Public procurement law (European Union)

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The procurement law of the European Union is that part of European law in the narrower sense that regulates the award of public contracts by the member states and their bodies. It essentially consists of Directives 2004/17 / EC and 2004/18 / EC as well as the general legal principles first expressed by the ECJ in the Telaustria and Telefonadress decision .

Legal basis

According to Art. 114 (1) TFEU , the European Parliament and the European Council take “measures to harmonize the legal and administrative provisions of the Member States which have as their object the establishment and functioning of the internal market”. Since this internal market is based in particular on the four fundamental freedoms set out in Art. 26, Paragraph 2, i.e. the free movement of goods , people , services and capital , Art. 114 thus empowers the EU organs to influence them through European secondary law To take regulations of the member states that have the award and execution of public contracts as their object. The aim of this intervention is in particular to guarantee free and equal access to public contracts for all European companies and the most transparent possible procurement.

As the Court of Justice has already stated on several occasions, the purpose of coordinating public procurement procedures at Community level is to remove obstacles to the free movement of services and goods, thereby protecting the interests of economic operators established in one Member State and those of public operators established in another Member State Want to offer customers goods or services [...]. "

- ECJ, judgment v. February 27, 2003, Adolf Truley GmbH v Bestattung Wien GmbH (C-373/00), Rn. 41.

The EU is also increasingly trying to encourage public clients to take greater account of social and environmental criteria.

development

The first European legal acts dealing with aspects of public procurement law were Directives 71/304 / EEC and 77/62 / EEC. They were strongly based on French law and contained, in particular, provisions on the formal requirements to be complied with when awarding public contracts.

In response to the White Paper on the European internal market published in 1985 by the Commission headed by Jacques Delors , the Council issued the so-called “Remedies Directive” on December 21, 1989 (Directive 89/665 / EEC), the rules governing the invitation to tender for public supply and works contracts and contains the legal remedies against them. On February 25, 1992, the so-called "Sector Directive" (Directive 92/13 / EEC) followed, which transferred these rules - with some changes - to those areas which had been excluded from the scope of the Appeal Directive due to their privatization taking place in many member states : Water, energy and transport supply as well as telecommunications. Directive 92/50 / EEC of June 18, 1992 contained corresponding regulations for service contracts.

With the directives 93/36 / EEC and 93/37 / EEC further regulations for delivery and construction contracts were made, which with the directive 93/38 / EEC they were extended to the areas of water, energy and transport as well as telecommunications .

Current legal situation

Guidelines

The most important European regulations of public procurement law can currently be found in Directives 2004/17 / EC and 2004/18 / EC. Directive 2004/17 / EC was repealed and replaced by Directive 2014/25 / EU. Directive 2004/18 / EC has been replaced by Directive 2014/24 / EU. Apart from the area of ​​telecommunications that is not covered, its scope is largely identical to that of the previous directives 93/36 / EEC, 93/37 / EEC and 93/38 / EEC; it does not cover the area of service concessions or orders below certain (regularly adjusted) thresholds. Since December 11, 2007, there has also been Directive 2007/66 / EC, which contains provisions on the permissible legal remedies that can be lodged against the award of a public contract, thereby modernizing both the Legal Remedies and the Sectoral Directives.

The goals of these guidelines are in particular the modernization, simplification, standardization and harmonization of European public procurement law. Important innovations in this sense are, in particular, the introduction of the “competitive dialogue” in Article 29 of Directive 2004/18 / EC, which is more flexible than the usual procedures, the promotion of “subcontracting” (Article 37 of Directive 2004/17 / EC and Art. 25 Directive 2004/18 / EC), which is intended to facilitate access to public contracts for small and medium-sized enterprises , and the now expressly envisaged possibility for public clients to jointly set up so-called "central procurement offices" (Art. 27 Directive 2004/17 / EC and Art. 11 of Directive 2004/18 / EC) and to use “dynamic procurement systems”.

In addition, with the guidelines, Parliament and Council reacted to the case law of the European Court of Justice, which in the Telaustria and Telefonadress ruling of December 7, 2000, developed legal principles of public procurement law that were independent of the guidelines and, in particular, taking them into account in the Concordia Bus Finland ruling of December 17, 2002 from an environmental point of view when awarding the contract, although this was not provided for in the guidelines. Art. 2 of Directive 2004/18 / EC now expressly confirms the principles of "equal treatment", "freedom from discrimination" and "transparency"; Directives 2004/17 / EC and 2004/18 / EC also see compliance with environmental and other sustainability issues .

"The contracting authorities treat all economic operators equally and in a non-discriminatory manner and proceed in a transparent manner."

- Art. 2 Directive 2004/18 / EC

General principles of law

Since the award of service concessions was expressly excluded from the scope of the directives on public procurement law (and still is), in the Telaustria and Telefonadress and Parking Brixen decisions the ECJ took “general principles” from the EC Treaty , which in particular made a transparent procurement procedure necessary .

