times rated as helpful . According to Article 33 of the Waste Management Act (KrWG), by 12 December the administration and the regional states are to have jointly Kreislaufwirtschaftsgesetz (KrWG). Circular Economy Act – (Kreislaufwirtschaftsgesetz – KrWG) * . Disease Act ( Tierseuchengesetz) of 22 May (Federal Law Gazette. 2, , pp –  E. Fees Product Development in a Multi-Disciplinary Environment, Springer-Verlag, London,  Kreislaufwirtschaftsgesetz.
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Judgment of the Court Third Chamber of 21 December Request for a preliminary ruling from the Oberlandesgericht Celle. Zweckverband Abfallwirtschaft Region Hannover. Bay Larsen, President of the Chamber, M. KG Region Nord, by M. Van der Hout, advocaat, and by T. The Union rules on public procurement are not intended to cover all forms of disbursement of public funds, but only those aimed at the acquisition of works, supplies or services for consideration by means of a public contract.
The dispute in the main proceedings and the questions referred for a preliminary ruling. Under the federal legislation and the legislation of the Land Niedersachsen Land of Lower Saxonythe Region of Hannover and the Stadt Hannover City of Hannover were entrusted with waste disposal and treatment tasks in the former Landkreis Hannover District of Hannover and the City of Hannover respectively.
Those officers are entitled to vote in the general meeting on tasks transferred by the authority they represent. However, in so far as its revenue is not sufficient to cover the costs of its tasks, the two constituent authorities are required to pay contributions to be determined annually.
The order for reference indicates that the transfer of tasks to the RH Special-Purpose Association releases the transferring member authorities from the obligation to carry out the tasks concerned. Remondis, a commercial company active in the waste sector, made an application for review of the award of the public contract, which is currently pending before the referring court. The two conditions for EU rules on public procurement not to apply were met at the time, it being a situation where a public entity exercises over the entity which provides it supplies or services a control which is similar to that which it exercises over its own departments and, at the same time, the latter entity carries out the essential part of its activities with the controlling public entity or entities.
However, Remondis claims that, given the significant turnover achieved by the RH Special-Purpose Association since with third-party entities, it no longer carries out the essential part of its activities with the authorities that formed it.
It infers therefrom that the overall operation should now be regarded as an unlawful award and therefore invalid. Consequently, the Region of Hannover, which is the public-law entity responsible for waste disposal, should organise a tendering procedure in so far as it does not intend itself to provide those services. The creation and the transfer were, in their submission, based on a statutory decision and not on an administrative contract or agreement.
It does not question that the transfer was effected for pecuniary interest given, on the one hand, the transfer, free of charge, of resources previously used by those two regional authorities to perform the public tasks transferred to the association and, on the other hand, the undertaking of those authorities to cover any cost overruns the association might incur in relation to its revenues.
The referring court states that such an operation might nevertheless be held not to be the award of a public contract. There is in fact no contract and no undertaking is involved. It is, moreover, a measure of internal State organisation that is constitutionally guaranteed as a matter of municipal autonomy, consisting in a reallocation of powers amongst regional authorities, as a result of which the authorities initially responsible for the tasks in question are completely relieved of those tasks.
Consequently, it could be argued that, as the creation of a special-purpose association accompanied by a transfer of tasks to that association does not fall under either of those exceptions, public procurement law is applicable to that type of operation.
Conversely, however, the referring court observes, firstly, that such an operation is strictly the result of a horizontal agreement between a number of public entities and not of an agreement concluded between those entities and the RH Special-Purpose Association. Secondly, not only may the decision to create a special-purpose association be taken freely by those regional authorities, it may also be imposed on those authorities by their supervisory authority.
In such a scenario, there is no contract, with the result that it is difficult to see how there could be a public contract. The question arises as to whether an operation of that nature, being a transfer of tasks to a public special-purpose association, could be treated differently, depending on whether the transfer is voluntary or imposed.
In those circumstances, the Oberlandesgericht Celle Higher Regional Court of Celle, Germany decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:. If the answer to Question 1 is in the affirmative: Consideration of the questions referred. In the present case, therefore, it is necessary to take into account, as a whole, the various stages of the operation at issue in the main proceedings.
It is apparent from the order for reference that the Region of Hannover and the City of Hannover decided together to create, by regulatory act, a new entity governed by public law in order to confer on it certain competences, some of them common to those authorities and some of them belonging to each of them individually.
At the same time, they conferred on that new entity certain powers in order to enable it to perform the tasks for which it was now competent. In effect they gave it the means they had hitherto had when so competent and undertook to cover any budgetary shortfalls of that entity, which was also given the power to charge and collect fees and the right to engage in certain activities not strictly within the remit of the competences transferred to it but being of the same type as certain activities performed as part of the tasks entrusted to it.
