Begreppet "upphandlande enhet" enligt lagstiftningen om offentlig upphandling

Sammanfattning: The government procurement legislation – i.e. the Swedish procurement law, the EC procurement directives and the WTO’s Government Procurement Agreement – applies on public procurement. Such a procurement exists when the contractor meets the conditions stated in the directives that the organ is to be considered as a contracting auhtority. The conditions are supposed to cover the bodies that objectively are thought to take other considerations than economic when purchasing services or products. The definition of contracting authorities has, however, given rise to several interpretation problems when putting the wording into practice. Since it is the contracting authorities themselves that are responsible for their compliance with the law when purchasing, an unclear definition will result in bodies getting a possibility to, to a larger extent, evade the obligation to comply with the procurement legislation. Because of this, it is of great importance that the courts create a unitary interpretation of the definition; a clear definition serves as a means of exerting pressure. The thesis is an investigation of the definition of contracting authority where the primary source of information consists of case law from the European Court of Justice. The purpose is to visualize the underlying philisophy of the regulation with a view to suggest an instrument for determining a body’s status as a contracting authority. Regarding the definition of contracting authority, the thesis discuss three different levels. The first level consists of an examination of the wording according to both the directives and the Swedish law, and then the interpretation of the wording by the European Court of Justice. At the following level, it is set out to illustrate differences between the definition on a national level and an EC level, respectively. Finally, it will be established what legislation technique that seems to have been used when formulating the definition of contracting authority in the directives, and also how the result of this should influence the interpretation of the term.