Overview

The application of public procurement law to land transactions and development deals is one of the most taxing legal areas.

In recent times we've had the European Court of Justice (ECJ) decision in Muller of 25 March 2010, further OGC guidance, and a referral to the ECJ against the Netherlands in relation to a scheme at Eindhoven on 3 June 2010 to contend with.

Between them we do start to get a sense of where on the line between the extremes of pure land deals and public works contracts we can go. There is still a huge lack of certainty and it remains the case that each decision is on its facts.

So rather than get bogged down in the guidance, here's a summary of what is currently seen by the Courts as less likely to make a public works contract.

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