C-44/96

MANNESMANN ANLAGENBAU AUSTRIA AND OTHERS v STROHAL ROTATIONSDRUCK

OPINION OF ADVOCATE GENERAL LÉGER delivered on 16 September 1997

1. In this case, the Court is asked to give a I — The relevant Community legislation preliminary ruling on the interpretation of the term 'body governed by public law' used by the Community legislature to define the scope of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works Directive 93/37/EEC 1 contracts (hereinafter 'the Directive').

3. Directive 93/37, which consolidates 2 Council Directive 71/305/EEC, constitutes the basic Community legislation in the field of public works contracts.

I-77

OPINION OF MR LÉGER — CASE C-44/96

5. Article 1 defines the main terms delimit­ or several of such authorities or bodies gov­ ing the scope of the Directive. erned by public law'.

6. Article 1(a) thus provides that:

8. 'Bodies governed by public law', which are thus contracting authorities in the same way as traditional public authorities, are defined by the second subparagraph of Article 1(b) as follows: '"public works contracts" are contracts for pecuniary interest concluded in writing between a contractor and a contracting auth­ ority 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 execu­ 'A "body governed by public law" means tion, by whatever means, of a work corre­ any body: sponding to the requirements specified by 3 the contracting authority'.

— established for the specific purpose of meeting needs in the general interest, not 7. The first subparagraph of Article 1(b) having an industrial or commercial char­ acter, and provides as follows:

Regulation (EEC) No 2052/88

'The lists of bodies and categories of bodies governed by public law which fulfil the cri­ teria referred to in the second subparagraph 11. The amended version of Article 7(1), are set out in Annex I. These lists shall be as entitled 'compatibility and checks', of Coun­ exhaustive as possible and may be reviewed cil Regulation (EEC) No 2052/88 of 24 in accordance with the procedure laid down June 1988 6 (hereinafter 'the Regulation') in Article 35. To this end, Member States states that: shall periodically notify the Commission of any changes of their lists of bodies and cat­ egories of bodies'.

'Measures financed by the Structural Funds or receiving assistance from the EIB or from Directive 89/665/EEC another existing financial instrument shall be in conformity with the provisions of the Treaties, with the instruments adopted

4 — OJ 1989 L 395, p. 33. 5 — Article 1. 10. Council Directive 89/665/EEC of 21 6 — Regulation on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between December 1989 on the coordination of the themselves and with the operations of the European Invest­ ment Bank and the other existing financial instruments (OJ laws, regulations and administrative provi­ 1988 L 185, p. 9). Article 7(1) was amended to its current sions relating to the application of review form by Article 1 of Council Regulation (EEC) No 2081/93 of 20 July 1993 amending Regulation No 2052/88 (OJ 1993 procedures to the award of public supply L 193, p. 5).

I-79

OPINION OF MR LÉGER — CASE C-44/96

7 — Page 2, point 1.1 of the English translation. 8 — BGBl No 462/1993. 9 — Page 4 of the English translation.

I-80

MANNESMANN ANLAGENBAU AUSTRIA AND OTHERS v STROHAL ROTATIONSDRUCK

16. Paragraph 3 provides as follows: of the B-VG, in so far as they were established for the purpose of meeting needs in the general interest, not having an industrial or commercial character, and the Federation holds a majority shareholding in those undertakings — as '(1) This Federal Law shall apply to the regards other undertakings subject to award of works contracts and works scrutiny by the Rechnungshof (audit concessions whose estimated value net authority), in so far as they were estab­ of VAT is not less than ECU 5 million. lished for the aforementioned purpose, it is for the Länder to lay down the rules concerning the award of contracts and to 1 ensure that they are applied'. 1

(3) No works contract ... may be split up with the intention of avoiding the appli­ cation of this Federal Law'.

18. The BVergG introduced two types of action: a conciliation procedure before the Bundes-Vergabekontrollkommission (Fed­ eral Procurement Review Commission) and 17. Paragraph 6(1 )(3) provides that: a review procedure before the Bundesverga- beamt (Federal Procurement Office). An application for review by the Bundesverga- beamt must be preceded by the conciliation procedure. Only if it is not possible to resolve the dispute between the contracting 'This Federal Law shall apply to contracts authority and the candidates or tenderers by awarded by contracting authorities which means of the conciliation procedure may the are: matter be referred to the Bundesvergabeamt.

