Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Public-Private Partnerships and Community Law on Public Procurement and Concessions
Date: 2005-11-15
Institutions: European Commission
Subjects: private sector, public contract, public sector, restrictive trade practice, service concession

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 15.11.2005 
COM(2005) 569 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS  

on Public-Private Partnerships  
and Community Law on Public Procurement and Concessions 

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TABLE OF CONTENTS 

1. 

2. 

2.1. 

2.2. 

2.3. 

Introduction .................................................................................................................. 3 

Key issues for possible follow-up................................................................................ 4 

Issues requiring follow-up at EC level......................................................................... 4 

The Competitive Dialogue: the Commission will provide clarification ...................... 5 

Issues where no separate EC initiative is proposed at this stage.................................. 5 

2.3.1.  No new legislation covering all contractual PPPs ....................................................... 5 

2.3.2.  No Community action on other specific aspects of PPPs ............................................ 5 

2.4. 

Continuation of debate on PPPs at EC level ................................................................ 6 

3. 

3.1. 

3.2. 

3.3. 

4. 

4.1. 

4.2. 

5. 

Concessions.................................................................................................................. 6 

Background .................................................................................................................. 6 

Options to provide legal certainty on concessions....................................................... 7 

Content of a possible Community initiative on concessions ....................................... 8 

Institutionalised PPPs................................................................................................... 9 

Preferred approach ....................................................................................................... 9 

Content of a possible Interpretative Communication on institutionalised PPPs........ 10 

Next steps ................................................................................................................... 11 

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COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS  

on Public-Private Partnerships  
and Community Law on Public Procurement and Concessions 

(Text with EEA relevance) 

1. 

INTRODUCTION 

Public  authorities  at  all  levels  are  increasingly  interested  in  co-operating  with  the 
private  sector  when  ensuring  the  provision  of  an  infrastructure  or  a  service.  The 
interest  in  such  co-operation,  commonly  referred  to  as  Public-Private  Partnerships 
(PPPs), is partly due to the benefit public authorities could have from the know-how 
of the private sector, in particular in order to increase efficiency, partly this interest is 
due to public budget constraints. However, PPPs are not a miracle solution: for each 
project it is necessary to assess whether partnership really adds value to the specific 
service or public works in question, compared with other options such as concluding 
a more traditional contract. 

Community law is neutral as regards whether public authorities choose to provide an 
economic  activity  themselves  or  to  entrust  it  to  a  third  party.  If  public  authorities 
decide, however, to involve third parties in conducting an activity, Community law 
on public procurement and concessions may come into play. 

The  main  purpose  of  Community  law  on  public  procurement  and  concessions  is  to 
create an Internal Market in which the free movement of goods and services and the 
right  of  establishment  as  well  as  the  fundamental  principles  of  equal  treatment, 
transparency and mutual recognition are safeguarded and value for money obtained 
when  public  authorities  buy  products  or  mandate  third  parties  with  performing 
services  or  works.  In  view  of  the  increasing  importance  of  PPPs  it  was  considered 
necessary  to  explore  the  extent  to  which  existing  Community  rules  adequately 
implement these objectives when it comes to awarding PPP contracts or concessions. 
This  should  enable  the  Commission  to  assess  whether  there  is  a  need  to  clarify, 
complement or improve the current legal framework at European level. To this end, 
the  Commission  adopted  the  Green  Paper  on  Public-Private  Partnerships  and 
Community Law on Public Contracts and Concessions1 on 30 April 2004. 

The  debate  launched  by  the  Green  Paper  met  with  considerable  interest  and  was 
generally  welcomed.  The  Commission  received  close  to  200 contributions  from  a 
wide  variety  of  respondents,  including  many  of  the  Member  States.  Both  the 
European  Economic  and  Social  Committee2  and  the  Committee  of  the  Regions3 

1 
2 

COM(2004) 327 final, 30.4.2004. 
Opinion on the Green Paper on public-private partnerships and Community law on public contracts and 
concessions, Brussels, 27-28 October 2004, CESE 1440/2004. 

