Keywords
Summary

Keywords

1. Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - Purpose - Effectiveness

(Council Directive 93/37, Art. 1(a))

2. Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - Criteria for assessment

(Council Directive 93/37, Art. 1(a), (b) and (c))

3. Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - Scope - National rule allowing direct execution of infrastructure works - Included - Condition

(Council Directive 93/37)

4. Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - Public works contracts - Definition - Existence of a contract - Public authorities concerned not able to choose the other party to the contract under a development plan - No effect - Conditions

(Council Directive 93/37, Art. 1(a))

5. Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - Public works contracts - Definition - Pecuniary nature of the contract

(Council Directive 93/37, Art. 1(a))

6. Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - Public works contracts - Definition - Contractor - Classification not dependent on direct performance with own resources

(Council Directive 93/37, Art. 1(a))

7. Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - Application of the rules concerning publicity provided for under the Directive by persons other than the contracting authority - Whether permissible - Conditions

(Council Directive 93/37, Art. 1(a), (b) and (c) and Art. 3(4))

8. Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - National rule providing for the direct execution of infrastructure works of a value equal to or exceeding the ceiling fixed by the Directive by a holder of a building permit or approved development plan by way of set-off against a contribution - Not permissible

(Council Directive 93/37)

9. Preliminary rulings - Admissibility of reference - Request not specifying the legislative context

(Art. 234 EC)

Summary

1. Since the existence of a public works contract is a condition for application of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, Article 1(a) must be interpreted in such a way as to ensure that the Directive is given full effect. It is clear that the Directive aims to abolish restrictions on the freedom of establishment and on the freedom to provide services in respect of public works contracts in order to open up such contracts to genuine competition. The development of such competition entails the publication at Community level of contract notices. Exposure to Community competition in accordance with the procedures provided for by the Directive ensures that the public authorities cannot indulge in favouritism.

( see para. 52 )

2. Directive 93/37 concerning the coordination of procedures for the award of public works contracts gives definitions of contracting authority (Article 1(b)), works (Article 1(a) and Annex II) and a work (Article 1(c)).

The definition given by the Community legislature confirms that those elements are closely related to the aim of the Directive. They must play a decisive role, therefore, when it falls to be determined whether a public works contract exists for the purposes of the Directive.

This means that in circumstances involving the execution, or the design and execution, of works or the execution of a work for a contracting authority within the meaning of the Directive, the assessment of the situation in terms of the other elements referred to in Article 1(a) of the Directive must be made in such a way as to ensure that the Directive is not deprived of practical effect, particularly where that situation displays special characteristics because of the provisions of national law applicable to it.

( see paras 53-55 )

3. The fact that a provision of national law allowing direct execution of infrastructure works forms part of a set of urban development regulations that are of a special nature and pursue a specific aim, separate from that of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, is not sufficient to exclude the direct execution of works from the scope of the Directive when the elements needed to bring it within its scope are present.

( see para. 66 )

4. It does not follow from the fact that, under a development plan, the municipal authorities in question are not free to choose the other party to the contract since by law that person must be the owner of the land in question that the relationship between the authorities and the developer does not constitute a contract, since it is the development agreement concluded between them which determines in each case the various infrastructure works to be undertaken, together with the related terms and conditions, including the requirement that the projects for such works be approved by the municipality.

( see para. 71 )

5. The pecuniary nature of the contract within the meaning of Article 1(a) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts relates to the consideration due from the public authority concerned in return for the execution of the works which are the object of the contract referred to in Article 1(a) of the Directive and which will be at the disposal of the public authority.

( see para. 77 )

6. Article 1(a) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts does not require that, in order to be classed as a contractor, a person who enters into a contract with a contracting authority must be capable of direct performance using his own resources. The person in question need only be able to arrange for execution of the works in question and to furnish the necessary guarantees in that connection.

( see para. 90 )

7. In order to comply with Directive 93/37 concerning the coordination of procedures for the award of public works contracts in cases concerning the execution of infrastructure works, the municipal authorities constituting a local authority within the meaning of Article 1(b) of the Directive need not themselves apply the award-of-contract procedures laid down therein. The Directive would still be given full effect if the national legislation allowed the municipal authorities to require the developer holding the building permit, under the agreements concluded with them, to carry out the work contracted for in accordance with the procedures laid down in the Directive so as to discharge their own obligations under the Directive. In such a case, the developer must be regarded, by virtue of the agreements concluded with the municipality exempting him from the infrastructure contribution in return for the execution of public infrastructure works, as the holder of an express mandate granted by the municipality for the construction of that work. Article 3(4) of the Directive expressly allows for the possibility of the rules concerning publicity to be applied by persons other than the contracting authority in cases where public works are contracted out.

( see paras 57, 100 )

8. Directive 93/37 concerning the coordination of procedures for the award of public works contracts precludes national urban development legislation under which, without the procedures laid down in the Directive being applied, the holder of a building permit or approved development plan may execute infrastructure works directly, by way of total or partial set-off against the contribution payable in respect of the grant of the permit, in cases where the value of that work is the same as or exceeds the ceiling fixed by the Directive.

( see para. 103 and operative part )

9. When the national court has not identified the provisions of Community law of which it seeks an interpretation, nor specified precisely which aspects of the relevant national legislation raise difficulties in terms of Community law when applied in the case before it, it is not possible to identify the specific problem arising in the main proceedings concerning the interpretation of Community law and therefore the question referred for a preliminary ruling must be held inadmissible.

( see paras 105-107 )