Technische Universität Hamburg-Harburg and Hochschul-Informations-System GmbH v Datenlotsen Informationssysteme GmbH.
Date: 2014-05-08
8. The conditions for making such an award have been established and developed by the case-law of the Court, which has held that a call for tenders through the initiation of a procedure under Directive 2004/18 is not mandatory in a case where the contracting authority exercises over a person, legally separate from that authority, a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling contracting authority or authorities (see, to that effect, Case C‑107/98 Teckal  EU:C:1999:562, paragraph 50).
The dispute in the main proceedings and the questions referred for a preliminary ruling
22. In accordance with the case-law of the Court, the principal objective of the EU rules in the field of public procurement is the opening-up to undistorted competition in all the Member States with regard to the execution of works, the supply of products or the provision of services; that entails an obli gation on all contracting authorities to apply the relevant rules of EU law where the conditions for such application are satisfied (see, to that effect, Case C‑26/03 Stadt Halle and RPL Lochau  EU:C:2005:5, paragraph 44).
23. Any exception to the application of that obligation must consequently be interpreted strictly (see Stadt Halle and RPL Lochau EU:C:2005:5, paragraph 46).
24. The Court concluded that, in view of the application of the procedures for awarding public contracts laid down in Directive 2004/18, it suffices in principle, in accordance with Article 1(a) of that directive, if a contract for pecuniary interest was concluded between, on the one hand, a contracting authority and, on the other, a person legally distinct from that contracting authority (see, to that effect, Teckal EU:C:1999:562, paragraph 50).
25. The exception to the application of that principle, recognised by the Court in relation to in-house awards, is justified by the consideration that a public authority which is a contracting authority has the possibility of performing its public-interest tasks by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own departments, and that that exception may be extended to situations in which the other contracting party is an entity legally distinct from the contracting authority, where the latter exercises control over the contractor similar to that which it exercises over its own departments and that contractor carries out the essential part of its activities with the contracting authority or authorities which own it (see, to that effect, Teckal EU:C:1999:562, paragraph 50, and Stadt Halle and RPL Lochau EU:C:2005:5, paragraphs 48 and 49). In such a situation, the contracting authority can be regarded as employing its own resources.
26. The Court has further clarified the meaning of the term ‘similar control’, stating that the contracting authority must have a power to exercise decisive influence over both the strategic objectives and the significant decisions of the contractor, and that the control exercised by the contracting authority must be genuine, structural and functional (see, to that effect, Joined Cases C‑182/11 and C‑183/11 Econord EU:C:2012:758, paragraph 27 and the case-law cited).
27. Furthermore, the Court has acknowledged that, under certain conditions, ‘similar control’ may be exercised jointly by a number of public authorities which are joint owners of the contractor (see, to that effect, Econord EU:C:2012:758, paragraphs 28 to 31 and the case-law cited).
29. Accordingly, the reason which justifies recognition of the exception for in-house awards, that is to say, the existence a specific internal link between the contracting authority and the contractor, is absent in a situation such as that in the main proceedings.