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adopted  opinions  on  the  Green  Paper.  In  May  2005  a  report  analysing  all 
contributions submitted in the course of the public consultation was published.4  

This  Communication  presents  the  policy  options  following  the  consultation,  with  a 
view  to  ensuring  effective  competition  for  PPPs  without  unduly  limiting  the 
flexibility needed to design innovative and often complex projects. Stating its policy 
preferences  at  this  stage  is  in  line  with  the  Commission’s  commitment  to  public 
accountability and to transparency in exercising its right of initiative, which is a basic 
principle of “Better Regulation for Growth and Jobs in the European Union”.5 

While  this  Communication  seeks  to  draw  policy  conclusions  from  the  PPP  Green 
Paper consultation, the choice of options it sets out has to be seen in a wider context, 
including  conclusions  drawn  from  judgments  of  the  European  Court  of  Justice, 
experience with procedures the Commission launched under Article 226 EC Treaty 
against Member States and bilateral contacts with stakeholders.  

While  the  consultation  provided  both  factual  information  on  practical  experiences 
with PPPs and stakeholders’ opinions on preferred policy options, it is no substitute 
for in-depth analysis of the impacts of such policies. Consequently, the final decision 
on  possible  legislative  initiatives  for  clarifying,  complementing  or  improving 
Community  law  on  public  procurement  and  concessions  will  be  subject  to  impact 
assessment as required under “Better Regulation” principles. 

2. 

KEY ISSUES FOR POSSIBLE FOLLOW-UP  

2.1. 

Issues requiring follow-up at EC level 

The  PPP  Green  Paper  covered  a  range  of  subjects  related  to  PPPs  and  Community 
law  on  public  contracts  and  concessions.  The  responses  from  stakeholders 
participating  in  the  consultation  suggest  that  only  a  few  of  these  subjects  require 
follow-up initiatives at EC level. These include, in particular: 

•  the award of concessions (questions 4 to 6 of the Green Paper – chapter 3 of this 

Communication) and  

•  the  establishment  of  undertakings  held  jointly  by  both  a  public  and  a  private 
partner  in  order  to  perform  public  services  (Institutionalised  PPPs  –  IPPPs) 
(questions 18 and 19 of the Green Paper – chapter 4 of this Communication).  

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5 

Opinion of the Committee of the Regions of 17 November 2004 on the Green Paper on public-private 
partnerships and Community law on public contracts and concessions (COM(2004) 327 final), ECOS-
037. 
SEC(2005) 629, 3.5.2005. This report and most of the contributions sent to the Commission are 
available on the Commission’s website at: 
http://europa.eu.int/comm/internal_market/publicprocurement/ppp_en.htm. 
See  Communications  from  the  Commission,  European  Governance:  Better  lawmaking,  COM(2002) 
275 final, 5.6.2002, and Better Regulation for Growth and Jobs in the European Union, COM(2005)97 
final, 16.3.2005. 

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On  both  issues  clear  majorities  of  stakeholders  asked  for  EC  initiatives  providing 
more  legal  certainty.  Separate  sections  of  this  Communication  present  the 
appropriate follow-up measures.  

2.2. 

The Competitive Dialogue: the Commission will provide clarification 

One  issue  which  met  with  considerable  stakeholder  interest  was  the  Competitive 
Dialogue, a new award procedure specifically designed for complex public contracts, 
introduced by Directive 2004/18/EC. Few stakeholders  contested the importance of 
this  procedure.  Many  respondents  to  the  consultation  asked  for  full  protection  of 
intellectual  property  and  for  limiting  resources  bidders  have  to  invest  in  this 
procedure.  

The  Commission  is  confident  that  practical  experience  with  this  procedure,  not  yet 
implemented  in  most  of  the  Member  States6,  will  dissipate  these  concerns.  As 
requested by a number of stakeholders, clarification of the provisions governing the 
Competitive Dialogue will be provided by means of an explanatory document which 
will be made accessible on the Commission’s website.7 

2.3. 

Issues where no separate EC initiative is proposed at this stage 

2.3.1.  No new legislation covering all contractual PPPs 

All PPP set-ups qualify – in as far as they fall within the ambit of the EC Treaty – as 
public  contracts  or  concessions.  However,  as  differing  rules  apply  to  the  award  of 
public  contracts  and  concessions,  there  is  no  uniform  award  procedure  in  EC  law 
specifically designed for PPPs.  

Against  this  background,  the  Commission  asked  stakeholders  whether  they  would 
welcome new legislation covering all contractual PPPs, irrespective of whether they 
qualify  as  public  contracts  or  concessions,  making  them  subject  to  identical  award 
arrangements (question 7 of the Green Paper).  

The  consultation  revealed  significant  stakeholder  opposition  to  a  regulatory  regime 
covering  all  contractual  PPPs,  irrespective  of  whether  these  are  designated  as 
contracts or concessions. Therefore, the Commission does not envisage making them 
subject to identical award arrangements. 

