C-214/00

— review of certain decisions adopted by the contracting authorities during the 2. The aim of Directive 89/665 is to ensure procedure for the award of public the effective application of the Directives contracts, and on public procurement, 3in particular of Directive 71/305/EEC, 4 repealed and replaced by Directive 93/37/EEC, 5 of Directive 77/62/EEC, 6 repealed and replaced by Directive 93/36/EEC, 7and of

— the possibility of all types of appropri- 3 — See the first, third and fourth recitals. ate interim measures being granted in 4 — Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682). 1 — Original language: French. 5 — Council Directive 93/37/EEC of 14 June 1993 (OJ 1993 L 199, p. 54). 2 — Council Directive 89/665/EEC of 21 December 1989 on the 6 — Council Directive 77/62/EEC of 21 December 1976 coor- coordination of the laws, regulations and administrative dinating procedures for the award of public supply contracts provisions relating to the application of review procedures (OJ 1977 L 13, p. 1). to the award of public supply and public works contracts (OJ 1989 L 395, p. 33, hereinafter called 'the review 7 — Council Directive 93/36/EEC of 14 June 1993 (OJ 1993 directive'). L 199, p. 1).

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Directive 92/50/EEC. 8 Directives 92/50, 4. Article 2( 1 ) of the review directive states: 93/36 and 93/37 are designed to coordinate procedures for the award of public contracts for works, supplies and services in the Member States.

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5. Under Article 2(8) of Directive 89/665, A "body governed by public law" means '[w]here bodies responsible for review pro- any body: cedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review... .'

— established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and

6. The term 'contracting authorities' is defined in Directives 92/50, 93/36 and 93/37.

— having legal personality, and

10. Since the present action was lodged, the Kingdom of Spain has adopted a new (b) they are financed, for the most part, by consolidated version of the aforementioned public authorities or other bodies gov- law, 11 which merely brings together and erned by public law, or are subject to organises the previous provisions, without m a n a g e m e n t supervision by those amending their substance.

11 —The Texto Refundido d e la Ley de Contratos de las 10 — BOE No 119, 19 May 1995, p. 14601, hereinafter 'Law Administraciones P ú b l i c a s (BOE No 1 4 8 , 21 June 2000 13/1995'. p. 21775).

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11. As regards administrative appeals, the substantive issues, render it impossible Article 107 of Ley 30/1992 de Regimen to continue the procedure, render it imposs- Jurídico de las Administraciones Públicas y ible to conduct a defence, or cause irrepar- del Procedimiento Administrativo Común, able harm to legitimate rights or interests.' as amended by Ley 4/1999, 12 provides that the following measures are subject to direct appeal:

13. Article 111 of Law 30/1992, provides, under the heading 'Suspension of oper- ation':

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3. If the competent authority has not given accordance with the provisions of the an express decision on the application for previous article. In that event, the party suspension of operation of the contested concerned shall request confirmation of the measure within a period of 30 days from measures when he lodges the appeal, which the date on which the application was he is required to do within 10 clays from the entered in the case-list, suspension will be date of notification of the adoption of the deemed to have been granted.' protective measures... .

14. Article 129 et seq. of Law 29/1998 If no appeal ensues, the measures granted establish a system for the expeditious will be automatically void, and the appli- adoption of protective measures. Under cant will be required to pay compensation Article 129(1): for the damage caused by the protective measure.'

'The parties concerned may request, at any stage of the proceedings, the adoption of 16. Articles 29 and 30 of Law 29/1998 any measures to ensure the effectiveness of apply to: (a) cases in which the authority is the judgment to be given.' required, pursuant to a provision, a contract or a measure, to provide a par- ticular service to one or more specific persons; (b) cases in which the authority does not implement its definitive measures, 15. Article 136 of the law provides: or (c) blatantly unlawful conduct.

' 1 . In the circumstances referred to in Articles 29 and 30, a protective measure shall be adopted, unless it is evident that the criteria laid down in those articles are II — Procedure not fulfilled or that the measure will seriously affect the general interest or the interests of third parties, which the court shall assess in detail. A — The prc-litigation stage

2 1 . In spite of the various exchanges which took place during 1998, the Spanish auth- 19. In that letter, the Commission makes orities and the Commission maintained the following complaints about the Spanish their respective positions in respect of the transposition measures: first and third complaints — relating to scope of application and to interim meas- ures. With regard to the second complaint, which alleged that the notion of renewable measures had been incorrectly transposed, the authorities informed the Commission, on 14 January 1999, that the new law on — their scope ratione personae is not the administrative courts partly amended the same as that of the review directive; rules applicable to procedural measures.

