“8. This formulation has, on occasion, led the courts to take a restrictive view of the activities that can be pursued using section 137. In some cases, the courts have inferred from the absence of specific powers in other legislation that certain activities are prohibited and that an authority cannot, therefore, rely on its section 137 powers to overcome that prohibition. This has created uncertainty amongst local authorities and their potential partners about the extent to which authorities can rely on their general powers to undertake certain activities. 11. In the White Paper the Government set out its view that community leadership should be at the heart of the role of modern local authorities. To enable local authorities to develop that role and to respond to the needs of local communities, the White Paper argued that authorities would need the freedom to work with other local public, private and voluntary organisations to develop solutions to local problems. 12. To provide authorities with the necessary freedoms, the White Paper proposed that local authorities' general powers should be extended; specifically, that they should be given a new discretionary power to take steps which in their view promote the economic, social and environmental well-being of those who live in, work in or visit the local area. 13. To facilitate a more co-ordinated and coherent response to local service delivery, the White Paper also proposed that authorities should be required to develop community strategies. These strategies, developed with local people, business, public and voluntary organisations would set out how the authority and its partners would work together to promote the well-being of their local community. 15. Together, these sections allow local authorities to undertake a wide range of activities for the benefit of their local area and to improve the quality of life of local residents, businesses and those who commute to or visit the area. This is intended to clear up much of the uncertainty which currently exists about what authorities can do. Sections 2 and 3 allow authorities to take any action, unless it is subject to statutory prohibitions, restrictions or limitations specifically set out in legislation. The intention is to broaden the scope for local authority action while reducing the scope for challenge on the grounds that local authorities lack specific powers. 16. Amongst other things, section 2(3) means local authorities must consider the objectives and priorities contained in their community strategy before they take action under the power in section 2(1). This is in no way meant to limit the scope of the power in section 2(1). Rather it is designed to encourage authorities to think about the broad goals and objectives contained in the community strategy, before deciding how best to use their well-being power. 17. Additionally, section 2(4) makes clear that the power in section 2(1) enables authorities to work in partnership with other bodies. For example, it allows authorities to assist other statutory bodies to discharge their functions, or to exercise those functions on their behalf. This is intended to help local authorities and other statutory service providers to work together to provide services in ways which meet the needs of communities.”
“5. If local authorities are to play their full part in the achievement of these goals, they need the necessary statutory powers to do so. For many years, innovative actions by local authorities have been stifled by concerns over the scope of their powers. While some legislation contains deliberate and specific constraints on local authority activities, there has been considerable uncertainty over the extent of the enabling powers that have been conferred on councils. The result has been a necessarily cautious approach to innovation and joint action, and a concomitant limitation of councils' contribution to the improvement of their communities' quality of life. 6. The Government's purpose in introducing the well-being power is to reverse that traditionally cautious approach, and to encourage innovation and closer joint working between local authorities and their partners to improve communities' quality of life. The purpose of this guidance is therefore to acquaint local authorities with the breadth of the new power, and to encourage innovative and imaginative use of it. In particular, each local authority will want to consider how the power can promote the sustainable development of its area by delivering the actions and improvements identified in its community strategy, which could include tackling social exclusion, reducing health inequalities, promoting neighbourhood renewal and improving local environmental quality. Authorities will also wish to consider how the new power can help them to contribute locally to shared national priorities, such as action to combat climate change and encourage the conservation of biodiversity, and to contribute to shared priorities within other plans such as Health Improvement Programmes. 7. The new power is wide-ranging, and enables local authorities to improve the quality of life, opportunity, and health of their local communities. Further information is set out in chapter 2. Specific examples of the kind of action that can be taken are set out in section 2(4) of the Act. These include incurring expenditure, providing staff, goods or services to any person, entering into partnership arrangements and carrying out the functions of other bodies. This list is for illustrative purposes only, and does not in any way limit how local authorities can use the new power.”
