Co-operation

June 9th, 2020

Two Districts and a Town in Germany entrust the disposal of their mixed municipal household waste to a special purpose association which they control together. The local authorities are of course “ contracting authorities” for the purposes of the public procurement regime. The association is a “body governed by public law”. It also is a “contracting authority” for the purposes of Directive 2014/24.

The association places into landfills residual waste. That is post treatment, after recyclables etc have been removed. The association does not however itself have the necessary treatment plant.

Case C-229/19, Remondis, ECJ Judgment on 4 June 2020, concerns the award by the association of a contract for the treatment of some of the waste by one of the Districts for a fee. The question was whether that contract was a form of co-operation between the two contracting authorities that fell outside the tendering regime required by the Directive because it came within the Article 12(4) exclusion ( which is transposed into Regulation 12(4) of PCR 2015).

The contract in question did not come within that exclusion ruled the Court. It noted, at para 23, that the concept of “co-operation” is not defined in the Directive. It ruled, at para 34, that the existence of co-operation must be based on a strategy which is common to the parties to that co-operation and requires the contracting authorities to combine their efforts to provide public services.

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