— 'procedural' measures are subject to 2 2 . On 2 February 1999, the Spanish direct appeal only in exceptional cir- authorities sent the Commission official cumstances, and notification of Laws 29/1998 and 4/1999.

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— extend the system of review pro- cedures provided for by that direc- 25. The Commission considered that the tive to decisions adopted by all reply given did not enable it to conclude contracting authorities, within the that the Kingdom of Spain had complied meaning of Article 1(1) of Direc- with its obligations under the review direc- tives 92/50/EEC, 93/36/EC and tive and decided to bring the present action. 93/37/EC, including companies governed by private law estab- lished for the specific purpose of meeting needs in the general inter- est which do not have an industrial or commercial character, have legal personality, and are financed for the most part by public auth- orities or other entities governed by B — Forms of order sought by the parties public law, or are subject to man- agement supervision by the latter, or have an administrative, manage- ment or supervisory board more than half of whose members are 26. The Commission's action was lodged at appointed by the public authorities the Registry of the Court of Justice on or other entities governed by public 30 May 2000. law;

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— allow review to be sought of all — Order the Commission to pay the decisions adopted by the contract- costs.' ing authorities, including all pro- cedural measures, during the pro- cedure for the award of public contracts;

III — The first plea, concerning the incor- — p r o v i d e for the possibility of rect transposition of the scope ratione appropriate interim measures personae of the review directive (infringe- b e i n g g r a n t e d in r e l a t i o n t o ment of Article 1(1) of the directive) decisions adopted by the contract- ing authorities, including measures aimed at enabling administrative decisions to be suspended, remov- ing for that purpose difficulties and obstacles of any type and in par- A — Arguments of the parties ticular the need first to bring an action against the decision of the contracting authority,

31. Consequently, the Spanish authorities law are, by definition, always excluded are required to give the term 'body gov- from the scope of application of that law, erned by public law', used in the procedure even if they otherwise comply with the directives, the meaning that it has in provisions of Article 1(3) of the Law in Community law. According to the Com- every respect. mission, Directives 92/50, 93/36 and 93/37 make no mention of the regime, public or private, under which the bodies governed by public law were set up, nor the legal form adopted, but focus rather on other criteria, including the purpose for which the bodies in question were created. That interpretation was confirmed in the judg- 33. Since public bodies incorporated under ment in Mannesmann Anlagenbau Austria private law arc excluded from the scope of and Others. 1 4In that case, the Court of that Spanish legislation, they likewise fall Justice held that the expression must be outside the scope of the provisions govern- interpreted in functional terms. Therefore, ing the procedures for awarding public the legal form of an entity is irrelevant. contracts and, therefore, of the review procedures relating to public contracts, whether they were set up to meet needs of general interest or purely industrial or commercial needs. That exclusion therefore infringes the provisions of Directives 92/50, 93/36 and 93/37 which define their scope, and also the provisions of Directive 89/665, since it precludes the application of the 32. The Commission maintains that the procedural safeguards provided by that wording of Article 1 of Law 13/1995, directive. which reproduces almost verbatim the content of the corresponding provisions of the procedure directives, nevertheless con- tains one essential difference. Under the provision, entities governed by private law are excluded from the field of application of that law. In that regard, the Commission states that, in the Spanish legal system, the 34. As regards the Spanish Government's term 'body governed by public law' is argument that the solution to the problems linked to the method by which those of interpretation regarding the term 'needs entities are set up. It therefore infers that in the general interest which arc not of an Law 13/1995, read in conjunction with its i n d u s t r i a l or c o m m e r c i a l c h a r a c t e r ' sixth additional provision, adds a prerequi- requires a detailed casc-by-case assessment, site which is not provided for in the in order to determine whether a body or an Community legislation, namely that the entity complies with the conditions for entity should be governed by public law. applicability of the directives, the Commis- Consequently, entities governed by private sion points out that those problems cannot provide a reason for excluding a priori, as that Government has done, a whole group 1 4 — Case C-44/96 Mannesmann Anlagenbau and Others of bodies — entities governed by private [1998] ECR I-73, paragraphs 17 to 35. law which fulfil the three conditions laid

