Keywords
Summary

Keywords

1. Preliminary rulings — Jurisdiction of the Court — Limits — Obviously irrelevant questions and hypothetical questions in a context which precludes any useful answer — Questions not related to the purpose of the main proceedings — (Art. 234 EC)

2. Community law — Interpretation — Principle of uniform interpretation

3. Approximation of laws — Procedures for the award of public supply contracts — Directive 93/36 — Contracting authorities — Body governed by public law — Needs in the general interest — Meaning — Needs in the general interest, not having an industrial or commercial character — To be determined by the national court — Account taken of all the relevant legal and factual circumstances — (Council Directive 93/36, Art. 1(b))

4. Approximation of laws — Procedures for the award of public supply contracts — Directive 93/36 — Contracting authorities — Body governed by public law — Criterion of management supervision by public authorities — Mere review insufficient — (Council Directive 93/36, third indent of Art. 1(b))

Summary

1. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.

see para. 22

2. The need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question.

see para. 35

3. In order for a body to be designated as a "body governed by public law" and, therefore, a "contracting authority" within the meaning Article 1(b) of Directive 93/36 coordinating procedures for the award of public supply contracts, that body must meet needs in the general interest which are not industrial or commercial in character, have legal personality and depend heavily, for its financing, management or supervision, on the State, regional or local authorities or other bodies governed by public law.

The term "needs in the general interest" in the abovementioned article is an autonomous concept of Community law which must be interpreted in the light of the context of that article and the aims of Directive 93/36. The second subparagraph of Article 1 of Directive 93/36 makes no express reference to the law of the Member States. Although the third subparagraph of that article refers to Annex I to Directive 93/37 coordinating procedures for the award of public works contracts, which lists the bodies and categories of such bodies governed by public law which, in each Member State, fulfil the criteria laid down in the second subparagraph of Article 1(b), that annex itself contains no definition of the term "needs in the general interest" and the list in that annex is in no way exhaustive as its accuracy varies considerably from one Member State to another.

The activities of funeral undertakers may indeed be regarded as meeting a need in the general interest. First, such activities are linked to public policy in so far as the State has a clear interest in exercising close control over the issue of certificates such as birth and death certificates and, second, the State may be justified in retaining influence over those activities on manifest grounds of hygiene and public health. The fact that a regional or local authority is legally obliged to arrange funerals ─ and, where necessary, to bear the costs of those funerals ─ where they have not been arranged within a certain period after a death certificate has been issued constitutes evidence that there is such a need in the general interest.

With respect to the question whether the activity of funeral undertaker meets a need in the general interest not having an industrial or commercial character within the meaning of Article 1(b) of Directive 93/36, the existence of significant competition, although not entirely irrelevant, does not, of itself, allow the conclusion to be drawn that there is no need in the general interest not having an industrial or commercial character. The national court must assess whether or not there is such a need, taking account of all the relevant legal and factual circumstances, such as those prevailing at the time of establishment of the body concerned and the conditions under which it exercises its activity.

see paras 34-40, 45, 51-53, 57, 60-61, 65-66, operative part 1-3

4. A mere review does not satisfy the criterion of management supervision by the State, regional or local authorities or other bodies governed by public law in the third indent of the second subparagraph of Article 1(b) of Directive 93/36 coordinating procedures for the award of public supply contracts since, by definition, such supervision does not enable the public authorities to influence the decisions of the body in question in relation to public contracts.

That criterion is, however, satisfied where the public authorities supervise not only the annual accounts of the body concerned but also its conduct from the point of view of proper accounting, regularity, economy, efficiency and expediency and where those public authorities are authorised to inspect the business premises and facilities of that body and to report the results of those inspections to a regional authority which holds, through another company, all the shares in the body in question.

see paras 70, 74, operative part 4