Action brought on 9 December 2010 — European Commission v Federal Republic of Germany

(Case C-574/10)

2011/C 72/08

Language of the case: German

Parties

Applicant: European Commission (represented by: G. Wilms and C. Zadra, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

Pleas in law and main arguments

The subject-matter of the present action is the service contracts for consideration relating to architectural services, which the municipality of Niedernhausen as contracting authority concluded with an engineering agency. Although the architectural tasks in question all relate to a uniform construction project, namely the construction of a recreation centre, they were awarded separately to the same engineering agency as the drawing up of plans for the individual building components, without a Europe-wide invitation to tender being conducted. The contract values were accordingly separately calculated for the individual contracts.

The present architectural contracts are contracts for consideration concerning the provision of services within the meaning of Article 1(2)(d) of Directive 2004/18/EC. Architectural services are priority services in accordance with Annex II A, Category 12 to the directive.

The Commission is of the view that the drawing up of plans concerns a uniform procurement procedure for which it can find no objective grounds for it to be divided into separate individual contracts. It concerns the part performance of the construction of a single building, planned, decided and implemented as a general project. They serve that uniform aim and are in close physical, economic and functional relation. Therefore, the contract value should have been calculated according to the total value of the architectural services provided in the context of the construction. In that case, the contract value would have exceeded the threshold laid down in Article 7B of Directive 2004/18/EC and the architectural contract should have been the subject of a Europe-wide invitation to tender.

The construction of the recreation centre itself concerns a single construction contract for the purposes of European procurement law. That is at least a strong indication that the corresponding planning is also to be regarded as a uniform procurement procedure. If architectural services, such as in the present case, are connected with a uniform construction contract and its contents are defined by the planned construction, there is no logical reason to choose another method of calculation. Architectural services are therefore to a certain extent accessory to the construction service. Why a uniform construction service would require a non-uniform architectural service is, in the opinion of the Commission, unclear.

The Court considers the uniform economic and technical function of the individual parts of the contract as an indication that it concerns a single procurement procedure. Although the stated criterion of the functional approach was applicable to construction contracts, the Commission is of the opinion that it is also applicable to service contracts. The criterion of the technical and economic uniformity of the drawing up of plans is fulfilled in the present case since it concerns the construction of a single building.

An almost arbitrary division of the contracts is contrary to the effectiveness of the directive. It would indeed often lead to values artificially falling below the threshold and thereby to a reduction of its scope of application. The Court notes in its settled case-law the significance of the directive on the award of public contracts for the free movement of services and for fair competition at European Union level. An arbitrary and subjective ‘dismemberment’ of uniform service contracts would undermine that objective.

Budgetary reasons for the division into construction sections could also not justify an artificial division of a unified contract value. It is contrary to the objective of the European public procurement directives for a unified proposed purchase which is carried out in several stages purely for budgetary reasons to be considered solely for that reason to consist of several independent contracts and thereby to be prevented from coming within the scope of application of the directive. Article 9(3) of the directive indeed forbids such an artificial division of a unified proposed purchase.

It must be concluded that the contracts in question constitute a unified proposed purchase, the value of which at the time of the contract award exceeded the threshold laid down in the directive. The contract should therefore have been the subject of a Europe-wide invitation to tender and awarded according to the procedure provided for in the directive. That is not the case and therefore the defendant infringed Directive 2004/18/EC.

(1)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).