36. According to the Spanish Government, 38. In the alternative, the Spanish Govern- the Commission, although formally com- ment contends that the scope ratione per- plaining that it has infringed the provisions sonae of the procedure directives has been of Article 1 of the review directive, is in fact correctly transposed. complaining that Article 1 of the procedure directives has been incorrectly transposed. However, since it has failed to bring the matter of the infringement of those provi- sions before the Court of Justice, the Commission has forfeited the possibility of obtaining a decision from the Court on that point. The Spanish Government main- 39. As regards, first of all, the interpre- tains, therefore, that it is for the Commis- tation of the applicable rules, the Spanish sion to bring more suitable proceedings, Government points out that the expression and consequently to initiate a different 'body governed by public law', which is form of procedure to establish the infringe- used in the procedure directives, refers to ment of Directives 92/50, 93/36 and 93/37 an entity governed by public law and that, if it intends to proceed against the Kingdom in Spain, the terms 'entity governed by of Spain for incorrectly transposing their public law' and 'body governed by public scope ratione personae. law' are used indiscriminately.

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B — Assessment contract award procedures falling within the scope of Directives [92/50, 93/36 and 93/37], decisions taken by the contracting authorities may be reviewed effectively . . and, in particular, as rapidly as possible in 44. It is apparent from Article 1 of Law accordance with the conditions set out in 30/1992, read in conjunction with its sixth the following Articles... on the grounds that additional provision, that public bodies such decisions have infringed Community incorporated under private law are, in law in the field of public procurement or principle, excluded from the rules govern- national rules implementing that law.' ing public procurement.

16 — The 'special sectors' are the public utility sectors, such as water, energy, transport and telecommunications. 47. Article 1(1) of the review directive 17 — Council Directive 90/531/EEC of 17 September 1990 on provides: the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1990 L 297, p. 1). 18 — Council Directive 92/13/EEC of 25 February 1992 coor- dinating the laws, regulations and administrative provi- sions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14). 19 — The fourth recital in the preamble to Directive 92/13 'The Member States shall take the measures makes it clear that Directive 89/665 is limited to public procurement procedures in the so-called 'traditional' necessary to ensure t h a t , as regards sectors.

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appeal remedies provided for the tradi- 51. The objective of the review directive tional sectors by Directive 89/665 and also confirms the wording of Article l(1), and provides specific grounds of appeal. 2 0 thus the close link between that directive and the procedure directives.

20 — Sec attestation procedure (Articles 3 to 7 of Directive 54. It is apparent from the foregoing argu- 92/13), corrective mechanism (Article 8 of Directive 92/13) and conciliation procedure (Articles 9 to 11 of Directive ments that the term 'contracting auth- 92/13). orities' contained in Article 1 of the review

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directive is defined in Article 1(b) of the members are appointed by the State, procedure directives. It remains to define regional or local authorities or by other what is meant by that term. bodies governed by public law'.

55. Under Article 1(b) of Directives 92/50, 93/36 and 93/37 contracting authorities are:

56. In respect of that definition, the Court has consistently held 21 that '... "contract- '... the State, regional or local authorities, ing authority", including a body governed bodies governed by public law, associations by public law, must be interpreted in formed by one or more of such authorities functional terms.' 22 or bodies governed by public law.

indent of the second subparagraph of tained that SA HLMs could not be Article 1(b) of the procedure directives lists regarded as contracting authorities and the alternative conditions which each that, therefore, the procedures for awar- reflect the close dependency of a body on ding public works contracts were not the State, regional or local authorities or applicable to them. other bodies governed by public law. 24

61. The Court did not focus on the legal form and regime of those bodies covered by 59. It is in the light of that case-law that the private law, but assessed whether the three Court assesses whether or not a body cumulative conditions set out in Article 1(b) should be classified as a contracting auth- of Directive 93/37 were fulfilled. In that ority within the meaning of Article 1(b) of regard, it considered, unlike the French the procedure directives. Government, that the third condition was also fulfilled since the management of SA HLMs was subject to supervision by the public authorities which allowed the latter to influence the decisions of the SA HLMs in relation to public contracts. 26

