1. Inter-communal cooperation and European public procurement1 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.

2. Inter-communal cooperation and European public procurement2 Overview assumption and reality EC procurement directives ECJ case law Inter-communal co-operation Summary

3. Inter-communal cooperation and European public procurement3 assumption … Inter-communal cooperation Public procurement

4. Inter-communal cooperation and European public procurement4 … and reality Inter- communal cooperation Public procure- ment

5. Inter-communal cooperation and European public procurement5 Inter-communal cooperation Cooperation without contracts against remuneration Contract award against remuneration between public entities

6. Inter-communal cooperation and European public procurement6 Public Procurement Contract award against remuneration Contract award against remuneration between public entities

7. Inter-communal cooperation and European public procurement7 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: public contracting authorities contracts for pecuniary interest compliance with general principles of the EC-Treaty (non-discrimination, transparency)

8. Inter-communal cooperation and European public procurement8 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. including a public body or public entity

9. Inter-communal cooperation and European public procurement9 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.

10. Inter-communal cooperation and European public procurement10 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. relations between public authorities

11. Inter-communal cooperation and European public procurement11 distinction between: Inter-communal cooperation (1) Procurement activities between public entities Other inter-communal cooperation

12. Inter-communal cooperation and European public procurement12 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 Procurement activities

13. Inter-communal cooperation and European public procurement13 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. Other inter-communal cooperation

14. Inter-communal cooperation and European public procurement14 Public entities maintain their freedom of choice There is no general procurement obligation Summary 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