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Development Agreements – when are they exempt? Cyrus Mehta, Partner Nabarro LLP 58151864.

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Presentation on theme: "Development Agreements – when are they exempt? Cyrus Mehta, Partner Nabarro LLP 58151864."— Presentation transcript:

1 Development Agreements – when are they exempt? Cyrus Mehta, Partner Nabarro LLP 58151864

2 Land transactions “Pure” land transactions (transfers, leases, licences) are not caught Public works contracts: –for the carry out of works –contracting authority “engages a person” to carry out works Regulation 6 (2)(e) – exemption for contracts for the acquisition of land and (existing) buildings But state aid requirements: Commission’s Notice on sale of land and buildings

3 “Mixed” contracts Gestion Hotelera –“main object” test –“incidental” works Article 1(2)(b) Directive: “Public contracts having as their object …” Quedlinburg –“main purpose” was not acquisition of land, but procurement of building Example: leases with covenants to refurbish “Severability” of works

4 Contractual commitment to develop Contract: –for works –contracting authority engages a person … –“contract” has a Community law definition (see AG in City of Cologne) Does an intention or expectation suffice? Context of development Flensburg case –sanctions for failure to develop –re-acquisition of property –but how specific can requirements be?

5 Contractual commitment to develop cont.. ECJ reference in Mueller “specified requirements” –how specific? –outline parameters do not suffice? Development “opportunities” as works concessions? –But still need to show “works contract”

6 Miscellaneous Regulation 34 – subsidised works contracts Use of public/private SPVs for development –unlikely to be “in-house” (Teckal etc.) –is there a “works” contract? –Commission’s IPPP notice Planning obligations : quality standards, e.g. Code for Sustainable Homes

7 Summary Where EU procurement rules may not apply: –“pure” land transactions –contracts where “main object” is disposal of land –no contractual commitment to develop –contracts with outline specification


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