Is a public authority an “economic operator” for the purposes of the EU public procurement rules?

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(Case C-203/14: Consorci Sanitari del Maresme v Corporació de Salut del Maresme i la Selva) was a case referred to the European Court of Justice (ECJ) by the Spanish authorities. The question they wanted answered was whether a public authority such as a local council could be considered as an “economic operator” for the purposes of the Public Sector Directive (2004/18). The question was significant because only economic operators are authorized to bid for contracts under the EU public procurement rules.

The ECJ held confirmed that a public authority could be classed as an “economic operator”, provided that they already offered services in the market in return for remuneration. (In other words, it is too much of a push for a public authority to enter the commercial arena for the first time in the context of a public procurement exercise). Interestingly, the ECJ went on to say that in countries where there were rules, which said that only persons on official lists or with certain certifications were eligible to bid for public procurement contracts, it was not lawful to preclude public authorities from obtaining the relevant certification or being on those lists.

In one sense it might seem odd to think of a local council as a “business” but the reality is that if public authorities are not eligible to bid for public procurement contracts, then there is no possibility for public authorities to demonstrate “best practice” in an open market place against commercial competition. Therefore this decision should be welcomed by public authorities in the UK, which demonstrate good service and value for money for citizens.

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