20. The tasks to be carried out by the ÖStDr are laid down in Paragraph 2 of the StDrG. According to Paragraph 2(1), they involve sole responsibility for the production, for the federal administration, of printed matter 19. The Austrian State printing office requiring secrecy or security measures, such (Österreichische Staatsdruckerei, hereinafter as passports, driving licences, identity cards, 'the ÖStDr') was founded in 1804 and was the federal official journal, the federal reports originally a State undertaking. Since 1981, of laws and decisions, forms and the Wiener the ÖStDr has had a different status, pursu­ Zeitung. Those activities are collectively ant to the Bundesgesetz über die Österre­ referred to as 'public service obligations' and ichische Staatsdruckerei (Staatsdrucker­ 12 are monitored by a State control service. eigesetz) of 1 July 1981 (Federal Law on the Prices are fixed, at the request of the Austrian State Printing Office, hereinafter Director-General of the ÖStDr, by the econ­ the 'StDrG'). Paragraph 1 of the StDrG 13 omic council, which is composed of 12 reads as follows: members, eight of whom are appointed by the Federal Chancellery or various ministries and four by the works council, in accordance 14 with the rules governing trade.

'(1) An independent economic entity is established with the name "Österre­ ichische Staatsdruckerei" (hereinafter "the Staatsdruckerei"). It has its regis­ tered office in Vienna and has legal per­ 21. According to Paragraph 2(2), the ÖStDr sonality. may also pursue other activities, such as the production of other printed matter or the publication and distribution of books or newspapers.

27. On 18 October 1995 ÖStDr issued a call for tenders relating to the non-production technical installations of the 'Druckzentrum 24. It appears from the defendant's written Müllendorf', but subsequently withdrew it observations that ÖStDr's acquisition of SG following a conciliation procedure initiated was based on the latter's experience in a by the Wirtschaftskammer Österreich (Aus­ printing technique not used by ÖStDr and trian Chamber of Commerce). on the existence of a client base situated 16 abroad.

28. A restricted call for tenders was then issued, and ÖStDr informed tenderers that SRG was the firm inviting tenders and 25. SRG adds that it was registered as a 19 awarding the contracts. company with the Landgericht (Regional Court), Eisenstadt, on 4 November 1995, its

17 — Ibid., point 17. 18 — Ibid., points 21 to 23. Page 7 of the English translation of 15 — ÖS: Austrian schilling. the order for reference. 16 — Point 16. 19 — Page 8 of the English translation of the order for reference.

I - 83

OPINION OF MR LÉGER — CASE C-44/96

29. A conciliation procedure was initiated at vergabeamt on 7 December 1995 in accord­ the request, lodged on 15 November 1995, of ance with Paragraph 92 of the BVergG. the Verband der Industriellen Gebäudetech­ nikunternehmen Österreichs (Association of Industrial Construction Undertakings in Austria), on the ground that the project was a public works contract within the meaning IV — The questions referred for a prelimi- of the BVergG, and thus fell within the scope 20 nary ruling of that Law.

22 — Ibid., p. 9. The national court states that '[o]n 21 December 31. No amicable settlement having been 1995 the applicants submitted a supplementary pleading in which they alleged that they had been informed by the con- reached, Mannesmann Anlagenbau Austria tracting body on 7 December 1995 that the restricted invi- tation to tender at issue had been revoked'. It adds that '[a]t AG , J. L. Bacon GesmbH, Haustechnische the same time the applicants were told that an ''accelerated open procedure" would be carried out'. The applicants con- Gesellschaft für Sanitär-, Wärme- und Luft- firm the facts as set out in the order for reference. However, Technische Anlagen GesmbH and Sulzer the defendant states that it initiated a call for tenders using the accelerated open procedure, which was published in the Infra Anlagen- und Gebäudetechnik Austrian Official Gazette of 7 -10 December 1995 and that it was in respect of that call for tenders that the applicants GesmbH (hereinafter 'the applicants') initi­ brought the proceedings before the Bundesvergabeamt ated a review procedure before the Bundes- which gave rise to the current reference for a preliminary ruling [p. 15 of the French translation of its observations]. Although there thus appeared to be discrepancies between the descriptions of the national proceedings giving rise to the present case, they do not appear to be such as to impede the Court's task in so far as, on the basis of the information 20 — Ibid. available, the characteristics of the two types of procedure for calls for tenders referred to do not affect the nature of 21 — Pages 8 and 9 of the English translation of the order for the question referred to the Court by the national court. reference.

