Duitsland en Italië moeten regels aanbesteden diensten watersector implementeren (en)
The European Commission has decided to send formal requests, in the form of reasoned opinions, to Italy and Germany concerning the procurement of water/wastewater management services and waste disposal services. The public contracts in question have been concluded in the context of structures of cooperation between public municipalities. The national authorities therefore invoke the "in-house" exception claiming that the award of the service contracts is excluded from the application of EC public procurement rules.
The Italian case concerns the direct award of water and wastewater management services by the public entity "Autorità d'Ambito Territoriale Ottimale n.2 - Marche Centro Ancona" (ATO 2), to a public-owned company limited by shares, namely Multiservizi S.p.A. ATO 2 is a consortium of municipalities of the region Marche, responsible for the coordinated management of water and wastewater services in the territory of such municipalities. The latter are also the shareholders of Multiservizi.
The Commission considers that the conditions required by the European Court of Justice case-law for the application of the "in-house" exception are not met in this case. First, the powers entrusted to each municipality as a minority owner are insufficient to confer on them a control which is similar to the one exercised over their own departments. The Commission also excludes that the shareholders of Multiservizi can jointly control this company through ATO 2, since Multiservizi carries out a number of activities other than the management of the water service, which do not fall within the competence of ATO 2. Secondly, despite the additional competences conferred on the shareholders' meeting by the statute of Multiservizi, the management board of this company keeps considerable management autonomy.
The German case also concerns the direct award of public service contracts, this time for waste disposal services between the municipalities of Heidelberg and Mannheim and the administrative district Rhine-Neckar without a competitive tender procedure. The municipalities of Heidelberg and Mannheim and the administrative district Rhine-Neckar in Baden-Württemberg have cooperated in waste disposal matters since 1986. On the basis of a concept attributing to each partner the responsibility for a certain type of waste, the cooperating authorities concluded among them a series of contracts for waste disposal services. All these contracts were awarded directly without conducting a contract award procedure or publishing a call for tenders.
The Commission started infringement proceedings following a complaint by a private waste disposal undertaking. With respect to the waste disposal contracts, the above- mentioned local public authorities are acting as contracting authorities buying services from operators in the market. They can not rely on the so-called "in-house" exception, because the cooperation structure set up by the parties implies that the municipal companies involved carry out a significant part of their activities for authorities which are not their shareholders. Therefore, under Internal Market rules, the public authorities are obliged to apply transparent and competitive tendering proceedings, opening up the market to competition and ensuring that they get the best value for their citizens' money.
The latest information on infringement proceedings concerning all Member States can be found at: