The Definition of a ‘Contract’ Under Article 106 TFEU

Abstract

AbstractThe fact that the public procurement Directives apply to contracts for the provision of SGEIs ensures transparency in the entrustment of SGEIs. This raises the question of whether the privileged rules of Article 106 TFEU apply alongside the specific public procurement rules, which are set out in secondary EU legislation. Looking at Article 106 TFEU through public procurement spectacles Skovgaard Ølykke identifies the determination of ‘what is a contract’ as a central issue for the application of the public procurement Directives. Where SGEIs are provided through in-house arrangements there will not be a ‘contract’ and where an SGEI is entrusted through a legislative act, this will also not satisfy the requirements of a ‘contract’. A different set of problems arise where the entrustment of a SGEI take place by a service concession. The procurement Directives, subject service concessions to a special regime and service concessions are exempted from the Directives but under tight conditions. This raises the question as to whether Article 106(2) TFEU could be applied. Although this question has been debated in the academic literature, it has not been explicitly applied in litigation before the ECJ. However, Skovgaard Ølykke argues that in recent cases Article 106(2) TFEU could be the basis for the rulings, creating a new approach to contracts where SGEI are provided even where the Teckal criteria (see ECJ, Case C-84/03 Commission v. Spain [2005] ECR I-139, para 39; cf. ECJ, Case C-480/06 Commission v. Germany [2009] ECR I-4747) are not fulfilled. If this is the outcome of the case law, it gives a renewed role for Article 106(2) TFEU at a time when many commentators are questioning its continued existence in the TFEU.KeywordsPublic AuthorityPublic ProcurementAdvocate GeneralGerman Federal StateContracting AuthorityThese keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.