The ECJ held that companies, the capital of which is open, at least in part, to private parties are precluded from being regarded as structures for the "in-house management" of public services on behalf of the contracting entities which form part of them.32 This means that procurement rules, whether derived from the EC Treaty or from the Public Procurement Directives, must also be respected when awarding to the public-private entity public contracts or concessions, other than those public contracts and concessions that have already been subject to competition in the tender procedure for the founding of the IPPP in question. In other words, IPPP must remain within the scope of their initial object and can as a matter of principle not obtain any further public contracts or concessions without a procedure respecting Community law on public contracts and concessions.
However, as the IPPP is usually set up to provide a service over a fairly long period, it must be able to adjust to certain changes in the economic, legal or technical environment. Community provisions on public procurement and concessions do not rule out the possibility of taking into account these developments as long as the principles of equal treatment33 and transparency34 are upheld. Thus, should the contracting entity wish, for specific reasons, to be able to amend some conditions of the invitation to tender after the successful tenderer has been selected, it is required expressly to provide for that possibility, and for the relevant detailed rules, in the notice of invitation to tender or in the tender documents and to define the framework within which the procedure must be carried out, so that all the undertakings interested in taking part in the procurement procedure are aware of that possibility from the outset and are therefore on an equal footing when formulating their respective tenders.35
Changes to essential terms of contracts not provided for in the initial tender documents require a new procurement procedure36. The ECJ considers the terms of a contract as essential, particularly if it is a condition which, had it been included in the contract notice or the tender documents, would have made it possible for tenderers to submit a substantially different tender.37 Examples of such essential terms of a contract include the scope of the works undertaken or services performed by the contractor or the charges levied on the user of the service provided by the contractor.
It should be pointed out that, as far as public contracts fully covered by the Directives and works concessions are concerned, secondary legislation lays down the exceptional situations in which additional works or services not included in the project initially considered may be awarded directly, without a call for competition.38
Under EC law, a public-private entity is - like any other economic operator - free to participate in public tenders.39 This also applies to tendering procedures which have become necessary as a result of a major amendment to or extension of those public contracts or concessions which the public-private entity was awarded in the past by the contracting entity that set it up. In such a case, the contracting entity must pay particular attention to the obligation of transparency and equal treatment of all bidders. Specific safeguards have to be taken to ensure a strict separation of those preparing the call for tenders and deciding on the award of the contract within the contracting entity, on the one hand, and those managing the IPPP, on the other hand, and that no confidential information is passed on from the contracting entity to the public-private entity.
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32 Case C-231/03, Coname, ECR 2005, I-7287, paragraph 26; Case C-410/04, ANAV, see footnote 14 above, paragraph 32.
33 See, inter alia, Joined Cases C-285/99 and C-286/99, Lombardini and Mantovani, ECR 2001 I-9233, paragraph 37, and Case C-315/01, GAT, ECR 2003, I-6351, paragraph 73.
34 See, inter alia, Case C-92/00, HI, ECR 2002, I-5553, paragraph 45, and Case C-470/99, Universale-Bau and Others, ECR 2002, I-11617, paragraph 91.
35 Case C-496/99 P, Commission v. CAS Succhi di Frutta SpA, ECR 2004, I 3801, paragraph 118.
36 Case C-337/98, Commission v. France, ECR 2000, I-8377, paragraph 50.
37 Case C-496/99 P, Commission v. CAS Succhi di Frutta SpA, see footnote 35 above, paragraphs 116 et seq.
38 Articles 31 and 61 of Directive 2004/18/EC and Article 40 para 3 (f) and (g) of Directive 2004/17/EC. In the view of the Commission, the relevant derogations may be applied to the award of contracts not covered by the Directives, such as service concessions as well (See Opinion of Advocate General Jacobs in Case C-525/03, Commission v. Italy, paragraphs 46 to 48).The Commission considers as a matter of principle that modifications of essential terms of service concessions not catered for in the tendering documents are acceptable only if they are made necessary by unforeseen circumstances, not attributed to any of the contracting parties, or if they are justified on grounds of public policy, public security or public health (Article 46 EC Treaty).
39 Recital 4 to Directive 2004/18/EC requires Member States to ensure that the participation of a body governed by public law as a tenderer in a procedure for the award of a public contract does not cause any distortion of competition in relation to private tenderers.