“42. The well-being power will also enable local authorities to form or participate in companies, trusts, or charities, including joint venture companies, provided that they are satisfied that the formation of, or participation in, a particular company is likely to achieve the promotion or improvement of the economic, social or environmental well-being of the authority's area. Such participation could give rise to dividend payments to the authority as a shareholder. In the Government's view, such dividends would not amount to raising money for the purposes of section 3(2) (see paragraphs 65-70). Indeed, an authority may be acting contrary to its fiduciary duty to local taxpayers if it failed to ensure such a return on its investment. . . . 66. Section 3(2), therefore, places a general prohibition on using the well-being power as a means of raising money. This is a broadly drafted restriction which seeks to ensure that where a local authority has to obtain funds before it can pursue well-being objectives, it can only do so through existing sources of income. So, for instance, the well-being power does not permit a council to levy a new tax, although the way local authorities plan to use the power can influence annual discussions/decisions on setting of council tax levels. Similarly, the well-being power does not confer new powers to borrow money or to charge for services they provide in pursuit of well-being objectives - but nor does it in any way restrict councils' existing powers to do so. 67. The Government considers that the effect of the provision in section 3(2) is to prevent local authorities from using the power in section 2(1) primarily to raise money. Where authorities use the power for a different purpose, but incidentally receive income as a result, that does not, in the Government's view, amount to raising money. Thus a local authority might give financial assistance to a struggling local enterprise by purchasing shares to provide it with capital. If, as a result of the authority's investment the enterprise subsequently becomes successful and the authority later receives income from its shares by way of dividend, this does not, in the Government's view, amount to raising money within the meaning of section 3(2). Similarly, the following actions may not amount to 'raising money' if the receiving of income by the authority is incidental, and not the primary purpose of their use of the power in section 2(1): • lending money and charging interest; • jointly obtaining sponsorship for a partnership project; • receiving an indemnity from an organisation for costs which may be incurred; and • receiving revenue income from a trust. . . . 70. Where an authority chooses to use its powers under section 2 to set up a company (see paragraphs 42 and 43), that company as a separate entity is not subject to the restrictions provided by section 3(2).”
“(i) To receive premiums from Participating Members or Affiliates and to indemnify through a mutual fund the liabilities, losses or expenses incurred by Participating Members or Affiliates in accordance with the Rules. (ii) To grant or effect with Participating Members or Affiliates for the purposes of mutual insurance such classes of insurance business as the mutual may from time to time be authorised to carry on under theInsurance Companies Act 1982 or any Act amending or extending the same and to enter into or to arrange insurance or reinsurance contracts on behalf of any Participating Member or Participating Members or Affiliates as deemed necessary from time to time and to negotiate directly or indirectly with the insurance market cover for any risk on behalf of any Participating Member or Participating Members or Affiliates.”
“As I explained above, Brent Council, Harrow Council and more recently, Tower Hamlets Council have entered into the arrangements for insurance provision with LAML. Participating Councils are full members of LAML, which is run by a Board of Directors which comprises of a number of Directors of Finance of some London local authorities and two independent directors. The Finance Directors on the Board of LAML are from Croydon, Islington, Camden, Haringey, Harrow and Lambeth.”
“Without the prior agreement of the Board, no Member Director of the Mutual shall sit on the Board while it is engaged in the consideration or settlement of a claim in which the Participating member of that Member Director is interested.”
“In its judgment [it] determines it is undesirable for a Participating Member to continue to be a Participating Member”
“It is drafted in very broad terms which provide a source of power enabling authorities to do many things which they could not hitherto have done. In my view, [citing section 3(1)] a ‘prohibition, restriction or limitation’ is one which would almost always be found in an express legislative provision. I do not discount the possibility that such might arise by necessary implication but I would have thought that would be very rare . . . In my view it would be inapt to describe the area where no power has been conferred as constituting a ‘prohibition, restriction or limitation’ on the power which is contained in the enactment.”
“A best value authority must make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness.”
“. . . that local authorities are not empowered to carry on a trade or business of entering into interest rate swaps and related transactions, even if the object is to apply the profits which they hope to earn in reducing their cost of borrowing. Such a trade or business would stand on no different footing from any other trade or business in which a local authority might seek to engage, in the hope of profit. But, in general, local authorities have no implied power to engage in a trade or business for profit. And an intention to apply the profits in reducing the local authority’s costs or expenses in a particular way would not render intra vires an activity which would otherwise be ultra vires.”
“The potential and substantial economic benefits arriving from participation in LAML would be invested in the local authority’s area, for the benefit of its economic, social and/or environmental well-being.”
