PLA Seminar on Auroux

Unintended Consequences of the Judgment – 29 September 2009

Jonathan Davey, Partner, Head of Commercial Group, Addleshaw Goddard

Areas to be Covered

Grant Agreements

Regulation 34 (subsidised works contracts)

Auroux and supplies/services contracts

Utilities and Auroux

Grant Agreements

Auroux involved works intended for sale to third parties

ECJ noted that the Municipality had a regeneration motive: unclear how pivotal this was

Key attributes of typical grant agreements: payment against agreed outcome overarching purpose (eg regeneration of an area) granting authority does not intend to own or occupy

Regulation 34 (Article 8, Classic Directive)

“Subsidised public works contracts”

Concept: subsidising public authority secures compliance by subsidised entity with procurement rules

Where does this concept sit after Auroux?

Did the ECJ fail to consider Article 8 in deciding how to deal with Auroux?

Does Auroux have consequences for services/supplies?

Are there Auroux situations in services/supplies?

Compare language in UK Mainstream Regulations: Works Contract: “for” Supplies Contract: “by” Services Contract: “engages a person to provide”

with the neutral language of the Classic Directive: “object”

Has the logic of Auroux always been there in the context of services/supplies? (Consider waste contracts/“wheelie bins”)

Utilities and Auroux

Utilities Directive language essentially identical to Classic Directive

Are there any real-life consequences if Auroux applies?

PLA Seminar on Auroux

Unintended Consequences of the Judgment – 29 September 2009

Jonathan Davey, Partner, Head of Commercial Group, Addleshaw Goddard