Irgita’s Contribution on Institutionalised and Non-Institutionalised Cooperation: Existing Obligations or Far-reaching Consequences?

Haroun Mani & Zeeshan Ilyas

Student thesis: Master thesis


This thesis considers one of the most controversial subjects in relation to the publication of the new public procurement directives on 28 March 2014 - namely the codification of Article 12. This article regulates the legal exemptions from the public procurement rules in case of institutionalised and non-institutionalised cooperation between contracting authorities and was introduced for the first time by the CJEU 21 years ago. Some had hoped that the codification of Article 12 would have put an end to unanswered questions and uncertainties regarding this subject.
Despite the codification there are still some significant uncertainties on this topic that this thesis will bring into light.
The public procurement directive states that nothing in this Directive obliges Member States to contract out or externalise the provision of services that they wish to provide themselves or to organise by means other than public contracts within the meaning of this Directive. It has been a regular part of the caselaw that the exception in Article 12 could be exercised with no regard to the fundamental rules of the FEU Treaty. With its relatively recent judgment in the Irgita-case the CJEU has yet again brought doubt on this matter and shaken the foundations of the in house-exception in relation to the EU law.
Therefore, the thesis will investigate whether the judgement is only applicable for similar situations or whether the CJEU has intended to change the state of law.
In addition, the thesis will contain an analysis of the economic rationales and considerations that should be taken into account before deciding whether to internalize or externalize transactions. The analysis will also conclude when it is optimal to produce within the hierarchy or to buy on the market in relation to minimize transaction costs.
The legal and economic conclusions will finally be hold up against each other to clarify the pros and cons of the various legal situations. On the basis of these pros and cons the most efficient state of law will we concluded based on the Kaldor-Hicks-criterion.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
Publication date2020
Number of pages106
SupervisorsGrith Skovgaard Ølykke