Not all public procurement constitutes a public contract
In a judgment delivered on 1 March 2018, the Court of Justice of the European Union (CJEU) defined the notion of a “public contract” with regard to a system for selecting farm advisory service providers.
We know that a public contract is characterised by the convergence of five conditions, namely the existence (i) of a contract, (ii) for pecuniary interest, entered into between (iii) one or more contracting authorities and (iv) one or more economic operators, (v) subject to public purchasing rules.
In the commented judgment, the Court found that, if a contracting authority intends to enter into contracts with all the economic operators that wish to satisfy its needs subject to the conditions stated by the contracting authority, “it follows that the fact that the contracting authority does not designate an economic operator to whom contractual exclusivity is to be awarded means that there is no need to control, through the [public purchasing rules], the action of that contracting authority so as to prevent it from awarding a contract in favour of national operators”.
The CJEU therefore ruled in line with the case law of Falk Pharma (C-410/14): where there is no selectivity, there is no public contract!
CJEU, 1 March 2018, C-9/17 (Maria Tirkkonen)
Photo: Alexandre Prévot - CC by S.A. 2.0