02.06.2014 | KPMG Law Insights

This is what is changing in the EU public procurement directives

Dear Readers,

this issue is dominated by public procurement law: the new EU public procurement directives adopted by the EU Parliament in January 2014 were published in the EU Official Journal on February 28, 2014. They must now be transposed into national law by the member states within two years. We have summarized the essential contents as well as the innovations of the EU procurement directives for you in our first article.

In our second article on public procurement law, we look at a decision by the ECJ on horizontal in-house business that has been eagerly awaited by universities and shed light on its chances for future freedom from public procurement law.

There is also news to report from the area of higher education law: The Münster Higher Administrative Court (OVG) dealt with the requirements for postponing the retirement of university professors and explained in detail the grounds on which a corresponding application can be rejected by the university.

We would also not like to deprive you of facts and figures from the world of funding. Read about how various student grants have evolved in our other articles. Subsequently, we have summarized for you another decision of the VG Stuttgart, which deals with the design of the application procedure for the office of a university rector.

We wish you interesting reading.

Sincerely yours

Public Sector Team of KPMG Rechtsanwaltsgesellschaft mbH

Mathias Oberndörfer Dr. Anke Empting

Lawyer Attorney

Overview of the reform of public procurement law

The new EU directives on the modernization of EU public procurement law were published in the EU Official Journal on March 28, 2014. They must be transposed into national law within two years.

The modernization includes the Public Procurement Directive (Directive 2014/24/EU), the Directive on procurement by entities operating in the water, energy, transport and postal services sectors (Directive 2014/25/EU) and the Concessions Directive (Directive 2014/23/EU).

Whereas in-house business, which is exempt from the scope of application of public procurement law, was previously “only” recognized as a judicial right, it is now firmly enshrined in Art. 12 para. 1 of the new procurement directive. Public-public cooperation is also now explicitly regulated (Art. 12(4)). According to this, contracting authorities may cooperate on a contractual basis without a call for tenders under three conditions:

  • it must be a collaboration to achieve common goals,
  • this may only be motivated by considerations related to the public interest;
  • the contracting entities provide less than 20 percent of the activities covered by the cooperation on the open market.The risk of triggering the tendering obligation in the event of subsequent material changes to the contract does not apply if the value of the change does not exceed either the EU threshold applicable to the specific performance or 10 percent (for services and supplies) or 15 percent (for works).

Numerous universities are eagerly awaiting the ECJ’s decision on horizontal in-house business. The Hamburg Higher Regional Court had to decide whether a university was entitled to commission Hochschul-Informations-System GmbH (HIS) with the introduction of an IT university management system without conducting an award procedure. The shareholders of HIS are the federal government and the federal states. In order to be able to reach a decision in this case, the Hamburg Higher Regional Court considered it necessary, among other things, to clarify the legal question of whether the ECJ’s case law on (vertical) in-house transactions exempted from the scope of application of public procurement law may also be applied to so-called “horizontal in-house transactions”.In his Opinion of January 23, 2014, the Advocate General argues in favor of the freedom from public procurement law of horizontal in-house transactions. However, both the contracting authority and the contractor may be controlled exclusively by the same body.The clarification of this legal issue now lies with the ECJ (Case C-15/19).


OVG Münster on the postponement of the retirement of a university professor

The state civil service laws provide for the possibility that a civil servant’s retirement may be postponed if this is in the interest of the service. When this can be assumed was the subject of an extensive decision practice of the administrative courts and has now been concretized by the OVG Münster. It concerned the request of a university professor to postpone his retirement by one year.

According to the court, the term “official interest” refers in summary to the interest of the employer in the smooth performance of duties by the respective official. According to the OVG Münster, this is particularly the case if the civil servant concerned is entrusted with the processing of complex tasks that only he or she can perform and, for example, the effective familiarization of a successor makes a postponement necessary.

According to the OVG Münster, the employer can only refuse to postpone retirement if a successor has already been selected or if this is imminent. The employer would also have to demonstrate that the additional burden on agency operations is preferable to the applicant’s continued employment for a limited period of time.

Erasmus reaches maximum numbers

The number of participants in the EU’s (previous) Erasmus funding program reached an all-time high in the past academic year 2012/2013, according to the German Academic Exchange Service (DAAD). More than 30,000 people from foreign partner institutions came to German universities in 2013.


BAföG recipient rate reaches maximum figures

The Federal Cabinet approved the 20th BAföG report on January 29, 2014. This shows that the number of BAföG recipients increased by 7.7 percent in the 2010 to 2012 reporting period relative to the previous reporting period, which was also set at two years.

The 20th BAföG report shows an increase of 14 percent to 440,000 sponsored students. In terms of the average monthly funding rate for students, there has been an overall increase of 2.8 percent from 2010 to 2012.

VG Stuttgart on the special features of the application procedure for the office of university rector

In its decision of January 13, 2014, the VG Stuttgart commented on the formal requirements for an application procedure for the position of university rector. It was noted that the status-law office of rector does not necessarily require a “proven scientific reputation.”

In the present case, the text of the job advertisement specified precisely this criterion. In the opinion of the court, this is, as with social competence, a quality that cannot be objectively proven. The criterion could thus only serve as a decision-making aid if a choice had to be made between several applicants with the same suitability.

The applicant and unsuccessful candidate had denied this reputation to the person ultimately selected for the office of rector.

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Mathias Oberndörfer

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