Chandler v London Borough of Camden [2009] EWHC 219 (Admin)

“3. Discussions with UCL were initiated by UCL in 2005. UCL were very keen to become more involved in education in the Borough. … 4. The meetings in 2005 were preliminary. UCL was already involved in working with some of Camden’s secondary schools but was seeking a more structured, deeper involvement in its local community of schools. Some consideration was given to developing a partnership with a particular school and UCL offered to set out an outline vision for such a school … 5. Discussion became more focused towards the end of 2005. In September 2005, an officer in CSF prepared the slides at pp [2269 – 2272 of the Court Bundle] for an internal meeting of senior officers. The slides were not seen by UCL, but they reflect officer thinking at that stage about the options for UCL’s involvement, which included the possibility of an Academy. It appears … that Moira Gibb, the Council’s then Chief executive, and Raj Chada, the then leader of the Council met with Professor Grant on 22nd November 2005, following which Professor Grant wrote to confirm UCL’s interest in exploring with Camden the possibility of a partnership arrangement with UCL, in relation to a Camden school … The Leader replied on 29th November 2005 … indicating that Camden was, in principle, interested in entering into exploratory discussions with UCL. He stressed in his letter that there are many stakeholders involved in Camden schools and that therefore Camden wished to consult with them, and particularly with Heads and Governors. 6. In the early part of 2006, the Council then facilitated a meeting between UCL and the Headteachers and Governors of Camden Secondary Schools about the enhanced contribution that UCL could make to education in Camden … This was UCL’s proposal … At that time, the preference of Heads and Governors was that if there was to be any structured “partnership” with UCL, it should be a partnership with all secondary schools in Camden. 7. However, the then Labour administration did not want to take matters further before the May 2006 election. …”

“10 At UCL’s request a meeting was arranged on 17th July 2006 in order for them to introduce themselves to the new administration. That meeting included Executive Members and Officers. Professor Grant and Professor Worton attended from UCL and Leisha Fullick attended from the Institute of Education. … At this meeting councillors had an opportunity to hear from UCL and the Institute on their thinking on partnership working in Camden. At that time various options were being explored. UCL and the Institute of Education wanted to form a partnership with a secondary school in Camden. UCL made it clear that they were interested in that partnership taking the form of an Academy. However, they were not set on that. It was recognised that in order for UCL to get approval from the Secretary of State as an Academy sponsor, it would be necessary for UCL to have £2 million of funding. This was the Secretary of State’s policy at that time, and, indeed, remained so until 10th July 2007. 11. UCL had previously hoped to have funding from Lehman Brothers, but they had pulled out in late June 2006 … The Institute of Education had, however, expressed an interest in putting forward funding and partnering with UCL. At the meeting on 17th July 2006 there was a general discussion about the possibilities. Councillors outlined their own ideas for what was then thought might be two new schools in the borough, including their views on admissions policy etc. UCL set out what they thought they could offer the borough, in particular the expertise and facilities that they could offer in terms of maths and science. No decisions were taken at that meeting; it was all very preliminary. It was intended that there should be a further meeting in September 2006. In the event, this meeting (which took place on 28th September 2006) did not involve councillors.”

“18. In the early part of 2007 my time in relation to BSF was principally taken up with meetings with Headteachers, preparing the text for the educational vision part of the Strategy for Change 1. The issues being considered were whether we needed a new school, where it should be, what work needed to be done to existing schools in the borough and place planning. The governance arrangement for any new school was not being considered (save that I did attend a workshop at DfES on 12th January 2007 with UCL at which UCL presented their vision for an Academy to DfES). I am aware that Tom Peryer did contact Councillors again in January and February 2007, and officers were asked to arrange a meeting with Mr Peryer, which we did. A date of 27th April 2007 was set. The date was chosen because it fitted in with our timetable of work on the BSF programme, and not in order to “put off” the Diocese of London …”

“14. A number of important points came out of the School Places Survey. First, that the key factors for parents in choosing a school for their children were reputation of the school, distance from home and exam results. A large proportion of parents chose one or all of these factors prioritising them above choices regarding type of school e.g. faith, community, independent, mixed or single sex. A majority of respondents said that they would prefer a Camden state secondary school with smaller numbers indicating faith or other factors. … Overall a large majority of parents said that they felt there were not enough secondary school places in Camden. They considered that a new school should be built. …”

