Brussels, 15.2.2013 SWD(2013) 53 final COMMISSION STAFF ...

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concessions. The public authorities in question will not be subject to the specific rules onnegotiated procedures laid down in Directive 2004/18/EC, since this Directive does notapply to service concessions and contains only a few rules applicable to the serviceslisted in Annex II B to the Directive (such as SSGIs) 187 . For this reason, when awardinga public contract or an SSGI concession, public authorities are free to organise an ad hocnegotiated procedure provided national law does not lay down specific rules. In any case,the general principles of transparency and non-discrimination laid down by the TFEU, inaccordance with which equal treatment must be given to all the economic operatorsinvited to participate in the negotiated procedure, are applicable to services with a crossborderinterest.211. To what extent do the public procurement rules apply to inter-municipal cooperation?This cooperation can take various forms, e.g. one municipality purchasing a servicefrom another, or two municipalities jointly launching a public procurement procedureor creating an entity for the purpose of providing an SSGI, etc.The public procurement rules apply when a public authority intends to award a publicservice contract to a third party 188 in return for payment. It makes no difference whetherthe third party is a private operator or public authority.However, as is shown by the examples below, there are situations in which publicauthorities entrust economic activities to other public authorities or carry out theseactivities jointly with other public authorities without being obliged to apply the EUpublic procurement rules.• Thus, the Court of Justice recently found that public authorities could carry outthe public service activities for which they were responsible by using their ownresources, in cooperation with other public authorities, without the need for anyparticular form of organisation or the need to provide for application ofEuropean public procurement legislation to the implementation of theseorganisational practices.(a) Cooperation between public authorities can be organised within theframework of a separate public body that meets the in-house criteria 189 .Concerning this point, see question 199.(b)The Court of Justice has also stated 190 that public/public cooperation doesnot necessarily require the creation of new jointly-controlled entities.According to the Court, such cooperation can be based simply oncooperation between public bodies with the sole purpose of jointly ensurethe execution of a public task which the bodies concerned have toperform, for the pursuit of public interest objectives. This does notnecessarily mean that each public authority cooperates in an equalmeasure in carrying out the public interest tasks, since the cooperationcan be based on sharing tasks and on specialisation. However, there mustbe genuine cooperation, with mutual rights and obligations between the187188189190As stated in answer 199 and pursuant to Article 21 of Directive 2004/18/EC, public contracts for theseservices are subject only to certain rules of Directive 2004/18/EC (namely the obligation to define thetechnical specifications in the contract documents and to publish ex-post the result of the procedure)and are otherwise governed by the general principles of the TFEU (non-discrimination, transparency,etc.).See the judgments in Cases C-107/98 Teckal [1999] ECR I-8121, paragraph 51, C-94/99 ARGE [2000]ECR I-11037, paragraph 40, and C-220/05 Auroux [2007] ECR I-385, paragraph 62.See the judgment in Case C-324/07 Coditel Brabant [2008] ECR I-8457.See the judgment in Case C-480/06 Commission v Germany [2009] ECR I-4747.96
participants, as opposed to a public contract where one party carries out atask in return for payment. There must not be any financial transfersbetween the public authorities other than reimbursements of costs. Thecooperation must be based solely on considerations and requirementslinked to the pursuit of public interest objectives, which excludes thepursuit of profit and the participation of any private or mixed capitalentities. Finally, the cooperation agreement cannot be artificially used asa means to circumvent the application of the relevant rules of the PublicProcurement Directives.• Public authorities such as municipalities can of course jointly organise publicprocurement procedures. Thus, a public authority can launch a procedure foritself and for another public authority 191 provided it announces this at the startof the procedure. The public procurement rules will thus apply to a procedurelaunched by the public authority for itself and for the other public authority/ies,but will not apply to cooperation between public authorities.• Several public authorities can create a new entity and fully transfer to it aspecific task. In this case, the public authorities do not retain any control overthe service performed, which is provided by the new entity acting in fullindependence and under its own responsibility. In this case, no service isprovided and consequently neither the Treaty nor the directives apply 192 .• When public authorities put in place structures involving mutual assistance andcooperation for no remuneration, there is no provision of services within themeaning of the Treaty and EU law is not applicable.212. To what extent do the public procurement rules apply to public-private partnerships(PPPs)?Generally speaking, the creation of a PPP constitutes the award of a public contract or ofa concession. This award is subject to the public procurement rules applicable in the caseat hand, according to the type of contract involved and the value of the contract.With regard to institutionalised PPPs (implying the existence of a mixed capital entity), itshould be pointed out that, as indicated in the answer to question 199, there cannot be an‘in-house’ relationship between a public authority and a public-private entity in which apublic authority participates jointly with a private entity. Consequently, it follows thatservices entrusted to a public-private entity must be awarded in accordance with thepublic procurement rules laid down in the Treaty or in the Public ProcurementDirectives. It also follows that the acquisition by a private operator of a share in thecapital of an entity that performs public tasks awarded under an arrangement involvingan in-house relationship puts an end to this relationship and makes it necessary to retenderthe contract or concession in question, unless the private operator has beenselected in accordance with the public procurement rules.If a public authority follows an award procedure in accordance with European publicprocurement law in order to select a private partner who is to perform the service191192See Article 11 of Directive 2004/18/EC on central purchasing bodies.See Commission press release IP/07/357 of 21.3.2007, which states that the complete transfer of apublic task from one public entity to another does not imply the provision of services for remunerationwithin the meaning of Article 49 of the EC Treaty, if the public entity to which the task has beentransferred performs this task in full independence and under its own responsibility. Such a transfer ofpublic tasks constitutes an act of internal organisation of the public administration of the Member Statein question. As such, it is not subject to the Treaty and its fundamental freedoms.97
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4.2 Provision of the SSGI is entrus
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20. What are the logical steps of t
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59. Does the requirement of an act
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128. In the event that several publ
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160. What is the purpose of the req
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196. What is the relationship betwe
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227. Can Member States decide to re
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SGEIs compatible with the internal
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As for the answers to questions con
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activity’ within the meaning of t
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8. Is it possible to regard certain
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that the market will be able to pro
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The most important difference lies
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carried on by a non-profit operator
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• Anti-pollution surveillance 61
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than comparable services rendered b
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not provide any transport services
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carry out their task of providing s
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It should be noted that under the S
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measure taken by the State provided
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Brussels, 15.2.2013 SWD(2013) 53 final COMMISSION STAFF ...

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