Marta Andhov [00:00:00]

Welcome to Bestek, the public procurement podcast. Today, we’re discussing institutional cooperation and outstanding issues within it and online conferences.

About Bestek [00:00:17]

Welcome to Bestek, the public procurement podcast. In this podcast, Dr. Willem Janssen and Dr. Marta Andhov discuss public procurement law issues, the love of food and academic life. In each episode, Willem, Marta, and their guests search for answers to intriguing public procurement questions. This is Bestek. Let’s dish up public procurement law.

Marta Andhov [00:00:41]

Good morning, good afternoon, good evening, ladies and gentlemen, whenever you’re joining us. Thanks so much for tuning in to help me out as my dear co-hosts decided that he wants to continue discussing in the house.

Willem Janssen [00:00:55]

It is not like this.

Marta Andhov [00:00:58]

But that’s the truth. We need to be honest Willem

Willem Janssen [00:01:02]

That’s so true and actually, I think we might be doing a couple more in the future. So, this is not the end. It’s just we’re only getting started, though. If you still want to back out of this podcast, you can

Marta Andhov [00:01:14]

I feel like I need help. How much in-house I can take?

Willem Janssen [00:01:19]

Let’s hope people are actually listening because otherwise no one’s hearing your cry for help. But anyway, you’re into it now.

Marta Andhov [00:01:24]

I am into it, absolutely. It’s very interesting, it’s a very interesting, of course, topic. I’m just I’m just joking. But we are continuing our discussion on in-house. More specifically, we are focusing today on some of the outstanding issues within institutionalized cooperation. So, we’re going to chat today a little bit about the general relevance of continuing discussion on in-house. We’ll talk about some family relations and we’ll talk about some of the best awards and horizontal awards. That’s the wording or the nomenclature that Willem is using for those we talk about private capital issues and control elements. So those are our three main subheadings of our main, and I need to say Willem that I miss our post-conferences discussion. So, having a chance to do this podcast together is actually keeping this aspect a little bit alive.

Willem Janssen [00:02:26]

So actually, the whole basis for this podcast is being wiped away in the last couple of last six months. I mean, I don’t know if we keep this podcast going, I don’t know if we’ll have sufficient…. because no one future generations won’t even know what this is.

Marta Andhov [00:02:39]

Yeah, what you’re talking about?

Willem Janssen [00:02:41]

What are an old lady and old man talk about?

Marta Andhov [00:02:44]

You know it will be this thing we will for our dessert today, talk a little bit about online conferences one aspect of up there that I want to talk about is that I received a goody bag before one of these online conferences that I participate in. So, maybe that’s what’s going to happen. You know, people were going to just sort of have like home delivery of dinners and talk to each other offline at some sort of workshop. Who knows?

Willem Janssen [00:03:09]

Actually, it sounds well. I mean, I’m yet to receive my password that you sent to me, but we’ll get to that maybe when we get to the dessert. Do want to get started on main?

Marta Andhov [00:03:19]

Yes. Let’s do that. Please Willem, if you could just add a status of why you if I’m going to be a devil’s advocate and I would want to be very skeptical: “Why we need to continue to discuss institutional cooperation? Didn’t we cover already everything? What is there to discuss?”

Willem Janssen [00:03:40]

Well, good question, Marta. You know, so I think in episode five if I’m correct, we discussed non-institutionalized cooperation and we talked about some of the intricacies of Stadt Köln[1] and what is an ancillary activity. So, if you have not listened to that episode to please feel free to do that. But I think the most or at least the exemption, the institutionalized exemption for which public authorities can cooperate together outside of duty to attend has been discussed since 1999 since Teckal[2] started and it’s still causing difficulties because it is so closely related to the distinction between what we do in private and what we think is public and how we regulate that 1) within public procurement law. But also, and this, I think always makes it a very heated discussion and continuously relevant is… 2) there are different perspectives, right? One, you could look at it from a contractor perspective is the contractor that loses the work that was initially tendered out or contracted out, I should say, clearly can be surprised or disgruntled by the fact that all of a sudden, a government decides to set up a separate legal entity and to do it themselves, right? So, this causes friction and I think friction always makes things more interesting.

Marta Andhov [00:05:10]

For sure, and I think that particularly in this area, it seems to be a main subject/matter very often is the waste collection, right? We see from time and time again that on the one hand side, I think it’s quite problematic. I can see why private companies can feel, in a way treated badly if they’ve been of the competitive market, they’ve been bidding, they’ve been winning contracts, then suddenly that work is taking away. And there is, of course, always a follow up criticism at times, if it’s grounded or not, whether the public authorities are actually able to provide the same level of quality. The third layer of that why I do think that we will see even more and more of this is because that particular sector of waste collection, I think it’s also really developing in the context of the circular economy, sustainability, climate change. We want to improve it. We want to make sure that it’s really renewable in the best possible way. You use the waste, for example, in Sweden and Denmark, very extensively used for the creation of clean energy, et cetera, et cetera.  So, I think that as the number of cases will show us, I don’t think that will be any soon done with self-organization and in-house.

Willem Janssen [00:06:39]

Certain sadness in your voice when it comes to that, what you just said, but you’re right. I think clearly this goes for every public procurement case out there, is that it’s generally initiated by a disgruntled competitor. I think what’s interesting here as well is that what you see with from the Directive[3], because that’s what we’re talking about today, or at least the first two subsections or paragraphs one, two, three, because four was is the other exemption is there’s also a clear rule of law issue attached to it. Or at least perhaps I should phrase it differently. It’s not clear, but it’s in the background. So, if you interpret these exemptions very extensively, the question then arises, does that in fact enable corruption or does that cause issues with the rule of law? Because if you provide a very broad scope for this exemption, you can leave it out of the tendering rules, which is supposed to create transparency, et cetera, et cetera. So, this is, I think, in the background and I think for some member states, that’s a genuine issue and that’s also why very often they implemented this a bit more strictly than say, B, the 80 percent criterion was then implemented as 90 percent just to keep to make sure that these entities stick to what they’re supposed to be doing.

Marta Andhov [00:08:06]  

It is a quite restrictive approach and interpretation, for sure. I think one more element that I wanted to hear your opinion on because you work with this for quite a long time. Whenever I look into aspects of in-house, whenever I read also some of the newest cases, I have a feeling that also this very much reminds me of the interrelation or stepping into the area of corporate law, actually. Now, I wonder if when you worked on it: “Did you look into or see similarities or actually some sort of conflicts?” Because this is very much about, you know, starting to dictate how companies are to be structured, a lot about voting powers, vetoes, who appoints who, et cetera, et cetera.

Willem Janssen [00:08:55]

Yeah, so you’re on the money here. I think the same reasoning also goes for admin law. So, the Directive clearly states that it can concern legal persons governed by private or public law and in both cases, the criteria of Article 12 clearly limit how or what options you can use under national law because in order to establish control, in order to ensure that the control is actually effective, you need to use certain options that clearly exist under national law, but others perhaps can’t be used or you can’t use them simply because you have to fulfill these requirements. I think this is also where in academia a lot of the critique has been sparked. The question is: “Should public procurement law even influence these aspects? Should it not simply only concern a discussion about control and not about the activities that an entity like this performs. Should we not actually allow for private capital as the third criterion of this exemption instead of limiting it to a great extent?”  Except when you talk about the circular economy just on energy transitions, often such cooperation is necessary and it’s in the Netherlands it’s even a policy standpoint that you have to include this in types of cooperation. So, there’s a cooperation between governments, between private parties, between energy-producing companies and all this. So, in this and this network, this ecosystem of players in which we’re all aiming to overcome climate change and establish a certain type of energy transition, which would then be an argument to say: “Well, these criteria are too limiting.”

