C-24/91

COMMISSION v SPAIN

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 6 February 1992 *

Mr President, procedure were made available in January Members of the Court, 1989. The architect in charge estimated the time required for the work at seven and a half months. Since the work had to be completed by the beginning of the A — Introduction 1989-1990 academic year on 1 October 1989, there was no time to lose. The factual circumstances met the conditions for the operation of the derogating provision in 1. In the present action for a declaration Article 9(d) of the directive, which allows that the Kingdom of Spain has failed to authorities awarding contracts not to fulfil its obligations under the Treaty, the comply with the provisions of the directive Commission complains that the relevant 'in so far as is strictly necessary when, for provisions of Council Directive reasons of extreme urgency brought by 71/305/EEC concerning the coordination events unforeseen by the authorities of procedures for the award of public works awarding contracts, the time limit laid down contracts 1 were disregarded in the award of in other procedures cannot be kept'. a building contract for extending the capacity of the Universidad Complutense, Madrid.

4. The Commission takes the view that the conditions for the application of that dero­ 2. In early 1989, the university's governing gating rule are not met. Even if it were council awarded a contract for the accepted that there was an urgent need to extension and renovation of the Faculty of award the contract, it would still have been Political Science and Sociology and the possible to comply with the shorter form of School of Social Work by a private contract the award procedure laid down in Article 15 procedure. of the directive.

renovation of the university's Faculty of few preliminary considerations concerning Political Science and Sociology and the the admissibility of the application are School of Social Work by private contract, indicated. omitting thus to publish a notice of invi­ tation to tender in the Official Journal of the European Communities, the Kingdom of Spain has failed to fulfil its obligations under Council Directive 71/305/EEC of 9. In an action for failure to fulfil Treaty 26 July 1971 concerning the coordination obligations, it is essential to establish of procedures for the award of public works whether the defendant State may be held contracts, especially Article 9 and Articles responsible for the offending conduct. The 12 to 19 thereof; and problem arises in particular when the State uses the machinery of private law in carrying out its functions. In such cases the possibility of State influence must be estab­ 2 Order the Kingdom of Spain to pay the lished positively. costs.

10. The situation is different where the 6. The Kingdom of Spain, the defendant, conduct of a primary State authority is contends that the Court should: concerned. The Member State is thus responsible, vis-à-vis the Community, for independent bodies even where there is no provision for direct Government inter­ dismiss the Commission's application; and vention in specific areas of conduct.

order the Commission to pay the costs. 11. A State university, even if independent from an organizational point of view, is as a rule a State institution. The type of 'legal 7. Reference is made to the Report for the person governed by public law' chosen by Hearing for a fuller account of the facts of the Member State when setting up the the case, the legal background and the university is therefore not so very important. submissions and arguments of the parties. The State may therefore be held responsible, in the context of an action for failure to comply with Treaty obligations, for legal acts of the university. B — Opinion

in Article 1(b). Under that provision, 15. Since it may be assumed that the 'authorities awarding contracts' are to directive is in principle applicable, the include 'the State, regional or local auth­ question arises whether there are sufficient orities and the legal persons governed by grounds to justify a derogation from the public law specified in Annex ľ, which are, provisions governing the award of contracts. in Spain, 'other corporate bodies subject to Because the directive itself not only sets out, 3 public rules for the award of contracts'. in Article 9, the circumstances in which a The fact of being subject to public contract derogation is possible but also offers, with award rules is in itself evidence that the the accelerated procedure, a course of awarding authority is a 'public institution'. action for exceptional circumstances, any depaiture from the general rules on publi­ cation must be confined within the limits laid down by the directive for derogations.

13. No doubts have been raised in the course of the action either as to the status of the university as a legal person governed by public law or as to the applicability of the directive, so we may proceed on the assumption that responsibility for the 16. The Commission takes the view that, conduct complained of may be ascribed to since the funds were made available without the defendant Member State. difficulty in January 1989, the university could have initiated the tendering procedure earlier. The Spanish Government denies that view, and points out that a tendering procedure cannot be initiated until the relevant budget heading has been defini­ tively confirmed in the Budget Law. The parties differ strongly in their views 2. Merits of the application concerning the measures which would, depending on the circumstances, have at least cleared the way for an earlier award of the contract.

