WRITTEN QUESTION P-0681/01

by Karin Jöns (PSE) to the Commission

(27 February 2001)

Subject: The freedom of German firms to provide services in the sphere of aerial photogrammetry

1. Is it true that in the context of Europe-wide calls to tender in the sphere of aerial surveying for contracts worth more than 200 000 German contractors are obliged to prove that they have their registered office in the Member State issuing the call to tender? The Member States concerned are Italy and Greece.

The firm concerned is a legal person taking the legal form of a German limited company with a registered office in Germany only. The company aims to obtain contracts not only in Germany but also in other Member States, in order to tackle the growing pressure of competition in the field of aerial photogrammetry. In particular, firms from other Member States are gaining entry to the German market without having to fulfil the above-mentioned obligation, whilst German firms in the Member States Italy and Greece have to prove that they are based in those countries in order to take part in tendering procedures in the form outlined above.

2. Is it true that in the context of Europe-wide calls to tender in the sphere of aerial surveying for contracts worth more than 200 000 German contractors are obliged to prove that they have specific authorisation to carry out photogrammetry flights in another Member State?

It is important to know whether it is permissible in other Member States to demand specific authorisation to carry out aerial surveys in addition to the general authorisation allowing planes to be flown with a relevant license.

3. If the answer to questions 1 or 2 is in the affirmative, does the Commission intend to introduce a change in the law by the means available to it, so that the obligations referred to under paragraphs 1 or 2 may be amended or abolished for the benefit of German companies?

Respect for the fundamental freedom to provide services in accordance with Article 49 of the EC Treaty must be the main concern in this context. In particular, German companies must be able to carry out aerial survey work without restrictive conditions.

Answer given by Mr Bolkestein on behalf of the Commission

(3 April 2001)

The Commission has no details of the calls for tenders or the national legislation to which the Honourable Member refers, nor any other information which might confirm or otherwise the statements made in the Written Question. If the Honourable Member were to have copies of these documents or any other more detailed information, the Commission would be obliged if she would forward them so that it can approach the Member States concerned in possession of the minimum amount of information which any such approach requires if it is to lead rapidly to concrete and conclusive results. It would also be important to clarify whether the alleged discrimination concerns German companies alone or extends to cover any company established in another Member State.

What the Commission can say at this stage is that, as a general rule, the requirement in a public procurement procedure to provide proof of establishment within the meaning of the EC Treaty in the Member State of the awarding authority would constitute a violation of the principles and general rules of the EC Treaty and, more particularly, of the rules on the freedom to provide services.

The issue of whether it is legitimate to demand specific authorisation to overfly national territory for the purposes of providing aerial survey services seems to be more complex, as it touches on aspects of public safety, public policy and protection of the essential interests of the Member State concerned. More information is needed before this matter can be examined.