Renaud van Melsen interviewed in Le Soir Immo

A good read to start the year?

We are happy to share Renaud van Melsen’s interview in Le Soir Immo.

What is our role as lawyers in real estate and public law? What are today’s major questions in town planning and environmental law?

To read the article “Les avocats ne sont pas des penseurs en vase clos”, click here.

Interview by Brigitte De Wolf Cambier

Article published in Le Soir Immo on 31 December 2020

The strengthening of public cooperation

Non-institutionalised cooperation between contracting authorities (pouvoir adjudicateur /aanbestedende overheid) allows them to resort to mechanisms for pooling one or more of their missions freely, without going through public procurement procedures. In 2020, the CJEU has clarified one of the conditions allowing contracting authorities to use this legal exception and avoid public procurement rules.

Version française disponible ici.

Such a cooperation agreement shall fall outside the scope of public procurement rules when all the following conditions are fulfilled (Law of 17 June 2016 on public tendering):

  • the implementation of that cooperation is governed solely by considerations relating to the public interest;
  • the participating contracting authorities perform on the open market less than 20 % of the activities concerned by the cooperation; and
  • the contract establishes or implements a cooperation between the participating contracting authorities with the aim of ensuring that the public services they have to perform are provided to achieve common objectives.

It was already known that the last condition implies the existence of genuine cooperation between public entities in the performance of the public service that is the object of the cooperation.

In its ruling of 4 June 2020, the Court of Justice of the European Union (CJEU) confirmed the need for the contracting authorities concerned to genuinely cooperate, considering that the notion of “cooperation” is a key concept to exclude the mechanism of public procurement law.

The CJEU considers that “the joint participation of all the parties to the cooperation agreement is essential to ensure that the public services they have to perform are provided and that that condition cannot be deemed to be satisfied where the sole contribution of certain contracting parties goes no further than a simple reimbursement of costs”.

Therefore, for an agreement between public authorities to escape the competitive rules of public procurement law, it is not sufficient for one entity to pay for the object of cooperation and for the other entity to execute it. In such a case, one cannot tell the difference between such a “cooperation” and a public procurement contract that is not covered by the exclusion provided for in this provision.

The CJEU further specifies that the terms and conditions surrounding the conclusion of the cooperation agreement must also reflect an intrinsically collaborative dimension between public authorities: “the conclusion of a cooperation agreement between parties in the public sector must be discernible as the culmination of a process of cooperation between the parties to the agreement”.

Hence, during the preparation of a cooperation agreement, the parties must jointly define their needs and the solutions to be provided (CJEU, Remondis Gmbh, Case C-429/19, 20 June 2020, points 26 to 34).

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For any question or assistance, please contact Laura Grauer:
laura.grauer@simontbraun.eu

Simont Braun promotes Renaud van Melsen to Of Counsel

Belgian leading independent law firm Simont Braun is pleased to announce that it has promoted Renaud van Melsen to Of Counsel, acknowledging his know-how and many years of experience in matters of Real Estate, Public & Administrative law, as well as Supreme Court litigation.

Renaud van Melsen gathers 15 years of experience in public law, in particular in the fields of public procurement and contracts, town planning and environmental law. Renaud also deals with other matters such as civil liability, local tax law and various areas of European law. He regularly assists public and private clients in the context of major projects and represents them in legal proceedings, both administrative and civil. Renaud also has expertise in proceedings before the Belgian Supreme Court.

Renaud devotes part of his time as a member of the Brussels Commission on administrative transparency as well as the Regional development commission. He has also sharpened his legal knowledge as a teaching assistant in administrative law at UNamur for more than ten years, and by authoring numerous publications and seminars.

Renaud has comprehensive expertise as he guides clients at both advisory and litigation levels. He combines high-end legal analysis with a pragmatic approach to the needs of his clients,” says Manuela von Kuegelgen, Partner in Real Estate, Public and administrative law. “Renaud is also perfectly bilingual in Dutch and French which is a strong asset in his areas of practice”.

Renaud van Melsen’s promotion to Of Counsel has taken effect on 1 November 2020.

Do not hesitate to contact him!

renaud.vanmelsen@simontbraun.eu
+32 (0)2 533 17 33

To know more about Renaud, please visit his profile here.