Brussels, 28 January 2010
Public procurement: Commission requests Germany to review award of contracts for architectural services by municipality of Niedernhausen
The European Commission has decided to send a formal request to Germany concerning the award of architectural service contracts by the municipality of Niedernhausen to a local engineer without European-wide calls for tenders. This formal request takes the form of a "reasoned opinion", the second stage of the infringement procedure laid down in Article 258 TFEU. If there is no satisfactory reply within two months, the Commission may refer the matter to the European Court of Justice.
The municipality had decided in 2006/2007 to renovate its multi-purpose hall and to entrust a local engineer with the planning services for the renovation. The renovation is spread over several years and divided into corresponding construction sections. The value of the planning services for the entire renovation exceeds the threshold for the application of the EU public procurement Directive 2004/18/EC, and the award of the service contract should therefore have followed a formal tender procedure with European-wide publication of a tender notice, as required by the rules of this Directive.
The German authorities hold the view that the planning services for the different construction sections must be considered as distinct public service contracts with values each below the thresholds of the Directive, which would thus not apply. The Commission does not share this view. The architectural services for the entire renovation have to be considered as one single public service contract. The renovation concerns different parts of one single building and is one single project conceived from the outset as such, and is economically and technically linked. Hence, the award of this contract without European-wide tender procedure infringed the EU public procurement rules.
Total public procurement in the EU – i.e. the purchases of goods, services and public works by governments and public utilities – is estimated at about 16% of the Union’s GDP. The open and transparent tendering procedures required under EU public procurement law mean more competition, stronger safeguards against corruption, and better service and value for money for taxpayers.
The European Commission has powers to take legal action – known as infringement procedures – against a Member State that is not respecting its obligations under EU rules. These procedures consist of three steps. The first is that the Member State receives a letter of formal notice and has two months to respond. In case further compliance with EU legislation is needed, the Commission sends a reasoned opinion.
Again the Member State has two months to reply. If there is no satisfactory reply, the Commission can refer the matter to the European Court of Justice in Luxembourg. It can also request that the Court impose a fine on the country concerned if it does not comply with the Court's ruling.
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