Review article
The Notion of “Public Contract” in EU Law and Related Exceptions to the Applicability of Public Procurement Legislation
Danijel Stanković
orcid.org/0000-0003-0551-7394
; Court of Justice of the European Union, Luxembourg, Luxembourg
Abstract
The subject-matter of this paper is the notion of “public contract” in EU law as functionally interpreted by the Court of Justice of the European Union, as well as related exceptions to the applicability of the 2014 public procurement legislation package, with particular regard to in-house awards, cooperation between contracting authorities and transfers of powers.
The analysis follows each of the five main elements of a public contract relating to (i) the existence of a contract, (ii) pecuniary interest, (iii) written form, (iv) the parties being two legally distinct persons and (v) the object being the provision of works, supplies or services.
The main conclusion of the research is that the broad and functional interpretation of each of the main requirements by the CJEU, together with a strict interpretation of the available exceptions to those requirements, aims at preventing circumventions of the EU procurement rules. However, due to that approach, various forms of public-public cooperation were for a long time collateral casualties. The 2014 legislative framework provides additional clarity and legal certainty in that respect, but there are still certain situations which do not appear to be covered, which will require interpretation by the CJEU in the future.
Keywords
public procurement; public contract; in house award; cooperation between contracting authorities; transfer of powers and responsibilities for the performance of public tasks
Hrčak ID:
195560
URI
Publication date:
1.3.2018.
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