2.3.2.  No Community action on other specific aspects of PPPs 

With regard to the issue of PPPs where the initiative comes from the private sector 
(question  9  of  the  Green  Paper)  the  responses  did  not  indicate  any  current  need  to 
take measures at EC level to foster such schemes.  

There  was  no  support  either  for  Community  initiatives  clarifying  the  contractual 
framework  of  PPPs  at  Community  level  (question 14  of  the  Green  Paper)  or 
clarifying or adjusting the rules on subcontracting (question 17 of the Green Paper). 

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7 

Member States need to bring into force the laws, regulations and administrative provisions necessary to 
comply with this Directive no later than 31 January 2006. 
http://europa.eu.int/comm/internal_market/publicprocurement/index_en.htm 

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2.4. 

Continuation of debate on PPPs at EC level 

increasing.  All  players, 

This  Communication  does,  however,  not  aim  to  conclude  the  debate  on  PPPs  and 
Community  law  on  public  procurement  and  concessions.  Experience  with  PPPs  is 
the 
including 
steadily 
Commission, are continuously learning from practical experiences with applying EC 
law to such partnerships. While this process should not prevent the Commission from 
taking  initiatives  to  address  any  shortcomings  of  the  existing  legal  framework 
perceived  today,  discussions  between  Commission  departments  and  stakeholders 
involved in the development of PPPs need to continue at all levels and the planned 
impact assessment will attempt to take this continuing dialogue into account.8 

the  national  authorities  and 

These discussions will continue in existing Committees at Commission level, where 
public  procurement  experts9  and  Member  States’10  representatives11  meet,  through 
participation in conferences on PPPs and public procurement and by means of direct 
contacts between Commission officials and PPP experts. In addition, there appears to 
be  a  general  consensus  among  national  PPP  Task  Forces  that  infrastructure 
development  could  be  further  improved  if  the  public  sector  had  a  more  effective 
means  of  sharing  existing  experiences  in  PPP  policy,  programme  development  and 
project  implementation.  The  Task  Forces  are  therefore  giving  consideration,  in 
association  with  the  European  Investment  Bank,  to  establishing  a  European  PPP 
Expertise Centre. The Commission would in principle welcome such an initiative. 

3. 

CONCESSIONS 

3.1. 

Background 

A  key  feature  of  concessions  is  the  right  of  the  concessionaire  to  exploit  the 
construction or service granted as a consideration for having erected the construction 
or  delivered  the  service.  The  main  difference  to  public  procurement  is  the  risk 
inherent in such exploitation which the concessionaire, usually providing the funding 
of at least parts of the relevant projects, has to bear. Such private capital involvement 
is considered to be one of the key incentives for public authorities to enter into PPPs. 
In spite of their practical importance, only few provisions of secondary Community 
legislation coordinate the award procedures for works concessions. For their part, the 
rules  governing  the  award  of  service  concessions  apply  only  by  reference  to  the 
principles  resulting  from  Articles  43  and  49  of  the  EC  Treaty,  in  particular  the 
principles  of  transparency,  equality  of  treatment,  proportionality  and  mutual 
recognition. Against this background, the Green Paper (question 6) asked whether in 
the view of stakeholders a Community legislative initiative designed to regulate the 
procedure for awarding concessions was desirable. 

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10 

11 

In  this  context,  particular  consideration  should  be  given  to  questions  relating  to  PPPs  established  to 
build and operate cross-border infrastructures. 
Advisory  Committee  on  the  Opening-up  of  Public  Procurement  set  up  under  Commission 
Decision 87/305/EEC. 
In accordance with the arrangements for the interim period, the Committees not only include Member 
State representatives but also observers from the Acceding States (Bulgaria and Romania). 
Advisory Committee for Public Works Contracts set up under Council Decision 71/306/EEC. 

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The  great  majority  of  stakeholders  participating  in  the  consultation  confirmed  the 
demand  for  greater  legal  certainty  as  regards  the  Community  rules  governing  the 
award  of  concessions.  Opinions  on  how  to  provide  such  legal  certainty  –  via 
legislation or a non-binding, interpretative instrument – were, however, divided. 

3.2. 