3. If a contracting authority starts a project and that project is therefore to be classified as a public works contract within the mean­ 6. If a contracting authority which both ing of Directive 93/37/EEC, may the inter­ meets needs in the general interest not hav­ vention of a third party who prima facie ing an industrial or commercial character and does not fall within the personal scope of the also carries on commercial activities estab­ Directive have the effect of altering the clas­ lishes operating installations which are sification of a project as a public works con­ capable of serving both purposes, is the tract, or should such a proceeding be award of the contract for constructing such regarded as an evasion of the personal scope operating installations to be classified as a

I - 85

OPINION OF MR LÉGER — CASE C-44/96

public works contract within the meaning of V — The admissibility of the reference for a Directive 93/37/EEC, or does Community preliminary ruling law contain criteria according to which such an operating installation can be classified either as serving public needs or as serving commercial activities, and if so, which crite­ ria? 34. The Bundesvergabeamt has described the characteristics which in its view justify its classification as a 'court or tribunal' within the meaning of Article 177 of the Treaty and, consequently, the admissibility of the refer­ ence.

I - 86

MANNESMANN ANLAGENBAU AUSTRIA AND OTHERS v STROHAL ROTATIONSDRUCK

disputes concerning the procedures for the seen, inter alia, from the fact that it enjoys a award of public contracts under the BVergG. power of annulment under the law. There is no doubt that it was established by law, nor that it exercises binding jurisdiction.

38. There is nothing in the BVergG to sug­ 41. The independence of the Bundesverga­ gest that the Bundesvergabeamt is in any beamt and of its members seems indisput­ way temporary. The fact that it was estab­ able. Its president and deputy president are 25 lished by the law is evidence of the Republic professional judges, the appointing auth­ of Austria's intention to create a lasting body ority must ensure that its other members responsible for hearing public procurement represent a fair balance between contracting 26 disputes with no temporal limits on its pow­ authorities and tenderers, an exhaustive list ers. is given of the grounds for revocation, which correspond to objective situations or, in the case of serious negligence, to omissions required by the Law to be so serious as to reduce the risk of arbitrary action or inter­ ference on the part of the administrative 27 authorities. I would add that the Law states that the members of the Bundesverga­ 39. Furthermore, it is apparent from Para­ beamt must be independent and may not 28 graph 78(2), which recalls that the Bundes­ receive instructions, and that the adminis­ 29 vergabeamt is to exercise the powers granted tration may not vary or annul its decisions. to it by the BVergG, and from Paragraph 91 et seq., concerning its jurisdiction, that it applies rules of law in adopting its decisions since it resolves disputes arising as a result of infringement of the BVergG.

43. The fact that reference to the Bundesver- VI — The questions gabeamt must be preceded by a conciliation stage before the Bundes-Vergabekon- trollkommission, which must hear the par­ 30 ties, ensures only that the rules of adver­ sary procedure are observed before that authority and not before the Bundesverga- beamt itself. Furthermore, as drafted, the rule under which the Bundesvergabeamt may 46. Public authorities have a natural ten­ obtain any information from the contracting dency, which is difficult to reconcile with the 31 authorities and the contractors does not in objective of completing the internal market, any way guarantee the right of each party to favour national undertakings in order to systematically to be informed of the pleas in maintain employment and to support econ­ law and claims submitted by the other party omic development in their own Member since, according to its wording, information State. requested by the Bundesvergabeamt is sent only to that body. Yet in order to be effec­ tive, the rules of adversary procedure require the parties to be able to respond to their opponents' arguments.

Bundesvergabeamt acted in every respect as a court or tribunal within the meaning of Article 177 of the Treaty. 33 — Second recital in the preamble to the directive. See also, on the objectives of the directive — at that time Directive 701/305 — Case 31/87 Beentjes [1988] ECR 4635, para- graph 11, and Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 18. 34 — See, as regards the reasons justifying the adoption of public procurement rules, Brunelli, P.: Marchés Publics et Union 45. For those reasons, I conclude that the Européenne — Nouvelles Règles Communautaires, 1995, p. 9 et seq. As regards the priority given to matters of fact reference is admissible. over matters of form, this Court has held, in a case in which the outcome depended on the meaning of the term State, that the term '[had to] be interpreted in functional terms' and that '[t]he aim of the directive ... would be jeopardised if the provisions of the directive were held to be inappli- cable solely because a public works contract is awarded by 30 — Ibid., Paragraph 88(1). a body which, although it was set up to carry out tasks 31 — Ibid., Paragraph 84(1). entrusted to it by legislation, is not formally a part of the 32 — Page 10 of the English translation of the order for reference. State administration' (Beentjes, cited above, paragraph 11).

