Keywords
Summary

Keywords

1. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Scope

(Council Directive 93/37, Art. 1(b))

2. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Public works contracts – Definition

(Council Directive 93/37, Arts 1(a) and (c), 7(4) and 11)

Summary

1. Where a city and a private investment company enter into a contract for the lease to the former of exhibition halls to be built by the latter, and where those halls are to be sublet by the city to a company governed by private law whose purpose is to organise trade fairs and exhibitions, a functional interpretation of the project at issue cannot alter the finding that the city, which, in its capacity as local authority, constitutes a contracting authority within the meaning of Article 1(b) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, is the only other party to the contract with the private investment company.

The finding that there is no contractual relationship between the trade fair company and the investment company is not altered by the existence of the contract for the sale by the former to the latter of the land on which the buildings in question were built.

Likewise, the underlease cannot alter the aforementioned finding, in so far as it is exclusively concerned with relations between the trade fair company and the city, and has no effect at all on contractual relations between the latter and the investment company or on their reciprocal undertakings.

Also irrelevant is the fact that the works in question were intended to be used for the activities of the trade fair company, which ultimately has the right to use them in return for monthly payments.

(see paras 45-52)

2. A contract formally described by the parties as a ‘lease’, which is concluded between a city and a private investment company for the lease to the former of exhibition halls to be built by the latter in accordance with detailed specifications set out by the city for the execution of the works concerned, must be classified as a public works contract within the meaning of Article 1(a) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts in so far as the contract has as its main object the construction of those halls and those halls constitute a ‘work’ within the meaning of Article 1(c) of Directive 93/37. Such a contract must be awarded in accordance with the rules of Articles 7(4) and 11 of that directive.

The definition of ‘public works contract’ in Article 1(a) of Directive 93/37 includes all operations in which a contract for pecuniary interest, irrespective of its formal classification, is concluded between a contracting authority and a contractor and has as its object the execution by the latter of a ‘work’ within the meaning of Article 1(c) of the directive. The essential criterion in that respect is that the work should be executed in accordance with the requirements specified by the contracting authority; the means of that execution are immaterial. Where a contract contains elements relating both to a public works contract and another type of public contract, it is the main purpose of the contract which determines the Community rules applicable.

(see paras 54-57, 59, 63)