“It is one thing for a local authority to give financial assistance to a company so that it can carry out activities that benefit the local authority’s area; it is another to give financial assistance to a person in order to obtain a financial reward which can in turn be used to benefit its area; and it is yet a further step away from the well-being power if there is no assurance that the profits will be so used.”
“If Parliament had intended to confer such an unlimited power, it would have done so in very different terms.”
“(1) Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions. . . . (3) A local authority shall not by virtue of this section raise money, whether by means of rates, precepts or borrowing, or lend money except in accordance with the enactments relating to those matters respectively.”
“In deciding what can fairly be regarded as incidental to express powers, the courts do not think narrowly. They bear in mind the public nature of the obligations of a local body and the requirements of its community, and they take a liberal view of the power under consideration.”
“Every statutory provision conferring or imposing a function on a local authority confers power on the local authority to enter into a contract with another person for the provision or making available of assets or services, or both, (whether or not together with goods) for the purposes of, or in connection with, the discharge of the function by the local authority.”
“To collect and deliver parcels for the tramway is fairly incidental; to collect and deliver parcels outside the radius of the tramway, and without any connection with the tramway, is not incidental to the tramway business, but distinct from it. At the best it could only be said to be incidental to the incidental, and such reasoning would authorize a railway company to carry on a coal merchant's business, because they must buy coal; but this was restrained in Attorney-General v Great Northern Ry. Co (1860) 29 L. J. (Ch.) 794. For the same reasons I hold that the corporation cannot act as general agents for the railway companies, but only in respect of tram-borne goods.”
“. . . the power to give pre-application advice is neither a duty nor a discretionary express power, but is a subsidiary power arising by virtue of section 111(1) (which has codified the common law), because it is calculated to facilitate, or is conducive or incidental to, the discharge of one of the council’s functions. To charge for the exercise of that power is, at best, incidental to the incidental and not incidental to the discharge of the functions.”
“Where Parliament has expressly enacted provisions which define the means by which local authorities are to carry out their functions, section 111(1) of the Act of 1972 cannot be relied upon in support of performance of those functions by other means not expressly empowered by the relevant provisions.”
“It is simply inconceivable that Parliament ever intended by section 111 (which does no more than put in statutory form what would be implicit at common law) to confer on a local authority power to incur a financial obligation to an unlimited extent by granting a guarantee or indemnity when it has so clearly and in such detail regulated the local authority’s powers of expenditure and borrowing and the granting of financial assistance. It is only in cases covered by specific provisions expressly allowing guarantees and indemnities that the local authority can do so. If the local authority cannot bring the case within such a provision, to grant a guarantee or indemnity is beyond its powers.”
“The guarantee and indemnity cannot properly be characterised as calculated to facilitate, or as conducive or incidental to, the discharge of any function of the council, being too remote therefrom.”
“This was, on the Plaintiffs' case, an exercise of the incidental power. The further transactions upon which the Plaintiffs have to rely in this action were remote from the exercise of any function by the Council and not incidental to it. The grant of the guarantee and the indemnity were to facilitate the borrowing by the Company at advantageous rates. That is how it is put in the minute of the resources strategy committee from which I have quoted. The giving of the indemnity to the company had a similar character. Both documents were essentially aspects of an exercise in property speculation. It was hoped that this scheme would be profitable and that the capital values of the properties purchased by the company would increase. The documents executed by the council would only become relevant if property values fell and the venture became loss-making, not profitable. These transactions were remote from the actual function of housing the homeless or the acquisition of housing for the purpose of providing accommodation. They related to an exercise in property speculation on borrowed money and the needs of a trading company not to the needs of the council and the discharge of its functions. (The parallel with what was said by Lord Templeman in Hazell v Hammersmith and Fulham Council,[1992] 2 AC 1 , 31, 34, is striking.)”
“The authorities also show that a power is not incidental merely because it is convenient or desirable or profitable. A swap transaction undertaken by a local authority involves speculation in future interest trends with the object of making a profit in order to increase the available resources of the local authorities. There are many trading and currency and commercial swap transactions which eliminate or reduce speculation. Individual trading corporations and others may speculate as much as they please or consider prudent. But a local authority is not a trading or currency or commercial operator with no limit on the method or extent of its borrowing or with powers to speculate. The local authority is a public authority dealing with public moneys, exercising powers limited by Schedule 13.”
