Inter-communal cooperation and European public procurement

1. Inter-communal cooperation and European public procurement 29 September 2005, Brussels Seminar on inter-communal cooperation Robert Wein, European Commission, Directorate General Internal Market and Services Disclaimer: The information contained in this presentation is not binding for the European Commission and does not present an official position of the European Commission. Inter-communal cooperation and European public procurement

2. Overview • assumption and reality • EC procurement directives • ECJ case law • Inter-communal co-operation • Summary Inter-communal cooperation and European public procurement

3. assumption … Public procurement Inter-communal cooperation Inter-communal cooperation and European public procurement

4. … and reality Public procure- ment Inter- communal cooperation Inter-communal cooperation and European public procurement

5. Inter-communal cooperation Cooperation without contracts against remuneration Contract award against remuneration between public entities Inter-communal cooperation and European public procurement

6. Public Procurement Contract award against remuneration Contract award against remuneration between public entities Inter-communal cooperation and European public procurement

7. public contracting authorities • contracts for pecuniary interest • compliance with general principles of the EC-Treaty • (non-discrimination, transparency) EC procurement directives (1) “old” directives: 92/50/EEC, 93/36/EEC, 93/37/EEC “new” directive: 2004/18/EC • application to: • below the thresholds of the directives: Inter-communal cooperation and European public procurement

8. including a public body or public entity EC procurement directives (2) Article 1 c) directive 92/50/EEC: • service provider shall mean any natural or legal person, , which offers services. Article 1 (8) directive 2004/18/EC: • The terms "contractor", "supplier" and "service provider" mean any natural or legal person or group of such persons and/or bodies which offers on the market, respectively, the execution of works and/or a work, products or services. Inter-communal cooperation and European public procurement

9. ECJ case law (1) C-107/98 Teckal, C-94/99 ARGE Gewässerschutz • Procurement law is applicable in the case where a contracting authority plans to conclude in writing, with an entity which is formally distinct from it and independent of it in regard to decision-making, a contract for pecuniary interest for the supply of products, whether or not that entity is itself a contracting authority. Inter-communal cooperation and European public procurement

10. relations between public authorities ECJ case law (2) C-84/03 Commission vs. Spain • The a priori exclusion of their public bodies and, in a general manner, non-commercial bodies governed by public law from the scope of the codified law, whatever the nature of those relations, constitutes an incorrect transposition of the public procurement directives. Inter-communal cooperation and European public procurement

11. Procurement activities between public entities Other inter-communal cooperation Inter-communal cooperation (1) distinction between: Inter-communal cooperation and European public procurement

12. Procurement activities Inter-communal cooperation (2) Service against remuneration: • No reason for distinction between public and private service providers • Economic interest: ensuring best value for money when spending public funds • no distinction between public law contracts and private law contracts Inter-communal cooperation and European public procurement

13. Other inter-communal cooperation Inter-communal cooperation (3) • organisational transfer of public task example: case Hinte • complete transfer of public task to other public entity (example: public special purpose association) • other cooperation without remuneration examples: administrative reorganisation, joint purchasing, service provision by seconded staff, etc. Inter-communal cooperation and European public procurement

14. The award of contracts against remuneration to public entities is subject to public procurement law Multiple forms of inter-communal cooperation are not subject to procurement law Summary • Public entities maintain their freedom of choice • There is no general procurement obligation Inter-communal cooperation and European public procurement