Samenwerkingovereenkomst tussen openbare lichamen zonder oproep tot inschrijving

Cooperation contracts – common public task – privileged position for a private service provider.

The judgment of the Court of Justice of the European Union of 19 December 2012 concerns a cooperation contract between public entities, without an invitation to tender, prohibited by European law.

The subject matter of the contract at issue was a study project on the seismic vulnerability of hospital buildings awarded at the University of Salento by an Italian local health authority without an invitation to tender.

The European Court of Justice began with a reminder that contracts concluded by public entities which establish cooperation aimed at ensuring that a public task that they all have to perform is carried out fall outside the scope of EU law.

The Court noted that the cooperation contract at issue contains a series of substantive aspects which correspond to activities usually carried out by engineers or architects and which do not constitute academic research. Consequently, the contract at issue does not appear to ensure the implementation of a public task which the authority and the university both have to perform.

In addition, that contract may result in an advantage for private undertakings if the highly qualified external collaborators to whom it permits the university to have recourse for the carrying out of certain services include private service providers
Source : C.J.U.E., C-159/11 du 19 décembre 2012

Additional information:

P. Thiel, Mémento des marchés publics et des PPP 2013, n°87.