Options to provide legal certainty on concessions 

The  consultation  showed  the  demand  for  a  stable,  consistent  legal  environment  for 
the  award  of  concessions  at  EU  level,  in  particular  to  reduce  transaction  costs  (by 
decreasing  legal  risks)  and  more  generally  to  enhance  competition.  Many 
stakeholders  argued  that  increasing  legal  certainty  and  effective  competition  in  the 
area of concessions would be a practical way of promoting PPPs, thereby increasing 
the  contribution  that  private  project  financing  can  make  in  times  of  tight  public 
budgets. Private stakeholders particularly underlined that only EU level action could 
provide  such  legal  certainty  avoiding  at  the  same  time  the  problems  posed  by  the 
patchwork of national legislation, especially with regard to the new Member States 
which need private finance most. There are basically two ways to meet this demand: 
(1)  non-binding  guidance, 
the  form  of  an  Interpretative 
Communication,  and  (2)  legislation  spelling  out  the  obligations  emanating  from 
general EC Treaty principles. 

in  particular 

in 

Interpretative Communication 

(in  April  2000)  adopted  an 

Interpretative 
The  Commission  has  already 
Communication  on  Concessions  under  Community  Law  which  explains  the  scope 
and  content  of  the  EC  Treaty  principles  applicable  to  the  award  of  concessions. 
Many  stakeholders  argued  that  an  Interpretative  Communication  was  a  quick  and 
effective tool to provide clarification. However, comments made by key stakeholders 
in the course of the debate indicate that the existing Interpretative Communication on 
concessions has failed to spell out in a sufficiently clear manner the implications of 
EC  Treaty  principles  for  the  award  of  concessions.  Contributions  from  several 
important  stakeholders  were  –  surprisingly  –  still  based  on  the  assumption  that 
existing EC law obligations do not require the award of concessions to be opened up 
to competition, in particular by enabling all undertakings to express their interest in 
obtaining concessions.  

Other  stakeholders  considered  an  Interpretative  Communication  to  be  an  ideal 
instrument  to  provide  a  clearer  delimitation  between  public  procurement  contracts 
and  concessions.  However,  the  scope  for  certainty  provided  by  an  Interpretative 
Communication is limited, as it merely construes existing law. In many cases a lack 
of  precision  in  the  law  can  hardly  be  overcome  by  means  of  interpretation.  It 
therefore  seems  likely  that  –  while  providing  some  added  value  –  an  update  of  the 
April 2000 Interpretative Communication on  concessions would  probably fall short 
of meeting the request for more legal certainty. 

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Legislative initiative 

The reported misunderstandings regarding the scope and content of Community law 
obligations  for  contracting  authorities  who  award  concessions  confirm  the  view  of 
stakeholders that the general EC Treaty principles, even clarified by an interpretative 
document  from  the  Commission,  do  not  provide  enough  legal  certainty.  They  are 
considered  to  leave  too  much  discretion  to  contracting  authorities  and  cannot 
therefore  guarantee  equal  treatment  of  European  companies  throughout  the  EU. 
Indeed, both legal practice and doctrine show that – in spite of clarification provided 
by  the  European  Court  of  Justice12  –  the  requirements  of  the  EC  Treaty  are 
understood in different ways. It was reported that this created particular difficulties 
for bidders bringing a case against the award of concessions for review by national 
courts.  Clearly,  this  situation  could  discourage  firms  from  bidding  for  concessions 
and might diminish competition for PPPs and ultimately jeopardise their success. 

On a more general note, it is difficult to understand why service concessions which 
are  often  used  for  complex  and  high  value  projects  are  entirely  excluded  from  EC 
secondary  legislation.  Some  arguments  explaining  this  lack  of  detailed  award 
procedures  at  EC  level  have  been  submitted  in  the  course  of  the  PPP  Green  Paper 
consultation.  They  include  the  flexibility  supposedly  needed  in  the  area  of 
concessions  and  the  subsidiarity  principle.  These  arguments  against  a  binding 
Community initiative in this area are, however, unconvincing: adopting Community 
legislation on the award of concessions does not imply that public authorities should 
lack flexibility when choosing a private partner for PPPs. A legislative initiative on 
the award of concessions needs to take the possible complexity of concessions and 
the  need  for  negotiations  between  the  contracting  authority  and  the  bidders  into 
account.  Against  this  background,  it  is  difficult  to  see  why  spelling  out  the  rules 
applicable  to  the  award  of  concessions  would  per  se  unduly  limit  the  flexibility  of 
contracting  authorities  when  awarding  service  concessions.  Likewise,  the  precise 
content  of  such  initiative  should  determine  whether  or  not  it  is  compliant  or  non-
compliant  with  the  subsidiarity  principle.  There  is  no  reason  to  consider  such  an 
initiative per se as being non-compliant with this principle. 

Having carefully considered all arguments and the factual information submitted in 
the  course  of  the  PPP  Green  Paper  consultation,  it  would  currently  appear  that  a 
legislative  initiative  is  the  preferable  option  as  regards  concessions.  However,  as 
mentioned above, before formally proposing legislation further in-depth analysis will 
need  to  be  undertaken  in  accordance  with  the  principles  of  “Better  Regulation”,  in 
order (1) to determine whether indeed a Community initiative to regulate procedures 
for awarding concessions is necessary, (2) if so, to shape such an initiative, and (3) to 
better understand its possible impact. 

3.3. 

Content of a possible Community initiative on concessions 

As explained above, the general principles derived from the EC Treaty may need to 
be clearly spelt out by means of Community legislation on the award of concessions. 
The  legislation  which  should  cover  both  works  and  service  concessions  would 

12 

Case C-324/98 Telaustria [2000] ECR I-10475, Case C-231/03 Coname [2005] not yet published in the 
ECR. 

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provide a clear delineation between concessions and public procurement contracts. It 
would require adequate advertising of the intention to award a concession and fix the 
rules  governing  the  selection  of  concessionaires  on  the  basis  of  objective,  non-
discriminatory criteria. More generally, the rules should aim at applying the principle 
of  equality  of  treatment  of  all  participants  to  the  award  of  concessions.  Also, 
problems  relating  to  the  long  duration  of  concessions,  such  as  the  need  for  their 
adaptation over time, as well as questions on PPPs established to build and operate 
cross-border infrastructures might be dealt with by such initiative. 

One  consequence  of  such  legislation  on  concessions  would  be  a  qualitative  leap  in 
the protection of bidders in most of the Member States, as concessions, once they are 
covered  by  Community  secondary  legislation,  would  fall  within  the  scope  of  the 
Community  Directives  on  review  procedures  for  the  award  of  public  procurement 
contracts,  which  provide  for  more  effective  and  adequate  remedies  than  the  basic 
principles of jurisdictional protection developed by the European Court of Justice. 

It is not possible to give details on the content of a potential Community initiative on 
concessions at this stage. The existence and shape of such rules depends on further 
research  the  Commission  needs  to  undertake  in  the  course  of  a  full  impact 
assessment.  It  is  therefore  premature  to  express  an  opinion  on  the  overall  scope  of 
such rules, including the definition of threshold values above which such rules would 
apply. In any case, such initiative would not aim at amending existing sector-specific 
Community regulation covering the award of concessions in the respective sectors. 

4. 

INSTITUTIONALISED PPPS  

4.1. 

Preferred approach  

The public consultation on the PPP Green Paper expressed the need to clarify how 
EC public procurement rules apply to the establishment of undertakings held jointly 
by  both  a  public  and  a  private  partner  in  order  to  perform  public  services 
(institutionalised PPPs – IPPPs). Some stakeholders said that such clarification was 
needed  as  a  matter  of  urgency.  It  was  reported  that  public  authorities  abstain  from 
entering into innovative IPPPs, in order to avoid the risk of establishing IPPPs which 
later  on  might  turn  out  to  be  non-compliant  with  EC  law.  Only  few  stakeholders 
argued, however, that legal certainty in this area needed to be provided by means of a 
legally binding instrument. 

At the moment, in the area of IPPPs it seems that an Interpretative Communication 
may  be  the  best  way  to  encourage  effective  competition  and  to  provide  legal 
certainty. First of all, in contrast to concessions, there has so far been no experience 
with  an  Interpretative  Communication  explaining  how  to  apply  public  procurement 
rules  to  the  establishment  of  IPPPs.  Furthermore,  in  most  Member  States  the 
establishment  of  public-private  entities  to  perform  services  of  general  economic 
interest  is  a  rather  new,  innovative  concept.  A  non-binding  initiative  in  this  area 
would provide the required guidance without stifling innovation. In addition, a quick 
response  to  perceived  uncertainties  appears  to  be  particularly  important  as  regards 
IPPPs.  

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Overall, it appears at present that an Interpretative Communication would be better 
suited to this demand than fully-fledged legislation. However, should future analysis 
demonstrate that – as in the case of concessions – an Interpretative Communication is 
insufficient  to  safeguard  the  proper  application  of  EC  law,  the  adoption  of  a 
legislative proposal remains an option. 