I-88

MANNESMANN ANLAGENBAU AUSTRIA AND OTHERS v STROHAL ROTATIONSDRUCK

48. The Directive must be interpreted in the The first, second and sixth questions light of that objective.

52. By these questions the national court essentially seeks to ascertain whether an undertaking which devotes part of its activ­ ity to meeting needs in the general interest, 49. In order for a works contract to be a not having an industrial or commercial char­ public works contract and, thus, for the acter, and the remainder to a commercial Directive to apply, one of the contracting activity must apply the provisions of the parties must satisfy the definition of 'con­ Directive to all works contracts entered into tracting authority' within the meaning of the by it or only to those relating to installations Directive. for use exclusively for the purposes of the former.

needs in the general interest, not having an 57. The concept of 'special or exclusive industrial or commercial character — the rights', which appears in Article 90(1) of the commercial part of its activities also falls Treaty, applies to undertakings which have a within the scope of the Directive, since only monopoly or enjoy a privileged situation the purpose for which the entity was estab­ recognised by, and in exchange for a situa­ 35 lished is relevant. In the submission of the tion of dependence vis-à-vis, the State. That defendant, the Austrian Government and the article requires Member States to withdraw Netherlands Government, the criteria or to refrain from enacting measures con­ referred to in the second subparagraph of trary to the Community competition rules in Article 1(b) of the Directive do not make it respect of such undertakings. possible to treat OStDr as a 'body governed by public law' and to subject any of its activities to the Directive.

58. Even though, as the Austrian Govern­ The concept of 'body governed by public ment states, 'the production and publication law': concurrent legislative conditions of printed matter ... takes place under "privi­ 36 leged" conditions ...' which might justify use of the concept of 'special or exclusive rights' to describe the tasks of OStDr, that expression does not determine whether the public works legislation applies, and is there­ fore not helpful for the purposes of inter­ preting the Directive. 55. It must be borne in mind that the Direc­ tive applies to public works contracts which it defines as contracts one of the parties to which is a 'contracting authority'; that term includes 'bodies governed by public law'.

Meeting needs in the general interest, not having an industrial or commercial character

61. It is clear from the wording of the sec­ ond subparagraph of Article 1(b) of the Directive that the three conditions set out 64. The expression 'needs in the general therein are cumulative. interest, not having an industrial or commer­ cial character' is not easy to understand.

I-91

OPINION OF MR LÉGER — CASE C-44/96

66. In the present case, the greatest difficulty authorities which may exercise an influence arises in drawing a line between the activities over those decisions'. in the general interest which have an indus­ trial or commercial character and those which do not.

67. In a different, although related, legal context (since it concerned relations between the State and public undertakings) the Court 69. That description of public and private has laid down a number of criteria which activities makes it easier to understand the make an attempt at delineation possible. type of area covered by the 'bodies governed by public law' referred to by the Directive. The Community legislature intended it to apply to entities meeting needs in the general interest whose activities escape market forces, in whole or in part. Certain activities which by their nature fall within the funda­ mental tasks of the public authorities cannot be subject to a requirement of profitability and therefore are not intended to generate a 43 68. It has held that '... the State may act profit. It is possible that the reason why, in either by exercising public powers or by car­ drawing a distinction between bodies whose rying on economic activities of an industrial activity is subject to the public procurement or commercial nature by offering goods and legislation and other bodies, the legislature 41 services on the market'. In another judg­ used the criterion of 'needs in the general ment it noted that '... private undertakings interest, not having an industrial or commer­ determine their industrial and commercial cial character' is that those of the second strategy by taking into account in particular type are subject to competition from other requirements of profitability. Decisions of traders which discourages them from select­ public undertakings, on the other hand, may ing their contractual partners on the basis of be affected by factors of a different kind discriminatory criteria. For that reason, the within the framework of the pursuit of constraints imposed by the legislation there­ objectives of public interest by public fore prove to be less useful.

