Keywords

Summary



Keywords

Approximation of laws — Procedures for the award of public works contracts — Directive 93/37 — Contracting authorities — Body governed by public law — Definition — Needs in the general interest, not having an industrial or commercial character — Criteria for assessment — Entity carrying on the construction, management and sale of a Member State's prison assets — Included — (Council Directive 93/37, Art. 1(b), second subpara.)

Summary

In order to be defined as a body governed by public law within the meaning of the second paragraph of Article 1(b) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, an entity must satisfy the three cumulative conditions set out therein, requiring it to be a body established for the specific purpose of meeting needs in the general interest not having an industrial or commercial character, to possess legal personality and to be closely dependent on the State, regional or local authorities or other bodies governed by public law.

In this respect, the concept of "needs in the general interest, not having an industrial or commercial character" , is one of Community law and must be given an autonomous and uniform interpretation throughout the Community, the search for which must take account of the background to the provision in which it appears and of the purpose of the rules in question. That concept includes needs which are satisfied otherwise than by the supply of goods and services in the marketplace and which, for reasons associated with the general interest, the State chooses to provide itself or over which it wishes to retain a decisive influence.

In determining whether or not there exists a need in the general interest not having an industrial or commercial character account must be taken of relevant legal and factual circumstances, such as those prevailing when the body concerned was formed and the conditions in which it carries on its activity, including, inter alia, lack of competition on the market, the fact that its primary aim is not the making of profits, the fact that it does not bear the risks associated with the activity, and any public financing of the activity in question. Accordingly, if the body operates in normal market conditions, aims at making a profit and bears the losses associated with the exercise of its activity, it is unlikely that the needs it aims at meeting are not of an industrial or commercial nature.

It follows that a State commercial company established for the specific purpose of carrying on all activities which prove necessary in order to construct, manage or sell a Member State's prison assets, must be treated as a body governed by public law for the purposes of the second paragraph of Article 1(b) of the Directive and, therefore, as a contracting authority for the purposes of the first paragraph thereof. Consequently, the Directive is applicable to the procedures for the award of public works contracts conducted by that company. The needs in the general interest which such a company is responsible for meeting being, therefore, a necessary condition of the exercise of the State's penal powers, they are intrinsically linked to public order.

see paras 69, 79-82, 84-85, 93-95