Keywords
Summary

Keywords

1. Approximation of laws - Procedures for the award of public service contracts, public supply contracts, and public works contracts - Directives 92/50, 93/36 and 93/37 - Contracting authorities - Bodies governed by public law - Financed by the State - Definition - Research awards and grants, student grants - Included - Payments made for the provision of services - Excluded - Activity financed for the major part by the State - Definition - Percentage of public financing - Assessment

(Council Directives 92/50, Art. 1(b), second subpara., third indent, 93/36, Art. 1(b), second subpara., third indent, and 93/37, Art. 1(b), second subpara., third indent)

2. Approximation of laws - Public procurement procedures - Services, supplies, works - Contracting authorities - Bodies governed by public law - Financed by the State - Definition - Percentage of public financing - Reference period - Determination

(Council Directives 92/50, Art. 1(b), second subpara., third indent, 93/36, Art. 1(b), second subpara., third indent, and 93/37, Art. 1(b), second subpara., third indent)

Summary

1. Article 1(b) of Directives 92/50 relating to the coordination of procedures for the award of public service contracts, 93/36 coordinating procedures for the award of public supply contracts and 93/37 concerning the coordination of procedures for the award of public works contracts provides, in its first subparagraph, that contracting authorities covers inter alia, bodies governed by public law, and in its second subparagraph, that a body governed by public law means any body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character (first indent), having legal personality (second indent) and financed for the most part by the State, or regional or local authorities, or other bodies governed by public law, or subject to management supervision by those bodies, or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law (third indent).

In the third indent, the expression financed ... by [one or more contracting authorities] , properly construed, includes awards or grants paid by one or more contracting authorities for the support of research work and student grants paid by local education authorities to universities in respect of tuition for named students. Payments made by one or more contracting authorities either in the context of a contract for services comprising research work or as consideration for other services such as consultancy or the organisation of conferences do not, by contrast, constitute public financing within the meaning of those directives.

On a proper construction, the term for the most part in Article 1(b), second subparagraph, third indent, cited above, means more than half.

In order to determine correctly the percentage of public financing of a particular body, account must be taken of all of its income, including that which results from a commercial activity.

( see paras 26, 33, 36, and operative part 1-3 )

2. The decision as to whether a body such as a university is a contracting authority within the meaning of Article 1(b) of Directives 92/50 relating to the coordination of procedures for the award of public service contracts, 93/36 coordinating procedures for the award of public supply contracts and 93/37 concerning the coordination of procedures for the award of public works contracts must be made annually and the budgetary year in which the procurement procedure commences must be regarded as the most appropriate period for calculating the way in which that body is financed, so that the calculation must be made on the basis of the figures available at the beginning of the budgetary year, even if they are provisional. A body which constitutes a contracting authority for the purposes of the above directives when a procurement procedure commences remains, as far as that procurement is concerned, subject to the requirements of those directives until such time as the relevant procedure has been completed.

( see para. 44, and operative part 4 )