The European Court of Justice (ECJ) recently gave an interesting preliminary ruling on the application of the procurement rules to a challenge by members of a consortium to the partial-privatisation of a casino. The case concerned a challenge to a tender for an arrangement involving three parts: (i) the sale of 49% of the shares in a public casino to a private company; (ii) an agreement under which the private shareholder would take over management of the casino in return for payment; and (iii) the refurbishment of the casino and adjoining hotels by the private shareholder. One of the issues before the ECJ was whether the arrangement as a whole, or elements of the arrangements fell, within the scope of the procurement rules. The ECJ ruled that the arrangement constituted a single “mixed contract” the main object of which was the acquisition of the 49% shareholding and that the supply of services and works were incidental to that object. The arrangement was therefore outside the scope of the procurement rules, though it was subject to basic EU rules on freedom of establishment and free movement of capital. The ECJ was also asked to consider the ability of members of a consortium to take a legal challenge under the procurement rules. The ECJ confirmed that a national rule cannot prevent members of even a temporary consortium from individually seeking legal redress
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ECJ ruling on a consortium challenge to the award of a “mixed contract"
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