“For the banks it was argued that swap transactions are akin to insurance which enables provision to be made for possible risks. By insurance, an assured sacrifices a premium which when aggregated with premiums from other assured, will form a pool from which the insurer will indemnify the unfortunate victim (if any) who suffers from the risk insured against. A swap contract based on a notional principal sum of£1m . under which the local authority promises to pay the bank£10,000 if LIBOR rises by 1% and the bank promises to pay the local authority£10,000 if LIBOR falls by 1% is more akin to gambling than insurance.”
“It is not suggested that at the material time there was any other power which permitted setting up the company. Assuming that the setting up of the company was a proper exercise of an incidental power under section 111(1), the giving of the guarantee was in my judgment incidental to that incidental activity. The function of the guarantee was to assist the company to borrow at favourable rates and without providing other security. It flowed from the needs of the company. It was not incidental to the discharge of the function. The principle recognised in cases such as Reg. v Richmond upon Thames London Borough council, Ex parte McCarthy & Stone (Developments) Ltd.[1992] 2AC 48 is applicable.”
“In my judgment, to establish or to become a member of a mutual insurance company such as LAML for the purpose of obtaining insurance is at best incidental to the incidental power to insure (in the sense of obtaining insurance cover), and is not incidental to the discharge of any function of the local authority . . . Brent could not provide financial assistance to a company for it to do what Brent could not lawfully do, i.e., to provide insurance.”
“To ensure that public bodies award certain contracts above a minimum value only after fair competition and to the person offering the lowest price or making the most economically advantageous offer.”
“For public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on those principles so as to ensure the effects of them and to guarantee the opening up of public procurement to competition.”
“48. It is common ground in the present case that AGAC supplies products, namely fuel, to the Municipality of Viano in return for payment of a price. 49. As to whether there is a contract, the national court must determine whether there has been an agreement between two separate persons. 50. In that regard, in accordance with Article 1(a) of Directive 93/36, it is, in principle, sufficient if the contract was concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority. The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities. 51. The answer to the question must therefore be that Directive 93/36 is applicable in the case where a contracting authority, such as a local authority, plans to conclude in writing, with an entity which is formally distinct from it and independent of it in regard to decision-making, a contract for pecuniary interest for the supply of products, whether or not that entity is itself a contracting authority.”
“I do not consider it proven that the municipality exercises hierarchical control over AGAC or that the relationship between it and AGAC does not entail the award of a contract on the ground that the two contracting parties do not in reality have third-party status with respect to each other.”
“By contrast, the participation, even as a minority, of a private undertaking in the capital of a company in which the contracting authority in question is also a participant excludes in any event the possibility of that contracting authority exercising over that company a control similar to that which it exercises over its own departments.”
“Where a contracting authority intends to conclude a contract for pecuniary interest relating to services within the material scope of [the Directive] with a company legally distinct from it, in whose capital it has a holding together with one or more private undertakings, the public award procedures laid down in that Directive must always be applied.”
“63. Since it is a matter of derogation from the general rules of Community law, the two conditions stated in the preceding paragraph must be interpreted strictly and the burden of proving the existence of exceptional circumstances justifying the derogation to those rules lies on the person seeking to rely on those circumstances. 64. It is appropriate to examine, first, whether the concession-granting public authority exercises a control over the concessionaire which is similar to that which it exercises over its own departments. 65. That assessment must take account of all the legislative provisions and relevant circumstances. It must follow from that examination that the concessionaire in question is subject to a control enabling the concession-granting public authority to influence the concessionaire’s decisions. It must be a case of a power of decisive influence over both strategic objectives and significant decisions.”
“Here too, it must be examined inconcreto whether the control criterion is satisfied.”
“68. If, in the main proceedings, the share capital of the successful undertaking is held indirectly by several authorities, it may be relevant to consider whether the activities to be taken into account are those which the successful undertaking carries out with all of the controlling authorities or only the activities carried out with the authority which in the present case acts as the contracting authority. 69. It should be borne in mind in this connection that the Court has stated that the legally distinct person in question must carry out the essential part of its activities with ‘the controlling local authority or authorities’ (Teckal, paragraph 50). It thus envisaged the possibility that the exception provided for could apply not only in cases where a single authority controls such a legal person, but also where several authorities do so. 70. Where several authorities control an undertaking, the condition relating to the essential part of its activities may be met if that undertaking carries out the essential part of its activities, not necessarily with one of those authorities, but with all of those authorities together. 72. . . . The Management Board possesses very broad management powers which it can exercise independently.”
