Brussels, 28/07/2003 (Agence Europe) - The European Commission decided on Thursday to request formally Germany and Ireland to comply with EU public procurement law.
In Germany, the city of Freiburg awarded a heating contract to a private company, which is partly owned by the municipality, without launching a Europe-wide tender procedure. Germany has acknowledged the breach of Community law, but has claimed that it was an exceptional case of misinterpretation of the Court's case law on "in-house" awards. The city authority believed that the contract did not have to be put out to tender, as it was awarded to an entity controlled by the city in a similar way as its own internal departments. The Commission feels that this infringement of Community law will be ongoing until 2016, when the contract expires, unless steps are taken to remedy the situation. The fact that the city of Freiburg has fulfilled its obligations for other public contracts does not mean that Germany has rectified the situation, says the Commission, which has therefore decided to send a reasoned opinion to the German authorities.
The Commission has also decided to send a reasoned opinion to the Irish authorities, asking them to comply with Community law in a case concerning the Irish Forestry Board awarding a contract for the fertilisation of forests by helicopter. The Irish authorities classify the Irish Forestry Board as a private entity not subject to the public procurement rules, despite the fact that it has the important role of maintaining national forests. The Commission takes the view that the Board is a public body under the directive on public procurement, and is therefore subject to EU public procurement rules. A Court of Justice ruling of 17 December 1998 already classified the IFB as a contracting authority. The Commission also feels that, even if the contracts in questions are not subject to the detailed procedure applicable in publishing and awarding contracts as laid out in the directive, they do fall under the general provisions of that directive and of the EC Treaty. The contracts should therefore have been adequately advertised.