“This paper is my personal take on where we are at. We have been consulting on BSF through a series of public meetings. The issues raised so far and the deputation received at the last full Council can be summarised as follows – (1) A community school is needed. This is not surprising. The values of a community school include a comprehensive intake on an admissions policy set by the Local Authority; the LA is the employer of the staff and owns the buildings; one third of the Governing Body is made up of Parent Governors; the Local Authority also has places for direct appointment of Governors. Community Schools form a family of schools that collaborate on certain aspects of curriculum delivery and they will need to do so increasingly as the 14-19 vocational education diplomas are introduced across the borough. (2) A Church of England Academy is needed. Colleagues will have their own take on whether they like faith schools or not. Personally I am not in favour because while we currently have a number of faith schools in the borough I don’t think that it’s appropriate for the Council to assist in the formation of any more. However hard they try they cannot be fully inclusive while insisting on Christian worship as the centrepiece of the daily assembly and insisting on Christian instruction as part of the curriculum. The claim that CofE schools are successful is not always true – the last school in Special Measures in the borough was St Mary and St Pancras Primary nearby to Euston, and the “successful”

“… I prepared this [briefing note] in advance of a Liberal Democrat Group meeting which took place on 25th June 2007. I produced the briefing note to explain what was then my current thinking as the Liberal Democrat educationalist. At the time I created the note the £2 million funding criterion was still an issue for UCL … The meeting was chaired by Cllr Libby Campbell, who was the elected Chair of the Group. This Group is not chaired by the Leader, nor does it give any mandate to members of the Executive. It is [a] group for policy discussion. There was a lively debate at the meeting about the education issues facing the borough at that time. Some people were in favour of a competition and some were in favour of a CofE school. By the end of the meeting, there was a narrow consensus of view in favour of supporting [a] UCL Academy and not having a competition. However, there was no sense that this was a concluded view for the Executive Members. We were well aware that UCL was yet formally to confirm its commitment to an Academy bid, that there were difficulties with funding and that we would need to consider the outcome of the consultation process and officer advice before reaching our own views on the matter.”

“28. On 9th July 2007, a meeting was held between senior councillors and the London Diocesan Board for Schools. I was in attendance. The purpose of the meeting was to afford the opportunity to the Church of England to set out its ideas, having expressed a desire to develop a school in Camden. At the meeting Tom Peryer outlined the London Diocesan Board’s vision for a Church of England Secondary School. Tom Peryer indicated that there would be an admissions policy focused on Camden pupils but he stressed the distinctive Church of England ethos for the school. At the end of the meeting Cllr Bryant said that he would like the Diocesan Board to provide a short written statement of its vision for a Church of England School, so that it could be further considered by the Council. Cllr Bryant asked for the vision statement to be provided by Friday, 13th July … This was a short timescale, but the reason for this was, I believe, that Cllr Bryant was keen to [the] statement to be provided in good time before the Executive meeting set for 25th July.”

“You encouraged us to put forward our proposal and thinking in a more formal way to you so that it could be circulated as appropriate to colleagues and also be put into the public domain. I am therefore attaching our Expression of Interest. This does not of course represent a final statement as we would expect to develop and modify it during the process of working up a “bid” – in the event that you hold a competition. However it will give you, and all those who read it, a clearer picture of where we stand. Obviously we await with keen interest the announcement of your indicative decision at the end of the month. …”

“We believe the case for the new Camden secondary school to be a Church of England secondary school is a very strong one for all the reasons set out in this Expression of Interest. However, we recognise that the UCL bid is also a strong one and that there may be other potential promoters for a Camden school. We also recognise the misgivings (and sometimes deep opposition to a Church school from some quarters). That is why we believe that an open competition would be the fairest and most transparent way of proceeding. We are more than willing to debate our proposals and to have them scrutinised by others; we are more than willing for others to assess the respective levels of support for particular proposals.”