70. In this case, the activity for which The criterion of the purpose for which the ÖStDr is responsible under the StDrG com­ body was established prises the production of official administra­ tive documents, some of which serve to iden­ tify persons and others to disseminate State legislation, regulations and administrative material; such documents are thus closely linked to matters of public order and to the 72. Next it is necessary to determine institutional operation of the Republic of whether the ÖStDr was established 'for the Austria. The specific nature of the needs specific purpose of meeting' the needs which which OStDr is responsible for meeting, it is responsible for fulfilling. which are thus linked to the exercise of pre­ rogatives of public authority, explains the fact that its activities take place under condi­ tions which largely escape competition since, on the one hand, it is in the form of a monopoly 44 and, on the other, even though they are fixed according to the rules govern­ 73. According to the wording, only the pur­ ing trade, its prices are set by an authority pose for which the body was established is which essentially forms part of the public relevant in determining whether it should be authority. 45 The State must be able to enjoy considered to be a 'body governed by public both guaranteed supply and production con­ law', within the meaning of the Directive. ditions which ensure that standards of confi­ What counts is, naturally, the objective actu­ dentiality and security are observed and ally pursued. A stated aim of meeting indus­ which avert the risk of illegal reproduction trial or commercial needs, concealing activi­ of the printed documents. ties in the general interest in order to avoid the restrictive rules of the law, could not be accepted by the national court.

79. That disadvantage can be avoided by selecting the appropriate legal instrument for the objectives pursued by the public authori­ 77. Apart from the fact that it is not stated ties. Since the reason given for the creation in the Directive, a criterion based on the of the body determines the legal rules which relative proportion of the entity's activities apply to contracts entered into by it, those devoted to meeting needs not having an responsible for setting it up must restrict its industrial or commercial nature, as advocated objects if they wish to avoid the undesirable by the Austrian and Netherlands Govern­ effects of those rules on activities outside 46 ments, would appear to facilitate circum­ their scope. They must also ensure that it vention of the law. A body may very well evolves if, as in the present case, application have been established for the purpose of of the public procurement legislation to meeting public needs but in fact pursue those activities of the undertaking which are activities of a purely industrial or commer­ purely industrial or commercial in nature is cial nature. If they are dominant in its activ­ considered too restrictive. ity, the suggested interpretation would mean that the body as a whole would no longer be subject to the rules of the Directive. It would therefore suffice for public authorities sys­ tematically to resort to such a practice to avoid application of the Community legisla­ tion to any public works contracts. The legal nature of ÖStDr and the applicable rules

78. One must certainly not neglect the argu­ ment that extension of the application of that 80. OStDr was created in order to satisfy the 47 legislation to activities of a purely industrial State's requirements for printed matter. It 48 has legal personality. Furthermore, it is or commercial nature is an onerous con­ 49 monitored by a State control service and is straint and may seem unjustified since it does 50 subject to scrutiny by the audit authority

81. Since the undertaking falls within that 84. More specifically, the national court definition, all works contracts entered into wishes to ascertain, first, whether Article by it are subject to the provisions of the 1(b) of the Directive can be interpreted as Directive. Article 1(a) does not define public meaning that entities falling within one of works contracts, and therefore does not the following categories can be considered to determine the scope of the Directive accord­ be 'bodies governed by public law': ing to the activity in respect of which con­ tracts are awarded but rather by reference to the characteristics of the body entering into the contract with the contractor. I consider that this should form the basis for the — undertakings established by a 'body gov­ answer to the first and sixth questions. erned by public law' for the purpose of meeting needs of an industrial or com­ mercial nature, and in which that body holds more than half of the share capital;

82. Consequently, the second question, which was raised in the event that OStDr was subject to the Directive only as regards — undertakings carrying out commercial its activities of a public nature, requires no activities, in which a 'body governed by answer. public law' holds more than half of the share capital and which receive from it financial resources derived from activities meeting needs in the general interest, not having an industrial or commercial char­ The third, fourth and fifth questions acter.

83. These questions relate essentially to the 85. In defining 'bodies governed by public conditions to be satisfied by subsidiaries of a law' the wording of the Directive already