Marta Andhov [00:10:55]

OK, so before we… Because we need to move on to our issue, the last comment that I wanted to make in this regard. Within my piece some years ago when I looked into the in-house question, was specifically in the context of procuring public-private partnerships and up there are mainly was focusing on institutionalized public-private partnerships. So, this is sort of, you know, the idea of what you mentioned, that you really there are areas in which you really want to collaborate with the private sector and how to actually procure that. I think one of the challenges here is also that, well, to actually procure it is extremely complicated because if you specifically look at the aspects of establishing a company or any type of entrepreneurial venture between the partners, you’re quite limited within the procurement process about what you can ask because you need to focus really on what is the main purpose being, you know, whatever the subject matter of the activities to be. But for you to actually establish a company, there might be a lot of questions and information that you need that somehow are limited due to the principle of proportionality and so on within the procurement, how to actually procure that. So, I think there is a lot of really interesting aspects to it. But to focus on the institutionalized in-house, institutionalized corporation. The first issue is… I kind of see the issue of family relations. So, you referred to reversed awards, horizontal awards. I kind of like this reference also that we find in the literature of the mother-daughter, brother-sister. So, can you tell us a little bit more about where we stand in regard to these family relations of in-house?

Willem Janssen [00:12:45]

So, I mean, we can extend it to aunties and uncles as well, right? This is what the commission wants launched or nephews. So just a brief introduction. We’re in Article 12(2), right now and what does that subparagraph contain? It’s in addition to what the court had allowed for over the years between 1999 and 2014. What this paragraph contains are exemptions that add on to or build upon an existing institutionalized corporation. So, what is an institutionalized exemption that allows that corporation is there needs to be controlled, needs to 80 percent of the activities by the controlled legal entity need to be performed for those entities that control it or one entity and there can’t be any private capital participation unless? So that’s the start. That’s step one. Step two is subparagraph two in which you have these additional expansions that build on this. This exemption that I just described. So, a reverse award what does that mean? It basically means that the controlling entity receives a contract from the entity that is being controlled.

Marta Andhov [00:14:01]

So, in other words, we could say the daughter awards the contract to the mother, actually…

Willem Janssen [00:14:07]

…. exactly where step one was, the mother giving the daughter a contract?

Marta Andhov [00:14:11]

Absolutely.

Willem Janssen [00:14:12]

Horizontal award is a scenario that was also explored in Datenlotsen[4], the case before the Court of Justice concerns the situation where two daughter entities actually awarding a contract to each other and they’re being controlled by the same mother. I always tend to have a little chuckle inside when we talk about controlling mothers, but that’s…. One extradition is that this type of control can also, and this is not paragraph two, it can also occur by a holding structure and control is that you can also have that. But this was added as well in the directive. Now, one of the pressing issues, and that’s why I wanted to discuss it today and I’d be very interested to hear from other member states, actually. So, if there are any listeners from other member states in which this discussion has been sparked, is the question, can you actually use this option of reversed awards? So, daughter to mother or horizontal awards, daughter to daughter in a situation of joint control?

Marta Andhov [00:15:21]

Or is it only single control?

Willem Janssen [00:15:22]

Exactly, so this is a question that’s been very pressing in the Dutch context in which there’s been a reorganization of tasks and say, for instance, first municipalities were in charge of fire services now it’s a security region which gained some competencies, and that security region would like to use the maintenance depot of the municipality. So, it would then need to give back a contract to the mother. However, there’s all these men’s abilities that cooperate in this security region. So, it’s a situation of joint control. Now, what’s interesting is there’s a couple of…I think EU law leaves it open or at least there’s some ambiguity directive here. The Dutch legislature said this can’t be or is not the case because they actually split up this article. So, there’s one article in the Dutch Aanbestedingswet, 2012. So, the Dutch Public Procurement Act 2012 says this is a scenario for joint control and there’s one for singular control.

Marta Andhov [00:16:37]

…and those ones are under single control.

Willem Janssen [00:16:39]

Exactly. So, they would be included. Now, there are some people that have argued:” Well, in fact, subparagraph two of Article 12 refers to one.”  and that is such a broad condition. It’s the start of this article that you could also say falls under …. that it also applies to joint control, however, joint controls are then defined in sub-three. Yeah, and it doesn’t refer to sub-three. So, I think that’s a pretty strong argument to say, well, it doesn’t actually apply the joint control basically, because it also doesn’t it doesn’t do that in the directive.

Marta Andhov [00:17:21]

And how you feel about it in the context of principles to come in as a helping hand. Because I just wonder, you know, ultimately what has been from the very beginning, the purpose of in-house versus right now, it seems as we lost a little bit about this, family relations keep on growing and growing and growing. So, I think that from the perspective of transparency principles of open competition, et cetera…: “Do you think that those principles are here helpful? They are not really a problem, or do you see that they may actually introduce some type of limitation for broadening the concept and saying, actually, joint control could be also here?”

