A majority of stakeholders asked for clarification of EU public procurement rules that apply to the selection of private partners for PPPs. In this respect, opinion was divided on the form and the precise content of the EU initiatives required, with many different arguments being expressed by respondents both for and against EU initiatives.
Many respondents asked how EU rules should apply to the choice of private partners in ‘institutionalised PPPs’, i.e. public service undertakings held jointly by both a public and a private partner. In particular, respondents asked about the difference between ‘in-house’ and third-party entities. EU law on public contracts and concessions applies when a contracting body entrusts a task to a third party, unless the relation between the two is so close that the latter is equivalent to an ‘in-house’ entity. In general, public-sector respondents argued for widening the definition of ‘in-house’, while the private sector wished to maintain its limited scope as confirmed by the European Court of Justice in 2003.
