In Helmut Muller GmbH v Bundesanstalt für Immobilienaufgaben (Case C-451/08, judgment of 25 March 2010), the CJEU clarified the application of the EU procurement rules to development agreements. The case involved the sale of public land on which the purchaser was subsequently to carry out works in accordance with the urban-planning objectives of a local authority. A call for tenders was launched by the relevant public body to sell the property. On receipt of tenders, the local authority favoured a particular project submitted by a bidder on urban-development grounds and it was agreed that the property should not be sold until after the relevant town council had approved the project. The sale contract did not refer to the land's future use. Helmut Muller, an unsuccessful tender, challenged the sale of the land on the basis that the procurement rules had not been followed. The national court referred a number of questions to the CJEU all relating to the definition of "public works contracts" under Directive 2004/18.
The CJEU clarified that to be a public work contract, the works must be of "immediate economic benefit" to the contracting authority, though the work(s) need not be materially or physically carried out for the contracting authority. While the definition of a public works contract refers to "requirements specified by the contracting authority", the Court clarified that "the authority must have taken measures to define the type of the work or, at the very least, have had a decisive influence on its design. The mere fact that the public authority, in the exercise of its urban-planning powers, examines certain building plans presented to it, or takes a decision applying its powers in that sphere, does not satisfy the obligation that there be 'requirements specified by the contracting authority'." The CJEU also held that a public works concession does not arise where the recipient already owns the land on which the work will be carried out.