“Indeed, in the field of public procurement and public service concessions, the principle of equal treatment and the specific expressions of that principle, namely the prohibition on discrimination on grounds of nationality and Articles 43 EC and 49 EC, are to be applied in cases where a public authority entrusts the supply of economic activities to a third party. By contrast, it is not appropriate to apply the Community rules on public procurement or public service concessions in cases where a public authority performs tasks in the public interest for which it is responsible by its own administrative, technical and other means, without calling upon external entities.”
“[Teckal] thus envisaged the possibility that the exception provided for could apply not only in cases where a single authority controls such a legal person, but also where several authorities do so.”
“Where several authorities control an undertaking, the condition relating to the essential part of its activities may be met if that undertaking carries out the essential part of its activities, not necessarily with one of those authorities, but with all of those authorities together.”
“In applying those principles, the undertaking in question can be viewed as carrying out the essential part of its activities with the controlling authority within the meaning of Teckal only if that undertaking’s activities are devoted principally to that authority and any other activities are only of marginal significance.”
“The fact that the contracting authority holds, alone or together with other public authorities, all of the share capital in a successful tenderer tends to indicate, without being decisive, that that contracting authority exercises over that company a control similar to that which it exercises over its own departments, as contemplated in paragraph 50 of Teckal. ”
“38. It is apparent from the case-file that the statutes of AGESP Holding and AGESP confer on the board of Directors of each of those companies the broadest possible powers for the ordinary and extraordinary management of the company. Those statutes do not reserve for the Comune di Busto Arsizio any control or specific voting powers for restricting the freedom of action conferred on those Boards of Directors. The control exercised by the Comune di Busto Arsizio over those two companies can be described as consisting essentially of the latitude conferred by company law on the majority of the shareholders, which places considerable limits on its power to influence the decisions of those companies. 39. Moreover, any influence which the Comune di Busto Arsizio might have on AGESP’s decisions is through a holding company. The intervention of such an intermediary may, depending on the circumstances of the case, weaken any control possibly exercised by the contracting authority over a joint stock company merely because it holds shares in that company. 40. It follows that, in such circumstances, subject to their being verified by a court adjudicating on the substance in the main proceedings, the contracting authority does not exercise over the successful tenderer for the public procurement contract at issue here a control similar to that which it exercises over its own departments”
“As exceptions must be interpreted restrictively, the court does not find it appropriate to extend the application of article 13 of Directive 93/38 to the scope of Directive 93/36.”
“As regards the first condition, relating to the public authority’s control, it follows from the Court’s case-law that the fact that the contracting authority holds, alone or together with other public authorities, all of the share capital in a successful tenderer tends to indicate, generally, that the contracting authority exercises over that company a control similar to that which it exercises over its own departments.”
“. . . that Tragsa is required to carry out the orders given it by the public authorities, including the Autonomous Communities. It also seems to follow from that national legislation that, as with the Spanish State, in the context of its activities with those Communities, as an instrument and technical service, Tragsa is not free to fix the tariff for its actions and that its relationships with them are not contractual.”
“The company’s customers consist of any person wishing to use the universal postal service.”
“The contracts to which the Spanish legislation applies . . . do not in actual fact constitute a unilateral administrative measure creating obligations solely for the provider of the universal postal service and departing significantly from the normal conditions of a commercial offer made by that company.”
“The result is that this authority had the option of crucially influencing both the strategic objectives and the important decisions of ASI by appointing the members of the management body of this company and a municipal official in charge of directing and controlling the activity of the latter. This option is sufficient to establish the existence of a power of structural and functional control of the local authority of Mantua over this company similar to that which it exercises over its own services, so that the first condition set by the Court in point 50 of the aforementioned Teckal judgment is fulfilled.”
“Inter-Municipal Cooperatives shall be legal persons governed by public law and shall not have a commercial character, irrespective of their form or object.”
“Allowed the Municipality of D’Uccle, as an operational sub-sector, to exercise immediate and precise control over Brutélé’s activities in that sub-sector identical to the control that that Municipality would exercise over its own internal departments.”