18. It has not been possible conclusively to procedure, there is a further time limit for ascertain the exact date on which the funds the receipt of tenders of ten days from the were made available. The earliest point of date of the invitation to tender. At least 22 reference is 9 February 1989, when the days must therefore be allowed from the governing council of the Universidad date of dispatch of the notice to the Official Complutense gave its approval for the Journal of the European Communities to building work in issue to be carried out. the final date for the receipt of tenders. A The question whether any delay occurred slight delay may occur because the request between the date on which the funds were to submit a tender is dispatched after the definitively made available and the meeting period allowed for the submission of a of the governing council on 9 February request to participate. 1989 must remain open.

21. The question whether the procedure 19. Since the derogating provision of thus described really enables outside Article 9(d) of the directive, which may be tenderers to participate may be left relevant, is applicable only when, for the undecided. In any event, from a purely reasons specified therein, 'the time limit laid arithmetical point of view, the accelerated down in other procedures cannot be kept', it procedure could have been applied in the must first be determined whether the present case. directive makes provision for an appropriate response.

24. In a case where speed is of the essence it must be possible to make advance allowance for administrative technicalities in such a way that they do not engender further delay. Thus, if it could be 27. Consideration of the conditions for the confidently expected that the funds would application of the derogation under Article shortly be made available in the Budget 9(d) is therefore only of academic interest. Law — and even the date on which the Article 9(d) of the directive makes it a Budget Law would be adopted was fore­ condition that 'for reasons of extreme seeable — then administrative preparations urgency brought by events unforeseen by for the tender procedure could have been the authorities awarding contracts, the time made, even though it could not yet formally limit laid down in other procedures cannot be initiated. be kept'. In my Opinion in Case 199/85 I took the view that a strict interpretation is in principle necessary, and that the conditions of that paragraph must all be 4 satisfied. Therefore, if any one of the material criteria is not met, then the dero­ gating provision cannot apply. Even though 25. The report of the head of the design in Case 199/85 the situation as regards the office, to be found in Annex IV to the urgent nature of the work was different reply, concerning the urgent nature of the from that in the present case, that makes no work could quite clearly have been obtained difference to the validity of the abstract before the governing council reached its interpretation of the provision. decision — it was not necessary to wait until 12 February 1989.

29. It may well be that at the beginning of make careful preparation and deal with the 1989 the increase in the number of students matter without undue delay. compared to the limited space available was seen as an urgent and compelling reason to take steps to expand capacity. But the number of new enrolments was not a sudden and unforeseeable occurrence which took the university by surprise and obliged it to take immediate steps. It may be accepted that a steady increase in student 31. In that connection, the Spanish numbers will lead at a given moment to an Government has claimed that the allocation untenable situation. Such developments are, of the funds need not necessarily be classed however, in no way unpredictable. Nor can as an unforeseeable event, but in the present the precise number of new enrolments be case as unforeseen. Only when the event the determining factor, since slight fluctu­ actually took place was it possible to attach ations are unlikely either to improve or any consequences thereto. significantly to aggravate the overall situation. In February 1989, moreover, the new enrolments for the 1989-1990 academic year had not yet been registered. That would not be done until July 1989, so that at the beginning of the calendar year any calculations concerning new entries could be 32. It must first be pointed out in that made only on the basis of estimates. As far regard that such an interpretation of Article as the increasing gravity of the situation is 9(d) of the directive is contradicted by the concerned, therefore, there can be no wording of the provision. It also runs question of events unforeseen by the contrary to the aim of the measure, which is authority awarding the contract. to establish an objective standard for the applicability of the derogation. The criterion of foreseeability is a standard measure for the degree of care incumbent on an authority awarding a contract in the event of aggravating circumstances. The authority is therefore released from its duty to ensure compliance with the provisions of the directive only if the events in question are objectively unforeseeable.

2. Order the Kingdom of Spain to pay the costs of the proceedings.

I - 2001