WRITTEN QUESTION P-1644/96 by Stanislaw Tillich (PPE) to the Commission (12 June 1996)

Subject: Proceedings against Member States for breaches of Treaty obligations in the interests of third-country companies seeking to promote trade measures against EU companies

In 1993 an east German electricity supplier invited tenders for the construction of a new power station. In addition to three European bidders an American company also tendered, but was not awarded the contract because its bid did not meet the technical specifications and was also the most expensive. The US Administration thereupon initiated proceedings under Section 301 et seq. of the 1974 Trade Act and placed Germany on its watch list.

Can the Commission state on what grounds it sent a reminder to the German Government on 12 December 1995, after it had initiated proceedings with its warning letter of 13 October 1994 and after the German Government had stated its position in detail in its letters of 15 November and 15 December 1994.

Were proceedings resumed as a result of any approaches by American authorities or politicians and, if so, what approaches were these?

Is it true that, in its actions, the Commission accepted the American company's allegations in their entirety without checking them and, without initiating its own inquiries, incorporated these claims in its warning letter as established facts, thereby failing to grant a fair hearing?

Has the Commission, when initiating proceedings against Member States for a breach of Treaty obligations, ever before acted similarly in the interests of third-country companies and, if so, in which cases?

Answer given by Mr Monti on behalf of the Commission (23 July 1996)

As the Honourable Member points out, the Commission initiated infringement proceedings against Germany in October 1994 for incorrectly applying Directive 90/531/EEC ((OJ L 297, 29.10.1990. )) in a contract award procedure relating to the construction of a new power station in Saxony. A Community enterprise established in Germany (a subsidiary of an American producer) had filed a complaint with the Commission on various grounds, which proved, on examination, to be sufficiently well founded for proceedings to be initiated under Article 169 of the EC Treaty.

Infringement proceedings comprise a number of stages designed to enable the Commission and the Member State in question to carry out, through formal exchanges of information, a detailed examination of the legal and factual aspects of the suspected infringement. In view of the complex nature of the case in question, the Commission took the view, after analysing the German authorities' reply to its letter of formal notice, that various facts and appraisals had still to be clarified before any decision could be taken as to whether a reasoned opinion should be delivered.

That was why a further letter of formal notice requesting more detailed information was sent to Germany. That letter was also intended to give the German authorities the opportunity to comment on the grounds for complaint upheld by the appeal body (Vergabeprüfstelle), the Bundesanstalt für vereinigungsbedingte Sonderaufgaben in Berlin, which had declared the award procedure to be illegal on 14 September 1995.