Council persuades TCC that outdoor advertising dispute falls outside EU rules

The London Borough of Hammersmith And Fulham’s decision on letting an outdoor advertising contract was a UK matter and did not engage the Treaty on the Functioning of the European Union.

That ruling has come from the Technology and Construction Court after advertising firm Ocean took action when it lost the contract to post advertisements on two towers by main roads rival firm Outdoor Plus.

O’Farrell J said Ocean's primary case was that this ‘new lease’ transaction was a services concession to which the provisions of the Concession Contracts Regulations 2016 applied and that there was sufficient potential cross-border interest in the procurement for general EU principles to apply, such as transparency, non-discrimination, equality, fairness and proportionality.

Ocean also argued that there had been procedural unfairness and manifest error in the council’s decision.

Hammersmith & Fulham, the judge noted, argued that the regulations did not apply as this was not a service concession contract but a land transaction concerning use of the two towers erected for the purpose.

The council argued it was obliged to obtain the best consideration reasonably under section 123 of the Local Government Act 1972 and that land transactions were excluded from the Concession Contracts Regulations. It also argued that Ocean had made its challenge too late.

The judge concluded that new allegations of actual bias that had been introduced by Ocean “have no real prospect of success” and were in any event made too late.

Giving judgment, she said: “Ocean has failed to establish any unlawful conduct in respect of the tender exercise. The claim does not raise any arguable grounds for judicial review and therefore, permission is refused.

“I am satisfied that this transaction was purely an internal UK matter and there was insufficient potential cross-border interest to engage [European Union] principles.