Der funktionale Begriff des öffentlichen Auftraggebers nach § 99 Nr. 2 GWB im Schnittfeld zur wirtschaftlichen Betätigung im Kommunalrecht

Can a municipal enterprise, which acts legally in accordance with local by-laws, be a public contractor within the framework of procurement law at the same time? Municipal enterprises can be active on the market in two capacities: as service providers and as contracting entities. Whether they are offering goods or services, the permissibility of this activity depends on the parameters of municipal economic law. However, when they are awarded a contract, they also become subject to procurement law if the conditions of the functional concept of a contracting product according to § 99, No. 2 of the GWB (the German law against limits to competition) apply. Using the relevant prerequisite criteria, this study depicts the interplay between both legal fields and analyses its impact on the forms of legal protection in this regard for private third parties. The examples the work contains from the fields of commerce, trade fairs and waste management highlight this subject’s practical relevance.