2004/73/EC: Commission Decision of 15 January 2004 on a request from Germany to apply the special procedure laid down in Article 3 of Directive 93/38/EEC (Text with EEA relevance) (notified under document number C(2003) 5351)
Date: 2004-01-15
Institutions: European Commission
Subjects: Germany, energy site, energy supply, exploitation of resources, hydrocarbon, management of resources, national implementing measure

23.1.2004

EN

Official Journal of the European Union

L 16/57

COMMISSION DECISION

of 15 January 2004

on a request from Germany to apply the special procedure laid down in Article 3 of Directive 93/
38/EEC

(notified under document number C(2003) 5351)

(Only the German text is authentic)

(Text with EEA relevance)

(2004/73/EC)

(2)

(3)

THE COMMISSION OF THE EUROPEAN COMMUNITIES

Having regard to the Treaty establishing the European
Community,

Having regard to Council Directive 93/38/EEC of 14 June 1993
coordinating the procurement procedures of entities operating
in the water,
transport and telecommunications
sectors (1), as last amended by Commission Directive 2001/78/
EC (2), and in particular Article 3(4) thereof,

energy,

Having regard to Directive 94/22/EC of the European Parlia-
ment and of the Council of 30 May 1994 on the conditions for
granting and using authorisations for the prospection, explora-
tion and production of hydrocarbons (3), and in particular
Article 12 thereof,

Following Germany's new application of 12 November
2002 (4),

Having consulted the Advisory Committee on Public Procure-
ment,

Whereas:

Member States that have fulfilled their obligations under
Directive 94/22/EC are deemed to have met the require-
ments set out in Article 3(1) of Directive 93/38/EEC
with respect to oil and gas.

In its letter of 12 November 2002, Germany asked the
Commission to adopt a Decision under Article 3 of
Directive 93/38/EEC on the exploitation of geographical
areas for the purpose of exploring for or extracting oil,
gas, coal or other solid fuels.

In this communication, Germany referred to a letter
dated 15 November 1991 in which it had originally
made an application under Article 3 of Directive 90/
531/EEC (5), which was in force at the time. Article 3 of
Directive 90/531/EEC and Article 3 of Directive 93/38/
EEC, which is currently in force, are entirely equivalent,
except for the reference to Directive 94/22/EC and the
legal assumption it implies. This application resulted in
correspondence between the Commission and the
Federal Republic of Germany.

(1)

Pursuant to Article 3 of Directive 93/38/EEC, a Member
the Commission to provide that
State may request
exploitation of geographical areas for the purpose of
exploring for or extracting oil, gas, coal or other solid
fuels shall not be considered to be an activity defined in
Article 2(2)(b)(i) and that entities shall not be considered
as operating under special or exclusive rights within the
meaning of Article 2(3)(b) by virtue of carrying on one
or more of these activities, provided that certain condi-
tions are satisfied with respect to the relevant national
provisions concerning such activities, that the requesting
the principles of non-
Member State guarantees that
discrimination
are
procurement
competitive
observed in respect of the award of contracts, and that
the Commission is informed of
these
contracts.

the award of

and

(1) OJ L 199, 9.8.1993, p. 84.
(2) OJ L 285, 29.10.2001, p. 1.
(3) OJ L 164, 30.6.1994, p. 3.
(4) On 15 November 1991, Germany had initially made an application
under Article 3 of Directive 90/531/EEC that the Commission had
to reject because it was incomplete. The rule on legal protection
set out
Principles Act
(Haushaltsgrundsätzegesetz) was not deemed adequate for granting
effective legal protection. This provision was not amended until
1998, with the adoption of part 4 of the Restriction of Competition
Act (Gesetz gegen Wettbewerbsbeschränkungen).

in Section 57a of

the Budgetary

The Commission informed Germany of its initial find-
ings in its letters of 9 July 1992 and 30 November
1992, asking for replies to a number of outstanding
questions by a given date. In its letter of July 1992, the
Commission pointed out that the Federal Mining Act
(Bundesberggesetz) did not in itself satisfy all of the cumu-
lative criteria laid down in Article 3(1). According to the
wording of Article 3(1), the conditions should be set out
and described in detail
in national provisions having
legal
force. The Council and the Commission had,
however, stipulated in the Council Protocol to Directive
90/531/EEC that the conditions and requirements could
also be contained in laws or other general implementing
instruments. A case-by-case examination of the condi-
tions for authorisation referred to in Article 3(2) is not
sufficient. Those conditions must also be laid down in
laws or general implementing instruments. In its letter of
November 1992, the Commission asked the German
adopted
authorities

confirm that

regulations

to

(5) OJ L 297, 29.10.1990, p. 1.

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Official Journal of the European Union

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by the Länder by way of supplement to the Federal
Mining Act would not only be published, but
that
compliance with them would be peremptory and that
beneficiaries would be able to cite them as a basis for
asserting their rights. In response to the draft Regulation
which was presented to the Commission by way of
implementation of Article 3(2), the Commission stated
that the draft was in need of revision, both in substan-
tive terms and with regard to its legal basis. Indeed, as
the German authorities
the
purpose of the Regulation is not to facilitate rules which
create rights which a potential contractor can success-
fully cite in court
in a dispute with an awarding
authority which has failed in its obligation to ensure a
competitive procurement procedure.

themselves had stated,

in their

At the Commission's request, and in order to demon-
strate that Article 3(1) had been transposed, the German
letters of 14 September 1992,
authorities,
25 February 1993 and 28 September 1993, submitted
draft implementing provisions for the issuing of permits
and authorisations under
the Federal Mining Act,
together with evidence of their definitive publication in
in
the appropriate journals. These provisions are still
force, unchanged,
today. The Commission's questions
were also answered.

the German
In a letter dated 28 September 1993,
authorities
informed the Commission that Directive
90/531/EEC would be implemented by means of an
amendment
to the second Budgetary Principles Act
(Haushaltsgrundsätzegesetz) which came into force on 1
November 1993, and that they therefore considered the
conditions laid down in Article 3(2)
to have been
fulfilled.

(4)

In the meantime, on 14 June 1993, Directive 93/38/EEC
had been adopted,
replacing Directive 90/531/EEC.
Member States had to apply this Directive as from 1 July
1994 at the latest. Directive 93/38/EEC was transposed
into German law at Federal level with the ‘Law amending
the legal provisions governing the award of Public
Contracts’ (Gesetz zur Änderung der Rechtsgrundlagen für die
Vergabe öffentlicher Aufträge — Vergaberechtsänderungsge-
setz) of 26 August 1998 (1).

The legal-protection provision in Section 57a of the
Budgetary Principles Act
the Commission had
complained about in its letter of 30 November 1992
was also replaced by part 4 of the Restriction of Compe-
tition Act (Gesetz gegen Wettbewerbsbeschränkungen).

that

Section 11 of the Regulation on the Award of Public
Contracts (Vergabeverordnung) of 9 January 2001, which
is based on the Restriction of Competition Act, repro-
duces the provision set out in Article 3(2) of Directive
93/38/EEC and guarantees observance of the principles
of non-discrimination and
award of
contracts by contracting authorities that have obtained
authorisation under the Federal Mining Act to explore
for or extract oil, gas, coal or other solid fuels, particu-
larly with respect to the information made available to

competitive

(1) Federal Official Journal (Bundesgesetzblatt — BGBl.) I, p. 2512.

the contractors regarding their intention to award a
contract and the obligation to provide the Commission
with information on the award of the contracts. Since
the Regulation on the Award of Public Contracts is based
on Section 97(6) and Section 127 of
the amended
Restriction of Competition Act, the Commission's reser-
vations set out in its letter of 30 November 1992 are no
longer relevant.

(5) With the Federal Mining Act of 13 August 1980 (2) and
the implementing provisions for the award of permits
and authorisations under the Federal Mining Act of
1993, Germany has complied with its obligations under
Directive 94/22/EC.

These provisions apply not only to hydrocarbons, but
also to coal and other solid fuels.

(6) With reference to Article 3(3) of Directive 94/22/EC,
Germany, on 22 October 1994 had a timely announce-
ment (3) published in the Official Journal of the European
Communities to the effect
the entire territory of
Germany is, under the terms of that Article, permanently
available for prospecting and exploring for and extrac-
tion of hydrocarbons provided no individual authorisa-
tions exist.

that

(7) With reference to Article 5(1)(5), second sentence, of
Directive 94/22/EC, Germany, on 18 March 1995 had
an announcement (4) published in the Official Journal of
the European Communities, drawing attention to the publi-
cation of the criteria in accordance with Article 5(1) in
the Federal Official Journal and the Official Journals of
the 16 Länder.

(8)

(9)

In accordance with Article 9 of Directive 94/22/EC, the
Federal Government publishes an annual report entitled
‘Der Bergbau in der Bundesrepublik Deutschland’ (Mining in
the Federal Republic of Germany), containing a list of
mining authorisations. Mining authorisations contain
only the information necessary for meeting the legal
requirements, particularly with respect to geographical
extent and duration. Under the administrative legislation
in force in Germany, the granting of authorisations may
not be made subject
to considerations that are not
permitted by law.

