Summary

After the initial euphoric response to the privatisation of public undertakings, the pendulum has swung back in Europe, where the states are now trying to bring home the services delegated to the private sector, i.e. to provide them through their own institutions or in mutual cooperation, without announcing public procurements. Neither here nor there have private firms accepted the attempts to limit their market share, but have instead approached courts with complaints against agreements concluded directly between public sector institutions.
In order to resolve this conflict between the private and the public sector, the European Court of Justice initially devised the doctrine of an in-house transaction and, later, that of horizontal cooperation between contracting authorities. In 2014 the views of the court were also codified into new procurement directives and a draft instrument for their transposition has been compiled in Estonia. The Supreme Court has analysed the permissibility of in-house transactions in relation to passenger train traffic and there have been some disputes concerning horizontal cooperation in relation to the shipment of waste. In general terms, the institutes in question have already been presented in the pages of Juridica. As the rule of an in-house transaction has been covered in greater detail before, this article will focus on horizontal cooperation and, more precisely, on its permissibility criteria. The author first gives an overview of the case law of the European Court of Justice and the courts of some Member States and the general content of the relevant provisions of the new directive, and then proceeds to address the prerequisites of the public procurement law that need to be fulfilled in order to enable horizontal cooperation. This article does not cover any other questions regarding the permissibility of cooperation arising from other provisions and principles (e.g. rules governing state aid).