The European Commission has published a staff working paper providing a broad overview of the ECJ's case law on the application of public procurement law to relations between contracting authorities, and the conclusions that the Commission has drawn from it.
The Commission recognises that contracting authorities often find it difficult to decide whether the procurement rules apply when cooperating with another authority, and sets out what it considers the key characteristics of a public-public arrangement. These are:
- the use of the authorities' own resources;
- there being no involvement of private capital;
- there being no market orientation in the provision of the services; and
- the right type of connection between the cooperating parties, being in-house control for a structural cooperation and cooperation involving mutual rights and obligations for contractual cooperation.
The working paper covers no new ground, but it does helpfully draw together the Teckal case law, see our March 2011 Bulletin and the Hamburg Waste case law, in a way that will be useful to contracting authorities looking to cooperate.
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