Brussels, 8 October 2009
Public procurement: Commission closes infringement case against Germany concerning public-public cooperation for waste treatment in Rhineland-Palatinate
In light of recent judgements by the European Court of Justice, the European Commission has decided to close an infringement case against Germany concerning the award of public waste treatment service contracts by administrative districts (Landkreise) and public special purpose associations (öffentliche Zweckverbände) to other public entities in Rhineland - Palatinate.
Between 2002 and 2008, the administrative districts of Altenkirchen, Alzey-Worms, Bad Kreuznach and Rhein-Hunsrück as well as the special purpose associations Abfallwirtschaft Kaiserslautern and Deponiezweckverband Eiterköpfe awarded service contracts with contract values between 1.2 million and 6 million Euros per year for the treatment or for the disposal of waste without execution of European-wide tender procedures.
Vertical public-public cooperation in the administrative district of Alzey-Worms
The ECJ rendered two judgements in November 2008 (C-324/07, Coditel Brabant) and September 2009 (C-573/07, SEA). Further developing its concept of "in-house" contract awards, the ECJ confirmed that public-public cooperation via jointly controlled public entities with limited market orientation carrying out the essential part of their activities with their public owners does not require the application of public procurement procedures.
The administrative district of Alzey-Worms awarded the service contract to the GML, a public entity which is owned solely by municipalities and administrative districts, including the administrative district of Alzey-Worms, which holds a share of 6.25% of the capital of the GML. The activities of GML are almost exclusively provided for its public owners. The contract award thus complied with the "in-house" conditions set by the case-law of the ECJ.
Horizontal public-public cooperation in Rhineland - Palatinate
The ECJ issued a judgement in June 2009 (C-480/06, Commission vs. Germany) specifying that public-public cooperation does not require the creation of jointly controlled entities but can be based on a not for profit cooperation aimed at jointly ensuring the execution of the public tasks of the cooperation partners which is solely governed by considerations and requirements relating to the pursuit of objectives in the public interest.
The administrative districts of Altenkirchen, Bad Kreuznach and Rhein-Hunsrück as well as the special purpose associations Abfallwirtschaft Kaiserslautern and Deponiezweckverband Eiterköpfe concluded contracts with other public entities in the context of jointly ensuring the execution of their respective waste disposal and waste treatment tasks. Contract partners are the administrative districts Rhein-Lahn and Neuwied and the special purpose association Abfallverwertung Südwestpfalz, a public entity comprised solely of public members. The different cooperation agreements are based on the waste management plan of the State of Rhineland Palatinate, which provides for the cooperative sharing of tasks by the public disposal bodies in the interest of disposal security and of the economic operation of waste facilities. All the public cooperation partners covered by the case have been involved in the establishment of the waste management plan. According to the available information, the cooperation of the participating public bodies is solely based on considerations and requirements relating to the pursuit of objectives in the public interest in the field of waste disposal.
In the view of the Commission, these cases of public-public cooperation in Rhineland - Palatinate fall within the scope of application of the ECJ case law referred to above and thus the case can be closed.
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