In-House Procurement – The Discretion of Member States Confirmed, the Relationship with Competition Law Remains Open

Abstract

Article 12(1) of Directive 2014/24 must be interpreted as not precluding a rule of national law whereby a Member State imposes a requirement that the conclusion of an in-house transaction should be subject, inter alia, to the condition that public procurement does not ensure that the quality of the services performed, their availability or their continuity can be guaranteed, provided that the choice made in favour of one means of providing services in particular, made at a stage prior to that of public procurement, has due regard to the principles of equal treatment, non-discrimination, mutual recognition, proportionality and transparency. The conclusion of an in-house transaction which satisfies the conditions laid down in Article 12(1(a) to (c) of Directive 2014/24 is not as such compatible with EU law. Keywords: In-house procurement; Member States discretion; Competition law.