S.L. 601.9 Art. 23Circumstances where a contracting authority or contracting entity can award a tender to a body governed by public law over which it does not exercise control.

(1) A contracting authority or a contracting entity as referred to in regulation 2(2)(a), which does not exercise control over a legal person governed by private or public law within the meaning of regulation 22, may nevertheless award a concession to that legal person without applying these regulations where all of the following conditions are fulfilled:

(a) the contracting authority or contracting entity as referred to in regulation 2(2)(a) exercises jointly with other contracting authorities or contracting entities a control over that legal person which is similar to that which they exercise over their own departments;

(b) more than eighty per cent of the activities of that legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authorities or contracting entities or by other legal persons controlled by the same contracting authorities or contracting entities; and

(c) there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.

(2) For the purposes of sub-regulation (1)(a), contracting authorities or contracting entities as referred to in regulation 2(2)(a) exercise joint control over a legal person where all of the following conditions are fulfilled:

(a) the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities or contracting entities. Individual representatives may represent several or all of the participating contracting authorities or contracting entities;

(b) those contracting authorities or contracting entities are able to jointly exert decisive influence over the strategic objectives and significant decisions of the controlled legal person; and

(c) the controlled legal person does not pursue any interests which are contrary to those of the controlling contracting authorities or contracting entities.