Keywords

Summary



Keywords

1. Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Contracting authorities – Body governed by public law

(Council Directive 92/50, Art. 1(b), second para., third indent)

2. Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Scope

(Council Directive 92/50, Art. 1(a)(iv))

Summary

1. Article 1(b) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts provides in its first subparagraph that the expression ‘contracting authorities’ includes ‘bodies governed by public law’, and, in its second subparagraph, that a ‘body governed by public law’ means any body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character (first indent), having legal personality (second indent), and financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law (third indent).

Concerning the third indent, the expression ‘financed, for the most part, by the State’ must be interpreted as meaning that there is such financing when the activities of public broadcasting bodies, with legal personality, invested with a remit to serve the public interest, independent of the State authorities, self-managed and organised in such a way as to exclude any influence by the public authorities, and which are not part of the structure of the State, are for the most part financed by a fee payable by persons who possess a receiver, which is imposed, calculated and levied according to the rules of State treaties concluded for those purposes and is not the result of any contractual arrangement entered into by those bodies and the customers.

Moreover, where the activities of public broadcasting bodies are financed according to such procedures, the condition of ‘financing … by the State’ does not require the direct interference of the State or other public authorities when such bodies award public contracts which have no connection with the performance of their public service remit in the proper sense. Given that, in view of their method of financing, the very existence of the public broadcasting bodies in question depends on the State, the criterion of the dependence of those bodies on the State is satisfied, without it being necessary for the public authorities to have any real influence on the various decisions of the bodies in question on the awarding of contracts.

(see paras 41, 50, 54-55, 60, operative part1-2)

2. Article 1(a)(iv) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, which provides that that directive does not apply to public contracts for services which fall within the essential function of public broadcasting bodies, namely the creation and production of programme material, must be interpreted as meaning that only those public contracts which relate to the services specified in that provision are excluded from the scope of that directive.

Since that provision constitutes an exception to the principal objective of the Community rules on the awarding of public contracts, namely freedom of movement of services and a market open to competition which is as wide as possible, it must be interpreted strictly. Accordingly, the only public contracts excluded from the scope of Directive 92/50 are those for the services specified in Article 1(a)(iv) of that directive, namely contracts for the acquisition, development, production or co-production of programme material by broadcasters and contracts for broadcasting time. On the other hand, the Community rules apply in full to public contracts for services which have no connection to the activities which form part of the performance of the public‑service remit, in the proper sense, of the public broadcasting bodies.

(see paras 62, 64, 67, operative part 3)