European law does not contain a general definition of a public body. In fact, there are several definitions of public body, which differ from sector to sector, and these are directly related to the specific purposes of the applicable law. The definition of public body is examined, taking into account the following: the direct effect of European Directives; the application of European procedural rules concerning the award of public contracts in the internal market to ‘contracting authorities’; freedom of movement for workers and the restrictions that may be imposed by national legislators; and the application of the European rules concerning state aid. It is noted that, in European law, each definition of public body has a ‘functional’ character. In fact, the term ‘public body’ may be considered as a general term, having different definitions that depend on the scope of the sectoral legislation; in most cases, the definition includes both public authorities and bodies governed by private law. It is also noted that, in some sectors, the European notion of a public body has replaced the national one. Furthermore, the functional character of the notions of a public body has influenced the national legislators, meaning that they dedicate more attention (and in some cases exclusive attention) to the kind of activity involved and the particular legal regime, with the consequence that the legal status of the body does not matter. When private bodies are under a duty to exercise public powers, the protection of the subjective legal positions of citizens and economic operators is equal to the protection that would have been given if public authorities were exercising the same powers. In the perspective mentioned above, national legislators tend to extend the rules and principles normally applied to public authorities to private bodies that fall within the definition of a public body.

Public Body / A. Maltoni - In: Dictionary of Statuses within EU Law : The Individual Statuses as Pillar of European Union Integration / [a cura di] A. Bartolini, R. Cippitani, V. Colcelli. - [s.l] : Springer Nature, 2019. - ISBN 978-3-030-00553-5. - pp. 447-454 [10.1007/978-3-030-00554-2_57]

Public Body

A. Maltoni
2019

Abstract

European law does not contain a general definition of a public body. In fact, there are several definitions of public body, which differ from sector to sector, and these are directly related to the specific purposes of the applicable law. The definition of public body is examined, taking into account the following: the direct effect of European Directives; the application of European procedural rules concerning the award of public contracts in the internal market to ‘contracting authorities’; freedom of movement for workers and the restrictions that may be imposed by national legislators; and the application of the European rules concerning state aid. It is noted that, in European law, each definition of public body has a ‘functional’ character. In fact, the term ‘public body’ may be considered as a general term, having different definitions that depend on the scope of the sectoral legislation; in most cases, the definition includes both public authorities and bodies governed by private law. It is also noted that, in some sectors, the European notion of a public body has replaced the national one. Furthermore, the functional character of the notions of a public body has influenced the national legislators, meaning that they dedicate more attention (and in some cases exclusive attention) to the kind of activity involved and the particular legal regime, with the consequence that the legal status of the body does not matter. When private bodies are under a duty to exercise public powers, the protection of the subjective legal positions of citizens and economic operators is equal to the protection that would have been given if public authorities were exercising the same powers. In the perspective mentioned above, national legislators tend to extend the rules and principles normally applied to public authorities to private bodies that fall within the definition of a public body.
public body; european law; notion of ‘functional’ character; private bodies; public authorities
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/2434/938632
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