The council had put out to tender its insurance requirements. The respondent submitted its bid. The council then withdrew the tender in order to take up membership of a mutual company providing such services created by local authorities in London. The authority argued that the arrangement was exempt under the judgment in Teckal which allowed the use of services without external tenders.
Held: The Authority’s appeal succeeded. The exemption did apply within the UK, and did apply to insurance contracts. The mutual company established by the local authorities working together satisfied the control requirement of Teckal. The Regulations had been intended to import the Directive, and the different wording used was not sufficient to an intention to impose a different regime. It was necessary only that an authority, or several authorities together, and without any private element of control, should exercise control.
Individual control is not necessary. No injury will be caused to the policy objective of the Directive if public authorities are allowed to participate in the collective procurement of goods and services, so long as no private interests are involved and they are acting solely in the public interest in the carrying out of their public service tasks. Asemfo shows that the decisive influence that a contracting public authority must exercise over the contractor may be present even if it is exercisable only in conjunction with the other public authorities.
Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Brown, Lord Dyson
[2011] UKSC 7, UKSC 2009/0166, [2011] 2 WLR 166, [2011] PTSR 481, [2011] 2 AC 34
Bailii, SC Summ, SC, Bailii Summary
Public Contracts Regulations 2006, Council Directive 2004/18/EC on the co-ordination of procedures for the award of public work contracts, public supply
contracts and public service contracts
England and Wales
Citing:
At First Instance – Risk Management Partners Ltd, Regina (on the Application of) v The Council of London Borough of Brent Admn 22-Apr-2008
Several local authorities had come together to establish a mutual insurance company. The defendants issued a tender for insurance, and the claimants complained that though their tender had been most advantageous, the defendant had abandoned the . .
At First Instance – Risk Management Partners Ltd v The London Borough of Brent Admn 16-May-2008
Claim for damages – alleged breach of regulations by local council.
Held: Brent had acted in breach of the 2006 Regulations when it abandoned the tender process and awarded the insurance contracts to LAML. Issues of causation and damages were . .
Appeal from – Brent London Borough Council v Risk Management Partners Ltd CA 9-Jun-2009
Brent appealed from a finding that it had failed when redirecting a contract for insurance and had no power to become a member or participating member of London Authorities Mutual Limited or to make payments or to enter into commitments to make . .
Cited – Teckal Srl v Comune di Viano, Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia ECJ 18-Nov-1999
AGAC was a corporate entity set up by a consortium of Italian local authorities to provide energy and environmental services to those participating. Prior to 1997 Teckal had supplied fuel to Viano and had serviced its heating systems. In May 1997 . .
Cited – Asociacion Nacional De Empresas Forestales v Transformacion Agraria SA (Tragsa) ECJ 28-Sep-2006
ECJ Freedom Of Establishment – Reference for a preliminary ruling Admissibility Article 86(1) EC No independent effect Factors permitting material which enables the Court to give a useful answer to the questions . .
Cited – Asociaciacion Nacional De Empresas Forestales ECJ 19-Apr-2007
ECJ (Freedom of Establishment) Reference for a preliminary ruling – Admissibility Article 86(1) EC – No independent effect – Factors permitting material which enables the Court to give a useful answer to the . .
Cited – Stadt Halle, RPL Recyclingpark Lochau GmbH v Arbeitsgemeinschaft Thermische Restabfall- und Energieverwertungsanlage TREA Leuna ECJ 11-Jan-2005
ECJ Directive 92/50/EEC – Public service contracts – Award with no public call for tenders – Award of the contract to a semi-public undertaking – Judicial protection – Directive 89/665/EEC
Cited – Parking Brixen v Gemeinde Brixen ECJ 13-Oct-2005
The award, by a public authority to a service provider, of the management of a public pay car park, in consideration for which that provider is remunerated by sums paid by third parties for the use of that car park, is a public service concession to . .
Cited – Oakley Inc v Animal Ltd and others CA 20-Oct-2005
It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .
Cited – Carbotermo SpA, Consorzio Alisei v Comune di Busto Arsizio,AGESP SpA ECJ 11-May-2006
ECJ Opinion – Directive 93/36/EEC – Public supply contracts – Award of contract without a call for tenders – Award of the contract to an undertaking in which the contracting authority has a shareholding. . .
Cited – SEA Srl v Comune di Ponte Nossa,third party: Servizi Tecnologici Comuni SeT Co SpA (Law Relating To Undertakings) ECJ 10-Sep-2009
ECJ Public procurement – Award procedures – Contract relating to a service for the collection, transport and disposal of urban waste – Awarded without any call for tenders – Awarded to a company limited by shares . .
Cited – Commission v Germany – C-480/06 ECJ 9-Jun-2009
Failure by a Member State to fulfil its obligations – Admissibility – Legal interest in bringing proceedings – Directive 92/50/EEC – Procedures for the award of public service contracts – Negotiated procedure without prior publication of a contract . .
Cited – Asociacion Nacional De Empresas Forestales v Transformacion Agraria SA (Tragsa) ECJ 28-Sep-2006
ECJ Freedom Of Establishment – Reference for a preliminary ruling Admissibility Article 86(1) EC No independent effect Factors permitting material which enables the Court to give a useful answer to the questions . .
Cited – Asociacion Profesional De Empresas De Reparto Y Manipulado De Correspondencia v Administracion General del Estado ECJ 18-Dec-2007
ECJ (Freedom To Provide Services) – Public procurement Liberalisation of postal services Directives 92/50/EEC and 97/67/EC’ Articles 43 EC, 49 EC and 86 EC National legislation allowing public authorities to . .
Cited – Coditel Brabant v Commune d’Uccle, Region de Bruxelles-Capitale (Law Relating To Undertakings) ECJ 13-Nov-2008
ECJ Public procurement – Tendering procedures Public service concessions – Concession for the operation of a municipal cable television network – Awarded by a municipality to an inter-municipal cooperative . .
Cited by:
Cited – Tachie and Others v Welwyn Hatfield Borough Council QBD 13-Dec-2013
The three appellants each challenged decisions refusing their homelessness reviews, saying that the decisions had been made by outside contracters and were unlawful.
Held: The company was a subsidiary of the Council, and the Teckal exception . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Commercial, Local Government, European
Updated: 02 November 2021; Ref: scu.428516
