WRITTEN QUESTION E-2262/02

by Anne Jensen (ELDR) to the Commission

(24 July 2002)

Subject: EU-wide invitation to tender for church organs

On 1 June 2001, I submitted a written question to the Commission on EU-wide invitations to tender for church organs (E-1583/01)(1).

The Commission answered on 18 July 2001, saying that it did not yet have enough information to be able to assess whether churches in Germany and

Sweden were covered by Council Directive 93/36/EEC of 14 June 1993(2) coordinating procedures for the award of public supply contracts. However, it undertook to investigate the matter as soon as possible and to keep me informed of its findings.

What, then, were the findings of the Commission's promised investigations into whether Swedish and German churches are covered by the aforementioned directive? In other words, must Swedish and German churches issue invitations to tender for the construction of church organs?

(1) OJ C 340 E, 4.12.2001, p. 240.

(2) OJ L 199, 9.8.1993, p. 1.

Answer given by Mr Bolkestein on behalf of the Commission

(20 September 2002)

As a general remark it has to be noted that whether or not a body is to be regarded as a body governed by public law and therefore as a contracting authority in the meaning of the public procurement directives, depends on a case by case analysis in which three conditions have to be met:

1. The body in question must have been established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;

2. It must have a legal personality; and

3. It must be financed for the most part or otherwise controlled by the State or another public authority(1).

It is the third criteria which especially needs to be verified in this case.

As regards Sweden, it should be noted that legislative changes have been introduced as from 1 January 2000 regarding the relations between the Swedish State and the Swedish Church (The Church of Sweden Act) and in the Swedish Act on Public Procurement. The Church is separated from the State since 1 January 2000.

As a consequence, the Act on Public Procurement has been changed so that parishes of the Church of Sweden and religious associations no longer have the obligation to apply the Act except in connection with their activities conducted in accordance with the Burial Act. However, the State of Sweden is also giving financial support for the Church for the preservation of the cultural heritage. Since the Swedish authorities have not yet precisely identified the proportion of such financial support, the Commission is not yet in a position to conclude whether the Church of Sweden should be considered as a body governed by public law under Community rules.

As regards Germany, on the one hand it should be stressed that the churches finance themselves, because, though collected by the State financial administration, the church tax is directly forwarded to the churches and stays at their autonomous disposal. However, on the other hand, it is to be noted that the churches are subject to a legal state control, though a limited one. It is controversial whether such limited control may fulfil the conditions set up by the Community public procurement directives. Indeed, there are no church Council members appointed by public authorities. The Commission therefore intends to gather further information in order to better assess the extent of the state control before taking a definite view on the qualification of churches in Germany as bodies governed by public law in the meaning of Community rules.

(1) According to the public procurement directives, a body governed by public law means any body: established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, having legal personality and financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law.