within a framework established by the public authorities that related to public
security. On that point the Court followed the decision in Criminal
Proceedings against Lindqvist [C-101/01) at paragraph 43, that activities of
the state or state authorities concerning public and state security were in any
event unrelated to the activities of individuals or, it seems commercial
undertakings, whose activities would be governed by the Directives.
35.
This exclusion of certain activities from the jurisdiction of the Union is clearly
explained in Remondis GmbH & Co. KG Region Nord v Region Hannover
(Case C-51/15, 21 December 2016), in relation to an activity which was
excluded by Article 4(2) of the TEU, namely the organisation of local
government. Mengozzi AG in his Opinion of 30 June 2016 stated as follows:
“38. It is nevertheless clear from the case-law that the internal
organisation of the State does not fall under EU law. The Court
has recognised on several occasions that each Member State is
free to delegate powers internally as it sees fit (24) and that the
question of how the exercise of public powers is organised
within the State is solely a matter for the constitutional system
of each Member State.
...
41. As acts of secondary legislation, such as Directive 2004/18
in this case, must be in conformity with primary law, such acts
cannot be interpreted as permitting interference in the
institutional structure of the Member States. Accordingly, acts
of internal reorganisation of the powers of the State remain
outside the scope of EU law and, more specifically, EU rules
on public procurement.
42. An act by which a public authority, unilaterally in the
context of its institutional powers, or several public authorities,
in the context of an agreement governed by public law, make a
transfer of certain public powers from one public entity to
another public entity constitutes an act of internal
reorganisation of the Member State. Such an act therefore, in
principle, falls outside the scope of EU law and, more
specifically, the EU rules on public procurement.”
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