Brussels, 21/12/2012 (Agence Europe) - European Union public procurement rules prohibit national legislation which authorises the conclusion between public entities, without an invitation to tender, of cooperation contracts which do not implement a common public task and are capable of creating a privileged position for a possible private service provider. This was the ruling delivered on 19 December by the European Court of Justice in Case C-159/11 in which the Italian appeals court asked about the legality (under EU law) of a contract for an earthquake-resistance study for local hospitals in the Lecce region (commissioned from Salento University) granted without a call for tender under Italian legislation allowing public bodies to sign agreements among themselves with regard to activities of common interest. In addition, public universities are permitted to supply research and consultancy services to public or private entities provided that that activity does not impair their educational role.
The Court pointed out that a contract for pecuniary interest concluded in writing between an economic operator and a contracting authority is a public contract. It recalls its case-law according to which it is immaterial whether that operator is itself a contracting authority, whether it is primarily profit-making, whether it is structured as an undertaking or whether it has a continuous presence on the market. The Court noted that two types of contracts concluded by public entities fall outside the scope of EU Directive 2004/18, namely “Teckal” case-law and contracts by a public entity with a distinct entity where the first entity exercises over the second one a control which is similar to that which it exercises over its own departments and the second entity carries out the essential part of its activities with the entity or entities which control it; and contracts establishing cooperation between public entities with the aim of ensuring that a public task that they all have to perform is carried out. In the present case, the first exception does not apply because ASL does not exercise control over the University. The second exception is also not applicable. The cooperation contract at issue contains a series of substantive aspects a significant or even major part of which corresponds to activities usually carried out by engineers or architects and which, even though they have an academic foundation, do not constitute academic research. Consequently, the contract at issue does not appear to ensure the implementation of a public task which the ASL and the University both have to perform. In addition, says the Court “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, which is a matter for the national court to establish.” (FG/transl.fl)