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.
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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).