Keywords
Summary

Keywords

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COMPETITION - PUBLIC UNDERTAKINGS - TRANSPARENCY OF FINANCIAL RELATIONS BETWEEN MEMBER STATES AND PUBLIC UNDERTAKINGS - DISTINCTION BETWEEN THE ROLE OF THE STATE AS PUBLIC AUTHORITY AND AS A PRODUCER OR AS A PROVIDER OF SERVICES - BODY INTEGRATED INTO THE ADMINISTRATION OF THE STATE - DESIGNATION AS PUBLIC UNDERTAKING - LACK OF LEGAL PERSONALITY DISTINCT FROM THAT OF THE STATE - NO EFFECT

( COMMISSION DIRECTIVE 80/723, ART . 2 )

Summary

THE DISTINCTION BETWEEN "PUBLIC AUTHORITIES" AND "PUBLIC UNDERTAKINGS" PROVIDED FOR IN ARTICLE 2 OF DIRECTIVE 80/723 ON THE TRANSPARENCY OF FINANCIAL RELATIONS BETWEEN MEMBER STATES AND PUBLIC UNDERTAKINGS FLOWS FROM THE RECOGNITION OF THE FACT THAT THE STATE MAY ACT EITHER BY EXERCISING PUBLIC POWERS OR BY CARRYING ON ECONOMIC ACTIVITIES OF AN INDUSTRIAL OR COMMERCIAL NATURE BY OFFERING GOODS AND SERVICES ON THE MARKET . IN ORDER TO MAKE SUCH A DISTINCTION, IT IS THEREFORE NECESSARY, IN EACH CASE, TO CONSIDER THE ACTIVITIES EXERCISED BY THE STATE AND TO DETERMINE THE CATEGORY TO WHICH THOSE ACTIVITIES BELONG .

THE STATE MAY CARRY OUT THE SAID ACTIVITIES THROUGH A SEPARATE BODY OVER WHICH IT MAY EXERCISE THE DOMINANT INFLUENCE REQUIRED BY ARTICLE 2 OF THE DIRECTIVE OR CARRY OUT THOSE ACTIVITIES DIRECTLY THROUGH A BODY FORMING PART OF THE STATE ADMINISTRATION . THE FACT THAT A BODY HAS OR HAS NOT, UNDER NATIONAL LAW, LEGAL PERSONALITY DISTINCT FROM THAT OF THE STATE IS IRRELEVANT IN DECIDING WHETHER IT MAY BE REGARDED AS A PUBLIC UNDERTAKING WITHIN THE MEANING OF DIRECTIVE 80/723, BECAUSE, ON THE ONE HAND, THE PURPOSE OF THAT DIRECTIVE WOULD BE CALLED IN QUESTION IF ITS APPLICATION DEPENDED ON WHETHER OR NOT STATE BODIES HAD LEGAL PERSONALITY DISTINCT FROM THAT OF THE STATE, AND, ON THE OTHER, THE ABSENCE OF LEGAL PERSONALITY DISTINCT FROM THAT OF THE STATE DOES NOT PREVENT THE EXISTENCE OF FINANCIAL RELATIONS BETWEEN THE STATE AND THOSE OF ITS BODIES WHICH CARRY OUT ECONOMIC ACTIVITIES .