In 2009, public contracts worth around €420 billion were advertised in accordance with the EU Public Procurement Directives. The aim of these rules is to ensure that the relevant public purchasing contracts are open to competition for suppliers across the internal market. At the same time, EU law does not restrict the freedom of a contracting authority to perform the public interest tasks conferred on it by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own structure.
There has been an ongoing debate about whether the EU Public Procurement Directives also apply to various types of situations where contracting authorities together seek to ensure the performance of their public tasks. The Court of Justice of the European Union (hereafter the "Court") has confirmed that contracts between contracting authorities cannot be automatically presumed to fall outside the application of EU public procurement law. However, the Court's case law also showed that certain forms of cooperation between contracting authorities cannot be regarded as public procurement contracts.
Therefore, a distinction has to be drawn between, on the one hand, procurement activities which should benefit from open competition among economic operators as ensured by the EU procurement rules and, on the other hand, other arrangements which contracting authorities may use to ensure the performance of their public tasks and which do not fall within the scope of the EU Public Procurement Directives.
Contracting authorities wishing to cooperate currently often find it difficult to ascertain when the EU Public Procurement Directives apply and when they do not. Therefore, following a broad consultation with Member States, the Commission has decided to issue guidance in response to the Member States demand.
The present document aims to provide a broad overview of the existing case-law of the Court. It consolidates and summarises this case-law, and draws some conclusions from it, insofar as the findings of the Court allow. It does not create any new rules or requirements. Instead it aims to contribute to the better understanding and application of the existing legal environment. It is intended to benefit all stakeholders in the field of public procurement. The guidance in this document is limited to the area of public procurement and is without prejudice to the EU rules on competition and state aid.