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Commission v Germany: A New Approach on In-house Providing?

January 2010 - Real Estate & Property. Legal Developments by Delphi.

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On June 9, 2009 the European Court of Justice (the ECJ) handed down its judgment in Commission v Germany (C-480/06).1 The case, the facts of which are described below (see section 3), concerns the scope for co-operation between local authorities without the need for a tendering procedure in accordance with the detailed rules of Directive 92/50 (which in all aspects relevant to this article are the same as in the new Directive 2004/18).2 At first glance the judgment may appear to the reader to be contradictory to the ECJ’s settled case law on what the Court itself refers to as in-house providing (the so called Teckal doctrine, described in further detail below in section 2).3 Consequently the judgment has, in Sweden as well as in other Member States, given rise to discussions among those active within the field of public procurement. Some commentators have even expressed the view that the judgment in Commission v Germany represents a new approach on in-house providing.


By Kristian Pedersen and Erik Olsson. Reprinted from Public Procurement Law Review Issue 1, 2010 Sweet & Maxwell 100 Avenue Road Swiss Cottage London NW3 3PF (Law Publishers)