Openbare aanbesteding: Ierland gedaagd voor Hof wegens automatische verlenging contract ambulancediensten in Dublin, berisping Italië (en)

The European Commission has decided to refer Ireland to the European Court of Justice over the renewal, without opening to competition, of existing contractual arrangements for the provision of ambulance services to Dublin City Council. The Commission has also decided to formally ask Italy to modify its framework law on public works to ensure compliance with EU public procurement rules and to put right breaches of those rules in the award of contracts to build and manage gas distribution networks in Apulia. The Commission's request will take the form of a reasoned opinion, the second stage of the infringement procedure under Article 226 of the EC Treaty. In the absence of a satisfactory response to the reasoned opinion, the Commission may refer Italy to the European Court of Justice. The Commission has also decided to ask Germany to comply fully with an existing European Court of Justice judgment requiring it to remedy breaches of the Public Procurement Directives in the award of long-term contracts for waste disposal in Brunswick and for the collection of waste water in Bockhorn. The Commission has closed an infringement case against Greece, which has now changed a law that in effect prevented EU companies whose previous work had mainly been done outside the EU from bidding for public works contracts. It has also closed a case against Luxembourg, which has now brought into line with EU law its national rules on appeals for companies whose bids for public contracts have been rejected.

EU law on public procurement aims to ensure that all European companies have a fair chance to bid for public contracts. The open and transparent tendering procedures required under EU law mean more competition, stronger safeguards against corruption and better service and value for money for taxpayers.

Ireland - provision of ambulance services

Ireland has not complied with a reasoned opinion sent to it over the renewal of the contract for Dublin City Council (formerly Dublin Corporation Fire Brigade) to provide emergency ambulance services to the Eastern Regional Health Authority (see IP/03/266). The Commission will now take the case to the European Court of Justice.

The case is not specifically covered by the detailed procedural requirements for the advertising and award of contracts laid down in Directive 92/50/EEC on the public procurement of services. However, it is covered by the general provisions of that Directive, by general EU law obligations such as non-discrimination, equal treatment and transparency and by the principles covering the free movement of services laid down in the Treaty.

The Commission therefore considers that, in line with those obligations, the Irish authorities should have ensured, for the benefit of any potential tenderer, a degree of advertising necessary and sufficient to ensure competition.

Italy: framework law on public works

The Commission has decided to send Italy a reasoned opinion concerning certain provisions of the framework law on public works, No. 109/94, as last amended by Law No. 166/2002.

The Commission wants Italy to amend its legislation to bring this framework law into line with the Directives on public contracts and therefore make those contracts open to intra-EU competition. In particular, the Commission's action is designed:

• to avoid situations where national rules on the scope of the Directive on public work contracts which are not in conformity with EU law result in public contracts not being published at EU level in accordance with the "supplies" and "services" Directives, whose application thresholds are much lower than those in the "works" Directive;

• to ensure that the competition rules of EU Directives on public contracts are applied in all cases or, where they are not applicable, to ensure that the contract is sufficiently advertised in accordance with the general principle of transparency. This applies, for example, to work performed by way of payment for planning permission and engineering, architectural and project assessment services falling below the thresholds of the EU Directives, and to management services and technical inspection services ("collaudo");

• to avoid situations where national rules such as that on the right of pre-emption ("prelazione") of the promoter within the framework of project-financing procedures discriminate against non-nationals who bid for public contracts.

Italy - gas distribution in Apulia

The Commission has also decided to send a reasoned opinion to the Italian authorities concerning their methods of awarding contracts for the construction and management of gas distribution networks by the eight municipalities constituting the catchment areas known as "Puglia 25" and "Puglia 29" (including San Giovanni Rotondo, San Nicandro Garganico and San Marco in Lamis).

From 1991, these eight municipalities awarded contracts for the construction and management of the networks to one company via a negotiated procedure, without putting the contracts out to tender at EU level.

The Directive on public works contracts (93/37/EEC) states that contracting authorities wishing to award a public works contract (if the value of the contract is €5 million or more) must publish a notice in the Official Journal of the European Union. The same rules are provided for in Directive 89/440/EEC.

The Commission considers that, as the above-mentioned Directives do not lay down exemptions for the award of a public works contract via a negotiated procedure, the aforementioned contract awards should have been awarded via competitive tender.

Germany waste disposal and waste water collection in Lower Saxony

On 10 April 2003, the European Court of Justice ruled in joint cases C-20/01 and C-28/01 that the Federal Republic of Germany had failed to fulfil its obligations under Directive 92/50/EEC in two cases of service procurement by local authorities in the German State of Lower Saxony. In 1996, the City of Brunswick awarded a contract for waste disposal by negotiated procedure without prior publication of a contract notice. In 1998, the Municipality of Bockhorn did not invite tenders for the award of the contract for the collection of its waste water. The contracts have been signed for a minimum of 30 years.

The Commission asked the German Government to provide information on the measures it had taken to comply with the judgment of the Court. However, the German Government simply replied by repeating its previous arguments, namely that it had always acknowledged the violations and had taken all necessary measures to avoid their repetition in the future.

The Court established in its judgment that the violation of procurement law continues throughout the execution period of the contracts awarded in breach of the Directive. As the present contracts will be in effect for decades, the Commission considers that it is not sufficient to avoid future violations. Measures to end the current infringements are required. Consequently, the Commission has decided to send a letter of formal notice. If the German authorities still do not comply, the Commission can ask the Court to impose a daily fine.

Greece - public works contracts

Presidential Decree 334/2000 (OJ 279, 21.12.2000) imposed restrictions on the building firms which could take part in procedures for the award of public contracts. In the absence of official national registers of contractors, the Decree only allowed companies to produce references to similar works constructed in their country of origin and other EU or EEA Member States.

The Commission considered that this provision infringed Directive 93/37/EEC, because it constituted, without any technical justification, discrimination against tenderers who had carried out works outside EU and EEA territory, who were consequently automatically eliminated from procedures for the award of public contracts in Greece.

Following the Commission's intervention, the Greek authorities acknowledged the illegal nature of the disputed provision and, on 9 December 2002, communicated the regulatory text (Article 2 of Presidential Decree 336/2002, published in the Official Journal of the Hellenic Republic, vol. I, No. 281, 20.11.2002) which amends the disputed provision by allowing companies or physical persons from EU or EEA Member States in which official registers of contractors are not held, to take part in competitions for the construction of works similar to those that they have already built, irrespective of where such works are located.

Luxembourg - appeals

The Luxembourg legislation, insofar as it stipulated that the award involved an amount which was sufficient to justify a competitive procedure, did not allow a meaningful appeal against a decision (that is to say, at a stage where infringements could still be corrected by starting the procedure again, i.e. prior to the contract being signed).

In these circumstances, the Commission considered this legislation to be contrary to Directive 89/665/EEC as interpreted by the Court of Justice in the "Alcatel" judgment of 28 October 1999, which requires the Member States, as part of the award procedure, to enable tenderers to apply for cancellation of a decision. Accordingly, the Commission sent a letter of formal notice in October 2002.

By adopting the Grand-Ducal Regulation of 7 July 2003, the Luxembourg authorities have ended the infringement. Article 90 of the Grand-Ducal Regulation introduces a 15-day period between notification (to the unsuccessful tenderers) of the contracting authority's decision and signature of the contract.