As regards oil and gas, the Commission assumes that
Germany meets the requirements set out in Article 3(1)
of Directive 93/38/EEC since, with the Federal Mining
Act of 13 August 1980 and its implementing provisions,
it has transposed all the provisions of Directive 94/22/
EC, and hence the assumption embodied in Article 12,
to the effect that the conditions set out in Article 3(1) of
Directive 93/38/EEC are considered to be satisfied,
comes into effect.

Article 3(2) of Directive 93/38/EEC was implemented in
German law by means of Section 11 of the Regulation
on the Award of Public Contracts.

The Commission has no further information on Article
3(3) of Directive 93/38/EEC.

(2) BGBl. I p. 1310.
(3) OJ C 294, 22.10.1994, p. 11.
(4) OJ C 67, 18.3.1995, p. 7.

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(10) Directive 94/22/EC regulates the granting and use of
authorisations for prospecting and exploring for and
extracting hydrocarbons. It does not cover coal or other
solid fuels. Directives cannot simply be extended to
cover other areas without prior amendment. The legal
assumption embodied in Article 12 is not, therefore,
applicable to coal or other solid fuels. Member States
can, however, decide on their own initiative to extend
the scope of Directive 94/22/EC to cover other sectors,
such as coal or other solid fuels, and adopt appropriate
national provisions. Since coal and other solid fuels are
commodities which are comparable to petroleum and
gas, and given that authorisations for the prospection,
exploration and extraction of all the said commodities
the
are awarded by means of a similar procedure,
Commission considered it appropriate to compare the
provisions of Directive 94/22/EC with those of Directive
93/38/EEC and, insofar as the two Directives were found
to be mutually compatible,
to determine the precise
extent to which the implementation was correct with
regard to coal and other solid fuels. Since the matter in
hand does not concern an application of
the legal
assumption embodied in Article 12, the Commission
must examine the relevant provisions of Article 3(1) in
two stages.

First, it must examine the extent to which the provisions
of Directive 93/38/EEC correspond with those of Direc-
tive 94/22/EC:

— Articles 2, 3, and 7 of Directive 94/22/EC corre-
spond to Article 3(1)(a) of Directive 93/38/EEC,

— Article 5(1) of Directive 94/22/EC corresponds to

Article 3(1)(b) of Directive 93/38/EEC,

— Article 4(a) of Directive 94/22/EC corresponds to

Article 3(1)(c) of Directive 93/38/EEC,

— Article 5(2) to (5) of Directive 94/22/EC correspond

to Article 3(1)(d) of Directive 93/38/EEC,

— Article 6(4) of Directive 94/22/EC corresponds to

Article 3(1)(e) of Directive 93/38/EEC.

Second, it must examine the extent to which, given the
correspondence between Directive 93/38/EEC and Direc-
tive 94/22/EC, the implementation for coal and other
solid fuels is correct. It has already been established that
the implementation for coal and other solid fuels was
carried out completely and correctly with the Federal
Mining Act. Since the provisions of that Act apply not
only to oil and gas, but also to coal and other solid fuels,

it is to be assumed that, since the two Directives corre-
spond, Directive 93/38/EEC has also been implemented
correctly for coal and other solid fuels.

Article 3(2) of Directive 93/38/EEC was implemented in
German law by Section 11 of the Regulation on the
Award of Public Contracts.

The Commission has no further information on Article
3(3) of Directive 93/38/EEC,

HAS ADOPTED THIS DECISION:

Article 1

The exploitation of geographical areas in Germany for the
purpose of exploring for or extracting oil, gas, coal or other
solid fuels shall not, as from 15 January 2004, be considered to
be an activity defined in Article 2(2)(b)(i) of Directive 93/38/
EEC.

Contracting authorities shall not be considered as operating
under special or exclusive rights within the meaning of Article
2(3)(b) of Directive 93/38/EEC by virtue of carrying on such
activities.

Article 2

1.
This Decision is based on the legal and administrative
provisions in force in Germany on 15 January 2004, which
implemented Directive 94/22/EC and Article 3 of Directive 93/
38/EEC, and of which the Commission has been notified.

2.
Germany shall notify the Commission of legal and admin-
istrative provisions amending the legal and administrative
provisions referred to in paragraph 1 as soon as they have been
adopted, so that
the Commission will be able to examine
whether this Decision should be upheld, amended or with-
drawn.

This Decision is addressed to the Federal Republic of Germany.

Article 3

Done at Brussels, 15 January 2004.

For the Commission

Frederik BOLKESTEIN

Member of the Commission