“ 8.9.3 Summary and Conclusions There are two options that Members are being asked to consider in deciding on the character of the new school – the preferred sponsor route with UCL and the competition route. As the issues set out above have shown, this is a difficult decision with many factors needing to be considered. However, weighing up the advantages and disadvantages of the two options, officers consider that the opportunities presented by the UCL offer are significant and would provide lasting benefit to the education of pupils in the borough. UCL is one of the top performing universities in the country and is making a very special offer which it is only making to Camden. It wants to develop an academy that will secure high performance and raise aspirations for all pupils at all levels of ability. UCL has both the commitment and vision to use its considerable educational expertise to benefit the pupils of the new school. It also wants to continue to develop its existing work with the borough’s other schools to contribute to the raising of standards for all students in Camden. It has expressed its wish to work within the educational policies of the Council. In particular, it is committed to using the Council’s admissions policies and procedures and other policies relating to the admission of pupils with special educational needs and those that are hard to place. It has also expressed its wish for the new school to work alongside the other schools in the borough and for it to work in support of the family of Camden schools. This is particularly important in the development of the 14-19 curriculum and UCL has indicated that it wishes to work in collaboration with the borough and the other schools to develop joint initiatives in this important area. UCL, the Council and the DCSF have, for some time, been discussing the arrangements for a UCL sponsored academy. Over this period, the university has demonstrated its continued commitment to working with the borough to develop a shared vision for the new school. Its proposal for an academy sits firmly within statutory guidance in that the normal route for the development of academies is through the preferred sponsor route. It is also in line with the recent announcement by the Secretary of State for Children, Schools and Families that universities are to be at the forefront of the next wave of academy sponsors. As part of this announcement, the Secretary of State set out his proposal to exempt universities from the requirement for sponsors to contribute sponsorship money to the academy programme. The other advantages to the Council of choosing the UCL preferred sponsor route relate to certainty, control over the process and minimising the risks of delay to the programme. Under the competition route with a community school bid, the Schools Adjudicator rather than the Council would select the bidder to develop the new school. This would create considerable uncertainty in the planning for BSF because a major part of the decision making for the programme would be outside the Council’s control and there would be a significant risk that the Council’s bid for a community school would not win. The outcome of the competition could be a sponsor that the Council does not approve of or that would not want to work as part of the family of schools in the way that UCL has indicated that it does. Finally, the entire competition process would take up to a year to complete. This is a long time to wait to know the identity of the sponsor, particularly in developing the education vision and the estates strategy. There is also a risk that this could delay the Council’s BSF programme. …”

“26. I was also in attendance at the Executive Meeting on 25th July 2007 … As I have indicated, I was excited by the UCL vision and comprehensive in-take and at the meeting I spoke in favour of adopting UCL’s proposal as the preferred option … However, it was a difficult decision, and this is reflected in what was said by all members of the Executive at the meeting, and by the time taken for the meeting, which was extended. There were a number of deputations, all of which provoked debate. At the end of the meeting the Executive approved the recommendations made in the officers’ report … 27. I believe that our decision in July 2007 was made in good faith and having considered carefully all relevant, and no irrelevant, matters. I personally was guided primarily by my desire to see a good, fully inclusive new secondary school in the borough within as short a space of time as was reasonable. I was not “prejudiced” against the Church, nor motivated by political considerations beyond the desire I have already indicated above, to fulfil our manifesto commitment in the best way that we could provided that was in the best interests of the borough.”

“To give an indicative approval to option (a) the proposal from University College London (UCL) for an academy for the new secondary school and subject to further discussion with UCL and with interested parties (set out in section 7 of the report).”

“34. Naturally, I was also present at the meeting of the Executive on 21st November 2007 at which the Council took the decision that is challenged in these proceedings. … Generally, although we had consulted on UCL as our preferred option, I would say that the outcome of this meeting was by no means a foregone conclusion. Debate among Councillors was heated, and matters were in particular complicated by issues as to what should happen to Frank Barnes School for the Deaf, which currently occupies part of the Adelaide Road site that the Council intends to permit UCL to use for its Academy. We carefully considered the contents of the Report, and the various deputations. At the end we decided unanimously to confirm our support for the UCL proposal.”

“I would not regard such protestations as being of any great assistance to a court dealing with allegations of apparent bias.”

