Co-operation in A Public Task (The Hamburg Doctrine) as a Limitation for the use of Public Procurement and the Award of Concession Contracts Rules in the Light of the EU and National Law

EU legislation foresees two exceptions from the use of rules of public procurement. Beside the in-house/vertical cooperation (the Teckal doctrine), the Court has also developed in its rulings the so called Hamburg doctrine, which applies to horizontal cooperation between the contracting authorities. In 2014, this doctrine was incorporated into Article 12(4) of Directive 2014/24/EU on public procurement, Article 17(4) of Directive 2014/23/EU on the award of concession contracts as well as Article 28(4) of Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors. Since the very text of the paragraphs has been rather succinct, it is necessary to interpret it in the light of relevant judgments of the Court, which is the aim of this article. It also has to be emphasized that Slovenian Public Procurement Act, in comparison to the Directives/rulings of the Court, regulates an additional requirement for horizontal cooperation – the market price check – which raises the question of compliance of the Act with the EU rules. The same can be argued in connection with the current proposal for the Concessions Act that contains some provisions, which could also be interpreted as violation of the exceptiones non sunt extendae rule.

Key words: public procurement, concessions, cooperation, public tasks, Hamburg doctrine, in-house