63. In the same way, in BFI Holding, 27 the procedure directives. In that regard, it Court held that ARA, a limited company s h o u l d be p o i n t e d o u t t h a t , u n d e r incorporated in accordance with private Article 1(b) of the procedure directives, law, to which the Municipalities of Arnhem the legal form and regime of a body is not and Rheden (Netherlands) had decided to one of the criteria for classifying that body entrust tasks in the field of waste collection as a body governed by public law or as a and cleaning of the municipal road net- contracting authority. work, could fall within the scope of the term 'body governed by public law' and, in consequence, be regarded as a contracting authority within the meaning of Article 1(b) of Directive 92/50, if it fulfilled the con- ditions laid down in that provision. In that judgment, the Court stated that 'the word- ing of t h e s e c o n d s u b p a r a g r a p h of Article 1(b) of Directive 92/50 makes no reference to the legal basis of the activities of the entity concerned' 28 and that, 'with a 65. I therefore consider that the Spanish view to giving full effect to the principle of legislation transposing the review directive, freedom of movement, the term "contract- by excluding a priori from the scope ing authority" must be interpreted in ratione personae of that directive bodies functional terms.... In view of that need, whose legal form and regime fall under by no distinction should be drawn by reference private law, is not complying with the to the legal form of the provisions setting meaning of 'contracting authority' laid up the entity and specifying the needs down in Article 1 of the review directive which it is to meet.' 29 and defined in the directives on public procurement procedures, particularly in Directives 92/50, 93/36 and 93/37.

6 9 . T h e relevant Spanish p r o v i s i o n s (namely, Article 107 of Law 30/1992 and 1. The Commission's arguments Article 25(1) of Law 29/1998) limit the possibility of bringing actions challenging procedural measures, that is to say, admin- istrative measures which do not bring an administrative procedure to an end. 67. The Commission complains that the Kingdom of Spain limits the possibility of challenging certain decisions taken by the contracting authorities, particularly certain procedural measures. 70. In support of that view, the Commis- sion refers to two types of procedural measure which, contrary to the provisions of the review directive, are not subject to appeal. 68. The Commission points out that Direc- tive 89/665 does not provide for any derogation from the possibility of chall- enging an unlawful decision taken by con- tracting authorities. Accordingly, it argues that, since the Spanish review provisions preclude the possibility of challenging cer- 71. The first example refers to a decision tain unlawful decisions taken by contract- given by the Tribunal Supremo (Supreme ing authorities, the scope of Directive Court) (Spain) concerning the request for 89/665 has been improperly reduced. The additional documentation. According to Commission points out that the Court of the Commission, the request for production Justice, in its judgment in Alcatel Austria of additional documents made to a com- and Others, 31 held that it is clear from pany competing in a tender procedure can Article 1(1) of Directive 89/665 that the be challenged only if the undertaking con- subject-matter of those review procedures cerned is excluded from the procedure because it has not produced the additional documents requested. The Commission 31 — C a s e C-81/98 Alcatel Austria and Olheis [1999] ECR argues that that undertaking, even if it is I-7671, paragraph 35. not excluded from the procedure, could still

76. Under Spanish law, by definition, a procedural measure does not result in harm to the party concerned but, at the very 73. The Commission concludes that the most, prepares a definitive decision which Spanish transposition legislation excludes will be favourable or unfavourable to him. from any judicial review certain decisions Thus, a procedural measure does not taken by the contracting authority on involve adopting a position, but forms part account of their nature and content. By so of a procedure initiated in order to prepare doing, it infringes the provisions of Article 1 a decision. The Spanish Government states of the review directive. that if a measure which is ostensibly a procedural measure in itself involved adopting a position, it would cease to be a procedural measure in the strict sense and would be open to appeal. Indeed, if that were not the case, the fundamental right to 2. The arguments of the Kingdom of Spain effective legal protection would be jeop- ardised.

74. The Kingdom of Spain disputes that 77. The distinction which Spanish law plea on the ground that the Commission draws between procedural or preparatory has not established the existence of an measures 3 2 and decisions is not unusual. In infringement. It submits that the measures to which the Commission refers cannot be regarded as open to appeal because they do 32 — In that context, the terminology used is unimportant.

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80. With regard to the first example pres- ented by the Commission, the Spanish Government points out that the Commis- sion has not stated the reason why the criteria applied by the Tribunal Supremo in the judgment it has cited are contrary to the objective of Directive 89/665. In that judg- 78. In any event, the Spanish Government ment, the Tribunal Supremo stated that: does not understand what benefit it is to the party concerned to challenge a pro- cedural measure which in itself does not cause him any harm. Similarly, it maintains that the aim of the review directive cannot be to paralyse the efficient conduct of the public procurement procedure by allowing — the contested measure represents both dilatory and untimely appeals against every the final decision awarding the measure taken preparatory to a decision contract and an obligation imposed adopted by a contracting authority. by the administration on the three successful undertakings to provide it with certain additional documentation (first ground of the judgment);

79. As regards the Commission's assertion — that obligation is a procedural measure that the Spanish system jeopardises the since it does not bring an end to the uniform implementation of Directive tender procedure, but is only a stage in 89/665, the Spanish Government points the process which will terminate in the out that the Commission has not shown in award of the contract. It is not a what respect that system jeopardises the decision subject to independent appeal objective of the review directive. It notes but merely a preliminary to the that, in accordance with the settled case- decision. The validity of that request

81. As regards the second example, the Spanish Government maintains that the committees in question cannot be regarded as contracting authorities, since they do not take decisions, but merely take part in the 84. Article 2(1) of Directive 89/665 lists the decision-making process. measures to be taken concerning the review procedures which the Member States must make available in national law. According to Article 2(1)(a), they must include provi- sion for the adoption of interim measures 82. In consequence, the Spanish Govern- by w a y of i n t e r l o c u t o r y p r o c e d u r e s . ment considers that, since the Commission Article 2(1)(b) refers to the possibility of has not shown in what respect Directive setting aside or ensuring the setting aside of 89/665 has not been correctly transposed decisions taken unlawfully, and into Spanish law and why it cannot take Article 2(1)(c) concerns the award of dam- full effect until the general rule that a ages.

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86. It is also clear from Articles 1 and 2 of Directive 89/665, read in conjunction with its aims, 34 that appeals against decisions taken by the contracting authorities are designed to ensure, at every stage of the award procedure, the effective application 88. In view of the objectives of the review of Community directives on the award of directive and of the wording of Articles 1 public contracts, in particular at the stage and 2, the Court thus intended to give a where infringements can still be rectified. 35 broad definition of the term 'decision', Appeals which are limited to the possibility within the meaning of those provisions. of obtaining financial compensation for 'Decision' therefore means any act or harm suffered as a result of non-compliance measure, alleged to be unlawful in the light with the Community directives on public of the procedure directives, adopted during procurement are therefore insufficient to the procedure to award the contract in ensure the full effectiveness of those rules. question, which produces effects or results which may be taken into account by the contracting authority in the final award decision.

87. The Court has inferred from those factors that all the decisions taken by contracting authorities, whatever their 89. That interpretation of the review direc- tive is in accordance with its objective, which is to ensure the effective application 33 — Alcatel Austria and Others, cited above, paragraph 10. 34 — See, in particular, the first and second recitals in the preamble. 15 — Alcatel Austria and Others, cited above, paragraphs 33 16 — Ibidem, paragraph 35. and 34. 17 — Ibidem, paragraph 41.

of the Community directives on public tender procedure, that is to say, the adop- procurement, at a stage when infringements tion by the contracting authority of the may still be corrected or avoided. That award decision. objective cannot therefore be achieved by appeals only against the measures which cause harm and, a fortiori, only against the measures which bring an end to the award procedure in question. At that stage, it is difficult to see what measures could be taken with the aim of 'correcting the alleged infringement or preventing further 91. In my view, by requiring the applicant damage to the interests concerned'. 38 to furnish proof of the harm he suffers, and by depriving him, as a consequence, of the possibility of challenging a measure which may adversely affect him, Spanish law does not correctly transpose the provisions of Articles 1 and 2 of the review directive. The national provisions do not allow a decision likely to have harmful effects, by reason of 90. In the present case, the Spanish Gov- the infringement of Community law on ernment acknowledges that, under Spanish public procurement, to be challenged at the law, including in connection with public most appropriate time. They therefore pre- procurement procedures, appeals may be vent an individual from obtaining the brought only against measures which have interim measures intended to correct the an adverse affect. 'A measure which has an alleged infringement or to prevent future adverse effect' must be construed, in par- damage. The obligation to furnish proof of ticular, as meaning the measure which the harm suffered is therefore an additional brings the tendering procedure to an end. condition not provided for by the review That is made expressly clear in the grounds directive and contrary to it. of the judgment cited. 39 The Spanish Government also concedes — and it is expressly stated in the judgment delivered by the Tribunal Supremo 40 — that the measure by which the contracting authority requests documentation additional to the initial contract documents cannot be sub- ject to independent appeal. In other words, 92. It is apparent from the above consider- a decision which may have an adverse ations that, by not allowing review to be effect and infringe Community law on sought of all acts or decisions alleged to be public procurement, cannot as such be unlawful under the provisions of the pro- challenged immediately by a bidder who cedure directives, adopted during the pro- considers that he has been harmed. In order cedure for the award of public contracts, to do so, he must wait until the end of the which produce effects or results which may be taken into account by the contracting authority in the final award decision, the 38 — Article 2(1)(a) of the review directive. Kingdom of Spain has failed to fulfil its 39 — As stated by the Spanish Government (see the second obligations under Article 1 and 2 of Direc- indent of point 80 of this Opinion). 40 — Ibidem. tive 89/665.

95. The Spanish Government docs not 9 3 . T h e Commission argues t h a t , in dispute that, in its legal system, with a contrast to the provisions of Article 2( 1 )(a) few exceptions,' 12 the adoption of a pro- of Directive 89/665, under the Spanish tective measure, like suspension of oper- legislation transposing that provision, ation, is linked to the prior commencement namely Article 111 of Law 30/1992 and of an action on the merits. The application Articles 129 to 136 of Law 29/1998, it is for interim measures must, in any event, be not possible to obtain preventive measures lodged at the time an action is brought on unless an action is brought simultaneously the merits or after it has commenced. An against the decision adopted unlawfully by application for interim or protective meas- the contracting authority. The Commission ures is therefore not designed to be a notes that only in exceptional circum- separate action, but is linked to an action stances, for example under Article 136(2) for annulment of the unlawful decision. of Law 29/1998, may protective measures be sought if there is no action on the merits against the unlawful decision. It is apparent from the Spanish legislation transposing Article 2(1 )(a) of the review directive, that the adoption of interim and protective measures is linked to the commencement 96. However, according to the Spanish of an action on the merits against the Government, the obligation to contest the unlawful measure adopted by the contract- ing authority. Those measures are therefore necessarily ancillary to such an action and 41 — In particular. C a s eC - 2 3 6 / 9 5Commission v Greece [ 1 9 9 6 ] ECR I-4459. cannot in any event be sought separately. 42 — In p a r t i c u l a r . Acrticle136of Law 29/1998 I - 4693

legality of a measure adopted by the 99. It maintains that that interpretation is contracting authority at the same time as supported by the fact that Community law lodging an application for protective meas- is itself governed by criteria similar to those ures does not negate the effectiveness of the which underlie the Spanish legislation. In system established by the review directive, that regard, it refers to the provisions of since, in its submission, any application for Articles 242 and 243 EC, Article 36 of the protective measures involves an examin- EC Statute of the C o u r t of Justice, ation of the substance of the case, if only a Articles 83 to 90 of the Rules of Procedure prima facie assessment of the problem. of the Court of Justice and Articles 104 to Furthermore, that requirement does not 110 of the Rules of Procedure of the Court detract from the effectiveness of the system of First Instance. Citing by way of example or from the achievement of the objectives Article 83 of the Rules of Procedure of the of that directive, since the obligation to Court of Justice, it points out that an challenge the legality of a measure adopted application for interim measures is not a by the contracting authority at the same separate legal remedy but rather an appli- time as lodging an application for protec- cation which is ancillary to the main tive measures does not require the observ- application, namely the action for annul- ance of strict formalities. The applicant ment. need only write a simple letter. He is not therefore required immediately to lodge the action in accordance with the formal rules established. 100. As regards the conclusion drawn by the Commission from the judgment in Commission v Greece, cited above, the Spanish Government maintains that the Court did not give judgment on the sub- stance of the case. The Hellenic Republic acknowledged that it had not transposed 97. According to the Spanish Government, the provisions of the review directive into the scheme adopted in Spain is, on the its legal system within the time-limit set in contrary, fully effective. Since Law 29/1998 the reasoned opinion. The Court did not came into force, the administrative courts therefore have to give a ruling on the may adopt, under Article 29 of that law, substance of the alleged infringement. It any type of positive protective measure, not did not therefore rule that the fact of only mere suspension. making the grant of protective measures, such as suspension of operation, con- ditional on commencement of an action on the merits against the unlawful measure, constituted incorrect transposition of the review directive.

105. That interpretation was confirmed by the Court of Justice in Commission v Greece, cited above. 103. As we have seen, the system estab- lished by the review directive is designed to ensure the effective application of the procedure directives. The review directive therefore requires appeal p r o c e d u r e s against decisions taken unlawfully by the contracting authority to be effective and 106. It was alleged that the Hellenic rapid. To that end, all decisions taken Republic had not correctly transposed the unlawfully by a contracting authority dur- provisions of the review directive. ing the course of a public procurement procedure may be challenged in interlocu- tory proceedings by the injured parties. 43 Accordingly, it is a question of preventing, correcting or making good the illegalities committed. 107. The Greek Government acknowl- edged that it had not taken the measures 43 — See, in that regard, the second plea raised by the necessary to transpose the directive within Commission against the Kingdom of Spain. the time-limit set in the reasoned opinion,

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but contended that a law had since been prior action, 44 any interim measures "in- adopted which did meet the requirements cluding measures to suspend or to ensure of the review directive. the suspension of the procedure for the award of a public contract".'

108. The Court did not, however, omit to point out that the provisions of that law did 110. The Court also noted that the national not correctly transpose the provisions of legislation referred to contained no provi- the review directive. It observed, in par- sion on damages, as provided for in ticular, that, as far as the suspension of Article 2(l)(c) of the review directive, for contract award procedures referred to in persons harmed in the event of an infringe- Article 2(1)(a) of the review directive was ment of Community law in the field of concerned, the national legislation trans- public procurement or national rules imple- posing the directive, since it made suspen- menting that law. 45 sion of the measure conditional on the introduction of an action for annulment against the contested administrative meas- ure, did not satisfy the requirements of the review directive.

113. The Spanish Government does not 115. It follows from the foregoing argu- deny that, in its legal system, interim or ments that, by making the grant of pro- protective measures cannot be adopted tective measures conditional on the require- before an action on the merits is brought ment to bring an action on the merits against the unlawful decision. However, it against the decision adopted unlawfully by claims that the Spanish system is not the contracting authority, the Kingdom of restrictive since a mere letter giving no Spain has failed to fulfil its obligations reasons, in which the applicant states that under Articles 1 and 2 of Directive 89/665. he intends to challenge the decision on the merits, fulfils that obligation. If that were indeed the case, I must admit that I cannot understand the reasons for that 'mere formality' to which the Spanish legislature nevertheless attaches particular signifi- cance. It seems to me disproportionate to make the effective application of the direc- tive on this point 46 conditional on the prior VI — Costs completion of a mere formality.

116. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's plead- 114. As regards the Spanish Government's ings. Since the Commission has applied for argument that the Spanish scheme with costs and the Kingdom of Spain has been regard to protective measures is the same as unsuccessful in its defence, it must be that followed by Community law in pro- ordered to pay the costs. ceedings before the Court of Justice, it has

— extend the system of review procedures provided for by that directive to decisions adopted by all contracting authorities, within the meaning of Article 1(1) of Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, Directive 93/36/EC of 14 June 1993 coordinating procedures for the award of public supply contracts, and Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, including companies governed by private law established for the specific purpose or meeting needs in the general interest which do not have an industrial or commercial character, have legal personality, and are financed, for the most part, by public authorities or other entities governed by public law, or are subject to supervision by the latter, or have an administrative, management or supervisory board more than one half of whose members are appointed by public authorities or other entities governed by public law;ì

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— allow review to be sought of all decisions adopted by the contracting authorities, including all procedural measures, during the procedure for the award of public contracts;

— provide for the possibility of appropriate interim measures being granted in relation to decisions adopted by the contracting authorities, including measures aimed at enabling administrative decisions to be suspended, removing for that purpose difficulties and obstacles of any type and in particular the need first to bring an action against the decision of the contracting authority,