COMMUNITY PROCUREMENT IN THE ECJ CASE LAW
COMMUNITY PROCUREMENT IN THE ECJ CASE LAW

Summary/Abstract: During the realisation of the common market, the European Community had to face up with several challenges and difficulties. It took a long time to break down the barriers which balk the uniformity of the market. Nonetheless, there are some fields of regulation which still mean a kind of barrier. One of them, a non-tariff barrier is the public procurement which needs to regulate on Community level in view of certain factors. The public procurement is rightly and confessedly one of the most complex and complicated areas of the European Community law and the national laws at the same time. Uncountable profusion of scientific studies, books and articles deal with it. In my study, I concentrate on the case law of the European Court of Justice related to this area of jurisdiction. The first part of the study refers to the award of public contracts within the main issue is the presentation and evaluation of the existing contract award criteria, i.e. the criterion of most economically advantageous tender and the lowest price. According to these considerations the paper also deals with a real and elusive problem of the public procurement law: the abnormally low tender and its adjudication and consequences. Considering the procurement rules and the procurement process the selection of the appropriate tender among the tenders submitted is undoubtedly one of the most important and most interesting momentums. The selection is the work of the contracting authority but it can act only within certain legal frames. These frames are designed by the contracting authority when it appraises those conditions which the tenderers shall fit to. These kinds of conditions mostly concern on the technical facilities and expertise of tenderers who obligate to certify them. The contracting authorities shall base the award of public contracts either to the tender most economically advantageous from the point of view of the contracting authority, either to the lowest price. The two criteria can not applicable at the same time, the contracting authority shall decide the using of the former or the latter. The second part of the study a special and remarkable problem brings into focus, namely the in-house exception. The expression got into the common knowledge by the judgement passed by the ECJ in the Teckal case in 1999. In the last few years a single “in-house case law” has developed and made precise the content of this concept. On the next few pages after a short outline of the legal background, I deal in detail with the awarding procedure of the contract; within I draw up the structure of the contract award criteria and the problems coming up from them.

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