“Guidance 21. Our understanding of the legal position with regard to these options was informed principally by consideration of the legislation, but also by the Guidance “Establishing a New Maintained Mainstream School”, which (at paragraph 14) makes it clear that it is not necessary for there to be a competition where an Academy is to be established … We did not specifically look at the BSF and Academy Guidance on School Organisation of 25th May 2007 … when considering whether or not to hold a competition or whether to allow UCL to go ahead with its proposal. Nor did the DfES or PfS draw our attention to the Guidance. As I have said, we were principally guided by the legislation and other Guidance to which I have referred. Our understanding was that Academies were independent schools and that it was open to the Secretary of State to enter into an agreement with a sponsor for the establishment of an Academy without the local authority being required to hold a competition under the Education and Inspections Act 2006. I do not understand that the Secretary of State considers his BSF and Academy Guidance of May 2007 was intended to say anything different and, indeed, we were in regular contact with the DfES during 2007 and they did not suggest that it was intended to do so, or that we needed to hold a competition before the Secretary of State could proceed with an Academy with UCL in the present case, if that was what the local authority considered appropriate. In any event, I understand that the Secretary of State has now amended the BSF and Academy Guidance so as to make it absolutely clear that a competition is not required where a sponsor is to establish an Academy.”

“Where a Local Authority is working with sponsors to establish a new Academy in their area, they will not have to run a competition or seek the Secretary of State’s consent to publish proposals as above.”

“Whatever the difficulties of application which may arise in a borderline case, I do not consider the overriding principle to be in doubt. Elected politicians of course wish to act in a manner which will commend them and their party (when, as is now usual, they belong to one) to the electorate. Such an ambition is the lifeblood of democracy and a potent spur to responsible decision-making and administration. Councillors do not act improperly or unlawfully if, exercising public powers for a public purpose for which such powers were conferred, they hope that such exercise will earn the gratitude and support of the electorate and thus strengthen their electoral position. The law would indeed part company with the realities of party politics if it were to hold otherwise. But a public power is not exercised lawfully if it is exercised not for a public purpose for which the power was conferred but in order to promote the electoral advantage of a political party.”

“I simply was less attracted to their proposal because, in short, I felt that the opportunity to have a world-class university like UCL sponsoring an Academy in Camden was a unique opportunity that it was hard for the Church to match.”

“Chapter 2 RIGHT OF ESTABLISHMENT Article 43 Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the chapter relating to capital. … Article 48 Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States. Chapter 3 SERVICES Article 49 Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended. The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community. … Article 52 1. In order to achieve the liberalisation of a specific service, the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament, issue directives acting by a qualified majority. 2. As regards the directives referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods. … Article 55 The provisions of Articles 45 to 48 shall apply to the matters covered by this chapter.”

“Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts … Whereas: … (2) The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, 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 these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the afore-mentioned rules and principles and other rules of the Treaty. … (29) The technical specifications drawn up by public purchasers need to allow public procurement to be opened up to competition. To this end, it must be possible to submit tenders which reflect the diversity of technical solutions. … … (36) To ensure development of effective competition in the field of public contracts, it is necessary that contract notices drawn up by the contracting authorities of Member States be advertised throughout the Community. The information contained in these notices must enable economic operators in the Community to determine whether the proposed contracts are of interest to them. … … (46) Contracts should be awarded on the basis of objective criteria which ensure compliance with the principles of transparency, non-discrimination and equal treatment and which guarantee that tenders are assessed in conditions of effective competition. As a result, it is appropriate to allow the application of two award criteria only: “the lowest price” and “the most economically advantageous tender”. … Title 1 Definitions and General Principles Article 1 Definitions 1. For the purposes of this Directive, the definitions set out in paragraphs 2 to 15 shall apply. 2. (a) “Public contracts” are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive. … (d) “Public service contracts” are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II. … 4. “Service concession” is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment. … 8. The terms “contractor”, supplier and “service provider” mean any natural or legal person or public entity or group of such persons and/or bodies which offers on the market, respectively, the execution of works and/or a work, product or services. The term “economic operator” shall cover equally the concepts of contractor, supplier and service provider. It is used merely in the interest of simplification. An economic operator who has submitted a tender shall be designated a “tenderer”

