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
ECJ The City of Halle had decided to award a contract for the handling and disposal of its waste to RPL, a company with limited liability. Three quarters of RPL’s shares were held by a wholly owned subsidiary of a company itself wholly owned by Halle. Just under one quarter were held by a private company. Leuna challenged the proposed contract on the ground that Halle had failed to comply with the Directives. The question was whether the existence of a substantial private shareholding in the contractor was inconsistent with the control test.
Held: The court observed that in Teckal the distinct entity was wholly owned by the public authorities. On the other hand, participation, even as a minority, of a private undertaking excluded the possibility of the contracting authority exercising a control similar to that which it exercises over its own departments. This was incompatible with the Teckal exemption because the element of private capital meant that the control test was not satisfied.
Citations:
C-26/03, [2005] EUECJ C-26/03, [2005] ECR I-1
Links:
Statutes:
Directive 89/665/EEC, Directive 92/50/EEC
Jurisdiction:
European
Cited by:
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Cited – Brent London Borough Council and Others v Risk Management Partners Ltd SC 9-Feb-2011
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. . .
Lists of cited by and citing cases may be incomplete.
Commercial
Updated: 28 June 2022; Ref: scu.221002