The EU legal sources provides several expressions which make reference to the exchange of performance between the parties of a contract, especially the discipline of public contracts (Article 1, par. 2, letter a, Directive 2004/18/EC), which is applicable to the contracts with «pecuniary interests»; and the normative concerning the Value Added Tax (the «VAT», see Article 2 Directive 2006/112/EC), which takes into consideration the supplies of goods and services made «for consideration». The aim of this paper is twofold. Firstly, to establish the legal meaning of those expressions and at identifying the contracts or other acts which may be covered by the above mentioned provisions, mainly with the help of the recent case-law of the Court of Justice. Secondly, to compare the legal meaning provided by he EU legal sources and the traditional notions within both the Civil Law (see the couples of concepts, like within French Law bilateralité/unilateralité; onerosité/liberalité) and the Common Law (in particular the concept of «consideration»), concerning the exchange between the parties of a contract. The two kinds of concepts, at the present stage of the development of the EU law are different because of the methodological approach in the interpretation of the European legal system. On the other hand the two sets of notions diverge due to the different function of the traditional private law (focused on the circulation of the patrimonial elements) in respect to aims of the EU law (the construction of the internal mark conceived as legal system).
The different functions of the “exchange” within the European Union Public Contracts Law and the tTaditional Private Law
CIPPITANI, Roberto
2016
Abstract
The EU legal sources provides several expressions which make reference to the exchange of performance between the parties of a contract, especially the discipline of public contracts (Article 1, par. 2, letter a, Directive 2004/18/EC), which is applicable to the contracts with «pecuniary interests»; and the normative concerning the Value Added Tax (the «VAT», see Article 2 Directive 2006/112/EC), which takes into consideration the supplies of goods and services made «for consideration». The aim of this paper is twofold. Firstly, to establish the legal meaning of those expressions and at identifying the contracts or other acts which may be covered by the above mentioned provisions, mainly with the help of the recent case-law of the Court of Justice. Secondly, to compare the legal meaning provided by he EU legal sources and the traditional notions within both the Civil Law (see the couples of concepts, like within French Law bilateralité/unilateralité; onerosité/liberalité) and the Common Law (in particular the concept of «consideration»), concerning the exchange between the parties of a contract. The two kinds of concepts, at the present stage of the development of the EU law are different because of the methodological approach in the interpretation of the European legal system. On the other hand the two sets of notions diverge due to the different function of the traditional private law (focused on the circulation of the patrimonial elements) in respect to aims of the EU law (the construction of the internal mark conceived as legal system).I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
