No 10 (December 97/Décembre 97/Dezember 97)

Single Market Commissioner Mario Monti has reminded Germany that proper implementation of the so-called public procurement `Remedies' Directives is an urgent requirement. A ruling by the Court of Justice on 7 September 1997 in the Dorsch case (see SMN N.9) does not render superfluous legislation to implement the Directives properly in Germany. Infringement proceedings opened in 1995 will be pursued until the existing German legislation on procurement redress is amended to the Commission's satisfaction.

The Directives, one concerning remedies as regards works, supplies and services procurement (89/665) and the other remedies for procurement in the water, energy, transport and telecommunications sectors (92/13), should have been implemented by the Member States no later than December 1991 and July 1992 respectively. The Directives require Member States to ensure that rapid and effective remedies are easily accessible to firms or persons who may have suffered injury as a result of an alleged violation of EU rules on open and competitive procurement procedures. Although Germany adopted legislation to implement the Directives in 1994, the Commission considers that the arrangements set up by this legislation do not ensure rapid and effective remedies as required by the Directives.

According to Commissioner Mario Monti: "Without proper implementation of these Directives into national law, firms bidding for public procurement contracts in Germany will continue to lack adequate rights to fair treatment and clearly defined, effective means of challenging unfair treatment. This is why we have infringement proceedings pending against Germany for failure to implement these Directives properly."

The Commission is pleased to note that a draft law to ensure proper implementation of these two Directives is now in the process of being adopted. However, some people have suggested that the Court of Justice ruling of 17 September in the Dorsch case means that the current legislation implementing the two Directives in Germany is already satisfactory. This suggestion is very misleading in the Commission's view.

The Court's Dorsch ruling stated that the Federal Supervisory Committee (Vergabeüberwachungsausschuss des Bundes), the body which referred the question to the Court of Justice, constituted a national court or tribunal entitled to refer questions under Article 177 of the EC Treaty. However, the Court's ruling also stated clearly that this issue of entitlement to refer a question to the Court was a separate and distinct issue from whether the body in question fulfilled the requirements of the Remedies Directives, which was not dealt with by the Dorsch ruling. The Commission's view that these Directives require further legislation is therefore not affected by the Dorsch ruling.

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