action, but that is a case of judicial protection at second instance and does not deprive the decisions of that body of their judicial nature for the purposes of Article 267 TFEU. The decisions of the referring body cannot be the subject of administrative review. ( 31 )

33.

In my view, the referring body thus fulfils the criterion of independence as established in the case-law of the Court.

34.

It was the issue of the ‘compulsory jurisdiction’ of the referring body, within the meaning of the case-law on Article 267 TFEU, that first aroused the Court’s concern regarding the status of the Tribunal Català de Contractes del Sector Públic as a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU. I would point out that the essential question in this regard is whether the fact that an appeal to the referring body is not the only available remedy means that, notwithstanding the legally binding force of its decisions, that body cannot be regarded as a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU.

35.

It is in fact clear from the information before the Court that an appeal to the Tribunal Català de Contractes del Sector Públic is an alternative remedy. According to that body, an applicant may choose ( 32 ) between bringing a special appeal before the Tribunal Català de Contractes del Sector Públic and commencing an administrative-law action. That decision will bind the authority, which has no power to override it. ( 33 ) On the other hand, in the particular sectors governed by Law 31/2007 of 30 October 2007 on procurement procedures in the water, energy, transport and postal services sectors, ( 34 ) the option of directly initiating an administrative-law action does not exist. In those sectors, therefore, the special appeal is not an alternative, since it is necessary for a dispute to be brought before a review body, such as the Tribunal Català de Contractes del Sector Públic, before proceedings may be commenced before the ordinary administrative court having jurisdiction.

36.

In the present case, the dispute in the main proceedings does not relate to one of the particular sectors governed by Law 31/2007, which I mentioned in point 35 of this Opinion, and it therefore seems to me that the normal regime must apply.

37.

It is important to bear in mind that the question whether a body is entitled to refer a question to the Court of Justice is determined on the basis of criteria relating both to the constitution of that body and to its function. In that connection, a national body may be classified as ‘a court or tribunal of a Member State’, within the meaning of Article 267 TFEU, when it is performing judicial functions, but when it is exercising other functions, of an administrative nature, for example, it cannot be recognised as such. ( 35 ) It follows that, in order to establish whether a national body that is entrusted by law with functions of a different nature is to be regarded as a ‘court or tribunal of a Member State’, within the meaning of Article 267 TFEU, it is necessary to determine in what specific capacity it is acting within the particular legal context in which it seeks a ruling from the Court. ( 36 )

38.

Like the other criteria for determining whether a body is a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU, the criterion of the ‘compulsory jurisdiction’ of the body has been developed in the Court’s case-law. However, it must be observed that the use of this concept in the Court’s case-law has not always been very consistent. Frequently, the Court has not referred to the criterion expressly and, in the French language at least, the use of this concept is not without its difficulties. I believe that the ‘compulsory jurisdiction’ of the referring body was used for the first time, as a concept, in the judgment in Dorsch Consult, ( 37 ) although similar expressions had been used prior to that in order to support the finding that the referring body was indeed a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU. ( 38 )

39.

In its judgment in Dorsch Consult, ( 39 ) the Court identified two aspects of the ‘compulsory’ nature of the body’s jurisdiction: first, the body dealing with the case in fact offered the only remedy available and, secondly, its determinations were binding. ( 40 ) In that case, however, it was unnecessary for the Court to give a clear and precise definition of the criterion or to give preference to one or other meaning, since the jurisdiction of the body in question was ‘compulsory’ in both senses. ( 41 )

40.

Like Advocates General Ruiz-Jarabo Colomer, Kokott and Szpunar, I believe that the word ‘compulsory’ refers more to the fact that the decisions of the referring body have binding force rather than to the fact that the body in question offers the only legal remedy available. ( 42 )

41.

Indeed, in its judgment in Emanuel, ( 43 )the Court regarded as a court or tribunal of a Member State, within the meaning of Article 267 TFEU, the person appointed to hear appeals against trade mark registration decisions, who shared that jurisdiction with an ordinary court and to whom an appeal was referred at the appellant’s discretion, in that he was entitled to choose the jurisdiction before which he brought his appeal. The decisions of the appointed person had binding force. ( 44 )

42.

Similarly, in its judgment in Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta, ( 45 ) the Court regarded as ‘compulsory’ the jurisdiction of the Tribunal Arbitral Tributário (Portugal), which offered an alternative means of resolving tax disputes and whose decisions were binding on the parties. In taxation matters, as in the case which gave rise to that judgment, the taxable person could decide either to bring proceedings before an administrative court or to request the constitution of a tax arbitration tribunal, and the tax authorities had to comply with that decision. Therefore, tax arbitration was not an additional legal remedy in the hands of the taxable person, but a genuine alternative to the traditional courts. ( 46 )

43.

