Contracting authority
In public procurement law , the legal term public contracting authority refers to those contracting authorities who have to comply with public procurement law when awarding a public contract in the EU , i.e. in particular who have to publicly tender the contracts . The share of public contracts in the EU's gross domestic product was estimated at over 16 percent in 2016.
Client term in German law
The concept of the public contracting authority is defined in Section 98 of the Act against Restraints of Competition (GWB). According to this, the (public) client status is initially only available in the classic public sector . The client within the meaning of Part 4 of the GWB is in the context of EU public procurement law; however, private clients may also be covered by the term (see No. 2–6).
The type of contracting authority is finally listed in Section 99 GWB :
- Regional authorities and their special assets,
- other legal entities under public and private law that were established for the special purpose of performing tasks of a non-commercial nature in the general interest , if positions that fall under number 1 or 3 predominantly finance them individually or jointly through participation or in any other way or exercising control over their management or more than half the members of her for management appointed or supervisory bodies have determined. The same applies if the body which, individually or jointly with others, grants the majority of the financing or has designated the majority of the members of a body appointed to manage or supervise, falls under sentence 1,
- Associations whose members fall under number 1 or 2,
- natural or legal persons under private law who are active in the field of drinking water or energy supply or transport , if these activities are carried out on the basis of special or exclusive rights granted by a competent authority, or if clients who fall under numbers 1 to 3, can exercise a controlling influence on these persons individually or jointly,
- natural or legal persons under private law in the cases in which they are responsible for civil engineering work, for the construction of hospitals, sports, recreation or leisure facilities, school, university or administrative buildings or for related services and job advertisement procedures, which fall under numbers 1 to 3, receive funds with which these projects are financed by more than 50 percent,
- natural or legal persons under private law who have concluded a contract for the provision of construction work with bodies that fall under numbers 1 to 3, in which the consideration for the construction work instead of remuneration in the right to use the building, possibly plus the payment of a price, with regard to contracts to third parties (building concession ).
The case law of the European Court of Justice (ECJ) is of essential importance for the term `` client '' in German law . So has z. B. the ECJ assigns the public broadcasters to the public clients within the meaning of the procurement law. In June 2009, the ECJ also decided that public health insurance funds should be the public authority . According to the case law of the ECJ, however, the medical associations are not public clients.
Exceptions
An exception to the obligation of the contracting authority to the tendering obligations of the procurement law applies to the so-called in-house award . According to the case law of the European Court of Justice, it presupposes that, firstly, the public authority, which is a contracting authority, exercises control over the body in question similar to that over its own departments and, secondly, that this body essentially carries out its activities with the public body or bodies who hold their shares.
Individual evidence
- ↑ Public procurement . European Parliament. Retrieved September 9, 2016.
- ↑ ECJ, judgment of December 13, 2007 - Case C-337/06
- ↑ ECJ, judgment of June 11, 2009 - Case: C-300/07
- ↑ ECJ, judgment of September 12, 2013 - Case C-526/11
