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The Public/Private Divide in Secondary Community Law: a Footnote to the European Economic Constitution
Published online by Cambridge University Press: 27 October 2017
Extract
This contribution is concerned with the demarcation of the public sphere in two different regimes of secondary European economic law: the rules on public procurement on the one hand and those on VAT on the other. In both, the pivotal concept is that of ‘bodies governed by public law’. In the first, the consequences of being classified as a public body are onerous; in the latter, they are very advantageous. In the first, classification as a public body requires the institution in question to comply with the legislation on public procurement; in the latter, it will leave the body outside the reach of Community law. It is perhaps no surprise, then, that the Court has interpreted the concept of a ‘body governed by public law’ very differently in the different regimes. In that light, this comparative analysis may seem fanciful at best.
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2006
References
1 Case C-41/90, Höfner [1991] ECR I–1979, para 22, emphasis added.
2 Art 4, EC Treaty.
3 Art I–3, Treaty establishing a Constitution for Europe.
4 Baquero Cruz, J Between Competition and Free Movement: The Economic Constitutional Law of the European Community (Oxford, Hart Publishing, 2002)Google Scholar.
5 See generally Bovis, C EC Public Procurement—Caselaw and regulation (Oxford, OUP 2006)Google Scholar. Calling for a major overhaul of the whole edifice, judged to be disproportionately burdensome, see Arrowsmith, S,‘The EC Public Procurement Directives, National Procurement Policies and Better Governance: The Case for a New Approach’ (2002) 27 ELR 3 Google Scholar.
6 See, eg, Case C–380/98, University of Cambridge [2000] ECR I–8035, para 17. It should be noted that the Court has allowed environmental considerations to be taken into account within the definition of the ‘economically most advantageous tender’. See Case C–513/99, Concordia Bus Finland Oy Ab [2000] ECR I–7213.
7 See, eg, Bovis, C ‘Financing Services of General Interest, Public Procurement and State Aids: The Delineation between Market Forces and Protection in the European Common Market’ [2005] Journal of Business Law 1. The Commission’s effort to come to terms with so- called PPTs is even more emblematic. See its Green Paper on public–private partnerships and Community law on public contracts and concessions, COM(2004)327.
8 Starting with Council Directive 90/351/EEC on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors OJ 1990 L 291/1. See, eg, Brown, A ‘The Extension of the Community Public Procurement Rules to Utilities’ (1993) 30 CMLRev 721 Google Scholar.
9 See Art 1(b), Public Works Directive 71/305, OJ 1971 L 85/5.
10 Case 31/87, Beentjes [1988] ECR 4635, para 11.
11 Art 1(a), Directive 2004/17/EC of the European Parliament coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, OJ 2004 L143/1, and Art 1(9), Directive 2004/18/EC of the European Parliament and of the Council on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, OJ 2004 L134/114. This recent overhaul keeps these provisions stable as compared to the previous legislation. Cf Council Directive 93/36/EEC co-ordinating procedures for the award of public supply contracts, OJ 1993 L 199/1; Council Directive 93/37/EEC concerning the coordination of procedures for the award of public works contracts, OJ 1993 L 199/54, Council Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, OJ 1993 L 199/84. See generally eg, Munanza, E ‘Privatised Services and the Concept of “Bodies Governed by Public Law” in EC Directives on Public Procurement’ (2003) 28 ELR 273 Google Scholar.
12 Case 373/00, Adolf Truley [2003] ECR I–1931, para 43.
13 Case C–214/00, Commission v Spain [2003] ECR I–4667, para 56. Cf Case C–84/03, Commission v Spain [2005] ECR I–139.
14 Case C–214/00, Commission v Spain [2003] ECR I–4667, para 56. That the three elements must be seen as cumulative conditions was established in Case C–44/96, Mannesmann Anlagenbau [1998] ECR I–73, para 21.
15 Case 373/00, Adolf Truley [2003] ECR I–1931, paras 36 and 40.
16 See, eg, Case C–360/96, BFI Holding [1998] ECR I–6821, paras 50–51, and Case C–18/01, Korhonen [2003] ECR I–5321, para 47. The Court has also held that explicit legal or statutory conferrals of public interest functions are unnecessary. It suffices that the respon sibility for general interest needs can be established ‘objectively’. Case C–470/99, Universale Bau [2002] ECR I–11617, para 62.
17 Case C–360/96, BFI Holding [1998] ECR I–6821, paras 47 and 53.
18 Case C–360/96, BFI Holding [1998] ECR I–6821, paras 43–44.
19 Ibid, para 52. It substantiated its finding by reasoning that ‘the degree of satisfaction of that need considered necessary for reasons of public health and environmental protection can not be achieved by using disposal services wholly or partly available to private individuals from private economic operators’.
20 Case 373/00, Adolf Truley [2003] ECR I–1931, paras 51–53.
21 Case C–44/96, Mannesmann Anlagenbau [1998] ECR I–73, para 24.
22 Joined Cases C–23/99 and C–260/99, Agorà [2001] ECR I–3605.
23 Case C–44/96, Mannesmann Anlagenbau [1998] ECR I–73, para 26. The principle is defended on the basis of the requirement of legal certainty ‘which requires a Community rule to be clear and its application foreseeable by all those concerned: ibid., para 34. It should be noted that infection has a fairly simple remedy: the Court held the commercial subsidiary of the State Printing Office, in which the latter held a majority ownership and to which it could transfer proceeds from its own public service tasks, to be outside the scope of the Directive. The infection theory itself has been confirmed, eg in Case 373/00, Adolf Truley [2003] ECR I–1931, para 56, and Case C–18/01, Korhonen [2003] ECR I–5321, para 58.
24 Art 30(1), Directive 2004/17/EC of the European Parliament coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, OJ 2004 L143/1. The telecommunications sector is excluded altogether from the new regime because that sector is now, according to the Community legislator, fully competitive.
25 Case C–360/96, BFI Holding [1998] ECR I–6821, paras 48–49.
26 See Case 373/00, Adolf Truley [2003] ECR I–1931, para 66.
27 Case C–18/01, Korhonen [2003] ECR I–5321, para 51.
28 Case C–107/98, Teckal v Comune di Viano [1999] ECR–8121, para 50.
29 Case C–26/03, Stadt Halle [2005] ECR I–1, para 46, Case C–485/03, Parking Blix en [2005] ECR I–8612, para 64.
30 Ibid, para 65.
31 Case C–340/04, Cabotermo, judgment of 11 May 2006, not yet reported, para 63.
32 Case C–107/98, Teckal v Comune di Viano [1999] ECR–8121, para 51.
33 Case C–26/03, Stadt Halle [2005] ECR I–1, para 50. Cf Case C–29/04, Commission v Austria [2005] ECR I–9705, and Case C–410/04, ANAV v Comune di Bari, judgment of 6 April 2006, not yet reported.
34 Case C–340/04, Cabotermo, judgment of 11 May 2006, not yet reported, para 59.
35 Ibid, paras 60–62.
36 Art 4(1) and (2), Sixth Council Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes—Common system of value added tax: uniform basis of assessment, OJ 1977 L 145/1, last amended by Council Directive 2005/92/EC, OJ 2005 L 345/19.
37 Case 235/85, Commission v Netherlands [1987] ECR 1471, para 10.
38 Ibid, para 21.
39 Ibid, para 21, and Case.C–202/90, Ayuntamiento de Sevilla [1991] ECR I–4247, para 19.
40 See Case C–276/97, Commission v France [2000] ECR I–6251, para 46; Case C–358/97, Commission v Ireland [2000] ECR I–6301, para 44; Case C–359/97, Commission v United Kingdom [2000] ECR I–6355, para 56, and Case C–260/98, Commission v Greece [2000] ECR I–6537, para 41.
41 Joined Cases 231/87 and 129/88, Comune di Carpaneto Piacentino [1989] ECR 3233, para 15.
42 See, eg, Case C–276/97, Commission v France [2000] ECR I–6251, para 40, and Case C–446/98, Fazenda Pública [2000] ECR I–11435, para 17. In the latter case, it also clarified that the ‘special legal regime applicable to bodies governed by public law’ involves ‘the use of public powers’: ibid, para 24.
43 See, eg, Case 235/85, Commission v Netherlands [1987] ECR 1471, para 17, and Case C–260/98, Commission v Greece [2000] ECR I–6537, para 23.
44 C–359/97, Commission v United Kingdom [2000] ECR I–6355, para 65 of the Opinion.
45 Joined Cases 231/87 and 129/88, Comune di Carpaneto Piacentino [1989] ECR 3233, para 13.
46 There are exceptions. One is Case 107/84, Commission v Germany [1985] ECR 2655, where the Court held that the expression ‘the public postal services’ in Art 13 should be under stood in ‘the organic sense of that expression’ and so refused to exempt the activities that the Bundesbahn and Lufthansa carried out on behalf of the Bundespost. Another one is Case C–453/93, Bulthuis-Griffioen [1995] ECR I–2341, where the Court refused to extend the exemption for the supply of services and goods ‘closely linked to welfare’ to a natural person, since the text expressly refers to ‘bodies’ or ‘organizations.’
47 Case C–247/95, Finanzamt Augsburg v Marktgemeinde Welden [1997] ECR I–779, para 20.
48 Case C–498/03, Kingscrest v Commissioners of Customs and Excise [2005] ECR I–4427, para 25. Cf Case C–315/00, Maierhofer [2003] ECR I–563, para 26.
49 Case C–498/03, Kingscrest v Commissioners of Customs and Excise [2005] ECR I–4427, para 22. Cf Case C–358/97, Commission v Ireland [2000] ECR I–6301, para 51.
50 Case C–498/03, Kingscrest v Commissioners of Customs and Excise [2005] ECR I–4427, paras 30 and 31.