“2006 No 5 Public Procurement, England and Wales … Public Contracts Regulations 2006 Part 1 General 1 Citation, commencement and extent (1) These Regulations may be cited as the Public Contracts Regulations 2006 and come into force on 31st January 2006. … 2. Interpretation (1) In these Regulations – … ‘public services contract” means a contract, in writing, for consideration (whatever the nature of the consideration) under which a contracting authority engages a person to provide services but does not include – (a) a public works contract, or (b) a public supply contract; … … (2) Subject to paragraph (3) in these Regulations – … (b) “a Part B services contract” is a contract under which services specified in Part B of Schedule 3 are to be provided. … 3. Contracting authorities (1) For the purposes of these Regulations each of the following is a contracting authority – (a) a Minister of the Crown; (b) a government department; … 4. Economic operators (1) In these Regulations, an “economic operator” means a contractor, a supplier or a services provider. (2) When these Regulations apply, a contracting authority shall not treat a person who is not a national of a relevant State and established in a relevant State more favourably than one who is. (3) A contracting authority shall (in accordance with Article 2 of the Public Sector Directive) – (a) treat economic operators equally and in a non-discriminatory way; and (b) act in a transparent way. … 5. Application … (2) Whenever a contracting authority seeks offers in relation to a proposed Part B services contract … other than one excluded by virtue of regulation 6 or 8 – (a) Parts 1, 9 and 10 apply; … … Part 9 Applications to the Court 47. Enforcement of obligations (1) The obligation on – (a) a contracting authority to comply with the provisions of these Regulations … and with any enforceable Community obligation in respect of a public contract … … is a duty owed to an economic operator. … (6) A breach of the duty owed in accordance with paragraph (1) … is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage and those proceedings shall be brought in the High Court. … Schedule 3 Categories of Services … Part B … Category 24 Education and vocational education services CPV code from 80100000-5 to 80660000-8 …”

“133. I cannot see how it can be just to debar a litigant who has a real and genuine interest in obtaining the relief which he seeks from relying, in support of his claim for that relief, on grounds (which may be good grounds) in which he has no personal interest.” ii) Second, Mr Thompson submitted that the European Court of Justice (“the ECJ”) has made it clear that, as a matter of substantive EU law, individuals and companies are entitled to rely on directly applicable Treaty rights, even when those rights are not conferred upon them but upon those in whom they have a legitimate interest: see Case C-350/96 Clean Car Automobile (1998) ECR I-2521 (“Clean Car”)at paragraphs 16 to 21, where it was stated (inter alia): “16. By its first question, the national court seeks in substance to determine whether the rule of equal treatment in the context of freedom of movement for workers, enshrined in Article 48 of the Treaty … may also be relied upon by an employer in order to employ, in the Member State in which he is established, workers who are nationals of another Member State. … 19. Whilst those rights are undoubtedly enjoyed by those directly referred to – namely, workers – there is nothing in the wording of Article 48 to indicate that they may not be relied upon by others, in particular employers. 20. It must be further noted that, in order to be truly effective, the right of workers to be engaged and employed without discrimination necessarily entails as a corollary the employer’s entitlement to engage them in accordance with the rules governing freedom of movement for workers.”

“In any event I have strong doubts about the claimants’ standing to raise this issue, though I express those doubts only briefly. The correct procedure is a matter of obvious concern to tenderers or would-be tenderers but those persons have their own remedies under the regulations themselves. The claimants have not been shown to be affected in any way by the choice of tendering procedure. They have seized on the point simply as a fall-back way of trying to stop the project. I see no wider public interest to be served by allowing a challenge, and in all the circumstances the claimants should not in my view be regarded as having a sufficient interest for the purposes of the PFI challenge.”

“economic operator” means “any natural or legal person or public entity or group of such persons and/or bodies which offer on the market … services.”

“50. … According to settled case-law, the concept of an “undertaking” covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed and any activity consisting in offering goods and services on a given market is an economic activity …” ii) Paragraphs 120 to 123 of Case C-222/04 Cassa di Risparmio di Firenze SpA, judgment of 10th January 2006 (“Cassa di Risparmio”): “120. Treatment of the banking foundation as an “undertaking” seems to be excluded in respect of an activity limited to the payment of contributions to non-profit-making organisations. 121. As the Commission observes, that activity is of an exclusively social nature and is not carried on on the market in competition with other operators. As regards that activity, a banking foundation acts as a voluntary body or charitable organisation and not as an undertaking. 122. On the other hand, where a banking foundation, acting itself in the fields of public interest and social assistance, uses the authorisation given it by the national legislature to effect the financial, commercial, real estate and asset operations necessary or opportune in order to achieve the aims prescribed for it, it is capable of offering goods or services on the market in competition with other operators, for example in fields like scientific research, education, art or health. 123. On that hypothesis, which is subject to the national court’s assessment, the banking foundation must be regarded as an undertaking, in that it engages in an economic activity, notwithstanding the fact that the offer of goods or services is made without profit motive, since that offer will be in competition with that or profit-making operators.”

