SDEU upřesnil podmínky pro in house zadávání veřejných zakázek

The Court of Justice of the European Union (CJEU) in its ruling C-692/23 dealt with a case from the Netherlands concerning direct vertical awarding of public contracts for municipal waste processing. Several municipalities decided to entrust these services to companies in which they held shares, so-called in-house providers, without announcing a public procurement procedure. A private provider opposed this approach, arguing that the conditions for the exemption from the obligation to compete were not met.

The disputed point was whether the so-called in-house provider actually performs at least 80% of its activities for the benefit of the public contracting authorities that control it. This condition is crucial for the contract to be awarded directly. Specifically, the question was whether this share should be assessed solely based on the turnover of the company itself or whether the turnover of its subsidiaries, if it heads the entire group, should also be taken into account.

The CJEU sided with the stricter interpretation. It emphasized that the main objective of in-house procurement rules is to prevent distortion of competition. If the controlled company operates on the market through a group, the activities of subsidiaries must also be considered when assessing the 80% threshold. In practice, this means using the consolidated turnover of the group, not just the data of the parent company.

According to the CJEU, the opposite approach would allow easy circumvention of the rules by simply shifting business activities to subsidiaries while formally maintaining the required share of activities at the parent company. Such a result would contradict the purpose of procurement rules and provide publicly owned groups with an unjustified advantage over private competitors.

The ruling sends a clear message to practice. Public contracting authorities and companies within their ownership structures must expect that the group structure and its real market activities will play a crucial role in assessing in-house exceptions. For groups combining public contracts and market business, this significantly increases the risk that direct awarding within vertical cooperation cannot be used.

Authors:

Jan Turek

Jonáš Kozák

Matěj Šimpach