Brussels, 30/06/2006 (Agence Europe) - On Thursday the Commission took action against Germany, Austria, Italy and Malta to correct breaches of EU public procurement law.
The Commission decided to refer Germany to the Court of Justice in a case concerning waste disposal services awarded by the administrative districts of Rotenburg (Wümme), Harburg, Soltau-Fallingbostel und Stade in Lower Saxony to the Stadtreinigung Hamburg, another public entity. Germany maintains that the case concerns public-public cooperation outside the scope of the procurement rules, but the Commission says the case-law of the Court of Justice indicates there is no exception for public-public cooperation from EU procurement law.
The Commission is also sending two reasoned opinions to Berlin, one concerning the award of a bus transport service concession in the city of Worms, and the other over the practice of public employers of awarding group pension services only to a limited number of service providers stipulated in a collective agreement. In the first case, the concession, worth some €3 million per year, has been directly awarded to a service provider without compliance with the general principles of the EC Treaty, and in the second, a call for tenders should have been launched because public employers are contracting authorities within the meaning of EU procurement rules says the Commission.
It also decided to begin a procedure to enforce a judgment of the Court of Justice (of 10 November 2005) against Austria concerning the disposal of waste in the city of Mödling. The Court of Justice ruled that Austria violated its public procurement obligations when, in 1999, the city of Mödling awarded waste disposal services to a mixed undertaking of which the city of Mödling owns 51%. This contract is still being executed. In two other similar cases concerning long-term waste disposal contracts in the cities of Hartberg and Kapfenberg, the Commission has decided to submit reasoned opinions to Austria. As the Court of Justice has established in its judgment of 11 January 2005 in case C-26/03 (Stadt Halle), the “in-house” exception from procurement law does not apply to such contract awards.
A reasoned opinion has also been delivered to Italy concerning the award, by means of negotiated procedure, of public contracts for the realisation and finance lease of state prisons to be built in the municipalities of Varese and Pordenone. The Commission considers that the choice of tender procedure was wrong and infringed directive 93/37/EEC. In a second case, the Commission considers that the modification of the conditions of the award of a public contract after the publication of the tender notice did not allow all operators interested in and qualified for the works to take part in the tendering procedure.
Finally, a reasoned opinion has been sent to Malta on account of the use of discriminatory criteria for the award of a contract for the provision of programme management services and technical assistance in connection with the implementation of the Sewerage Master Plan for Malta and Gozo. The Commission considers that the inclusion of award criteria relating to “regional or local experience” or “professional experience in Malta” of the tenderers constitutes a violation of directive 93/38/EEC coordinating the procedures of entities operating in the water, energy, transport and telecommunications sectors.