In the appeal proceedings, the FIGC and the Consorzio argued that the FIGC should not be classified as a body governed by public law and therefore did not fall within the scope of the procurement rules. The distinction between public and private law was first made by the Roman jurist Ulpian, who argued in the institutes (in a passage obtained by Justinian in the Recueil) that “[t]he popular law is that which respects the establishment of Roman policy, in private that which respects the interests of the individual, some questions being of public interest and others of private interest”. In addition, it defines public law as the law of religious affairs, priesthood and functions of the State. [4] Roman law understood law as a series of relationships between persons and persons, persons and things, persons and the state. Public law consisted of the last of these three relationships. [5] Roman jurists, however, paid little attention to this area and instead focused on areas of private law. However, it was of great importance in Germanic society, as noted by the German legal historian Otto von Gierke, who defined the Germanic tribes as the fathers of public law. [6] The critique of interest theory understands the difficulty of drawing a clear distinction between private interest and public interest, if such a distinction exists, and categorizing laws accordingly. And third, by describing what fundamental human rights must be protected for every human being, and what are the other civil and political rights of citizens, it sets the fundamental limits of what each government should and should not do. Since this concept must be interpreted functionally, the Court held that the criterion of majority funding by the public authorities includes a method of indirect financing.
In the light of those particular features, the referring court considers that the characteristics of the Medical Association do not coincide with those set out by the Court in the judgments referred to in paragraph 12 above and asks whether they are necessary in all cases in order to satisfy the condition of public funding. Administrative law refers to the law that regulates bureaucratic administrative procedures and defines the powers of administrative authorities. These laws are enforced by the executive branch of a government and not by the judiciary or legislature (if they are different in that particular jurisdiction). This law regulates international trade, manufacturing, pollution, taxation, etc. It is sometimes considered a subcategory of civil law and sometimes public law because it involves regulation and public bodies. In addition, we have identified the trend mentioned in the introduction: more and more institutions are no longer covered by public procurement law. Institutions which appear to be governed by private law may nevertheless be subject to tendering obligations. Lawyers, who generally have little to do with public procurement law, should bear in mind that not only traditional public institutions such as municipalities, provinces, water boards and the central government are subject to tendering obligations: a large number of institutions that seem unlikely at first glance may nevertheless be subject to tendering rules. Tax law was first introduced in the 17th century.
It became an area of public law in the nineteenth century, as a result of new theories of sovereignty that emerged. Until then, taxes under the law were considered gifts given to the state by a private donor – the taxpayer. [17] It is now considered an area of public law because it is a relationship between individuals and the state. The boundary between public and private law is not always clear. The law as a whole cannot be clearly divided into “law for the state” and “law for everyone else”. Therefore, the distinction between public and private law is broadly functional rather than factual, but classifies the law according to the area in which the activities, participants and main concerns concerned best correspond. [2] This has led to attempts to establish a theoretical understanding of the foundations of public law. are mainly financed by the State, regional or local authorities or other bodies governed by public law; are subject to the management control of those bodies; an administrative, management or supervisory body more than half of whose members are appointed by the State, regional or local authorities or other bodies governed by public law. assist public health and veterinary services in the performance of their tasks and, in particular, draw up proposals for all matters relating to medicine and the health professions; First, the first subparagraph of Article 1(9) of the Sixth Directive Article 2(2)(c) of Directive 2004/18, which refers principally to public authorities, the concept of financing refers to a transfer of funds made without specific consideration to support the activities of the body concerned (cf. on similar provisions prior to Directive 2004/18 of 18 July 2000 in Case C-380/98 Cambridge [2000] ECR I-8035, para.
21. whether that body is legally entitled to collect contributions from its members, but does not specify the amount of such contributions or the extent of the services they finance; It is in the light of those objectives that each of those criteria must be interpreted functionally (see, as regards similar provisions prior to Directive 2004/18, Commission v France, paragraph 43 and the case-law cited, and Bayerischer Rundfunk and Others, paragraph 40), that is to say, on an independent interpretation of the formal rules governing its application (see, by analogy, judgment of 19 December 1998 in Case C-360/96 BFI Holding [1998] ECR I-6821, paras. 62 and 63), and each criterion must be understood as creating a close dependence on the authorities. In order to understand the rest of the case, it is first important to explain what constitutes a body governed by public law. In short, a body governed by public law is a body that closely resembles a State body. For this reason, a body governed by public law is also required to issue calls for tenders. That follows from Article 1(1) of the Netherlands Law on public procurement, according to which a body governed by public law is also a contracting authority. More specifically, a body governed by public law is a body that: In response to the judgment of the European Court of Justice on the Italian Football Federation, we ourselves had already written a blog about the possible classification of the KNVB, the Dutch Football Association, as a body governed by public law. However, in the Dutch European Law Journal we have dealt with this issue in more detail by also consulting the statutes of the KNVB and paying attention to the NOC*NSF, the umbrella organisation of the KNVB. Is it possible that, contrary to the blog, the KNVB is a company under public law? In addition, there are 77 active sports federations in the Netherlands: should they (also) be classified as bodies governed by public law? Such financing may take the form of a fee which, in principle and in its amount, is provided for and prescribed by law and which does not constitute consideration for the actual use of the services provided by the entity concerned by the persons liable for payment of the fee and the manner in which is collected results from the prerogatives of the public authorities (see, to that effect, Bayerischer Rundfunk and Others, paragraph 41.
42, 44, 45 and 47-49). As a preliminary point, it should be noted, as the referring court has done, that the College of Physicians is mentioned in Annex III to Directive 2004/18, which contains the provisions of the first subparagraph of Article 1(9) of Directive 2004/18. 2 shall be designated for each Member State. In Part III of that annex, which concerns the Federal Republic of Germany, category 1.1, entitled `Authorities, institutions and foundations governed by public law set up by the Federation, the Länder or the municipalities`, provides, in the sub-category `Professional associations`, inter alia, `Professional associations which.. Ärzte”. Although the law determines its tasks and the way in which most of its funding is to be organised, and provides that the decision fixing the amount of contributions to be paid by its members must be approved by a supervisory authority, in reality an institution such as the College of Physicians enjoys organisational and budgetary independence. This excludes it from considering it as being in a State closely dependent on the public authorities. Therefore, the means of financing such a body do not constitute majority public funding and do not allow administrative control of that body by the public authorities. provides for the supervisory authority to carry out a general inspection a posteriori in order to determine whether the way in which the Medical Association carries out its tasks is compatible with the law (Article 28(1)). entrusts the Medical Association with the task of promoting the maintenance of the profession at a high level, the protection of the professional interests of its members, the maintenance of good relations between them, the establishment of charitable organizations for its members and their families and the information of the public about its activities and work-related matters (§ 6 para. 1 nos.
6 to 8), (10) and (12); The concept of body governed by public law has been the subject of much debate in the field of public procurement for some time. The theory of the interest of public law emerges from the work of the Roman jurist Ulpian, who stated: “Publicum ius est, quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem. (Public law is what concerns the Roman state, private law deals with the interests of citizens.) Charles-Louis Montesquieu developed this theory in L`Esprit des lois[19], published in the 18th century, in which Montesquieu distinguishes international law (international law), public law (political law) and private law (civil law) according to the interests and rights of the various actors.