SUBJECTIVE SCOPE OF THE CONCEPT OF A "BODY GOVERNED BY PUBLIC LAW" IN THE CONTEXT OF PUBLIC OVERSIGHT OVER THE PUBLIC PROCUREMENT MARKET

Abstract

In the practice of awarding public contracts, particular interpretative problems arise concerning the subjective scope of application of the public procurement regime. In this context, of key significance is the issue of properly capturing and understanding the legal institution of the body governed by public law – as contained in the Directive of the European Parliament and of the Council 2014/24/EU of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, as well as Directive of the European Parliament and of the Council 2014/25/EU of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC. Depending on the interpretation admitted, different categories of entities can then be either bound by or relieved of the duty to apply the cited provisions. What is more: the content of the aforementioned Directives impacts the content of national legal regulations concerning public procurement. Not only is the aforementioned term composed of several elements that must (generally) appear together with one another, but those elements themselves contain a range of imprecise and vaguely-defined terms. Their interpretation must therefore refer not only to the scholarly literature, but also case-law, particularly that of the CJEU. This publication is an attempt at exploring the particular elements comprising the concept of a “body governed by public law” in the context of public oversight of the public procurement market.