“32. It is clear from the order for reference that, in the case before the referring court, the concessionaire is an inter-municipal cooperative society whose members are municipalities and an inter-municipal association whose members in turn are solely municipalities, and is not open to private members. 33. Secondly, it is clear from the file that Brutélé’s governing council consists of representatives of the affiliated municipalities, appointed by the general assembly, which is itself composed of representatives of the affiliated municipalities. In accordance with Article 12 of the Law on inter-municipal cooperatives, the representatives at the general assembly are appointed by the municipal council of each municipality from among the municipal councillors, the mayor and the aldermen. 34. The fact that Brutélé’s decision-making bodies are composed of representatives of the public authorities which are affiliated to Brutélé shows that those bodies are under the control of the public authorities, which are thus able to exert decisive influence over both Brutélé’s strategic objectives and significant decisions. 35. Thirdly, it is evident from the file that Brutélé’s governing council enjoys the widest powers. In particular, it fixes the charges. It also has the power – but is under no obligation – to delegate to the sector or sub-sector boards the resolution of certain matters particular to those sectors or sub-sectors. 36. The question arises as to whether Brutélé has thus become market-orientated and gained a degree of independence which would render tenuous the control exercised by the public authorities affiliated to it. 37. In this regard, it should be pointed out that Brutélé does not take the form of socitété par actions, or a socitété anonyme, either of which is capable of pursuing objectives independently of its shareholders, but of an inter-municipal cooperative society governed by the Law on inter-municipal cooperatives. Moreover, in accordance with Article 3 of that Law, inter-municipal cooperatives are not to have a commercial character. 38. It seems to be apparent from that law, which is supplemented by Brutélé’s statutes, that Brutélé’s object under its statues is the pursuit of the municipal interest – that being the raison d’être for its creation – and that it does not pursue any interest which is distinct from that of the public authorities affiliated to it. 39. Subject to verification of the facts by the referring court, it follows that, despite the extent of the powers conferred on its governing council, Brutélé does not enjoy a degree of independence sufficient to preclude the municipalities which are affiliated to it from exercising over it control similar to that exercised over their own departments. 40. Those considerations are all the more applicable where decisions relating to the activities of the inter-municipal cooperative society are taken by the sector or sub-sector boards, within the limits of the delegated powers granted to them by the governing council. Where one or more affiliated municipalities are recognised as constituting a sector or sub-sector of that society’s activities, the control which those municipalities may exercise over the matters delegated to the sector or sub-sector boards is even stricter than that which they exercise in conjunction with all the members within the plenary bodies of that society. 41. It follows from the foregoing that, subject to verification of the facts by the referring court as regards the degree of independence enjoyed by the inter-municipal cooperative society in question, in circumstances such as those of case before the referring court, the control exercised, via the statutory bodies, by the public authorities belonging such an an inter-municipal cooperative society over that society’s decisions may be regarded as enabling those authorities to exercise over that cooperative society control similar to that exercised over their own departments. 42. Accordingly, the answer to Questions 1 and 2 must be that: Articles 43 EC and 49EC, the principles of equal treatment and of non-discrimination on grounds of nationality, and the concomitant obligation of transparency, do not preclude a public authority from awarding, without calling for competition, a public service concession to an inter-municipal cooperative society of which all the members are public authorities, where those public authorities exercise over that cooperative society control similar to that exercised over their own departments and where that society carries out the essential part of its activities with those public authorities; Subject to verification of the facts by the referring court as regards the degree of independence enjoyed by the inter-municipal cooperative society in question, in circumstances such as those of the case before the referring court, where decisions regarding the activities of an inter-municipal cooperative society owned exclusively by public authorities are taken by bodies, created under the statutes of that society, which are composed of representatives of the affiliated public authorities, the control exercised over those decisions by the public authorities may be regarded as enabling those authorities to exercise over the cooperative society control similar to that exercised over their own departments.”
“49. That possibility for public authorities to use their own resources to perform the public interest tasks conferred on them may be exercised in cooperation with other public authorities (see, to that effect, Asemfo, paragraph 65). 50. It must therefore be recognised that, where a number of public authorities own a concessionaire to which they entrust the performance of one of their public services tasks, the control which those public authorities exercise over that entity may be exercised jointly.”
“54. Consequently, the answer to Question 3 must be that, where a public authority joins an inter-communal cooperative of which all the members are public authorities in order to transfer to that cooperative society the management of a public service, it is possible, in order for the control which those member authorities exercise over the cooperative to be regarded as similar to that which they exercise over their own departments, for it to be exercised jointly by those authorities, decisions being taken by a majority, as the case may be.”
“30. It is moreover in accordance with that derogation that the Court has held that it is impossible automatically to exclude relations established between public law institutions from the scope of those directives on public procurement, regardless of the nature of those relations. [Commission v Spain cited] 31. In the present case, it is obvious that, as the Federal Republic of Germany states, the contract in dispute is a means of cooperation between State bodies. It does not follow from that fact alone, however, that the contract in dispute does not fall within the scope of Directive 92/50. The opposite finding would be possible only were it to be established that the two conditions set out for the first time in the judgment in Teckal are met. . . . 34. In this respect, I do not share the opinion held by the Federal Republic of Germany that, in the present case, cooperation between two distinct State bodies can be considered to amount to the use of the resources of the contracting authority. The City of Hamburg refuse disposal services cannot be regarded as the resources of the districts concerned, which are the contracting authorities.”
“Where a local authority, as did this council, decides to use its own direct labour department, it is not deciding to award a contract: it is deciding not to award a contract. Such a decision is something which falls outside the purview of the Directives although, following the Acts of 1980 and 1988, it has been covered by the Regulations of 1991 . . . Article 20 of the Works Directive only applies to the award of an actual not a fictional contract.”
“The general picture given by the documents to which I have referred is of a business the administration of which is relatively independent. Just as in Stadt Halle the fact that there was private participation in the ownership of the contractor was inconsistent with the Teckal exemption, and in Carbotermo the fact that the public authority's interest was held through a holding company was an indication that the Teckal exemption did not apply, so in my judgment the employment of a private company to manage LAML points against it. Moreover, and perhaps more importantly, there are contractual provisions that point to a degree of independence of decision that is inconsistent with the first condition. I refer in particular to Article 11 of the Articles of Association, and to Rule 22(1), under which a Participating Member will normally be excluded from the Board's consideration of its insurance claim. Similarly, the terms of the policies referred to in paragraph 77, are typical of a policy issued by a wholly independent insurer to its insured. They envisage a relationship (including disputes) between Brent and LAML that is inconsistent with Teckal.”
“(All this is not, of course to say that an explanatory memorandum accompanying a complicated measure, such as accompanies almost every statutory instrument, might not often be useful both in apprising legislators of the details for which they are assuming responsibility and in assisting the courts in their task of interpretation.)”
“In the absence of such material the courts have five principal avenues of approach to the ascertainment of the legislative intention: (1) examination of the social background, as specifically proved if not within common knowledge, in order to identify the social or juristic defect which is the likely subject of remedy; (2) a conspectus of the entire relevant body of the law for the same purpose; (3) particular regard to the long title of the statute to be interpreted (and, where available, the preamble), in which the general legislative objectives will be stated; (4) scrutiny of the actual words to be interpreted, in the light of the established canons of interpretation; (5) examination of the other provisions of the statute in question (or of other statutes in pari materia) for the illumination which they throw on the particular words which are the subject of interpretation.”
“It is, of course, for the courts and not the executive to interpret legislation. However, in general, official statements by government departments administering an Act, or by any other authority concerned with an Act, may be taken into account as persuasive authority on the legal meaning of its provisions. That is the principle stated by Bennion, Statutory Interpretation, 4th ed (2002), section 232.”
“(a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose.”
“In my judgment, therefore, for the purposes of the Regulations in the present case "grounds for the bringing of the proceedings" first arose when the breach which forms the subject of the claim occurred. It would have been different if the claim were for an injunction to restrain a breach of the Regulations; but it is not. 92. It is therefore necessary to determine when the breach of the Regulations first occurred. It seems to me it was when the appellant abandoned the tender process and awarded the contracts to LAML. That occurred in March 2007. Until then, it could have lawfully awarded the insurance contracts to a company participating in the tender process. It is not contended that on that basis the respondent failed to satisfy the requirements of regulation 47(7).”