4.2. 

Content of a possible Interpretative Communication on institutionalised PPPs 

An Interpretative Communication on IPPPs and Community public procurement law 
should,  above  all,  clarify  the  application  of  public  procurement  rules  (1)  to  the 
establishment of mixed capital entities the objective of which is to perform services 
of general (economic) interest and (2) to the participation of private firms in existing 
this  context,  any  future 
public  companies  which  perform  such 
Communication should in particular outline ways of establishing IPPPs ensuring that 
the accompanying award of tasks is EC law compatible.13 

tasks.  In 

In  the  context  of  IPPPs  the  PPP  Green  Paper  discussed  in-house  relations.14  It  was 
stressed  that  as  a  rule  Community  law  on  public  contracts  and  concessions  applies 
when a contracting body decides to entrust a task to a third party, i.e. a person legally 
distinct from it. It is established case law15 of the European Court of Justice that the 
position can be otherwise only where (1) the local authority exercises over the person 
concerned  a  control  which  is  similar  to  that  which  it  exercises  over  its  own 
departments and, at the same time, (2) that person carries out the essential part of its 
activities  with  the  controlling  local  authority  or  authorities.  In  its  judgment  of 
11 January  2005  in  the  Stadt  Halle16  case,  the  European  Court  of  Justice 
supplemented this definition of “in-house relations” by stating that the public award 
procedures  laid  down  by  the  Public  Procurement  Directives  must  –  if  the  other 
conditions  for  their  application  are  met  –  always  be  applied  where  a  contracting 
authority intends to conclude a contract for pecuniary interest with a company legally 
distinct  from  it,  in  whose  capital  it  has a  holding  together  with  at  least  one  private 
undertaking. 

In particular, public sector stakeholders, including some Member State governments, 
called for a widening of the in-house concept, which in their view is understood too 
narrowly  by  the  Court.  However,  there  does  not  appear  to  be  any  compelling 
evidence at present to suggest that the quality of public services could be improved 
or  prices  be  reduced,  if  private  undertakings  –  via  IPPPs  –  obtain  public  service 
missions  without  a  preceding  competitive  award  procedure.  Furthermore,  it  is 
difficult to see how privileged treatment of IPPPs vis-à-vis their private competitors 
could comply with the equal treatment obligation derived from the EC Treaty. 

Contributions  to  the  PPP  Green  Paper  and  discussions  with  stakeholders  in  the 
context  of  this  public  consultation  as  well  as  experiences  in  the  context  of 
Article 226  EC  Treaty  procedures  have  shown  that  clarification  is  also  needed  in 
order to identify to what extent Community law applies to the delegation of tasks to 

13 

14 
15 
16 

Such Communication would more specifically examine closely the issues highlighted in paragraphs 58 
to 69 of the PPP Green Paper. 
Paragraph 63 of the PPP Green Paper. 
Judgment of 18 November 1999 in Case C-107/98 Teckal [1999] ECR I-08121, paragraph 50. 
Case C-26/03 [2005], paragraph 52, not yet published in the ECR. 

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public bodies, and which forms of co-operation remain outside the scope of internal 
market  provisions.  Just  recently,  the  European  Court  of  Justice17  made  it  clear  that 
relations  between  public  authorities,  their  public  bodies  and,  in  a  general  manner, 
non-commercial bodies governed by public law could not a priori be excluded from 
public procurement law. Clearly, further clarification on this issue could form part of 
an Interpretative Communication on IPPPs. 

5. 

NEXT STEPS 

Further  analysis  needs  to  be  undertaken  on  the  measures  discussed  in  the  present 
Communication,  in  particular  the  legislative  instrument  on  concessions  and  the 
interpretative  document  on  IPPPs.  Focused  stakeholder  consultation  will  be  part  of 
this work.  

It is envisaged to prepare the interpretative document on IPPPs in the course of 2006.  

In  2006,  the  Commission  services  will  also  conduct  an  in-depth  analysis  of  the 
impacts of a possible legislative initiative on concessions. The final decision whether 
or not to take this measure, and on its concrete shape, depends on the result of this 
impact assessment. 

17 

Judgment  of  13  January  2005  in  Case  C-84/03  Commission  vs  Spain  [2005]  not  yet  published  in  the 
ECR. 

EN 

11 

   EN