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Public procurement against Austria and Germany: infringement proceedings
Commission Européenne - IP/07/1512 17/10/2007
Brussels, 17 October 2007
The European Commission has decided to send a formal request for information, in the form of a letter of formal notice, to Germany concerning its public contracts for legal database services. The Commission has also decided to send a formal request, in the form of a reasoned opinion, to Austria concerning a contract for works at a hospital in Spittal/Drau, Carinthia. Finally the Commission is closing two cases against Germany concerning the waste disposal in the city of Braunschweig and waste water collection in the municipality of Bockhorn.
Germany – waste disposal and waste water collection (closures)
The Commission is closing cases concerning the waste disposal in the city of Braunschweig and waste water collection in the municipality of Bockhorn. The European Court of Justice ruled on 10 April 2003 that Germany failed to fulfil its obligations under the services procurement Directive 92/50/EEC when local authorities awarded service contracts without competitive tendering procedures. As the German authorities subsequently failed to terminate the Community law violation, the Commission decided in October 2004 to refer the case a second time to the Court of Justice (IP/04/1294).
The Court of Justice ruled on 18 July 2007 that by having failed to adopt all the necessary measures to comply with the judgment of 10 April 2003, Germany had failed to fulfil its obligations under Article 228 EC-Treaty. The Court confirmed that Germany cannot rely on the principles of legal certainty and of the protection of legitimate expectations, the principle pacta sunt servanda ('pacts must be respected') and the right to property to justify the non-implementation of a judgment establishing a failure to fulfil obligations under Article 226 EC.
As the contracts in question were terminated before the rendering of its judgement, no penalty payments were imposed by the Court and the cases have been closed.
Germany – legal database services
In 2006, the judicial authorities of 13 federal states awarded contracts for legal database services directly to juris without publishing calls for tenders. juris, a company partially owned by the Federal Republic of Germany, is the leading operator of legal databases in Germany. Under an agreement with the Federal Government, juris maintains and operates its legal information system while the Federal Government provides specific documentation such as consolidated documentation of federal legislation and judgments by the federal courts in a specially edited version for the exclusive use of juris.
The Commission considers that the contracts for database services concluded by the 13 states and the agreement between the Federal Government and juris might be public contracts which should have been awarded by competitive tendering procedures with publication of European-wide calls for tenders. It has therefore sent a letter of formal notice to the Federal Government inviting it to present its observations. If there is no satisfactory reply within two months, the Commission may issue a reasoned opinion.
Austria – works at hospital in Spittal/Drau, Carinthia
The Commission is sending a reasoned opinion to Austria concerning the award
of a works contract by the Krankenhaus Spittal/Drau GmbH. The contract, with a
value of approximately 32 million Euro, was financed 90% by the State of
Carinthia and will continue to be executed at least until the end of 2008 with
an important part of the works still to be performed. Some of the works have not
even started yet. The Austrian authorities originally disputed that the
Krankenhaus Spittal/Drau GmbH is a public contracting authority. Subsequently
they acknowledged the breach of Community law. However, their efforts in the
present case to ensure compliance with Community law have not been