“39. The Court has thus excluded from the definition of services within the meaning of Article 50 EC courses offered by certain establishments forming part of a system of public education and financed, entirely or mainly, by public funds … The Court thus held that, by establishing and maintaining such a system of public education, financed as a general rule by the public budget and not by pupils or their parents, the State did not intend to involve itself in remunerated activities, but was carrying out its task in the social, cultural and educational fields towards its population. 40. However, the Court has held that courses given by educational establishments essentially financed by private funds, notably by students and their parents, constitute services within the meaning of Article 50 EC, since the aim of those establishments is to offer a service for remuneration …”

“25. For the services coming within the ambit of Annex IB to Directive 92/50, and subject to a subsequent evaluation as referred to in Article 43 of that directive, the Community legislature based itself on the assumption that contracts for such services are not, in the light of their specific nature, of cross-border interest such as to justify their award being subject to the conclusion of a tendering procedure intended to enable undertakings from other Member States to examine the contract notice and submit a tender. For that reason, Directive 92/50 merely imposes a requirement of publicity after the fact for that category of service. 26. It is common ground, however, that the award of public contracts is to remain subject to the fundamental rules of Community law, and in particular to the principles laid down by the Treaty on the right of establishment and the freedom to provide services … 27. In this regard, according to settled case-law, the purpose of coordinating at Community level the procedures for the award of public contracts is to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State …”

“52. It is clear from the preamble to the Directive and from the second and tenth recitals, in particular, that the Directive aims to abolish restrictions on the freedom of establishment and on the freedom to provide services in respect of public works contracts in order to open up such contracts to genuine competition. As the tenth recital states, the development of such competition entails the publication at Community level of contract notices. … 74. … the basic aim of the Directive which, as stated in paragraph 52 above, is to open up public works contracts to competition.”

“30. Taken as a whole, Eurocontrol’s activities, by their nature, their aim and the rules to which they are subject, are connected with the exercise of powers relating to the control and supervision of air space which are typically those of a public authority. They are not of an economic nature justifying the application of the Treaty rules of competition.”

“… the competition law rules do not apply to the purchasing of goods and services for running prisons or free state schools, or when purchasing the goods and services needed for the government ministries that run the prison or education services.”

“15. The first paragraph of Article 60 of the EEC Treaty provides that only services “normally provided for remuneration” are to be considered “services” within the meaning of the treaty 16. Even though the concept of remuneration is not expressly defined in Articles 59 et seq. of the EEC Treaty, its legal scope may be deduced from the provisions of the second paragraph of Article 60 of the Treaty, which states that “services” include in particular activities of an industrial or commercial character and the activities of craftsmen and the professions. 17. The essential characteristic of remuneration thus lies in the fact that it constitutes consideration for the service in question, and is normally agreed upon between the provider and the recipient of the service. 18. That characteristic is, however, absent in the case of courses provided under the national education system. First of all, the State, in establishing and maintaining such a system, is not seeking to engage in gainful activity but is fulfilling its duties towards its own population in the social, cultural and educational fields. Secondly, the system in question is, as a general rule funded from the public purse and not by pupils of their parents. 19. The nature of the activity is not affected by the fact that pupils or their parents must sometimes pay teaching or enrolment fees in order to make a certain contribution to the operating expenses of the system. A fortiori, the mere fact that foreign pupils alone are required to pay a minerval can have no such effect. 20. The answer to the first branch of the second question should therefore be that courses taught in a technical institute which form part of the secondary education provided under the national education system cannot be regarded as services for the purposes of Article 59 of the EEC Treaty, properly construed.”

“1. I make this fourth witness statement to deal with the allegations made by me in paragraph 12 of my first witness statement made on 25 April 2008. [In paragraph 12, Mr Stein expressed great concern at “the extraordinary lack of candour and sharp practice which are exposed by the pattern of events set out here and in the grounds relating to the matter of this guidance”] … 9. My mistake was to infer ‘an extraordinary lack of candour and sharp practice’ as being the only possible explanation for the failure rather than contemplating the system failure here. 10. However, I now accept that I was wrong to assume that there could be no honest explanation for this extraordinary sequence of events. I further accept that it was a mistake to infer a lack of candour and sharp practice from the events set out without awaiting the evidence from the Secretary of State’s witnesses. I now accept, without reservation, that the unfortunate events arose as a result of system failures within the Department.”