- Elgar European Law series
Chapter 6: The notion of contracting authorities
THE PUBLIC NATURE OF PUBLIC PROCUREMENT The remit and thrust of public procurement legislation relies heavily on the connection between contracting authorities and the state. Compliance procedures brought by the European Commission against Member States are a good indication of determining contracting authorities under public procurement law. If the state can be held responsible under Article 169 EC (now Article 228 TFEU) for breaches of EC law committed by the central or local government, but also for breaches by other public entities and bodies over which it exercises a certain degree of control, that responsibility denotes a degree of connection between the state and the entities in question sufficient enough to characterize these entities as contracting authorities for the purposes of the Public Procurement Directives.1 A comprehensive and clear definition of the term contracting authorities, a factor that determines the applicability of the relevant rules is probably the most important element of the public procurement legal framework. The structure of the Directives is such as to embrace the purchasing behaviour of all entities, which have a close connection with the state. These entities, although not formally part of the state, disperse public funds in pursuit or on behalf of public interest. The Directives describe as contracting authorities the state, which covers central, regional, municipal and local government departments, as well as bodies governed by public law. Provision has been also made to cover entities, which receive more than 50 per cent subsidies by the state or other contracting authorities. However,...
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