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Articles Public Procurement 11th Nov 2020

Article by Jonathan Lewis – Public works contracts and decisive influence

Lexis Nexis Public Law analysis written by Jonathan Lewis.

In this opinion, Advocate General (AG) Campos Sánchez-Bordona found that Austria had breached the requirements of Directive 2004/18/EC of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. A public body linked to the City of Vienna entered into a contract with a private undertaking for the construction of an office building on the undertaking’s land without complying with the provisions of Directive 2004/18/EC. The parties classified the contract as a lease whereby the public body would rent the building over more than two decades. Austria argued that the contract was therefore exempt from the requirements of Directive 2004/18/EC 2004 under Article 16(a).

The AG rejected this argument on the basis that the public body had decisive influence over the planning and execution of the construction and the reality was that the contract was in fact a public works contract.

This article was first published by Lexis®PSL on 03/11/2020

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