Willem Janssen [00:18:06]

So, I think it’s a question of interpretation, right? So, what I was just saying is pretty grammatical. If you do kind of a teleological approach where you look at the purpose of this article or perhaps broader, like, I think what you’re inferring into the directive is some have said, well, actually this article is a massive expansion. The preamble states that we need an expansion and that that’s important and that that means that we should also expand it. On the other hand, we’re still faced with a situation where we’re supposed to interpret exemptions narrowly, according to the court, as a sort of a standard rule of thumb. Right of interpretation. The question, I think is that there’s no clear guidance except that I don’t think it is in their right, so like you say, we could make it bigger and start looking for other limitations. But I think the article itself already provides enough limitations, even though granted it is ambiguous. At the time when I was looking into this, I looked at the ups and downs of the legislative process and it was proposed to include it explicitly, but it didn’t make it in the final wording. Yeah, I know lawyers tend to use this as arguments before the courts and courts generally responded: “Well, I mean, the fact that it’s not in there doesn’t mean that we can’t read into it.” also, the reverse is something that is in there doesn’t necessarily mean that it shouldn’t have been in there. So, in a way, it’s a tricky discussion or at least leading to some discussions in the Netherlands, a starting standpoint is to go for…It is it’s not possible…Perhaps a little bit more leeway is given to a situation where they say: “It is possible.”

Marta Andhov [00:19:58]

Yeah, I just wanted to add that, you know, it’s also ultimately a lot of questions within in-house. It’s about the self-organization that is ultimately really much connected with national systems. And I think the argument here is also of subsidiarity, right, of saying, well, let in a lot of these areas, just let states decide you cannot go that far into regulating these elements. But and the second issue for us today that I’m particularly interested really is how the concept of capital involvement within this institutional corporation has been developing really over the years, over the case, that we had Stadt Halle[5] some ago and quite straightforward said: “Nooo private capital!”  and right now we have some elements that are a little bit ambiguous, I would say, in context of this private capital, this broadening of the family of in-house.

Willem Janssen [00:21:01]

Yeah. So, I mean, there was a great case still tolerated. It is a small town close to Leipzig in the eastern part of Germany. I always had this thought of visiting all these cities that are relevant in the EU case law. So, it’s, I think probably the nerdiest trip we could ever undertake. But if you’re up for it, we could do a road trip. I can’t wait to look at what packing bricks at a parking lot, actually, the whole side the side story.

Marta Andhov [00:21:29]

But it is you know; it is super cool. So, we also in Denmark is this Storebælt[6] is really huge case about discrimination. One of really ground basis lot of a lot of interpretation of principle and supercool whenever you have a chance to ride through it and say, yes, I know all about that.

Willem Janssen [00:21:51]

So, private capital. You’re right. So, it started with Stadt Halle the court basically said you can’t give a competitive advantage to an entity that was not tendered. So you can’t have private capital in a legally separate entity that gets a free public contract because it’s exempted from a duty to tender. Now we have this additional aspect in the directive that was added that basically said that it can’t be direct private capital participation with some exemptions. So, this is like an unless clause unless it concerns non-controlling, non-blocking forms of private capital participation. So, it kind of refers to the control criterion. So, think of minority shareholdings, no vetoes, etc. It needs to be required by national legislative provisions. And this is a tricky one because in the Netherlands, we don’t have national legislative provisions obliging you to take in private capital. I’ve been told that in France this differs, and this is some sort of Social Security organizations that do have this aspect, which you need to include the private market. So that’s a massive limitation, which I think is often overseen and then it needs to be in conformity with the treaties and this is I mean, whenever some legislator has dropped this in, I don’t actually know what is was intended. I think this refers to the entire treaty, right? So, you would have to take in the competition rules, state aid law, also free movement. And this kind of creates a kind of a predicament, because if it also includes free movement, does that mean that we would need to organize some sort of competitive procedure based on the free movement rules to include this type of private capital.

