PLC Public Sector reports:
The key decision in our June 2013 case digest may have implications for contracting authorities exploring options to share services.
Please feel free to submit a comment below or contact us at: feedback@practicallaw.com if you have any views on the cases covered or think that we have missed a case that should be brought to the attention of public procurement practitioners.
On 13 June 2013, the ECJ gave an important ruling on whether a contract between two local authorities constituted a public contract for the purposes of Directive 2004/18. The contract involved one public authority transferring to the other responsibility for providing building-cleaning services, in return for compensation covering its expenses. The ECJ concluded that this contract did constitute a public services contract for the purposes of Directive 2004/18. This was because:
- The Teckal in-house exception to the application of the public procurement rules did not apply as the first authority did not exercise control over the other.
- The exception established in Commission v Germany (Case C-480/06) did not apply either as it could not be regarded as mere co-operation between public authorities with a view to carrying out a public service task that both of them have to perform.
Any contracting authorities seeking to rely on the decision in Commission v Germany in particular should review their plans in the light of Kreis Düren as it takes a restrictive view of the exception and makes it clear that the ECJ view is that there is no exception for contracts between contracting authorities on the basis that they are for cost recovery only. For in-depth comment on the case, see Opinion, When is a procurement not a public procurement … the “in-house” exceptions.
The General Court has dismissed an appeal by an unsuccessful tenderer against a procurement procedure conducted by the European Union Rule of Law Mission in Kosovo in Kosovo (Eulex Kosovo). The General Court ruled that Eulex Kosovo has no legal personality and it cannot be a party to proceedings before the European Union Courts. The General Court, therefore, dismissed the action as inadmissible.
The General Court has rejected a claim for damages against the European Parliament (EP). The claim followed a decision not to award a contract for car services to an unsuccessful bidder. Previously, the bidder had successfully appealed a decision, which was annulled by the General Court on the grounds that the EP had breached its obligation to provide reasons for its decision. The EP then published a new call for tenders and the bidder was again unsuccessful. The bidder did not challenge the validity of the second procedure but brought a claim seeking compensation which it claimed to have suffered as a result of the EP’s first decision. However this was rejected by the General Court on the basis that the finding that there had been a failure to give reasons did not mean that the award of the contract to the other tenderer had constituted an error or that there was a causal link between that fact and the loss alleged by the unsuccessful bidder.