Legal Persons under Public Law in Public Procurement Law

Legal persons under public law – corporations, institutions, foundations – are contracting authorities in public procurement law. Governed by Art. 2 Directive 2014/24/EU and § 3 BVergG 2018.

Definition: Legal persons under public law are corporations, institutions, and foundations under public law established by statute or by a sovereign act and, as contracting authorities, are subject to public procurement law where they perform tasks of general interest of a non-commercial character and are state-financed or state-controlled, in accordance with Art. 2(1)(4)(b) Directive 2014/24/EU.

Last updated: January 2026 · Legal basis: Art. 2(1)(4) Directive 2014/24/EU; § 3(1)(2) BVergG 2018; § 99 GWB

What are Legal Persons under Public Law?

Legal persons under public law (JuPöR) are legal entities established by sovereign state act that, by virtue of their public-law organisational form, are generally subject to public procurement law. They do not come into being through a private autonomous act of formation but through statute, regulation, or by-law on the basis of statutory authorisation.

Typical forms include:

Public-law corporations – federal government, federal states, municipalities, municipal associations, universities, professional chambers (medical chamber, bar association), social insurance bodies
Public-law institutions – broadcasting institutions (ARD, ZDF, ORF), savings banks (depending on state law), municipal own-enterprises in institutional form
Public-law foundations – Prussian Cultural Heritage Foundation, various state cultural foundations

Significance and Function

Classification as a legal person under public law is significant in procurement law because – unlike for legal persons under private law – it generally automatically establishes contracting authority status, provided the further conditions are met.

Conditions for Contracting Authority Status

Under Art. 2(1)(4) Directive 2014/24/EU and § 99(2) GWB, all legal persons under public and under private law qualify as contracting authorities where they

were established for the specific purpose of performing tasks of general interest that are not of a commercial character,
have legal personality, and
are predominantly financed by the state, are subject to state supervision of their management, or have a management, supervisory, or administrative body more than half of whose members are appointed by the state.

Legal persons under public law generally satisfy the legal personality and state control conditions by virtue of their public-law organisational form. What is always decisive, however, is the criterion of non-commercial activity in the general interest: where a JuPöR acts purely on commercial lines and in competition with private suppliers without special state privileges, contracting authority status may fall away (CJEU, C-360/96, BFI Holding).

Distinction from Legal Persons under Private Law

The essential difference lies in the basis of establishment: JuPöR are established by public-law act; legal persons under private law (limited liability companies, public limited companies, associations) come into being through private autonomous formation. In procurement law, however, a limited liability or public limited company can also be a contracting authority where it satisfies the functional criteria of Art. 2(1)(4) Directive 2014/24/EU (functional concept of the contracting authority).

Austria: § 3(1) BVergG 2018

In Austria, § 3(1)(2) BVergG 2018 defines the contracting authority functionally and expressly includes legal persons under public law that perform tasks of general interest of a non-commercial character. Austrian case law of the Federal Administrative Court and the Constitutional Court essentially follows the CJEU's interpretation.

Legal Basis

Art. 2(1)(4) Directive 2014/24/EU – definition of the contracting authority
§ 99(2) GWB – contracting authorities (DE)
§ 3(1)(2) BVergG 2018 – contracting authorities (AT)
CJEU, C-360/96 (BFI Holding) – leading judgment on the functional concept of the contracting authority
CJEU, C-283/00 (SIEPSA) – on the commercial activity of public-law bodies

Related Terms

FAQ

Are all public-law corporations subject to procurement law? No. Even a public-law corporation must satisfy the functional criteria of Art. 2(1)(4) Directive 2014/24/EU – in particular performance of tasks of general interest of a non-commercial character. Purely commercially active public-law bodies can fall outside the scope.

What applies to social insurance bodies? Social insurance bodies (in Germany: the statutory health insurance, the German Pension Insurance; in Austria: ÖGK, AUVA) are public-law corporations and qualify as contracting authorities, since they perform tasks of general interest of a non-commercial character and are subject to state supervision.

Does the in-house award also apply to legal persons under public law? Yes. The principles of the in-house award (Teckal criteria, Art. 12 Directive 2014/24/EU) also apply to legal persons under public law where the control and essential-activity requirements concerning the commissioned entity are met.

Last updated: January 2026 All information provided without guarantee. For legally binding advice, please consult a law firm specialising in public procurement law.