Marta Andhov [00:23:47]

Mmhmm. So, in this regard, I also have one element to follow your line of thought. Another addition that we have from more recent case law is this CSR/CIA case[7] that also in the context of capital introduced this, and I quote right now: “the real prospect in short term.” right, this sort of being introduced to the equation. And I wonder if you could elaborate for our listeners a little bit more on this concept because I also wanted to ask about what’s and where is the real practical application of that term.

Willem Janssen [00:24:26]

Yeah. So, this would require to say if you would include in the statutes of a single entity under private law, you would say, well, in the future, we will include private capital. The court has basically said in this Italian case, you referred to the CSR/CIA case basically that that would be allowed because there’s no real short-term prospect. But if you would state and this kind of links to Commission v. Austria, I would say, or the modeling cases have been referred to, it would say that if there’s a clear date in the future that it wouldn’t be allowed, right.

Marta Andhov [00:25:08]

So up here, you know, exactly, my question is: ” OK, so we included this, there is no real prospect soon, but at some point, we want to open it up, but isn’t it at the moment that we open it up then at some point in a more realistic way than we sort of in square one?” So, what’s the point? Right. Because I think this is where the case is lost on me a little bit and I just wonder if I don’t see something that you may enlighten me.

Willem Janssen [00:25:38]

I don’t know if I can bring enlightenment here. It’s the court testing it at a certain time and if there are no issues in the foreseeable future, no problem. Right. So, the court can say, well, maybe if they’re in the future, in an undetermined date, the private capital is opened up to third parties if you then tender it, it’s fine, for an opposite scenario, you could still tender it. So, I think this is a very practical way of dealing with these issues, right? It just tests the moment something is happening and in the modeling case, this obviously then led the court to look at: “Well, you reorganized a lot of stuff very quickly after you awarded the contract. So that was an issue. And we need to take that into account.” So, there was a… I mean, I think in this CIA case that’s I think it’s more of a practical solution. I think that’s still separate from this question that I raised before about should you then tender this private capital, because it says in conformity with the treaties because it would make this whole exemption pretty much useless because basically, if you then still need to tender, you still can’t work with the person you would like to work with. So, this exemption, even though this is in the realm of public procurement, law, and capital, would not fall under this directive. You would still be facing the same issue and to round it off, I mean, you would still need to exert a decisive influence over the controlled legal person or sorry, you cannot, and I have to correct myself, you cannot exert a decisive influence over the controlled legal person. So, the limitation on the type of participation very many links up with the control criterion. And to bring it back to paragraph number two, when we talk about family relations, what’s unclear in the directive now is that this link so basically paragraph two introduces both aspects, right? So first, in this terribly long sentence, it introduces awards, reversed awards, and then horizontal rewards. Then there’s a comma and it says, provided that there’s no direct, then it does the direct private capital participation. The question is: “Does that mean that it only applies to those sister-to-sister awards, or does this also mean that it applies to reversed awards and then it would have an effect on down on reverse towards the bodies governed by public law, which could have this type of private participation?”

Marta Andhov [00:28:14]

And then when we talk about this, this sort of ties up because you mentioned the issue of control also up here, and that ties up to our third issue within our main course today and that is: the question of control and whether the control actually requires shares? So, we had some case law, of course, within the question of control and shares in kind of turmoil.  We heard that you are holding actually and owning all the shares by itself is not really proving that you have the control. We have also some new developments from the cases from two 2019. So, where we stand today in context of acquiring…. Does the control require shares, in your opinion?

Willem Janssen [00:29:01]

Well, I thought it did for the aspect of looking at the cases that you just mentioned, or if you look at this Undis[8] case, an Italian case in which we I mean, this was a case in which the question arose, OK, so you’ve got an institutionalized corporation. There’s a couple of controlling entities involved that control a separate legal entity. How does it work with the activities criterium? So other public entities, are they considered to be market entities that go into the 20 percent or are they because they’re public and they don’t have a shareholding still entities that fall within the 80 percent of the activities criteria. The court then said:” No, they’re part of the 20 because they don’t have a shareholding.” Well, now this more recent case from 18 June 2020 and I’m going to be my Finnish is not as good as it used to be. So, this is the boring Kaupunki case[9] …. our colleague from Finland might kill us for this pronunciation, but it’s a case 328/19. So, maybe that will save my terrible pronunciation. And in this case, I mean, I think in a later episode we could probably discuss the transfer of competences and responsibilities a bit more in depth.

