WRITTEN QUESTION E-2262/02 by Anne Jensen (ELDR) to the Commission. EU-wide invitation to tender for church organs.
Date: 2002-07-24
Institutions: European Parliament, Provisional data
Subjects: Denmark, EU law, Germany, Sweden, award of contract, church, church-State relations, interpretation of the law, musical instrument, public institution

C 52 E/146

Official Journal of the European Union

EN

6.3.2003

Answer given by Mrs Wallström on behalf of the Commission

(27 September 2002)

Under the terms of the Recommendation on integrated coastal zone management (ICZM) (2002/413/EC),
the Commission does not receive development or land use plans for specific coastal zones.

On the question of a Commission intervention with the Spanish authorities, the Commission would point
out that the ICZM Recommendation does not provide a formal and legal framework for such an approach.
It is a Recommendation which calls on the Member States to formulate strategies to promote integrated
coastal zone management on the basis of certain general principles, such as the involvement of all the
parties concerned. The situation on the Levantine coast described by the Honourable Member reveals many
conflicts between the various uses and users of the coast. In such complex situations, ICZM is able,
through its consultation and cooperation mechanism, to provide a solution which is in line with the
principle of sustainable development. Indeed,
in relation to national strategies on ICZM, the Recom-
mendation calls on Member States to consider, among other things, controlling any additional urbanisation
of the coastline (recommendation, Chapter IV, 3 b(i)). Nevertheless, national strategies are not due until
2006, and this again on the basis of a Recommendation, i.e. a non-binding instrument.

As regards impact assessment, the new Directive on strategic environmental assessment (Directive 2001/
42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of
certain plans and programmes on the environment (1)), which will apply to certain plans and programmes,
will not be fully transposed until 2004. However, Council Directive 85/337/EEC (2) of 27 June 1985, as
amended by Council Directive 97/11/EC of 3 March 1997 on the assessment of the effects of certain
private and public projects on the environment (3) could apply in the case in question, since a number of
the actions criticised by the Honourable Member could be covered by Annex I of the Directive, such as
trading ports and piers for loading and unloading (Annex I, point 8(b)), or Annex II, such as marinas
(Annex II, point 12(b)), urban development projects, including the construction of shopping centres and
car parks (Annex II, point 10(b)), and coastal work to combat erosion and maritime works capable of
altering the coast through the construction, for example, of dykes, moles, etc. (Annex II, point 10(k)).
Whereas projects in Annex I must be the subject of an impact assessment in the event of significant
impact on the environment, it should be noted, however, that for projects listed in Annex II, Member
States have to determine on the basis of a case-by-case examination or thresholds or criteria set by the
Member State itself whether the project has to be made subject to an assessment in accordance with
Articles 5 to 10 of the Directive.

The information provided by the Honourable Member alone, with no details on specific projects, does not
allow the Commission to decide whether or not they belong to the Annexes to the Directive. Nevertheless,
if the Honourable Member is aware of specific cases where the Directive has not been properly applied,
she is requested to notify them to the Commission which will then examine whether those cases are
compatible with Community law.

(1) OJ L 197, 21.7.1985.
(2) OJ L 175, 5.7.1985.
(3) OJ L 73, 14.3.1997.

(2003/C 52 E/165)

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

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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.

3.

It must have a legal personality; and

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:

(cid:1) established for the specific purpose of meeting needs in the general

interest, not having an industrial or

commercial character,

(cid:1) having legal personality and
(cid:1) 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.