Openbare aanbesteding: inbreukprocedure tegen Duitsland betreffende toekenning van bouw van het belastingdienstgebouw in Quedlinburg (en)
The European Commission has decided to send a formal request to Germany concerning the conclusion of a public works contract for the construction of a tax office building in Quedlinburg by the German State of Saxony-Anhalt. This formal request takes the form of a "reasoned opinion", 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.
The case concerns a works contract concluded in 2008 between the German State (Land) of Saxony-Anhalt and a private investor without previous execution of a tender procedure. The State has purchased from the investor a piece of land on which an administrative building was to be constructed by the investor, for an overall value of roughly 7.4 million Euros. The investor himself had bought the land from the previous owner in view of the realisation of the works.
The German Government claimed that the main subject of the contract was not the construction of the building but the sale of the land, and that the contract could therefore not be qualified as a public works contract. Furthermore, in the opinion of the German Government, the owner of the land, who would only sell the land if he was also commissioned with the construction works, had an exclusive position which allowed the direct award of the works contract.
As regards the first argument, the Commission held the view that the main purpose of the region was not to buy a piece of land, but to get a building for its tax administration, and that the value of the works amounted to more than 6 million euros. Under these circumstances the works could not be considered as purely secondary compared to the purchasing of the land, and the procurement of the works therefore falls within the scope of application of the European Public Procurement Directives. As to the second argument, the Commission held the view that the mere ownership of the land on which public works are carried out does not automatically confer to the land owner an exclusive position justifying the direct award of the works contract. Therefore, the Commission held the view that the contract had to be awarded pursuant to the procedures foreseen in the European Public Procurement Directives.
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