Developers and councils were worried they would have to re-tender contracts after the European Court of Justice (ECJ) ruling on Roanne. But in March, the ECJ gave them hope with “son of Roanne”.

On 25 March, the ECJ passed judgment in Helmut Müller v Bundesanstalt für Immobilienaufgaben — the agency that manages German government property. Müller challenged the sale of 24 ha of ex-army barracks land, saying the agency did not go through the proper Official Journal of the European Union (OJEU) process. This raised the prospect that some contracts between councils and developers would be torn up.

But the ECJ judgment has helped quell the fear. It says that even when a council plays a key role in setting the aims of a development plan, they do not necessarily need to be procured via OJEU as a “public works contract”. This has reduced the risk that contracts not procured via OJEU must be re-tendered.

Helen Meyler, head of public sector at law firm Davies Arnold Cooper, says: “It doesn’t take us all the way there, but it does shed some light on the way the court looks at local authority-led regeneration.”

This verdict is a shift from the position of advocate-general Paolo Mengozzi, who gave his preliminary verdict on the case in November. He said contracts should be procured through OJEU if public money would be used for the works or if the local authority has had a significant say in the scope of the works. The final verdict shows the European courts post-Roanne are not expected to analyse the law that broadly.

Contracts will only need to be procured via OJEU if the authority has a direct financial benefit from the scheme, such as part owning it.The court did not consider whether all cases in which the contractor owns the land on which a development will be built will justify an exemption from applying the procurement rules. In this area, clarity on EU rules is still needed.

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