International Construction Law Review
THE CONCEPT OF A “BODY GOVERNED BY PUBLIC LAW” IN EUROPEAN PROCUREMENT LAW
DR H NIJHOLT*
Lecturer in Private Law at Maastricht University, The Netherlands
1. OBJECTIVE AND (WIDENED) SCOPE OF APPLICATIONOF THE EUROPEAN PROCUREMENT DIRECTIVES
The Co-ordination Directives concerning public works contracts are aimed at harmonising the national rules governing tendered public contracts. According to the standard case law of the European Court of Justice (ECJ), the aim of such co-ordination is to abolish restrictions to the free movement of goods and services and thus protect the interests of market players who wish to supply goods or services in a Member State other than the one in which they are established (effet utile
).1
The concept of “authorities awarding contracts” (“contracting authorities”) plays a leading role in the harmonisation effort. In the original Procurement Directives of the 1970s, “authorities awarding contracts” were to be taken to mean: the state, regional or local authorities and “legal persons” governed by public law, or, in Member States in which those notions did not exist, similar corporate bodies, as listed in Annex I of the Directive in question (cf.
Article 1(b) of Council Directives 71/305/EEC (Public Works Contracts2
) and 77/62/EEC (Public Supply Contracts3
)).
The concept of “legal person governed by public law” was not further defined in these Directives. In Commission
v. Ireland
4
and Connemara
,5
the ECJ decided that the Irish Forestry Board, Coillte Teoranta, was to be regarded as a legal person governed by public law. Under the Irish Forestry Act 1988, the objects of the Forestry Board were to carry on the business of forestry and related activities on a commercial basis, establish and carry on woodland industries and jointly with others participate in forestry activities consistent with those objects. The Court furthermore considered that the Forestry Board was not to be regarded as an organ of state or a regional or local authority. Of relevance here was that the Forestry Board (unlike the land consolidation committee in Beentjes
,6
discussed below) had legal personality.
As a result of the narrow definition of the concept of “contracting
* The author is very grateful to Miss Wies Rayar for her careful translation of his Dutch text into English.
1 Cf. inter alia
ECJ, 3 October 2000, University of Cambridge
, Case C–380/98 [2000] ECR I–8035, para. 16.
2 Directive 71/305/EEC, OJ L 185, 16 August 1971, p. 5.
3 Directive 77/62/EEC, OJ L 13, 15 January 1977, p. 1.
4 ECJ, 17 December 1998, Case C–353/96 [1998] ECR I–8565, paras. 32–33.
5 ECJ, 17 December 1998, Case C–306/97 [1998] ECR I–8761, paras. 27–28.
6 ECJ, 20 September 1988, Beentjes
, Case 31/87 [1988] ECR 4635, NJ 1991, 104, BR 1989, 72.
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