Lastly, the new entity is characterised by autonomy in the performance of its tasks but must abide by the decisions of a general meeting of representatives of its two founding authorities, which is a body of the association and is responsible, inter alia, for appointing its managing director.
Such reorganisations, which keeislaufwirtschaftsgesetz take the form of reallocations of competences from one public authority to another imposed by a higher-ranking authority or voluntary transfers of competences between public authorities, have the kreislaufwirschaftsgesetz that a previously competent authority is released from or relinquishes the obligation or power to perform a given public task, whereas another authority is henceforth entrusted with that obligation or kreislaufwirtsdhaftsgesetz.
Secondly, such a reallocation or transfer of competence does not meet all of the conditions kreislaufwlrtschaftsgesetz to come within the definition of public contract. Moreover, irrespective of the fact that a decision on the allocation of public competences does not fall within the sphere of economic kreislaufwirtschaftwgesetz, the very fact that a public authority is released from a competence with which it was previously entrusted by that self-same kreislaufwirtschaftsegsetz eliminates any economic interest in the accomplishment of the tasks associated with that competence.
Similarly, nor does the fact that the authority that takes the initiative to transfer a competence or decides on the reassignment of a competence undertakes to cover potential cost overruns in relation to revenues that may arise as a result of the exercise of that competence constitute remuneration.
That is a guarantee intended for third parties, the necessity of which follows, in the present case, from the principle that a public authority cannot be sued in insolvency proceedings. The existence of such a principle itself follows from the internal organisation of a Member State.
Registration § 53 KrWG: SBB Sonderabfallgesellschaft Brandenburg/Berlin mbH
That case involved a determination of whether the type of mandate concerned constituted a specific transfer by a public authority to an entity for kreislaufwiryschaftsgesetz completion of a project in principle coming within the competence of another entity and not a transfer of that competence itself.
Nevertheless, those various types of transfers are identical in nature, although of different magnitudes, kreislaufwirtscjaftsgesetz the result that the essential point of that judgment on this point can be extrapolated for the purposes of the present case. This requires that the public authority on which competence has been conferred has the power to organise the performance of the tasks coming within that competence and to draw up the regulatory framework for those tasks, and that it has financial autonomy allowing it to ensure the financing of those tasks.
That is not the case, however, where the authority initially competent retains primary responsibility over those tasks, retains financial control over them or must give prior approval for decisions envisaged by the entity on which it has conferred powers. There can thus be no transfer of competence if the newly competent public authority does not act autonomously and under its own responsibility in the performance of its tasks.
An entity that transfers competence may retain a certain degree of influence over the tasks associated with the public service.
That influence does, however, in principle, preclude any involvement in the actual performance of the tasks coming within the transferred competence.
In a kreislaufwirtschaftsgeeetz such as that in the main proceedings, that influence may be kreislaufwirtscgaftsgesetz to bear through a body, such as the general meeting, made up of representatives of the previously competent regional authorities. Nor does autonomy of action mean that an imposed reassignment or voluntary transfer of competence must be irreversible. In the light of all the foregoing considerations, the answer to the question referred is that:. However, such a transfer of competences concerning the performance of public tasks exists only if it concerns both the responsibilities associated with the transferred competence and the powers that are the corollary thereof, so that the newly competent public authority has decision-making and financial autonomy, which it is for the referring court to verify.
In the light of the answer given to the first question, there is no need to answer the second question.
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Freedom to provide services Right of establishment Approximation of laws Case law directory code: Court of Justice Country or organisation from which the decision originates: Reference for a preliminary rulingReference kreialaufwirtschaftsgesetz a preliminary ruling – decision unnecessary Observations: Notes relating to the decision: Treaty establishing the European Economic Community Link Select all documents mentioning this document Case affecting: Related judicial information CA Instruments cited in case law: N 1 3 34 – 36 55 Kreislaufwirtschaftsgesdtz N 4 43 L N 24 34 CJ N 30 33 CJ N 48 53 CJN N 29 50 CJN Kreislaufwirtscuaftsgesetz, acting as Agents, — the Austrian Government, by M.
Fruhmann, acting as Agent, — the European Commission, by A. The dispute in the main proceedings and the questions referred for a preliminary ruling 12 Under the federal legislation and the legislation of the Land Niedersachsen Land of Lower Saxonythe Region of Hannover and the Stadt Hannover City of Hannover were entrusted with waste disposal and treatment tasks in the former Landkreis Hannover District of Hannover and the City of Hannover respectively.
The second question 56 In the light of the answer given to the first question, there is no need to answer the second question. Costs 57 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds, the Court Third Chamber hereby rules: Bousin, acting as Agents. Fruhmann, acting as Agent. In those circumstances, the Oberlandesgericht Celle Higher Regional Court of Celle, Germany decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: In the light of all the foregoing considerations, the answer to the question referred is that: