Public procurement: Commission sends formal request to Germany concerning legal database services

14 April 2009

he European Commission has decided to send a formal request to Germany concerning the conclusion of public contracts for legal database services by the Federal Government and a number of German States. 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.

juris GmbH is the leading provider of legal database services in Germany. It operates the popular juris database which contains huge libraries of Federal and State law, administrative provisions, case-law and legal journal articles. Under a cooperation agreement with the Federal Government, juris GmbH has to maintain and operate the legal information system and to provide all federal authorities with full access to the database, in exchange for an annual remuneration. Under the same agreement, juris GmbH receives legislative documentation and court judgments in a specially edited form for its exclusive use.

After a partial privatisation in 2001, the Federal Republic of Germany owns currently just over 50% of juris GmbH. In the course of that privatisation, the cooperation agreement with the Federal Government has been thoroughly revised and amended, in particular regarding its provisions on remuneration. The Commission held the view that this amendment modified the essential terms of the cooperation agreement. Therefore, it has to be considered as a new contract which should have been awarded by contract award procedure complying with Directive 92/50/EEC on the award of public service contracts. Such a procedure could have been combined with the selection of the private partner for the Public-Private Partnership to be established through the partial privatisation of juris GmbH. This would have ensured that the selection of the private partner and the award of the new cooperation agreement to the jointly owned company are done in a transparent and competitive manner, complying with the Internal Market rules on the award of public contracts.

In 2006, judicial authorities of the States Baden-Württemberg, Brandenburg, Hamburg, Hesse, Mecklenburg-Vorpommern, Lower Saxony, North Rhine-Westphalia, Rheinland-Pfalz, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein und Thüringen awarded contracts for legal database services to juris GmbH, providing database access for their courts and judicial authorities. This award was made by a negotiated procedure without prior publication of a call for tenders.

The German government claimed that, on the basis of a “competitive market enquiry”, the services of juris GmbH turned out to be ideally suited for the needs of the judicial authorities. In the view of the German government, it was therefore justified to award the contract by a procedure without publication of a call for tenders on the ground that juris GmbH was the only conceivable service provider.

The Commission did not follow this line. It took the view that the award procedures conducted by the judicial authorities were biased in favour of juris GmbH and that the authorities would have been obliged to award the contracts by open or restricted procedures with publication of a European-wide call for tenders.

The latest information on infringement proceedings concerning all Member States can be found at: http://ec.europa.eu/community_law/index_en.htm