Professional Documents
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Ms 91 Kuypers
Ms 91 Kuypers
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2.1. General
The 'quasi in-house' exemption is an exemption that
applies in situations in which the contracting authority
awards a contract to a person that is materially not
distinct from it. It is 'quasi' an in-house relationship in
which a contract is needed between the entities for the
reason that the contracting party is formally distinct from
the contracting authority but depending on the
contracting authority that is similar to the relationship
that the contracting authority shares with its own
departments. This exemption was first affirmed in the
CJEU's judgment in the Teckal case.26
The CJEU ruled first that the only exceptions to the
application of the public procurement rules are the ones
that are mentioned expressly in the applicable
directives.27 The CJEU then established that there is no
such general exemption from the public procurement
rules for contracts between contracting authorities. 28 The
CJEU follows in its decision the opinion of AdvocateGeneral Cosmas29 that there can only be a public contract
in the event that there is an actual agreement between
'two separate persons'.30 To be a separate person, in the
meaning of the Directive, the contracting party needs to
be legally distinct from the contracting authority. The CJEU
proceeded with two criteria for determining that the
contracting party is actually not a legally distinct person.
The contracting authority can make an exception:
'only in the case where the local authority
exercises over the person concerned a control
which is similar to that which it exercises over
its own departments and, at the same time,
that person carries out the essential part of its
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Arrowsmith, p. 513.
CJEU 11 January 2005, C-26/03 (Stadt Halle), par. 51.
See for examples CJEU 10 November 2005, C-29/04 (Stadt Mdling); CJEU
6 April 2006, C-410/04 (ANAV); CJEU 10 September 2009, C-573/07 (Sea).
CJEU 10 November 2005, C-29/04 (Stadt Mdling).
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quasi
in-house: horizontal
situation
in-house
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single city, therefore holding the title of city and province at once.
CJEU 8 May 2014, C-15/13 (Datenlotsen), par. 12.
CJEU 8 May 2014, C-15/13 (Datenlotsen), par. 33.
Commission Staff Working Paper concerning the application of EU public
procurement law to relations between contracting authorities ('public-public
cooperation'), SEC(2011) 1169 final, p. 12.
The 'activities'-criterion
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The activities criterion must be fulfilled aswell, but that a separate test that
must be aswell.
Arrowsmith, p. 509.
CJEU 10 September 2009, C-573/07 (Sea), par. 73.
CJEU 18 November 1999, C-107/98 (Teckal).
CJEU 18 November 1999, C-107/98 (Teckal), par. 50.
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Introduction
2.3.3.2.
Joint
criterion
control-
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control.
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Article 12 (1)
Introduction
Indirect
private
participation
capital
154
Article 12 (2)
Introduction
158
Arrowsmith, p. 519.
Article 12(3)
3.3.3.1. Introduction
Article 12 (3) Directive 2014/24/EU deals with
situations in which the criteria of the 'quasi in-house'
exemption are fulfilled jointly by two or more contracting
authorities. According to the European legislator, 'a
160
Article 12(3)(a)
Article 12(3)(b)
3.3.3.4.
Article 12(3)(c)
The third criterion for the applicability of the 'joint inhouse' exemption concerns the participation of private
capital in the contracting party. A contracting authority
may only award a contract directly to a jointly controlled
entity in the event that:
'there is no direct private capital participation in
the controlled legal person with the exception of
non-controlling and non-blocking forms of private
capital
participation
required
by
national
legislative provisions, in conformity with the
Treaties, which do not exert a decisive influence
on the controlled legal person'.
The third criterion for the 'joint in-house' exemption is
therefore word-for-word the same criterion as the third
criterion for the classical 'in-house' exemption as
established in Article 12 (1) (c). It should be interpreted in
the same way as the criterion in Article 12 (1) (c). This
criterion is therefore subject to the same legal certainty
and uncertainties as discussed in paragraph 3.2.4.
One of the issues that raised discussion is the question
whether the joint fulfilment of the 'quasi in-house' criteria
is also applicable to the situations described in Article 12
(2). The European legislator has not expressed explicitly
whether the situations in Article 12(2) may be exempted,
if the criteria for the 'quasi in-house' exemption are
fulfilled only jointly. Article 12 (2) seems only to be applied
in sole 'quasi in-house' constellations, because the
paragraphs (2) and (3) in Article 12 only refer back to
Article 12(1), but not to each other. The exclusion of joint
control in 'horizontal in-house' situations would be
supported by the consequences: such an interpretation
will broaden the scope of the 'quasi in-house' exemption
significantly. It can furthermore hardly be accepted that
public contracts between sister-entities in large joint
control situations to be the expression of only one will of
the joint controlling contracting authorities. Therefore the
joint fulfilment of the criteria of the 'horizontal in-house'
and also of the 'reverse vertical in-house' exemptions is
not acceptable, even though not explicitly excluded by
Introduction
Article 12(1)
Article 12 (2)
Article 12(3)