Keywords

Summary



Keywords

1 Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - Contracting authorities - Body governed by public law - Definition - Body such as the Austrian State printing office - Included - Public works contracts - Definition - Works contracts awarded by the body in question - Included irrespective of the nature of the contract

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

2 Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - Contracting authorities - Body governed by public law - Definition - Undertaking carrying on commercial activities and owned by a contracting authority - Excluded - Public works contracts - Definition - Contract relating to a works project which, from the outset, falls within the objects of an undertaking which is not a contracting authority - Excluded

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

3 Economic and social cohesion - Structural operations - Community funding - Condition - Conformity of the action concerned with the relevant Community legislation - Funding of a works project not covered by the public procurement legislation - Not subject to compliance with the relevant review procedures

(Council Regulation No 2081/93, Art. 7(1); Council Directives 89/665 and 93/37, Art. 1(b))

Summary

4 The first subparagraph of Article 1(b) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts defines contracting authorities as, inter alia, bodies governed by public law; the second subparagraph provides that the latter means any body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, having legal personality and closely dependent on the State, regional or local authorities or other bodies governed by public law.

An entity such as the Österreichische Staatsdruckerei (Austrian State Printing Office, `ÖS') must be regarded as a body governed by public law and thus as a contracting authority within the meaning of the provisions referred to above, in so far as

- the documents which the ÖS must produce are closely linked to public order and the institutional operation of the State and require guaranteed supply and production conditions which ensure that standards of confidentiality and security are observed, bearing in mind, in that respect, that the condition that the body must have been established for the `specific' purpose of meeting needs in the general interest, not having an industrial or commercial character, does not mean that it should be entrusted only, or even primarily, with meeting such needs;

- the ÖS has legal personality;

- the Director-General of the ÖS is appointed by a body consisting mainly of members appointed by the Federal Chancellery or various ministries, the ÖS is subject to scrutiny by the Court of Auditors, the majority of its shares are still held by the Austrian State and a State control service is responsible for monitoring the printed matter which is subject to security measures.

Works contracts entered into by that entity are to be considered to be public works contracts within the meaning of Article 1(a) of the directive whatever their nature and irrespective of the relative proportion, whether large or small, which they represent of the activities of the ÖS pursued for the purpose of meeting needs not having an industrial or commercial character.

5 An undertaking which carries on commercial activities and in which a contracting authority, within the meaning of the first subparagraph of Article 1(b) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, has a majority shareholding is not to be regarded as a body governed by public law within the meaning of the second subparagraph of that provision - according to which it must be a body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character - and thus as a contracting authority on the sole ground that that undertaking was established by the contracting authority or that the contracting authority transfers to it funds derived from activities pursued in order to meet needs in the general interest, not having an industrial or commercial character.

Furthermore, a public works contract is not subject to the provisions of the directive when it relates to a project which, from the outset, falls entirely within the objects of an undertaking which is not a contracting authority and when the works contracts relating to that project were entered into by a contracting authority on behalf of that undertaking.

6 Pursuant to Article 7(1) of Regulation No 2081/93, amending Regulation No 2052/88, measures financed by the Structural Funds or receiving assistance from the European Investment Bank or from another existing financial instrument are to be in conformity with the provisions of the Treaties, with the instruments adopted pursuant thereto and with Community policies, including those concerning the rules on competition, the award of public contracts and environmental protection and the application of the principle of equal opportunities for men and women. In that respect, the requirement that the measures referred to must be in conformity with Community law presupposes that those measures fall within the scope of the relevant Community legislation.

It follows that the aforementioned provision must be interpreted as meaning that Community funding of a works project is not conditional upon the recipients complying with the review procedures within the meaning of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, if they are not themselves contracting authorities within the meaning of Article 1(b) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts.