In-house: assessing the condition of the activities
The CJEU delivered, on December 8, 2016, a judgment in which it specifies the activities to be taken into account in order to determine whether the second condition of the “in-house” exception, known as “the essential” activity, is being fulfilled.
According to the Court’s consistent case law, it is known that, for assessing this condition, the national judge must take into account all the facts of the case, both qualitative and quantitative.
The activities that a controlled entity has carried out, for the benefit of its principals, form part of these circumstances, before the “in-house” relationship is established between them. As underlined by the Court of Justice in the judgment that has been examined, “past activities may be indicative of the importance of the activity that [the controlled entity] is planning to carry out for its shareholder local authorities after their similar control has taken effect”.
Consequently, the abovementioned judgment contributes to determine the fulfilment of this condition, for which a threshold of 80% is now applied by the new regulation (both European and national).
Associated areas of specialisation: Public procurement and PPP