Determining the boundaries of public procurement law is a notoriously difficult task, especially when it comes to transactions involving public real estate.
A few weeks ago, we informed you of the Court of Justice of the European Union's landmark Commission v Austria ruling concerning the lease of an office building by the City of Vienna.
In this newsflash, we are staying closer to home and focusing on a different type of transaction, namely the transfer of a right in rem relating to land owned by a Belgian public authority. Although it is generally accepted that transfers of rights in rem fall outside the scope of public procurement and concessions law, such exclusions should be handled with care, especially when the transfer is accompanied by the provision of works, services or supplies to a public authority.
A 21 May 2021 ruling of the Council of State is the latest episode in a long-running saga on the setting of boundaries in this context. This case involved the grant by a Flemish municipality of a 50-year long lease (erfpacht/emphytéose) to a private operator to build and operate padel courts and a clubhouse on land belonging to the municipality.
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