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Public Procurement working group Cecodhas Housing Europe 17/06/2010

Public Procurement working group Cecodhas Housing Europe 17/06/2010. Helmut Müller Case, C-451/08. Urban planning competences and EC public procurement rules Status of talks in case of sell of land. Helmut Müller case.

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Public Procurement working group Cecodhas Housing Europe 17/06/2010

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  1. Public Procurement working group Cecodhas Housing Europe 17/06/2010 CECODHAS at the Regional Office of Pomorskie Voivodeship2006

  2. Helmut Müller Case, C-451/08 • Urban planning competences and EC public procurement rules • Status of talks in case of sell of land CECODHAS at the Regional Office of Pomorskie Voivodeship2006

  3. Helmut Müller case • Federal agency owned a land with military buildings in the city of Wildeshausen • FA want to see this land, on which the city adopt a decision for is development as a civil aera • To be in accordance with the wish of the city, the FA keeps in mind this objective in the process of selling and included informally inside the city CECODHAS at the Regional Office of Pomorskie Voivodeship2006

  4. FA in 2006 inform by press and internet of the selling of the land • 2006 first offer of Hemut Müller with the condition to draw up a urban development plan in accordance with its project to use the land (the city of W. is the authority competent for urban planning) • 2007 FA launched a call foe tender to sell the land : 2 offers • The city W. had access to both development project plans of tenderers • FA agreed that the sell of land will be done after a decision of the city W. to approved the project of development: the offer of GSSI was approved BUT with no formal right to obtain from the city W. all urban authorization required for its project (IT’S FORBIDDEN BY LAW) • FA sold the land to GSSI • Proceedings from Helmut Müller: the negotiation on project before selling the land = violation on public procurement rules CECODHAS at the Regional Office of Pomorskie Voivodeship2006

  5. Question to ECJ, in preliminary ruling, does the sell of land by a public authority in this context could required public procurement rules implementation? • 9 questions to the court : how is defined a public contract of works? CECODHAS at the Regional Office of Pomorskie Voivodeship2006

  6. Question 1 • To be a works public contract , the works have to be carried out for a contracting authority in his immediate economic interest? Or is it sufficient to fulfil a public purpose as the urban development? • Preliminary principle: sale of undeveloped land or land which has already been built is NOT a public works contract • Because : -the public authority have to assume the position of purchaser and not seller -objective of the contract= execution of works So sell of land is not a work contract CECODHAS at the Regional Office of Pomorskie Voivodeship2006

  7. Question 1 • This relexion was for the relationship between FA and GSSI, but what about the relationship between GSSI and the city W. who has the regulatory urban planning competence? • Public procurement rules are only implemented in the case of a contract: > Pecuniary nature of the contract, the contracting authority has to receive a direct economic benefit> should be immediate > this is NOT the case through the exercise of regulatory urban planning powers CECODHAS at the Regional Office of Pomorskie Voivodeship2006

  8. Question 2 • According to public procurement rules, the contractor have an obligation to carry out directly or not works which are the subject of the contract. • In the case, no works have to be done only because of the selling of the land CECODHAS at the Regional Office of Pomorskie Voivodeship2006

  9. Question 3 • According to public procurement rules, a public ocntract have to content the requierements of the contracting authority, so the poxer in urban planning to examin or approve buildings plans could be considered as those requierements? • It means that the contracting authority has taken measures to define the type of works, or has a decisive influence on its design= which is NOT the case when a city exercise its regulatory urban planning power CECODHAS at the Regional Office of Pomorskie Voivodeship2006

  10. Question 4 • Could the case be considered as a works concession? • The owner of a land has the right to exploit that land and it’s possible to public authority to give concession on land they did not owned • No risk criteria existing here, because there’s no contractual relation between city and GSSI, it’s urban planning power CECODHAS at the Regional Office of Pomorskie Voivodeship2006

  11. Question 5 • Is it possible to see as a unity the sale of land and the subsequent award of a work contract? • It’s possible with 2 phases of tendering but NOT in this case because of inexisting contractual relations CECODHAS at the Regional Office of Pomorskie Voivodeship2006

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