86. The concept of 'contracting authority' 88. The Austrian court also asks whether the acquired a broader meaning in 1989 in order classification of a works project as a public that the Community rules should not be works contract can be changed as a result of restricted to legal persons governed by pub­ the intervention of a third party which is not 51 lic law, when numerous legal entities with a 'contracting authority' within the meaning powers traditionally forming part of the of the Directive, with the risk that such an tasks of the public authorities in fact failed to approach might provide a means of avoiding satisfy that formal criterion. The Commu­ application of the Directive. nity legislature thus confirmed the approach in the case-law of the Court, which inclines towards a functional interpretation of the 52 54 — Page 11 of the French translation of the written observa- concept of 'contracting authority'. On the tions. I would add, however, for the sake of completeness, same basis, it does not include bodies which, that, pursuant to Article 2 of the Directive, bodies which are not 'contracting authorities' may be subject to the pro- although dependent on such an authority, visions of the Directive if the contracts awarded by tnem 53 are more than 50% subsidised by a 'contracting authority'. carry out purely private activities. The contract at issue must also be 'covered by class 50, group 502, of the general industrial classification of econ- omic activities within the European Communities (NACE) nomenclature' or 'relat[e] to building work for hospitals, facilities intended for sports, recreation and leisure, school and university buildings and buildings used for administra- 51 — Directive 71/305 defined as 'authorities awarding contracts', tive purposes' (Article 2(2)). That amounts to a derogation the State, regional or local authorities and certain legal from the principle that the Directive applies to works con- persons governed by public law. Council Directive tracts awarded by a 'contracting authority'. If it intends to 89/440/EEC of 18 July 1989 amending Directive rule on the application of that provision to the case before 71/305/EEC (OT 1989 L 210, p. 1) substituted, in particular, it, the national court must consider whether the works con- the concept of 'bodies governed by public law', as referred tract at issue which clearly does not relate to the construc- to in Directive 93/37, for that of 'legal persons governed by tion of buildings of the type listed in Article 2(2) falls public law'. within group 502 of the NACE , which includes, in particu- 52 — Beentjes, cited above. lar, civil engineering undertakings. It must also establish the level of any subsidies paid by OStDr to SRG. 53 — See point 64 et seq. above.

I-97

OPINION OF MR LÉGER — CASE C-44/96

97. As already pointed out, however, it is for into by such an undertaking are traditionally the court before which the dispute is not covered by the Community rules. brought to ascertain the truth of the reasons given for the creation of the body entering into the contract in question. Its assessment of the facts will determine the relevant legal 56 classification.

100. The court will verify that there is indeed a connection between the works envisaged and the undertaking's objects. It is clear that an undertaking which enters into a contract for the realisation of works which do not contribute to its own activities must be presumed to be acting on behalf of another. If a 'contracting authority' can be identified as the beneficiary, the Community 98. It is thus for that court to establish in rules on public procurement will logically concreto whether an undertaking was formed apply. by a 'contracting authority' in order to enter into works contracts for the sole purpose of avoiding application of the Community rules. The actual purpose for which the undertaking was established — in this case to enter into public works contracts — can thus The seventh question lead the court to decide that the contract in question was entered into on behalf of the 'contracting authority', which would justify application of the Directive.

101. By this question, the national court is seeking to ascertain whether Community funding of a works project is conditional upon the recipient undertaking complying with the Community public procurement legislation even if that undertaking, in the present case SRG, is not a 'body governed 99. The 'contracting authority' may also opt by public law' and is therefore not a 'con­ to approach an existing undertaking. In this tracting authority'. case, it appears to be more difficult to iden­ tify the illegal conduct if, as is likely, the undertaking selected is one not set up to pur­ sue an activity designed to meet needs in the general interest not having an industrial or commercial nature, since contracts entered 102. The wording of Article 7(1) of the Regulation might be interpreted in two ways. Either the Community must ensure 56 — See points 72 and 73 above. that recipients of aid comply with the

108. The legislature's intention seems to be, rather, to ensure that expenditure incurred by the Community in the context of struc­ tural policies is strictly limited to operators who comply with the rules of Community law and does not sanction conduct contrary 105. It refers to the 'compatibility' and 'con­ thereto. formity' with Community procurement leg­ islation of measures in respect of which Community funding is sought. The require­ ment that the measures must be in confor­ mity with Community law presupposes that they fall within the scope of each of the rel­ evant Community acts. Measures taken by a 109. Therefore, a body in receipt of Com­ body which does not exhibit the legal char­ munity funding which is not a 'body gov­ acteristics of a 'body governed by public erned by public law', within the meaning of law' within the meaning of the Directive are Directive 93/37, is not bound by the provi­ clearly compatible with it since they are not sions of the Directive relating to review pro­ subject to the rules contained therein. cedures in public procurement.

I-99

OPINION OF MR LÉGER — CASE C-44/96

Conclusion

110. In view of the foregoing I propose that the following answer be given to the national court's questions:

(1) Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts is to be interpreted as meaning that:

(3) Article 7(1) of Council Regulation (EEC) No 2052/88 of 24 June 1998 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Article 1 of Council Regulation (EEC) No 2081/93 of 20 July 1993 is to be interpreted as meaning that undertakings in receipt of Community funding are not subject to the review procedures laid down by 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 if they are not them­ selves 'bodies governed by public law' within the meaning of Article 1(b) of Directive 93/37.

I-101