Openbare aanbesteding: niet nalevingmaatregelenn tegen Duitsland over aanbesteding van afvalverwijderings diensten door de stad Rostock (en)
The European Commission has decided to send a reasoned opinion to Germany concerning the award of waste disposal contracts by the city of Rostock to the Entsorgungs- und Verwertungsgesellschaft mbH Rostock (EVG) and to the Stadtentsorgung Rostock GmbH (SRG) without carrying out tender procedures. The contracts with EVG concerned the conclusion in 1998 and subsequent modification in 2004 of a contract with a duration of 25 years and a contract value of approximately 150 million Euros. The contracts with SRG in 2004 and 2007 concerned the modifications of previous contracts with an annual contract value of more than 10 million Euros per year. A reasoned opinion is the second stage of the infringement procedure as laid down in Article 226 of the EC Treaty. In the absence of a satisfactory reply within two months, the Commission may decide to refer the matter to the European Court of Justice.
While the city of Rostock directly or indirectly holds some of the shares of both EVG and SRG, both entities are mixed undertakings with a considerable part of their shares in private ownership. Contract awards by public contracting authorities to such entities require the execution of tender procedures pursuant to European Public Procurement Directives. Without the execution of such procedures the private undertakings with a capital presence in EVG and SRG would have an unjustified advantage over their competitors (see ECJ judgement of 11/01/2005 in case C-26/03, Stadt Halle, paragraphs 49-52).
The German authorities have pointed out that the alleged contracts have already been under discussion at the national level. The current establishment of the procurement law violations by the Commission might thus contribute to a rapid termination and subsequent European-wide tendering of the concerned contracts.
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