- Elgar European Law series
Chapter 7: The notion of public contracts
The existence of a public contract is a precondition to the application of the Public Procurement Directives.1 Public procurement law has configured the meaning of a public contract. The determining factor of its nature is not what and how is described as public contract in national laws, nor is the legal regime (public or private) that governs its terms and conditions, nor are the intentions of the parties. The crucial characteristics of a public contract, apart from the obvious written format requirement, are: i) a pecuniary interest consideration given by a contracting authority and ii) in return of a work, product or service which is of direct economic benefit to the contracting authority. THE NOTION OF PUBLIC SERVICE CONCESSIONS The notion of a concession is based on the fact that no remuneration is paid by the granting entity to the concessionaire. The latter must therefore simply See Article 1(2)(a) of the Public Sector Directive. Public contracts are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services. Article 1(2)(b) of the Public Sector Directive specifies as public works contracts, contracts which have as their object either the execution or both the design and execution, of works, or the completion, by whatever means, of a work corresponding to the requirements specified by the contracting authority. A work means the outcome...
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