Reg. v HM Treasury, Cambridge University, 3/10/00 (original) (raw)
Regina v HM Treasury, ex parte University of Cambridge (EEC Case C-380/98)
I was directed by a lawyer to this case, at www.lawreports.co.uk/ecjoct0.3.htm as indicating that Cambridge University - always the stalking-horse where Oxford is concerned - is quietly trying to take legal steps to 'go private'. Mercifully it was largely unsuccessful here, but will doubtless keep beavering away. Note also the relevance of the Court's conclusion (3) to a university's income from, e.g. its press, which would obviously be far more significant in Oxford's case. - A. M.
EUROPEAN COMMUNITY - Public procurement - "Contracting authority" - University - Criteria for "body governed by public law" - Nature and proportion of public financing required - Council Directives (92/50/EEC), (93/36/EEC) and (93/37/EEC), article 1(b)
Regina v HM Treasury, ex parte University of Cambridge (Case C-380/98)
ECJ: President of Chamber Edward, Judges Kapteyn, La Pergola, Jann and Ragnemalm: 3rd October 2000
For the purpose of the European Community directives on public procurement, a body such as a university was a "body governed by public law" if, inter alia, it was publicly financed as to more than half of its income. For that purpose public financing for universities included local authority student grants, but did not include fees paid by public authorities for consultancy or conferences.
The Fifth Chamber of the Court of Justice of the European Communities so held, inter alia, on a reference for a preliminary ruling by the Queen's Bench Divisional Court.
In article 1(b) of Council directives 92/50, 93/36 and 93/37 procedures for the award of (respectively) public service, supply and works contracts, "contracting authorities" is defined as including state and local authorities and "bodies governed by public law," and "body governed by public law" is defined as any body which into a year is "financed, for the most part, by the state, or regional or local authorities, or other bodies governed by public law." Article 1(b) further provides that the lists of public bodies governed by public law that fall within the definition are set out in Annex 1.
The University of Cambridge, wishing to have "universities" deleted from the reference in Annex 1, so far as concerning the United Kingdom, to "universities and polytechnics, maintained schools and colleges," and having been unable to secure the agreement of the Treasury to its proposal, brought proceedings in which the central issue was the meaning and implications of the expression "financed, for the most part, by [the entities referred to]."
THE COURT SAID:
(1) Only payments which financed or supported the activities of the body without any specific consideration therefor could be described as public financing. Accordingly, in the case of a university, financing by a contracting authority which came within article 1(b) included awards for the support of research work and student grants paid by local authorities for tuition for students, but did not include payments for contractual services provided by the university, such as the execution of particular research work, consultancy, and the organisation of seminars and conferences.
(2) "For the most part" had its ordinary meaning of "more than half."
(3) In determining what proportion of the financing was public, account was to be taken of all the university's income, including that resulting from commercial activity, and not just sources of finance for academic and related activities.
(4) The decision as to whether a university was a "contracting authority" was to be made annually, and the budgetary year during which the procurement procedure was begun was the most appropriate period for calculating how it was financed. Since it was desirable that it be known at the beginning of the budgetary year whether procurement contracts that the university envisaged awarding during the year fell within the scope of the procurement Directives, the financing calculation had to be based on the figures available at the beginning of that year, even if they were then only provisional. A body which was a "contracting authority" when a procurement procedure commenced remained so until the procedure had been completed.
Reported by: Michael Hawkings, barrister
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