In its recent Judgment in case C-15/13 of 8 May 2014 Datenlotsen Informationssysteme, the CJEU has addressed a so-called 'horizontal' in-house provision of goods and rejected the proposal of AG Mengozzi to exclude it from the application of Directive 2004/18 (see comment here).
Indeed, the CJEU has ruled that
Article 1(2)(a) of Directive 2004/18 (...) must be interpreted as meaning that a contract for the supply of products concluded between (i) a university which is a contracting authority and whose purchases of products and services are controlled by a German Federal State, and (ii) an undertaking under private law, owned by the Federation and by Federal States, including the abovementioned Federal State, constitutes a public contract for the purposes of that provision, and must therefore be subject to the public procurement rules laid down in that directive.
This surely is the most accurate interpretation of the current 'in-house' exception provision under Directive 2004/18 but arrives slightly too late in view of the fact that article 12(2) of Directive 2014/24 creates that exception. In my view, cases like this one indicate the problems of inter-temporal consistency of EU public procurement rules (and other EU Economic Law provisions more generally) and suggest that there may be scope for a revision of the current rules on the need to conclude cases such as this when new rules are in operation.
Germany may have transposed Directive 2014/24 by now and, in that case, the re-tendering of the contract would probably be completely unnecessary--leaving the challenger with a 'mere' right to financial compensation that may not amount to much more than the direct costs of participating in the tender. In such case, the interpretation provided by the CJEU would have come at a large cost and provide limited benefits.
In my view, this should be food for thought and the possibility to dismiss requests for a preliminary ruling when the EU rule to be interpreted becomes de facto obsolete should be considered in the future.