National Central Banks and Community Public Sector Procurement Legislation: A Critical Overview

Abstract

On 31 March 2004 the Council of Ministers and the European Parliament adopted the Public Sector Procurement Directive, with a national implementation deadline of 31 January 2006. In common with earlier Community public sector procurement legislation, the new Directive seeks to ensure that European public sector entities award contracts in an efficient, transparent and non-discriminatory manner, thereby contributing to the elimination of public procurement as a non-tariff barrier to the development of a genuine Single Market for goods and services throughout the EU. Although some of the Member State national central banks (NCBs) are listed in an Annex to the Public Sector Procurement Directive as contracting authorities, it is not clear to what extent all Member State NCBs are subject to its provisions. A review of national legislation implementing EU public sector procurement rules reveals significant variations with regard to its coverage of Member State NCBs. The lack of ECJ case-law directly on this question leaves some more room for speculation. The purpose of this paper is to examine whether Member State NCBs are subject to the Public Sector Procurement Directive and to Community public sector procurement legislation at large. For the purposes of their inquiry, the authors will rely on the case-law of the ECJ interpreting Community public procurement rules, on considerations derived from the nature, mission and tasks of Member State NCBs and on the impact of their participation in the ESCB as possible sources of guidance concerning the existence of an obligation for Member State NCBs to comply with the rules and principles enshrined in Community public sector procurement legislation. The paper concludes that there is little reason to suggest that Member State NCBs should not be subject to the principles underlying the Community procurement regime or even to the Community procurement rules themselves.