Germany requested to take on board procurement rules

Friday September 30th, 2011

The European Commission has requested Germany to respect EU rules on public procurement concerning a waste disposal contract in Sachsen-Anhalt. This would ensure that other waste disposal companies have an opportunity to seek this business and German taxpayers have the opportunity to get better value for money. 

The Commission’s request to Germany takes the form of a Reasoned Opinion, the second stage of EU infringement proceedings. If Germany does not notify the Commission within two months that it has takenmeasures to ensure compliance with EU public procurement rules, the Commission may refer this matter to the European Court of Justice. 

In 2002, the former district of Sangerhausen – now merged with Mansfelder Land into the district of Mansfeld-Südharz – concluded a waste disposal contract with a public-private company without a tender procedure. In 2004, the same company won a contract from the Mansfelder Land, this time following an EU-wide tender procedure. 

In 2007, Sangerhausen and Mansfelder merged into the Mansfeld Südharz district and now held 75% of the company carrying out the waste disposal contracts. The contracts are due to run until 2015 and 2017 respectively. However, in 2009 the district sold all of its shares in the company to another private company. 

The case-law of the European Court of Justice makes clear that public contracts have to be (re)opened to competition if amended in a way which is materially different in character from the original contract. The Commission considers that the change of ownership of the waste disposal contractor constitutes a new contract award, given the involvement of the new owner in the operational management of the contracts. The Commission therefore considers that the contract should be opened up to a new open and competitive tendering process in line with EU public procurement rules.

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