Openbare aanbesteding: inbreukprocedure tegen Duitsland betreffende wegen, onderhoudsdiensten en luchtverkeersleiding (en)
The European Commission has decided formal requests to Germany concerning the conclusion of public service contracts for the maintenance of district roads by administrative districts (Landkreise) in eight German States (Länder), and concerning the award of a public service contract in 2002 for the provision of flight measure services. These formal requests take the form of "reasoned opinions", the second stage of the infringement procedure laid down in Article 226 of the EC Treaty. If there is no satisfactory reply within two months, the Commission may refer the matter to the European Court of Justice.
Maintenance services for district roads
Many administrative districts in Germany conclude contracts with the State entities responsible for the federal roads to entrust them with the maintenance of the district roads. The Road Acts of the States provide that the administrative districts are in principle responsible for the construction and maintenance of district roads, but that they can entrust the State entities with the maintenance of these roads against reimbursement of the costs incurred, without transfer of the responsibility itself. The contracts between the administrative districts and the State entities are mostly concluded without any prior call for tenders or execution of a contract award procedure.
The German Government claimed that the contested agreements do not concern public contracts but acts of internal State organisation which are not subject to the application of the European procurement rules. However, according to the case-law of the European Court of Justice, the fact that all parties to the contracts are public law bodies does not, as such, affect the applicability of the public procurement Directives. The contracts in question do not transfer the responsibility for the maintenance of the district roads as such but only the maintenance services. They thus stipulate obligations for the State entities to provide services for a consideration. Therefore, the Commission held the view that these are public service contracts within the meaning of the public procurement Directives and have to be awarded pursuant to the procedures foreseen in the Directives.
Award of flight measure services
The contract for the provision of flight measure services has been awarded by Deutsche Flugsicherung GmbH (DFS), the organisation that is responsible for flight traffic control in Germany. DFS is 100% owned by the Federal Republic of Germany and thus a contracting authority within the meaning of European procurement law. However, it has not carried out a public procurement procedure when awarding the service contract directly to an undertaking of which it holds 55% of the shares.
The German Federal Government argues that the award of flight measure services does not fall within the scope of application of European procurement law. According to the German Government, flight measure services are a public task connected with the exercise of official authority within the meaning of Article 45 of the EC Treaty. Furthermore, there is a close link between flight measure services and national security interests. Finally, the control of DFS over the contractor in the view of the German authorities is similar to that which it exercises over its own departments.
The Commission disagrees with the German argumentation. Flight measure services are a technical service, which is part of the periodical maintenance of navigation facilities to keep these facilities operational and to inspect them. There is no connection of this service with the exercise of official authority. Flight measure services are not services in the national interest, but rather services which serve the technical safety of air traffic. DFS can also not control the contractor in a similar way to its own departments as it holds only 55% of the shares of the contractor. Thus, in the view of the Commission, the reasons given for the non-application of European procurement law are not valid.
The latest information on infringement proceedings concerning all Member States can be found at: