Opinion of Mr Advocate General Mengozzi delivered on 20 October 2009.

1. The Commission’s arguments

41. The principal argument deployed by the Commission to support the claim of infringement of Directive 93/37 is based on the fact that the successful tender included works not mentioned in the specifications, and the total value of those works, in particular, was not much less than the value of the works explicitly requested.

42. The Commission also points out that the wording of the specifications, in which tenderers were requested in general terms to suggest possible solutions to the traffic problem, was not such as to lead participants to suppose that they could propose additional works on a scale and in a location comparable to the scale and location of the additional works proposed by Iberpistas. In particular, since the only works explicitly mentioned in the second specifications were the two motorways linking Segovia and Ávila with the A-6, any measures that the tenderers might propose in order to reduce traffic would only be measures directly connected with those two sections. It should therefore have been impossible to accept tenders which, like the winning tender, included works located elsewhere, such as the widening of the Villalba-Adanero section of the A-6 proposed by Iberpistas.

43. The Commission rejects the Spanish Government’s arguments that it was clear from the decision to cancel the first specifications and replace them with a second set of specifications, in which some works were no longer explicitly mentioned, that the participants should have proposed alternative solutions for the works included in the original specifications and subsequently abandoned. According to the Commission, nothing in the wording of the second specifications suggested that they should be interpreted in that way. Moreover, it claims, the variants presented by the other participants in the procedure were confined to the two A-6 links with the cities of Ávila and Segovia.

44. Lastly, according to the Commission, the conduct of the Kingdom of Spain infringed fundamental principles of the Treaty, in particular the principles of equal treatment and non-discrimination.

2. The Spanish Government’s position

45. The Kingdom of Spain strongly disputes the allegations: in particular, it contends that not only has the Commission failed to produce any evidence of a failure to fulfil obligations, it has also presented a distorted picture of the facts.

46. The Spanish Government draws attention, first, to the seriousness of the situation with regard to traffic on the A-6 motorway at the time when the notice was published. In addition to being well known, for it had been the subject of numerous articles in the press, that seriousness had also been clearly stated and described in official Spanish Government documents, including the documents on which the invitation to tender was based.

47. The Spanish Government maintains essentially that, although the only work explicitly mentioned in the specifications was the construction of the links between the cities of Ávila and Segovia and the A-6, it was perfectly obvious in view of the well-known traffic problems that the tenderers could have proposed measures to reduce traffic, physically based both on the Villalba-Adanero section of the A-6, to be awarded in a concession to the winning tenderer as from 2018, and also on the section of the A-6 between Madrid and Villalba. As regards the latter section in particular, a section which as we have seen is toll-free and state-maintained, the Spanish Government contends that the option of taking measures on that section is guaranteed under national law. In particular, it contends that the Motorway Law allows measures to be taken to reduce traffic outside the ‘area of impact’ of a motorway. In any case, the area of impact of a motorway is now fixed as 20 km, so the section of the A-6 south of Villalba is in any case within the area of impact of the Villalba-Adanero section of the A-6, the explicit subject of the concession.

48. In particular, according to the Kingdom of Spain, the fact that tenderers could propose traffic control measures of this kind is also clear from Article 5(13) and (16) of the specifications.

49. It claimed that the decision to cancel the first specifications and replace them with the second specifications was prompted by a wish to leave more scope for creative proposals from the tenderers as to possible solutions for the traffic problem. The fact that the decree approving the new specifications merely stated that the new version of the specifications was necessary for general technical reasons, without any reference to the need for tenderers to substitute their own solutions for the works removed from the first specifications, was explained by the habitually summary nature of all ministerial decrees approving specifications.

50. The Spanish Government insists that the arguments it presents to the Court were accepted by the national courts and by the Supreme Court in particular. Since it is a matter of verifying matters of fact and not points of law, it considers that the Court should rely, particularly where the interpretation of the specifications is concerned, on the national court’s findings in this connection; however, the Spanish Government acknowledges in the rejoinder that the conclusions reached by the Supreme Court are not binding on the Court.

51. The Kingdom of Spain also points out that Iberpistas did not execute the proposed works directly but issued a call for tenders in that connection and that the requirements with respect to advertising and observance of the principles of equal treatment and non-discrimination were accordingly satisfied, at least in that subsequent phase of the work. The Spanish Government refers in particular, in this connection, to the judgment in Ordine degli architetti⁽⁶⁾, in which the Court held that a situation in which a call for tenders is not issued by the public authority but by the person to whom the public authority has entrusted the execution of the works, may be compatible with the Community rules on public works contracts.

1. Preliminary observations

52. From a legal point of view, the matter at issue in the present case is a public works concession. As we have seen, the Community legislation defines a public works concession as a contract which has the same characteristics as a works contract, with the important difference that the consideration for the work consists of the right to exploit the completed work. That right of operation may, moreover, also be accompanied by a payment to the concessionnaire; the payment must not, however, constitute the principal element in the consideration, for that would imply the existence of a contract in addition to a concession.⁽⁷⁾

53. Concessions are subject to far less extensive restrictions and requirements under Community law than are contracts. In particular, as we saw in the account of the relevant Community provisions, of all the provisions relating to procurement contracts, the only rules applicable to concessions are those on advertising.

54. However, while the transactions at issue in the present case are undoubtedly to be described as works concessions and not as contracts, it is equally agreed that the works in question must be preceded by a specific notice and that they cannot be regarded merely as a natural ‘extension’ of the existing concession, held by Iberpistas, for the section of the A-6 motorway between Villalba and Adanero.⁽⁸⁾ That premiss is not contested by either of the parties.

2. Irrelevant elements

55. Before proceeding to examine the legal questions which are at the centre of the present case, it is essential, in my view, to clear the field of a number of elements which have been discussed at length by the parties but which are, in fact, irrelevant to the resolution of the dispute.

3. The Commission’s application: preliminary observations

74. Although, as I observed earlier, the Commission’s application is not inadmissible, it is somewhat imprecise, particularly in identifying the provisions allegedly infringed. In particular, the Commission claims in the application that the Kingdom of Spain has infringed Article 3 and also, in general, Article 11(3), (6), (7), (11) and (12) of Directive 93/37, as well as the Treaty.

75. In response to the objections raised by the Kingdom of Spain in the defence, the Commission explained in the reply that the application should in fact be regarded as referring to Article 3(1) and, by extension, to the provisions of Article 11 referred to in Article 3(1).

76. In particular, since the Commission does not dispute the fact that the notice was published, or the times and conditions of publication, it follows that the provisions of the Directive that were allegedly infringed were, essentially, Article 11(3) and (6). To be precise, the alleged infringement consisted of the considerable disparity between the object of the notice published and the object of the concession actually awarded to Iberpistas. In other words, the Kingdom of Spain is accused of having published an incomplete notice or, alternatively, of having failed to publish a notice of all the works included in the concession awarded to Iberpistas but not in the published notice.

77. It should also be noted that the provisions of the Directive are to be regarded as the practical application, in the context of public works contracts and concessions, of the principles of the Treaty, in particular the prohibition of discrimination and the duty to observe the principle of equal treatment.⁽¹⁴⁾ The Commission’s claims against the Kingdom of Spain in respect of infringement of the Directive and breach of the Treaty can therefore be considered together.

78. That being established, we can now concentrate on the principal problem, namely the claim that the specifications published by the Spanish authorities were incomplete. To that end, the precise requirements in connection with the publication of public works concession notices must first be identified. Once that aspect has been clarified, it remains to be seen whether the requirements were fulfilled in the present case.

4. The requirements in connection with concession notices

79. The first aspect to be clarified therefore concerns the general requirements which a public works concession notice must fulfil.

80. A public works contract notice must certainly contain a full description of all the works to be executed. This is a natural corollary of the fact that tenderers have to propose a price for the execution of the works – which obviously presupposes a precise knowledge of the works in question – and also of the more general principle, which I have just mentioned, that the provisions of the Directive constitute the specific application of the principles of the Treaty on equal treatment and non-discrimination. Moreover, the Court has held that observance of the principle of equal treatment of tenderers requires all tenders to comply with the tender conditions.⁽¹⁵⁾

81. In my view, that fundamental principle on advertising is also applicable to concessions, and concession notices must accordingly give full details of all the works that are the object of the concession. Various considerations support this view.

82. First, there are obvious reasons connected with transparency and equal treatment. These two principles, as we have seen, are derived directly from the Treaty, and the Court has held that they are generally applicable to all concessions, including concessions subject to specific rules.⁽¹⁶⁾

83. Secondly, the Directive provides that, of the rules relating to procurement contracts, the only rules applicable to concessions are those on advertising, or rather some of them. To admit the proposition that even the few rules applicable to concessions are to be subject to an interpretation which is different from and stricter than the interpretation required in the case of contracts would, in my view, greatly reduce the effectiveness of the legislation applicable to concessions.

84. The fact that the model notice for concessions (provided in Annex VI to the Directive) is much shorter than the model notice for contracts (provided in Annex V to the Directive) does not mean that the description of the works to be executed can be couched in significantly different terms. Moreover, the two model notices are almost identical in the part requiring a description of the object of the contract and the object of the concession (Section II in both models).

85. The case-law of the Court also contains rulings which equate the advertising rules applicable to procurement contracts to those applicable to concessions, without mentioning any kind of difference between them.⁽¹⁷⁾

86. The fact that a notice is required to give a full description of the works to be executed does not, of course, preclude a measure of creativity and freedom in the tenders that may be submitted. However, observance of the principle of equal treatment requires that, in that case, potential tenderers must be in a position to know that such a margin of discretion is available and to be aware of its limits. It may be apposite, in this connection, to cite a passage from the Commission interpretative communication on concessions under Community law⁽¹⁸⁾ (‘the interpretative communication’), which in my view is absolutely correct and acceptable:

‘Furthermore, in certain cases, the grantor may be unable to specify his requirements in sufficiently precise technical terms and will look for alternative offers likely to provide various solutions to a problem expressed in general terms. In such cases, however, in order to ensure fair and effective competition, the specifications must always state in a non-discriminatory and objective manner what is asked of the candidates and above all the way in which they must draw up their bids. In this way, each candidate knows in advance that he has the possibility of proposing various technical solutions. More generally, the specifications must not contain elements that infringe the abovementioned rules and principles of the Treaty. The requirements of the grantor may also be determined in collaboration with companies in the sector, provided that this does not restrict competition.

87. Moreover, with respect to contracts, Article 19 of the Directive explicitly provides, through the mechanism of variants, for tenderers to be allowed a certain measure of freedom in the presentation of their tenders. In Traunfellner, however, the Court interpreted that provision somewhat strictly in order to ensure compliance with the principle of equal treatment of tenderers, ruling inter alia that reference to a provision of national legislation cannot satisfy the requirement laid down in the second paragraph of Article 19 of the Directive that the contracting authority is under an obligation to set out in the contract documents the minimum specifications with which variants must comply.⁽¹⁹⁾

88. The Kingdom of Spain’s argument that the ruling in Traunfellner is not applicable in the present case, inasmuch as it refers to variants and not to additional works, does not seem to me to be convincing. First, even if it is accepted that the distinction between variants and additional works is well-founded, the fact remains that the ruling in Traunfellner is based on the essential objective of ensuring equal treatment of tenderers, and that objective cannot be held to be less important in the case of additional works than it is in the case of variants. In any event, that case-law, in so far as it refers to Article 19 of the Directive, i.e. to a provision that is not applicable to works concessions, is not directly applicable in the present case and should rather be regarded as an indication and a guide, albeit an extremely persuasive one.

89. Another useful indication, applicable essentially by analogy, is also to be found in the case-law in which the Court held – again pursuant to the principle of equal treatment of tenderers – that the award criteria, once stated, must remain the same throughout the entire procedure.⁽²⁰⁾

90. In conclusion, a notice relating to the award of a public works concession must contain a full statement of the works that are the object of the concession. Variants and additional works are admissible if the option of executing such works, and the limits within which that option may be exercised, are stated in the concession notice.

5. The interpretation of the second specifications

91. The requirements which the content of works concession notices must satisfy in order to fulfil the obligations with respect to advertising laid down in Community law having thus been clarified, it remains to be determined whether, in the present case, the concession notice satisfied those requirements.

92. In my view, the answer should be that it did not, and that the content of the second specifications does not correspond sufficiently closely to the works in the concession awarded to Iberpistas.

93. First, as we have seen, the Spanish Government contends that the choice to cancel the first specifications and replace them with the second specifications was prompted by a wish to leave more scope for tenderers to use their initiative in order to identify appropriate solutions for the traffic problem. The Spanish Government also contends that it would have been easy for potential participants in the procedure to realise that this was the case. However, those arguments cannot be accepted.

94. It should be noted that the opening passage in the second specifications simply states that ‘it is necessary for technical reasons to amend the said specifications, in order to redefine the object of the concession to be awarded and to make some changes in the definition of the duration of the concession’. This is a very general statement, which certainly does not specify the precise reason for revising the specifications (except for the change in the duration of the concession). At the very least, if the basic reason for the decision to cancel the preceding specifications was to leave more scope for tenderers to use their initiative in order to solve the traffic problems, this could and should have been explicitly stated. However, it was not.

95. Nor is it possible to accept the Spanish Government’s argument that the option of proposing additional works such as the works proposed by Iberpistas was implicit in various provisions of the specifications. The provisions in question are Article 5(13) and (16) and Article 29 of the notice.

96. As regards Article 29, suffice it to say that this provision explicitly refers only to the two A-6 links with Ávila and Segovia.⁽²¹⁾

97. Similar observations apply to Article 5(16) of the specifications, which expressly states that the measures concerning traffic that could have been proposed to the authorities related to the ‘areas affected by the construction of the roads that are the object of the concession’. Thus, it is clear from the reference to the ‘construction’ of the roads in question that the area referred to in that provision is confined to the A-6 links with Ávila and Segovia.

98. As regards Article 5(13) of the specifications, it should be noted that that provision refers generally to measures that tenderers might propose in connection with a whole range of factors that normally have to be taken into account in the execution of road works: i.e. not only traffic, but also the possible impact on the landscape, the environment, tourism, etc. Clearly such a general provision, which refers to operations that are merely accessory to the works explicitly mentioned in the specifications, cannot be regarded as a sufficient indication of the fact that the object of the specifications was a number of construction works of major importance, including economic importance, located outside the construction areas explicitly mentioned in the notice.

99. Moreover, Article 5(13) refers to the ‘effects’ of the concession on the traffic problem as a whole, but does not refer to the location of the measures to be taken to reduce that problem. Due attention must therefore be paid to the Commission’s argument that, in view of the content of the specifications, those measures could only have been interpreted by participants in the procedure as being located in the area of the construction works explicitly provided for.

100. Lastly, is must not be forgotten that the abovementioned provisions were identical in the first and second specifications. It cannot therefore be maintained that, taking that into account, a potential participant in the procedure could have supposed that the Spanish authorities’ choice to cancel the first notice, deleting some of the works, was prompted by a wish to obtain alternative proposals in connection with the works that had been ‘cancelled’.

101. As regards the additional arguments presented by the Kingdom of Spain concerning the possibility of interpreting the second specifications in the light of other pertinent provisions of Spanish law, designed to allow tenderers wide scope for the exercise of freedom and creative ability, I have the following observations to make.

102. First, for the reasons stated earlier, I consider that the principles established in the case-law of the Court on advertising in the case of contracts are also, in principle, applicable with respect to concessions. In that context, as we have seen, a notice which contained an explicit reference to national legislation in connection with the admissibility of variants was held to be unlawful.⁽²²⁾

103. Secondly, even on the absurd assumption that, contrary to all the case-law of the Court, a notice could be accepted implicitly on the basis of national legislation, the fact remains that, in my opinion, Article 8 of the Motorway Law does not support the Kingdom of Spain’s position. In fact, far from allowing potential tenderers a wide measure of creative freedom in the tenders to be submitted, that measure refers to works, not provided for in the original object of the concession, which ‘the concessionnaire is required to carry out as consideration for the concession’. In other words, the works in question appear to be works that are in any case explicitly required, not works freely proposed and executed by the concessionnaire. It therefore appears to be unnecessary to determine whether, under the national legislation, all the additional works proposed by Iberpistas are located within the ambit of the works explicitly mentioned as the object of the concession.

104. Nor does the interpretative communication provide any arguments that might support the Spanish Government’s position. In particular, as we have seen, although the Commission accepts in that communication that tenderers may be accorded a wide measure of freedom and creativity in their tenders, it also explicitly states that ‘the specifications must always state in a non-discriminatory and objective manner what is asked of the candidates’.⁽²³⁾

105. Also, the Commission has presented convincing evidence that, despite the Kingdom of Spain’s arguments to the contrary, the other tenderers did not interpret the passage concerning the need to propose measures to reduce traffic in the same way as Iberpistas did. In particular, the other tenderers proposed solutions, all based on the execution of additional works closely connected with the construction works explicitly requested in the specifications. This is clearly not in itself decisive, since the other tenderers’ assessment of the specifications certainly cannot bind the conclusion to be reached by the Court. Also, the possibility that the other tenderers misinterpreted the specifications cannot be ruled out. At all events, it is nevertheless an element to be borne in mind for the purpose of forming a full picture of the facts.

106. Lastly, a final observation concerns the practical consequences of the interpretation of the specifications adopted by Iberpistas and endorsed by the Kingdom of Spain. On the basis of the winning tender, Iberpistas executed, in addition to the links between the A-6 motorway and the cities of Ávila and Segovia, a number of additional works on the Villalba-Adanero section of the said motorway, a section for which a concession already existed, held by Iberpistas and valid until 2018, at the time of the procedure at issue in the present case. Well, I do not see how a tenderer other than Iberpistas could, in fact, propose on its own initiative, without any indication to that effect in the specifications, to execute works in a section of the motorway operated by Iberpistas.