TRANSPOSITION OF DIRECTIVE 2014/24 IN GERMANY

Martin Burgi

This questionnaire seeks information regarding the transposition of the 2014 public procurement package in general, and Directive 2014/24/EU in particular. Sections 1 and 5 (at least) should be answered having the entirety of the 2014 public procurement package in mind, whereas sections 2-4 are specific to Directive 2014/24.

1) Introduction

a. Jurisdiction for transposition (Parliament/Government/Regions);

• legislative power of the Federation/Bund according to art. 74 (1) No. 11 (law of business), No. 16 (prevention of the abuse of a dominant position) and art. 109 (4) (common principles of budgetary law) Basic Law/Grundgesetz.
• The Parliament was in charge to transpose the directive. The new federal procurement law can be found in sections 97–184 GWB (Act against Restrictions of Competition). Therefore all essential components of the (federal) procurement law in Germany are nowadays regulated by the GWB.
• Section 113 GWB empowers/authorises the German Federal Government (with the consent of the Bundesrat) to specify the details of the award of public service contracts by regulation/ordinance. The Government did so by adopting (amending) the so called “Vergabeverordnung” (VgV) [Public Tender Regulation].Finally there are still socalled “contracting rules for award of public works” (VOB/A-EU). These are private regulations, which become legally binding, because the reference in Section 2 VgV to the VOB/A-EU.
• Section 129 GWB relates to the public procurement laws of the Laender/German states

b. Hierarchy of the sources of law involved in the transposition (which is strongly connected with the previous point). In particular, government or ministry regulations, rules issued by Independent Adminsitrative Agencies, Guidelines, soft law, grey material;

• „federal law takes precedence over state law“ (art. 31 Basic Law/Grundgesetz) and parliament acts take precedence over regulations of the Government

2) Gold plating and wrongful transposition

a. How is the definition, if any, of gold plating in your country? Is it a concern in the general mechanism for the transposition of EU law? Why is gold plating consireded undesirable (or desirable) and how is the tranposition of EU law usually undertaken (specific statutes, reform of existing statutes/codes, does it prompt a minimal approach to tranposition (such as the copy-out approach in the UK) or does it trigger a revision of the relevant area of the law with the aim to keep systematic / code consistency?

• „German definition:
  • No specific definition in German
• Assessment of „gold plating“:
  • Not much general debate within the legal scientific community. If there is debate it focuses on the compability of “gold plating” with European law, on the interpretation of the “gold plating” provisions and on the question, which human/fundamental rights charta (the EU or the German one) is applicable.
  • Gold plating is predominantly considered as undesirable, as it has the potential to impede the functioning of the internal market
• Transposition of EU law: It depends on the scope of the directive. Usually, the parliament tries to reform the existing statutes. If necessary the relevant area of the law gets a (total) revision
• Transposition of the Directive 2014/24: Political commitment to a copy-out approach (key issues paper of January 2015). However, the legislator seized the opportunity to transfer great great parts of the procurement law to the GWB. Insofar the transposition of the Directive 2014/24 led to a far-reaching codification of public procurement law on the statutory level.

b. How is the prevention of gold plating (if any) implemented in public procurement?

• I do not know any

c. Examples of gold plating in the transposition of public procurement directives, if any.

• Section 97 (4) GWB: Unlike 46 (1) of the directive 2014/24, the contracting authority does not (just) have an obligation to state reasons, in the case it refrains from an award of contracts in lots. Rather, they are in principle obliged to the award of contracts in lots, except in very exceptional circumstances
• Section 97 (6) GWB constitutes a subjective right to each tenderer – irrespective of whether the tenderer comes from an EU or GPA Member State or not – that all relevant provisions of the procurement procedures are complied with

d. Is there any case law or administrative practice on the subject?

• I do not know any

e. Apart from gold plating, are there any examples of wrongful transposition of the directive in your jurisdiction?

• I do not know any

3) Options given by the Directive to MS for transposition (see Annex 1)

How has your MS exercised discretion in the transposition regarding the options left open by the Directive? A more detailed description is required at least for the five more important options (for each of these subjects, it is required to describe the choice made by the MS and also the particularities by which it was implemented), that is:

a. introduction of negotiated procedure without prior publication (art. 32)

• Section 130 (2), section 113 GWB in conjunction with (e.g.) section 3a (3) VOB/A-EU or Section 14 (4) VgV
• Exceptional provisions, whose requirements are closely related to the ones in art. 32 of the Directive

b. introduction of CPBs (art. 37)

• Section 120 (4) GWB (and section 4 (3) VgV) regulate(s) the establishment and the cooperation with central purchasing bodies

c. exercise of several options in the field of exclusion requisites (art. 57.3 to 57.7)