“Even if such contracts [ie service concessions] are excluded from the scope of Directive 93/38 under the current state of Community law, the contracting authorities who conclude them have excluded the basic rules of the [EC] contract in general and the prohibition of discrimination In particular, to consider reasons of nationality, which includes in particular an obligation to be transparent so that it can be determined whether it has been observed. "

- ECJ, judgment v. December 7, 2000, Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria AG (C-324/98), operative part (see also marginal no. 60 et seq.)

In addition to the prohibition of discrimination and the associated obligation of transparency , the Court of Justice also included an appropriate degree of publicity among these principles.

"Due to this obligation of transparency, the contracting authority must ensure an appropriate degree of publicity for the benefit of potential bidders, which opens the service market to competition and enables the verification of whether the procurement procedures were carried out impartially."

- ECJ, judgment v. December 7, 2000, Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria AG (C-324/98), Rn. 62 and tenor.

In its Bent Mousten Vestergaard order of 3 December 2001, the Court applied these principles to a contract whose volume was below the limits set out in the directives and which therefore did not fall within their scope. Likewise, in the Contse decision, he declared an invitation to tender to be inadmissible because of a violation of the prohibition of discrimination, although the advertised service was expressly excluded from the scope of the guidelines.

Finally, the Court of Justice also fills regulatory loopholes in cases that fall under the directives by resorting to the general legal principles mentioned, which follow from European primary law.

Web links

Individual evidence

  1. ↑ a b Directive 2004/17 / EC of the European Parliament and of the Council of March 31, 2004 on the coordination of the award of contracts by clients in the field of water, energy and transport as well as postal services .
  2. ↑ a b Directive 2004/18 / EC of the European Parliament and of the Council of March 31, 2004 on the coordination of procedures for the award of public works contracts, supply contracts and service contracts .
  3. ↑ a b c d e ECJ, judgment v. December 7, 2000, Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria AG (C-324/98) .
  4. ↑ ECJ, judgment v. February 27, 2003, Adolf Truley GmbH v Bestattung Wien GmbH (C-373/00)
  5. ↑ Council Directive 71/304 / EEC of July 26, 1971 on the abolition of restrictions on the freedom to provide services in the field of public works contracts and public works contracts awarded to contractors through their agencies or branches .
  6. ↑ Council Directive 77/62 / EEC of December 21, 1976 on the coordination of procedures for the award of public supply contracts
  7. ↑ a b Council Directive 89/665 / EEC of December 21, 1989 on the coordination of legal and administrative provisions for the application of review procedures in connection with the award of public supply and works contracts .
  8. ↑ a b Council Directive 92/13 / EEC of February 25, 1992 on the coordination of legal, regulatory and administrative provisions for the application of Community provisions on the award of contracts by contracting authorities in the field of water, energy and transport as well as in the telecommunications sector .
  9. ↑ Council Directive 92/50 / EEC of June 18, 1992 on the coordination of procedures for the award of public service contracts .
  10. ↑ Council Directive 93/36 / EEC of June 14, 1993 on the coordination of procedures for the award of public supply contracts .
  11. ↑ Council Directive 93/37 / EEC of June 14, 1993 on the coordination of procedures for awarding public works contracts .
  12. ↑ Council Directive 93/38 / EEC of June 14, 1993 on the coordination of the award of contracts by contracting authorities in the field of water, energy and transport as well as in the telecommunications sector .
  13. ↑ Directive 2007/66 / EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665 / EEC and 92/13 / EEC with a view to improving the effectiveness of the review procedures for the award of public contracts .
  14. ↑ a b c d e Directive 2004/18 / EC in the consolidated version of January 1, 2010
  15. ↑ a b Directive 2004/17 / EC in the consolidated version of January 1, 2010
  16. ↑ ECJ, judgment v. December 17, 2002, Concordia Bus Finland Oy Ab, formerly Stagecoach Finland Oy Ab against Helsingin kaupunki and HKL-Bussiliikenne (C-513/99) .
  17. ↑ ECJ, judgment v. October 13, 2005, Parking Brixen GmbH against the municipality of Brixen and Stadtwerke Brixen AG (C-458/03) .
  18. ↑ Decision of December 3, 2001, Bent Mousten Vestergaard versus Spøttrup Boligselskab (C-59/00) .
  19. ↑ ECJ, October 27, 2005, Contse SA, Vivisol Srl and Oxigen Salud SA v Instituto Nacional de Gestión Sanitaria (Ingesa), formerly Instituto Nacional de la Salud (Insalud) (C-234/03) .
  20. ↑ For example in ECJ, June 18, 2002, Hospital Ingenieure Krankenhaustechnik Planungs-Gesellschaft mbH (HI) v. City of Vienna (C-92/00) .