In practice, questions arise when the controlled entity is part of a corporate group. Two interpretations are possible in such cases. The 80% threshold can either be assessed solely on the turnover of the controlled legal entity, or on the turnover of the group to which it belongs. In its judgment of 15 January, the ECJ confirmed the latter approach. The Court held that the relevant assessment is not limited to the activities of the controlled entity itself, but may also include activities more broadly linked to it through group structures.
The case concerned public contracts for the collection and processing of residual household waste. These contracts had been directly awarded under the in-house exemption without an open tender procedure. The Dutch waste management company AVR-Afvalverwerking BV (AVR) challenged the award, arguing that the turnover of the entire group must be taken into account in order to reflect the underlying economic reality. According to AVR, focusing only on the turnover of the controlled entity could allow the in-house exemption to be circumvented by separating activities within a group, while other group companies continue to operate on the open market.
