Cooperative Agreements between Public Authorities

The influence of CJEU case law on national legal systems

Advocatenkantoor Wauters bv (Autor)

Buch | Softcover

254 Seiten

2015
Intersentia Ltd (Verlag)
978-1-78068-312-6 (ISBN)

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In the last couple of decades the national administrative law of the Member States has been influenced by case law from the Court of Justice of the European Union (CJEU). One of the main objectives of this research is to examine this influence and more specifically the influence of EU law on cooperation between public authorities. The present work examines how and to what extent EU (public procurement) law has an influence on the way a public authority organises and discharges its public service tasks. The object of this book is limited to cooperative agreements (public contracts and service concessions) concluded between public authorities as a means to organise or discharge public service tasks. Public authorities and private enterprises should be made aware as far as possible of the potential impact of EU law on certain types of cooperative agreements. This knowledge will prevent situations where the public authorities are post facto confronted with lawsuits that might force them to withdraw completely from cooperative associations that are already underway. It also enables private enterprises to be aware that in this context they may benefit from an open market. The book gives lawyers and practitioners in the field the most actual theoretical and practical background on the subject.

Kris Wauters holds a master in law (KU Leuven, 1991), a master in international and European law (U.C. Louvain-La-Neuve, 1992) and a DEUG AES (Universit du Havre, 1991). In 2009, he obtained a PhD in law at the University of Maastricht. He is a lawyer and counsel at Janson Baugniet lawyers and professor at the Universit Catholique de Louvain-la-Neuve and guest professor at the University of Li ge. He is member of the academic PLAN, co-editor of the Journal "Overheidsopdrachten en -overeenkomsten," member of the editorial board of the series "Recht in de gemeente" and member of the Scientific Council of the Journal "Milieu- en energierecht."

Acknowledgements Chapter 1. Introduction 1. Contextual background 1.1. Phenomenon of cooperation 1.2. Ways and areas of cooperation 1.2.1. Ways of cooperation 1.2.2. Areas of cooperation 1.3. Applicable law 2. EU law impact on national administrative law 3. Research questions 4. The importance of the research 5. Methodology and structure Chapter 2. The Original Framework: the Public Procurement Directives 1. Historical background of the public procurement Directives 2. The public procurement Directives of 2004 3. New developments 4. Objectives of the public procurement Directives 5. Conclusions Chapter 3. Concepts 1. The meaning of 'public authority' or 'contracting authority' 1.1. Contracting authority 1.1.1. Preliminary remarks 1.1.2. Traditional authorities 1.1.3. Associations formed by one or several authorities 1.1.4. Body governed by public law 1.2. Public authority 2. Cooperative agreements 2.1. Public contract2.2. Service concession 2.2.1. Foundations in EU law 2.2.2. Basic elements 2.2.3. Transfer of risk 3. Public tasks 3.1. Historic development 3.2. The concept 'services of general interest' 4. Public / private divide 4.1. France 4.2. England 4.3. EU 5. Concluding observations Chapter 4. Influence of EU Law on Public Authority Decisions 1. Internal market law or competition law? 1.1. Relevant EU framework 1.2. Internal market 1.3. Freedom of services 2. Applicability of EU law to State Measures 3. Interstate element 4. Restriction 4.1. Market access 4.2. Principles of government contract law 4.2.1. Equal treatment 4.2.2. Transparency 4.3. Cooperative agreements between public authorities 5. Justifications 6. General conclusions Chapter 5. Cooperative Agreements Between Public Authorities: Outside the Scope of EU Law? 1. Applicability of EU law 1.1. In-house provision 1.2. Cooperative agreements 1.2.1. Under the scope of EU law? 1.2.2. Kind of cooperation 1.2.3. Exclusion 2. Institutional or vertical cooperative agreements 2.1. Origins of the case law 2.2. The control criterion 2.2.1. Private input 2.2.2. Public input 2.2.3. Jointly exercised control 2.2.4. Conclusion 2.3. The activities criterion 2.3.1. Need for a second criterion? 2.3.2. Kind of activities 2.3.3. Several controlling public authorities 2.3.4. Conclusion3. Contractual or horizontal cooperative agreements 3.1. Analysis of the relevant case law 3.2. Comments 4. New Directives 4.1. The Commission's Working Paper 4.2. Proposal for new Directives and new Directives 4.2.1. Vertical cooperative agreements 4.2.2. Horizontal cooperative agreements 4.2.3. Conclusion 5. State and market 6. General conclusions Chapter 6. Influence of EU Law on National Legal Systems1. French system 1.1. Service public 1.1.1. The place of 'service public' 1.1.2. The concept of 'service public' 1.1.3. Relation to a 'personne publique' 1.1.4. General interest 1.1.5. Organisation and management of a 'service public' 1.2. Cooperative agreements between public authorities 1.2.1. Historical evolution 1.2.2. Selection of a contract partner 1.2.3. Freedom to choose a public authority as contract partner?1.2.4. Evolution case law 1.2.5. Societes publiques locales (local public companies) 1.3. Conclusion 2. The English system 2.1. Public services 2.1.1. Administrative law 2.1.2. Notion of public service 2.2. The organisation or management of public services 2.2.1. Direct provision 2.2.2. Contracting 2.3. Cooperative agreements between public authorities 2.3.1. The use of the capacity to contract by public authorities 2.3.2. Judicial review 2.3.3. Cooperation 2.3.4. Case law 2.4. Conclusion 3. General conclusions Chapter 7. General Conclusions Bibliography

Erscheint lt. Verlag	20.3.2015
Reihe/Serie	Ius Commune: European and Comparative Law Series ; 135
Verlagsort	Cambridge
Sprache	englisch
Maße	172 x 236 mm
Gewicht	450 g
Themenwelt	Recht / Steuern ► EU / Internationales Recht
Themenwelt	Recht / Steuern ► Wirtschaftsrecht ► Wettbewerbsrecht
ISBN-10	1-78068-312-X / 178068312X
ISBN-13	978-1-78068-312-6 / 9781780683126
Zustand	Neuware