Hotărârea Infrastruecturas şi drepturile individuale ale entităţilor contractante. Un nou tip de efect direct?
Infrastruecturas judgement and individual rights of contracting entities. A new type of direct effect?

Summary/Abstract: In the case law of the CJEU regarding the direct effect of directives, the applicability of the direct upward vertical effect (individuals against the state) was recognized, in contrast to the downward vertical effect, in the sense that the state cannot impose obligations on individuals through non transposed or incorrectly transposed directives. The concept of „emanation of the state” is central to delimiting the notion of private entities that use public funds of the entities that are included in the concept of state representatives, in the context of the downward vertical effect. Is this notion of emanation of the state also relevant to the direct upward effect? In the Infraestruturas case, the CJEU decided that entities or contracting authorities can invoke rights against the state, more precisely the right to decide on the exclusion of an economic operator against whom there is an optional reason for exclusion, regardless of its characteristics. In concrete terms, it could be argued that a direct intra State vertical effect has been recognized. This can reform the system of direct effect of directives in general, but also the system of harmonization of public procurement directives in particular.

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