Research Handbook on EU Public Procurement Law
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Research Handbook on EU Public Procurement Law

Edited by Christopher Bovis

The Research Handbook on EU Public Procurement Law makes a major contribution to our understanding of the EU public procurement regime, at a time when it is being implemented by the EU Member States, and of the pivotal role that this will play for the delivery of the European 2020 Growth Strategy. The internal market relies on a simplified regime in the European Union, which will result from procedural efficiencies and from streamlining the application of the substantive rules. The Research Handbook has comprehensive thematic coverage which includes: public procurement regulation, strategic procurement, justiciability in public procurement, public procurement and competition and public procurement and public service.
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Chapter 3: Public contracts in public procurement regulation

Christopher Bovis


The existence of a public contract is a precondition to the application of the public procurement Directives. Public procurement law has configured the meaning of a public contract. The determining factor of its nature is neither what and how it is described as a 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. A functional application of the pecuniary interest consideration requirement by the Court brought in a variety of payment mechanisms such as direct or deferred payment by the contracting authority to the economic operator, commitment to lease-back an asset after its construction, asset swaps between the contracting authority and the economic operator or conferral to the economic operator of an exclusive right to collect third-party payments. In Köln Messe leasing and sub-leasing arrangements between the City of Cologne and Grundstücksgesellschaft Köln Messe for the construction and use for 30 years of four exhibition halls, ancillary buildings and relevant infrastructure were regarded as pecuniary interest considerations.

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