The Netherlands agree to correctly apply EU public procurement rules
(25 mei 2011)
The European Commission has welcomed The Netherlands' compliance with EU public procurement rules in two cases. Following the pursuit of infringement cases by the Commission, the Dutch authorities have now agreed to correctly apply EU public procurement rules.
Land development Ede
The first case is concerned with real estate development in the municipality of Ede. The Commission opened an infringement procedure because the municipality of Ede awarded several contracts for the land development project "Het Nieuwe Landgoed" to one developer, without having carried out a pan-European tender procedure. The contractor has to develop a centre for commercial and social use, including a sports hall, as well as approximately 1168 parking spaces and 648 houses, including 60 for social housing. The total value of the contracts was approximately €140 million.
The Commission considered that the contracts concerned were public works contracts and a public works concession. Therefore the contracts should have been awarded following the publication of contract notices in the EU Official Journal and the completion of a tendering process. The Commission stated that in the absence of such a tendering process, The Netherlands had failed to fulfil its obligations under EU public procurement rules.
As a result of the Commission's reasoned opinion the Dutch authorities decided to annul those contracts relating to the development of the sports hall and the parking spaces. The building obligations for the development of the houses and the centre for commercial and social use were removed from the contract. The revised contract now solely concerns the sale of land and not works and is in the light of the Helmut Müller judgment of the Court of Justice no longer considered to be a public works concession.
Fire insurance contracts
The second case relates to the awarding public contracts for fire insurance.The Commission opened an infringement procedure because in The Netherlands there was a general administrative practice of awarding public contracts for fire insurance by means of a negotiated procedure with publication of a contract notice. Such a procedure is in principle open to all interested candidates. However, the fact that negotiations take place between the public authorities and individual bidders entails according to the Commission significantly higher risks for the equal treatment of bidders than the open or restricted procedure. The negotiated procedure is much less transparent.
EU public procurement rules allow contracting authorities to use the negotiated procedure only in exceptional cases. The generalised use of this procedure in the field of fire insurance is, according to the Commission, not in line with these rules. Moreover, the Commission noted that the Dutch authorities did not publish all the required information in the contract award notice in the EU Official Journal.
After the Commission's reasoned opinion the Dutch authorities agreed that this general administrative practice is contrary to the EU public procurement rules and promised to apply the correct procedures.