• Section 125 (5) GWB -> art. 57 (3) subsection 1 Directive 2014/24/EU
• Section 124 (1) GWB -> art. 57 (4) Directive 2014/24/EU
• Section 123 Abs. 1 GWB -> art. 57 (5) Directive 2014/24/EU
• Section 125 (1) GWB -> art. 57 (6) Directive 2014/24/EU
• Section 126 GWB -> art. 57 (7) Directive 2014/24/EU
• In conjunction with section 42 ff. VgV

d. admission of most economically advantageous tender (MEAT) award criterion (art. 67.2)

• 67 (2) subsection 3 was not used by the German legislator
• Section 127 (1) GWB, section 57 ff. VgV

e. exercise of several options in the field of sub-contracting (art. 71)

• section 36 VgV (“Unterauftragnehmer), section 47 VgV (“Eignungsleihe”)

4) Aims given by the Directive to MS (see Annex 2)

In certain cases, the Directive only gives the aim to be reached by the MS, without specifying what are the specific legal rules or regulatory options to be applied for reaching these aims (which, by the way, should be the normal way by which directives operate).

We only found seven cases, which are listed in Annex 2.

For each of these cases, you are required to describe how your MS has implemented the aim given by the Directive, if it has indeed taken any action. If not, can you identify the reasons for the lack of tranposition of any of these specific bits of the Directive (such as the UK’s non-tranposition of Art 18(2) Dir 2014/24/EU)?.

Art. of Directive 2014/24	Aim	German Transposition
18.2	Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X.	Section 128 (1) GWB è   Sanctioned under pro-curement law by Section 124 (1) No. 1 and Section 123 (4) GWB è   Section 60 (3) second sentence VgV è   Section 128 (1) can be considered as a “gold plating” provision, as it makes it clear that all provisions relevant to a certain company must be complied with
22.1	Member States shall ensure that all communication and information exchange under this Directive, in particular electronic submission, are performed using electronic means of communication in accordance with the requirements of this Article	Sections 9 ‑ 13 VgV respectively sections 11 – 11b VOB/A-EU –>  Section 13 VgV authorises the Federal Government to adopt general administrative provisions fpr the federal administration to regulate the electronic tools to be used and the technical standards to be met –>  The exceptions can be found within the provisions on „forms of submission, form and procedure with offers etc. (sections 52 ff. VgV, 13 VOB/A-EU)
24	Member States shall ensure that contracting authorities take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures so as to avoid any distortion of competition and to ensure equal treatment of all economic operators	–>  Section 6 VgV and section 2 (5) VOB/A-EU entail a co-operation prohibition, in the case of a (potential) conflict of interest (e.g. close relatives or business partners). If a conflict of interest actually exists the people involved are not allowed to contribute as a decision maker in an award(ing) procedure or as a consultant of the contracting authority –>  Section 124 (1) No. 5 GWB allows the contracting authority to exclude a company from the award(ing) procedure (under certain conditions) in the case of a conflict of interest during the implementation of the award(ing) procedure
61.1	With a view to facilitating cross-border tendering, Member States shall ensure that the information concerning certificates and other forms of documentary evidence introduced in e-Certis established by the Commission is constantly kept up-to-date	–>  Art. 61 (1) was transposed through Section 48 (2), (3) in conjunction with Section 50 VgV –>  Self-certifications are primarily pursuant to Section 48 (2) GWB
73	Member States shall ensure that contracting authorities have the possibility, at least under the following circumstances and under the conditions determined by the applicable national law, to terminate a public contract during its term, where certain conditions apply.	–>  Section 133 GWB transposes art. 73 into German procurement law –>  It ist more or less full a copy-aspted transposition of art. 73 of the Directive
76.1	Member States shall put in place national rules for the award of contracts subject to this Chapter in order to ensure contracting authorities comply with the principles of transparency and equal treatment of economic operators. Member States are free to determine the procedural rules applicable as long as such rules allow contracting authorities to take into account the specificities of the services in question. Member States shall ensure that contracting authorities may take into account the need to ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of the services, the specific needs of different categories of users, including disadvantaged and vulnerable groups, the involvement and empowerment of users and innovation. Member States may also provide that the choice of the service provider shall be made on the basis of the tender presenting the best price-quality ratio, taking into account quality and sustainability criteria for social services.	–>  According to section 130 GWB, the contracting authority can choose between “open procedure”, “restricted procedure”, “negotiated procedure with a call for competition“, „competitive dialogue“ and „innovative partnership”
83	In order to effectively ensure correct and efficient implementation, Member States shall ensure that at least the tasks set out in this Article are performed by one or more authorities, bodies or structures. They shall indicate to the Commission all authorities, bodies or structures competent for those tasks. (…)	–>  According to section 114 GWB, the supreme Federal authorities and the Lander/German States have to report (in writing) to the Federal Ministry of Economics and Energy on the implementation of the GWB procurement regulations and the implementation of the VgV. –>  However, in accordance with the federal structure of the Federal Republic of Germany, the authorities responsible for the supervision of the decentralised procurement entities are the Lander/German states

5) Conclusion

Please provide a general assessement on how the directive was implemented.

The implementation of the directive was excellent (last but not least as the author of these lines participated in the transposition process…)