The Acoset judgment of the ECJ dated 15 October 2009 (C-196/08) was related to a dispute about an institutionalised public-private partnership (IPPP). A local authority wanted to grant a concession to a newly-created semi-public company, whose minority shareholder would be a private company selected by an open tender procedure. The minority shareholder would be responsible for the operations of the semi-public company.
The question put to the Court was in essence rather simple: if a local authority wants to grant a concession to a semi-public company, does it have to organise two tender procedures: one for selecting the minority private shareholder in the semi-public company and another to award the concession to the semi-public company? Or, alternatively, is one tender procedure sufficient? The Court chose the latter option, and rightly so.
The case came before the ECJ as a request for a preliminary ruling by the Regional Administrative Court of Sicily (Tribunale amministrativo regionale della Sicilia).
Italian law allows local authorities to award service contracts directly to companies whose share capital is owned by both public and private bodies, ; the private partner has been selected by means of a public open tender procedure compliant with domestic and Community law.
In 2005, a local inter-municipal body in the province of Ragusa organised a tender procedure to select an undertaking, which would be entrusted, as private minority shareholder, with the operation of the integrated public water supply and the prior execution of certain works. A contract notice was also published in the Official Journal.
Acoset participated in the bidding, together with two other companies. Eventually, only Acoset remained, as one other candidate was excluded and the other did not reply when asked if it was still interested by the local inter-municipal body.
In early 2007, the local inter-municipal body began to doubt that its tender procedure (and hence, Italian law) complied with European procurement law, and so it cancelled the tender procedure. Acoset then initiated proceedings before the Sicilian Regional Administrative Court, seeking a court order to award it the contract and to grant it compensation. |