Requirements for horizontal cooperation between contracting authorities

Abstract:

The principal purpose of the article at hand is to elucidate the conditions on which Member States’ public authorities – in particular, local authorities – are allowed, without observing the principles and rules that emanate from the EU’s procurement directives, to enter into cooperation agreements for the performance of public tasks.

Based on the principle of administrative autonomy of Member States, the relevant conditions were initially elaborated by the European Court of Justice in the Stadtreinigung Hamburg ruling and the ensuing case law. By and large, these conditions are reflected in the 2014 procurement directives.

The article concludes that the new directives, in several regards, expand the possibilities of using cooperation agreements. The main principle that restricts recourse to such agreements is the prohibition against abusing the resulting joint ventures to engage in business activities. Several questions are as yet in dispute and may come to require settlement by way of preliminary rulings from the European Court of Justice.