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Court of Justice amplifies meaning of ‘cooperation’ for the purposes of the Hamburg exemption—finding German ‘public-to-public’ waste contract lacks necessary level of cooperation to engage Hamburg exemption (Remondis GmbH v Abfallzweckverband)

Published on: 16 June 2020
Published by: LexisPSL
  • Court of Justice amplifies meaning of ‘cooperation’ for the purposes of the Hamburg exemption—finding German ‘public-to-public’ waste contract lacks necessary level of cooperation to engage Hamburg exemption (Remondis GmbH v Abfallzweckverband)
  • What are the practical implications of this case?
  • What was the background?
  • Legal context
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  • What did the court decide?
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Article summary

Public Law analysis: It is 11 years since the Court of Justice handed down its judgment in European Commission v Germany, creating the so-called ‘Hamburg’ exemption for public-to-public agreements, later codified in Article 12(4) of the Public Procurement Directive (Directive 2014/24/EU) and regulation 12(7) of the Public Contracts Regulations 2015 (PCR 2015). In Remondis, the Court of Justice returned to grapple with the exemption in the context of another German waste agreement. In this case, brought as a preliminary reference from the Higher Regional Court of Koblenz, the Court of Justice looked beyond the purported reciprocal obligations in an agreement, and concluded that their purpose was an agreement for services, akin to an outsourcing arrangement. In the absence of effective cooperation between the parties, or a common strategy to jointly provide public services, there was insufficient cooperation for the Hamburg exemption to apply. Written by Oliver Carroll, associate, and Fraser Eccles, trainee, at Clifford Chance LLP. or take a trial to read the full analysis.

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