It is therefore clear from the abovementioned judgments that, according to the Court, the existence of an alternative remedy to court proceedings stricto sensu does not necessarily mean that the body offering that alternative remedy cannot be regarded as a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU. ( 47 ) The alternative remedy may be different in nature from traditional remedies, just as arbitration in tax matters is different from an action before an administrative court. While the existence of a single remedy has been mentioned in a number of the Court’s judgments, where the remedy at issue was effectively the only remedy available, the Court has never taken the view that a referring body could not be regarded as a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU solely on the ground that, as regards the matter at issue, various remedies were available. ( 48 )

44.

Moreover, it seems to me that, since the beginning, the Court has relied on this criterion in order to exclude private arbitration tribunals in the usual sense, even if it did not refer to the criterion of ‘compulsory jurisdiction’ as such. ( 49 ) According to the case-law, an arbitration tribunal constituted pursuant to an agreement between the parties is not a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU since the parties are under no obligation, in law or in fact, to refer their disputes to arbitration and the public authorities of the Member State concerned are neither involved in the decision to opt for arbitration nor required to intervene of their own accord in the proceedings before the arbitrator. ( 50 ) However, the Court has held admissible questions referred to it for a preliminary ruling by an arbitration tribunal where that tribunal had been established by law, its decisions were binding on the parties and its jurisdiction did not depend on their agreement. ( 51 )

45.

Consequently, the fact that the decisions of the referring body have binding force is indeed a necessary requirement in order for that body to be regarded as a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU. However, that fact alone does not render the jurisdiction of the referring body ‘compulsory’ within the meaning of the case-law on Article 267 TFEU. For that, it is also necessary for the body in question to be a body established by law whose jurisdiction is independent of the wishes of the parties. ( 52 ) I would reiterate that, in my view, it is not necessary, however, for an action or appeal before such a body to be the only available remedy.

46.

If the converse view were taken, then, in theory, a question could arise as to the ‘compulsory jurisdiction’ of the Spanish administrative courts in the context of administrative-law actions relating to public procurement brought directly before them, as ordinary administrative courts. It seems to me that, in such a situation, it would not then be possible to regard the jurisdiction of an administrative court as ‘compulsory’ because an administrative-law action would not be the only remedy available. ( 53 )

47.

For my part, it seems that the advantages of interpreting Article 267 TFEU in such a way that a referring body such as the Tribunal Català de Contractes del Sector Públic may be regarded as a ‘court or tribunal of a Member State’, despite the availability of alternative remedies, outweigh the possible disadvantages. Indeed, the ability to choose between several legal remedies enables individuals to choose the remedy that seems to them to be the most appropriate in the circumstances. ( 54 ) The bodies responsible for specialised appeals, as is the Tribunal Català de Contractes del Sector Públic in public procurement matters, may have considerable expertise, allowing them to settle disputes brought before them rapidly and expertly. It is possible, however, even in public procurement matters, that certain cases centre upon questions of general administrative law. In such cases an obligation to refer the matter to a specialised body would be unhelpful if the ordinary administrative courts were better qualified to settle the dispute. ( 55 )

48.

It should be noted that the decisions of the Tribunal Català de Contractes del Sector Públic are binding on the parties and enforceable. ( 56 ) They therefore have the same effects as decisions handed down by administrative courts of first instance, even though proceedings are brought before a corresponding higher administrative court. It seems to me that, where no action is brought before an administrative court, a decision of the Tribunal Català de Contractes del Sector Públic will constitute a final and binding solution of a dispute between a contracting authority and a tenderer. ( 57 ) Its decisions therefore have an authority comparable to the effect of the principle of res judicata.

49.

It follows from all the foregoing that the Tribunal Català de Contractes del Sector Públic, a specialised collegiate administrative body created by national legislation, whose statutory jurisdiction is independent of the wishes of the parties and whose decisions are binding, fulfils the criteria laid down in the case-law in order to be regarded as a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU. A case is pending before it and it is called upon to rule in proceedings intended to lead to a decision of a judicial nature. Therefore, the Court has jurisdiction to answer the questions referred to it by that body for a preliminary ruling and the request for a preliminary ruling is admissible.

50.

In the light of the foregoing considerations, I suggest that the Court of Justice declare that it has jurisdiction to answer the questions referred for a preliminary ruling by the Tribunal Català de Contractes del Sector Públic.