Openbare aanbesteding: Commissie verzoek Nederland contract voor gebiedsontwikkeling in Eindhoven te herzien (en)

The European Commission has decided to send a formal request to The Netherlands concerning the award of a public works concession by the Municipality of Eindhoven relating to the development of a community centre known as the "Doornakkers Centre". In the Commission's view, this contract was awarded without a competitive tendering process as required under EU public procurement rules. 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.

Public works concession awarded without competitive tender

The Municipality of Eindhoven awarded this contract without having carried out a European tender procedure. The Commission considers that the contract in question constitutes a public works concession and as such should have been awarded, on the basis of the public procurement Directive 2004/18/EC, following the publication of a concession notice in the Official Journal of the European Union and the completion of a tendering process. The Commission is of the opinion that in the absence of such a tendering process, the Netherlands has failed to fulfil its obligations under the EU public procurement rules.

The Commission notes that the concession contract has as its object not merely the sale of land and that the work corresponds to the requirements specified by the Municipality. The contract obliges the developer, among others, to realise a specific number of buildings and apartments of a specific size and a specific number of parking places. The question whether the involvement in the project of the Municipality has its basis in public law is immaterial under the EU public procurement rules. Although the developer develops the real estate for his own risk and account and does not receive a payment from the Municipality the Commission considers that the Municipality of Eindhoven has given the developer a right of exploitation within the meaning of Directive 2004/18/EC, since the developer acquires for the project a tailor-made building license that gives him the right to construct and to exploit the work foreseen in the contract.

Background

Total public procurement in the EU - i.e. the purchases of goods, services and public works by governments and public utilities - is estimated at about 16% of the Union’s GDP. The open and transparent tendering procedures required under EU public procurement law mean more competition, stronger safeguards against corruption, and better service and value for money for taxpayers.

Under the EC Treaty, the European Commission has powers to take legal action - known as infringement procedures - against a Member State that is not respecting its obligations under EU rules. These procedures consist of three steps. The first is that the Member State receives a letter of formal notice and has two months to respond. In case further compliance with EU legislation is needed, the Commission sends a reasoned opinion. Again the Member State has two months to reply. If there is no satisfactory reply, the Commission can refer the matter to the European Court of Justice in Luxembourg. It can also request that the Court impose a fine on the country concerned if it does not comply with the Court's ruling.

More information

EU public procurement:

http://ec.europa.eu/internal_market/publicprocurement/index_en.htm

Latest information on infringement proceedings concerning all Member States:

http://ec.europa.eu/community_law/index_en.htm