Marta Andhov [00:30:22]

Was the relation here?

Willem Janssen [00:30:23]

Yeah, exactly. So basically, what happens here is very briefly said is that there’s a whole quite confusing set of transfers that occur. So, transfers of competences and they end up with the city of Pori. And then this city awards a contract to a separate legal entity which it has one hundred percent of its shares. And the court then says: ” Well, in fact, this is still a case of joint control. So joint controls then exercised by the city who owns the hundred percent of the shares and by the entities that reshuffled those competencies to that city.” So, this would then say, well, then you don’t need shares, and then the court kind of refers to the agreements that were close and that were still checks and balances. The question then arises, so do we not need shares, right? It could be that this is the case because of specific spinach, spinach. Haha

Marta Andhov [00:31:24]

Finnish, Finnish. Talking about food….

Willem Janssen [00:31:28]

Finnish legislation and that this is still would still require it. But in many member states, if you don’t have shares, particularly in entities governed by private law, it means that you can have veto rights, it means….

Marta Andhov [00:31:42]

…. control, and so….

Willem Janssen [00:31:43]

…. would be very hard to establish.

Marta Andhov [00:31:44]

They’re very much connected, right?

Willem Janssen [00:31:46]

So, I think we’ll be talking about this a bit more in the future, also about the interrelations between transfers of competences and

Marta Andhov [00:31:53]

…and in-house….

Willem Janssen [00:31:54]

…. responsibilities. So, that’s just the last thing that I kind of wanted to highlight. I mean, there’s more discussion possible about this exemption. So, you’re not rid of it yet.

Marta Andhov [00:32:04]

Willem can talk next 10 episodes of about this, but I’m going to stop you here. To summarize with our main today, main course. Willem shared with us some great thoughts on three issues. First, we were talking about the family relations, so-called reverse the reverse in words or daughter awarding contracts to mother, horizontal awards where the sisters’ contract between sisters and the issues of holding control within that. Can that control be hold singularly or jointly. Then issue is private capital. How this concept has developed over the years in the case law and the third issue, whether the control actually requires shares looking into the newest Finnish case in this area. So right now, for a little bit of change of pace, what we refer to as a desert. So, stepping away a little bit from the procurement subject in itself, but staying within some of our academic life areas, we wanted to chat a little bit about online conferences. So, the concept of as been mentioned at the very beginning today, we miss the conferences, we miss the conference dinners. But at the same time, there was really a striking development in the online webinars, conferences and so on and so forth with, of course, a mixed outcome. Some of them are better, some of them are not so great. So, the reason that I wanted particularly to chat about it is because I participated this week in a a really, really good online conference. I need to say that looking how we all learn and develop within this area, I can see this actually having a great advantage, meaning more dissemination to our work and also for us, much easier access to great events, not to mention the whole sustainability element of that. So, Willem from your experience? I think we both have been teaching quite extensively online right now. We also participated in different events. What makes this interaction online interaction successful? What did you learn you think or what you know that good practices in recent years, this year pretty much, right?

Willem Janssen [00:34:36]

