Blog | Procurement: What - How? (issue week 20)

The Dutch in-house procurement issue concerning AVR Waste Processing is now with the Court of Justice of the European Union. In his recent opinion, Advocate General (AG) Rantos included several interesting considerations, particularly regarding the interpretation of the supervision criterion:

• If it concerns a quasi-internal procurement based on Article 2.24b of the Dutch Procurement Act (multiple controlling contracting authorities), only direct supervision is permitted. Unlike Article 2.24a of the Procurement Act, indirect supervision is not mentioned as a possibility in Article 2.24b and therefore cannot be applied.
  According to the AG, supervision becomes diluted when multiple layers exist between the contracting authorities and the entity executing the contract. The more "links" between them, the weaker the supervision.

Although these comments by the AG are formally not part of the questions the Court must rule on, they are important for practice. The AG is clear: when applying Article 2.24b of the Procurement Act, only direct supervision is allowed. No entities may be placed between the contracting authorities and the supervised entity.

The Court of Justice is now to issue its ruling. The exact timing is still unclear. We will keep you updated on this.