“to the ‘conceptual difficulty’ in deciding when ‘grounds for bringing proceedings’ first arise where the proceedings are in respect of an ‘apprehended’ breach. . . . For my part, I agree that close analysis of such questions is less important than the overall question of discretion which is whether, in the particular circumstances and the context of the regulations, proceedings claiming in effect injunctive relief are appropriate or whether Severn Trent should be precluded from pursuing any remedy or left to pursue a claim only for damages should the O & M agreement in fact be concluded.”
“For my part the substantive position is straightforward. The court has jurisdiction to entertain an application by a citizen for judicial review in respect of a resolution before or after its adoption. But it is a jump in legal logic to say that he must apply for such relief in respect of the resolution on pain of losing his right to judicial review of the actual grant of planning permission which does affect his rights. Such a view would also be in tension with the established principle that judicial review is a remedy of last resort.”
“The authorities . . . establish the general proposition that when a power is claimed to be incidental, the provisions of the statute which confer and limit functions must be considered and construed. . . . The authorities also show that a power is not incidental merely because it is convenient or desirable or profitable”
“But this is all restricted to goods which travel along the tramways, or some part thereof; there is nothing in the Acts to authorize the corporation to act as carriers generally without reference to their tramways. The question, as is pointed out in Attorney-General v. London County Council[1901] 1 Ch. 781 , is not whether the business can be conveniently or advantageously conducted with the tramway business, but whether it is by necessary implication incidental or accessory to it, and I think that it is not. To collect and deliver parcels for the tramway is fairly incidental; to collect and deliver parcels outside the radius of the tramway, and without any connection with the tramway, is not incidental to the tramway business, but distinct from it. At the best it could only be said to be incidental to the incidental, and such reasoning would authorize a railway company to carry on a coal merchant's business, because they must buy coal; but this was restrained in Attorney-General v. Great Northern Ry. Co. (1860) 29 L.J. (Ch.) 794. For the same reasons I hold that the corporation cannot act as general agents for the railway companies, but only in respect of tram-borne goods.”
“It is one thing for a local authority to give financial assistance to a company so that it can carry out activities that benefit the local authority’s area; it is another to give financial assistance to a person in order to obtain a financial reward which can in turn be used to benefit its area; and it is a yet further step away from the well-being power if there is no assurance that the profits will be so used.”
“This authority therefore needs to satisfy itself that the financial and risk management benefits from participation in the Mutual are likely to achieve the promotion or improvement of the well-being of the area, the economic well-being of the authority, and, from the application of savings to other services or to a reduction in local taxation, the economic, social and/or environmental well-being of the area or of persons resident or present in it.”
“49. As to whether there is a contract, the national court must determine whether there has been an agreement between two separate persons. 50. In that regard, in accordance with Article 1(a) of Directive 93/36, it is, in principle, sufficient if the contract was concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority. The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities. 51. The answer to the question must therefore be that Directive 93/36 is applicable in the case where a contracting authority, such as a local authority, plans to conclude in writing, with an entity which is formally distinct from it and independent of it in regard to decision-making, a contract for pecuniary interest for the supply of products, whether or not that entity is itself a contracting authority.”
“Where several authorities control an undertaking, the condition relating to the essential part of its activities may be met if that undertaking carries out the essential part of its activities, not necessarily with one of those authorities, but with all of those authorities together.”
“. . . where a public authority joins an inter-communal cooperative of which all the members are public authorities in order to transfer to that cooperative society the management of a public service, it is possible, in order for the control which those member authorities exercise over the cooperative to be regarded as similar to that which they exercise over their own departments, for it to be exercised jointly by those authorities, decisions being taken by a majority, as the case may be.”
“The overriding duty on a contracting authority is “to comply with the provisions of these Regulations” generally, and in my judgment grounds will first arise for the bringing of proceedings once it could be shown that they were not complied with from the outset of the award procedure. If it were otherwise and a supplier could select the last breach available to him, . . . it would mean that he could sit back and do nothing even in respect of breaches of which he was aware or which he apprehended. That would again be contrary to much of the purpose of reg. 29. I think Mr. Barling is right in his submission that in a case where the whole procedure is conducted in breach of the Regulations (as Keymed alleges in this case) the failure to comply with them first arises and is established by failure to give the requisite notices to the OJ. Thereafter the regulatory procedures cannot effectively be complied with. ”