Yeah. I mean, I’m very excited to hear about this conference of yours in a sec, because you’ve mentioned it twice now. I think it’s if I would have to summarize it, it’s all about human connection. So, I find the events that are very good or the events that are actually that get my attention, that keep me engaged, that don’t force me basically to pay attention to that which I won’t stop doing emails at the same time whilst I’m participating, because it’s very tempting. It is the ones that have a clear human connection. And I find that in those conferences, people leaving old technical issues aside, right? But I find that there’s a couple of key takeaways that I have is people actually ask questions with audio. I think even though chat boxes are great for massive events, I do find it takes away any type of nuance, any type of fun. No, there’s no interaction that can lead to any type of synergy. So, I think that’s a killer in that sense. So, try to get people to use their audio, try to stimulate people to get the cameras on and I do find that clearly stating that in the beginning already helps, or at least showing, look, it’s very difficult to get people to stay motivated if I see people right, and there’s one other aspect that I thought is very interesting is also to activate prior to the event to provide networking connections prior to the event by having not just the list of attendees, but maybe to ask people what they’re trying to get out of the event or what their learning purposes, or is it to get in touch with people because they want to and content questions because they’re working on certain issues. You can easily in the registration form, add that, and then distribute it among the participants with a picture, with their contact details. Now, of course, make it compliant with GDPR and all this stuff is stuff, but activate them before and one other thing that I noticed is if you actually get a specific question beforehand or a dilemma or a case or something that you can look at and think about before an event which gets you into thinking mode, I find that discussions at the event are way better rather than just rocking up and just you’ve just bought yourself a cup of coffee and you’re like, OK, bring it on. It requires active participation and then I’ll stop my rant is; I find breakout rooms really well, work really well. So, whether it be concerns, teaching, or little, I find that the masses limit’s many people to say something the same at physical conferences and breakout rooms make it a little bit smaller, but more tangible, better networking opportunities, better ways of everyone being able to share their opinion or the input. But maybe this is none of this happened that your epic event. So, I’ll pass it back to you.

Marta Andhov [00:37:42]

Yeah, no, I think you made some really, really good points and I do think that we talking about online conferences, but a lot of this is also equally applicable to online teaching, training sessions, any type of online event. I do think that one main difference is that it’s much easier for a participant to be withdrawn. I think in an online meeting you can just turn off your camera yourself and go make yourself a tea and sort of not be involved. I think that when you somewhere physically, you kind of forcing your participants to be a bit more involved. So, you need to work a little bit harder here. And I do definitely agree with you about this camera. I do think that for me is already a first indication if someone joins any type of meeting and they nutritive in the cameras of it’s pretty much I also feel like the main message is I need to reply to my emails. It’s sort of expected for me to be here, so I’m here, you can see, but I’m not really. Of course, with more like webinar seminars or conferences, it’s a bit trickier because you can kind of make anyone do those things. I do make a principle from the very beginning within my teaching to kind of say up-front, this is a digital course, that I’m running right now where Willem gave a guest lecture that we’re very grateful for.  But from the very beginning, establishing valuations. But from the beginning was saying, look, you need to have a stable Internet connection, you need to have a setup, you need to have a camera, this is a course. This is not anymore, you know, a voluntary thing. This is the structure that we have you had time to get prepared and I think that that made all the difference. I can see them. They can see me. We have interaction, a very good point, someone also had; That when you make people do that, you shouldn’t just lecture them all the time.” If that is also within a conference, you cannot say, oh, everyone turns on the camera and then I will just talk to you for 30 minutes. You need to foster some of that interaction. But to bring it back to this conference that I did, I unintentionally maybe promoted so widely. It was “Make a difference! Tech and learn with technology conferences” organized every year by my university, the University of Copenhagen, and specifically the Faculty Center for Online and Blended Learning. I participated this year for the first time, and I need to say that amount of attention that they put into it was very impressive. One of the things that I really like about it, and I think this is a little bit sharing some good practices, maybe for someone who will be organizing something, this can be helpful. Very simple thing. But what I thought a lot of difference is that when we got the agenda for the conference, there was a little walking human sort of emerging next to some of the sessions and it was indicated that when you see that, when you see that icon, that the expectation this is actually a lecture. This is sort of more like a lecture, like a presentation, and you’re more than welcome to submit in writing in a chatbox question, but you are really encouraged to actually go for a walk because I think is this thing about “death sparked” zoom meetings that just sort of settled the fact that you can consider things like that. People can go for a walk. Another really nice thing that I got, I got a goody bag before this conference with a little bit of chocolate and, you know, bits and pieces with a little bit like a point of where is coffee break and where you should get yourself a coffee and then within those breaks, they also organized using different platforms. It’s a type of like massive breakout groups and you see different breakout rooms and you can yourself change the room in which you are so you can mingle during the break also. So, they did really good this part of breaking it up. And the last point that I would make is also if you want it to be a conference, this is like a bigger thing with more participants, and you really want active participation. I do think that you need to have someone that at the same time manages the chats. I think this, for example, also on a smaller scale in our teaching worked out quite nicely. So Willem was teaching and interacting with the students and then some of the students didn’t want to speak. I encouraged them to write questions and chat, but rather than sort of Willem breaking his line of thought, I just said from the beginning, I will take care of the chat to the extent possible, and I will answer the question, or we will come back to them later. So, I think having someone who monitors what happens is essential.

Willem Janssen [00:42:44]

Yes. Yeah, I worked. I worked like a charm in the class that we taught together and also did the classes that we teach for professionals at Utrecht University. It just takes off a lot of the burden of the speaker and it also allows participants to have a spokesperson for them. So, it’s just you against the speaker who’s supposed to have the floor, etc. It actually you have a person that safeguards the fact that you can ask questions. The person that is legitimized to interrupt the speaker. – Hold on. Before you go to this next slide, let’s look at this question of Marta, because it’s super good and blah, blah, blah. –

Marta Andhov [00:43:21]

Yeah, yeah, for sure. And the last thing that I think we cannot undermine and it’s also difficult one. We spent a good hour before we started recording today on tech stuff and I think the whole sort of technological part…. And we still didn’t figure out…. But I think the whole technological setup for this event, I think the worst thing that can happen, I’ve been to some two events physically. There were huge events organized by governments and big organizations that were streaming and a lot of interesting people and ultimately, we couldn’t participate because everything was freezing, blocking, and so on. Then were promised that the recordings will be submitted. So, you can at least join that way, sort of look through it. We never received them. I think that the text part is you just need to you need to make that work. So, that’s our longer-ish rumbling on that subject matter. But I think that’s where we’ll wrap up. Thanks so much for joining us for a conversation on institutionalized cooperation, some of the outstanding issues, and some of our thoughts on online conferences, good practices, what has been working particularly well in this crazy two thousand twenty. Thanks so much for joining us. This was Bestek, the public procurement podcast.

About Bestek [00:44:50]

This was Bestek, the public procurement podcast. Do you want to contribute to today’s discussion? Then share your thoughts on LinkedIn or Twitter. Do you have an idea for a future episode? Write to us at www.bestekpodcast.com

You might also be interested in some of Willem’s publications on this subject:

• For a discussion about harmonization and self-organisation (in which cooperation plays an important role): W.A. Janssen, ‘Swimming against the Tide: the Harmonisation of Self-organisation through article 12 Directive 2014/24/EU, European Procurement & Public-Private Partnership Law Review, Issue 3, 2019, pp. 145-155;

• For a discussion about the Irgita case on this topic: W.A. Janssen, E. Olsson, ‘On Competition, Free movement and Procurement: Irgita’s Public Cooperation Conundrum’, European Procurement & Public Private Partnership Law Review, 2020/1, pp. 2-12;
• For an overview of the institutionalized exemption and the changes that the 2014 directives brought about: W.A. Janssen, The Institutionalised and Non-Institutionalised Exemptions from EU Public Procurement Law: Towards a More Coherent Approach?, Utrecht Law Review, 10(5), pp.168–186;
• For an in-depth discussion of this topic (chapter 6), and the role of self-organisation in EU public procurement law: W.A. Janssen, Public Procurement Law & Self-organisation: A Nexus of Tensions & Reconciliations, The Hague: Eleven Publishers, 2018.

[1] Case C-796/18 Informatikgesellschaft für Software-Entwicklung (ISE) mbH v Stadt Köln

[2] Case C-107/98 Teckal Srl v Comune di Viano and Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia 

[3] Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC – https://eurlex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32014L0024

[4] Case C‑15/13 Technische Universität Hamburg-Harburg and Hochschul-Informations-System GmbH v Datenlotsen Informationssysteme GmbH (https://curia.europa.eu/juris/liste.jsf?language=en&num=C-15/13)

[5]Case C-26/03 Stadt Halle and RPL Recyclingpark Lochau GmbH v Arbeitsgemeinschaft Thermische Restabfall- und Energieverwertungsanlage TREA Leuna.

[6] Case C-243/89 Commission of the European Communities v Kingdom of Denmark

[7] Case C-573/07 Sea Srl v Comune di Ponte Nossa

[8] Case C-553/15 Undis Servizi Srl v Comune di Sulmona

[9] https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-328/19

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