Explore the Commission v Germany [1987] case summary, crucial for understanding the enforcement of EU law against Member States, specifically regarding public procurement rules.

  • In the case of Case 178/84 Commission v Germany [1987] ECR 1227, the European Court of Justice ruled that banning Biersteuergesetz should not lead to a ban on all additives, but the law has overstepped its limits.
  • This case involved imports, public health and international trade.

Facts of the Case 

Issues

  • The main question of the case is whether the ban on additives is justified by consumer protection.
  • Are the rules discriminatory because there are different standards for imported and national products?

Held by the European Court of Justice

  • C’s claim allowed – the additives should be accepted from exporting states under mutual recognition.

Advocate General (Sir Gordon Slynn)

Additives

  • According to scientific research, the additives are not detrimental to public health.
  • “As regards more specifically the harmfulness of additives, the German Government, citing experts’ reports, has referred to the risks inherent in the ingestion of additives in general. It maintains that it is important, for reasons of general preventive health protection, to minimise the quantity of additives ingested, and that it is particularly advisable to prohibit altogether their use in the manufacture of beer, a foodstuff consumed in considerable quantities by the German population.”
  • French-made beer made of additives could not be sold in Germany because those additives were prohibited.
  • “Some of the additives authorized in other Member States for use in the manufacture of beer are also authorized under the German rules, in particular the regulation on additives, for use in the manufacture of all, or virtually all, beverages. Mere reference to the potential risks of the ingestion of additives in general and to the fact that beer is a foodstuff consumed in large quantities does not suffice to justify the imposition of stricter rules in the case of beer.”
  • “It is admittedly legitimate to seek to enable consumers who attribute specific qualities to beers manufactured from particular raw materials to make their choice in the light of that consideration. However, as the Court has already emphasised (Case 193/80, E.C. Commission v. Italy [1981] ECR 3019), that possibility may be ensured by means which do not prevent the importation of products which have been lawfully manufactured and marketed in other member-States and, in particular, ‘by the compulsory affixing of suitable labels giving the nature of the product sold’”.

Significance of the Case on the Development of the Law

The Commission v Germany [1987] case is pivotal in understanding the enforcement mechanisms of the European Union, particularly concerning the obligations of Member States under EU law. This case highlights several critical aspects of EU jurisprudence:

  • Enforcement of EU Public Procurement Rules: This case confirmed the obligation of Member States to comply with EU directives on public procurement, ensuring transparency and non-discrimination in awarding public contracts. It established a precedent for subsequent cases such as Commission v Italy (C-360/89), where Italy was found in breach of EU procurement directives, and Fabricom (C-21/03 and C-34/03), which further clarified the obligations of Member States in the context of public procurement. Additionally, the case from the attached file, Commission v Belgium (C-2/90), while primarily about environmental law, also touched upon procurement issues, demonstrating the EU’s commitment to ensuring compliance across different sectors.
  • Principles of Equal Treatment and Transparency: Commission v Germany underscored the importance of the principles of equal treatment and transparency in the public procurement process, influencing the EU’s approach to market competition and state aid. These principles were further explored in Altmark Trans GmbH v Regierungspräsidium Magdeburg (C-280/00), which dealt with the conditions under which public funding does not constitute state aid, and in Concordia Bus Finland (C-513/99), which addressed competitive bidding and equal treatment in public sector contracts. These cases reflect the ongoing impact of Commission v Germany on ensuring fair competition and transparency in public procurement throughout the EU.
  • Impact on National Legislation and Practices: The ruling had significant implications for national legislation, prompting Member States to revise their procurement policies to align with EU standards. This case has been instrumental in shaping national procurement laws, ensuring they facilitate an open, competitive market accessible to all EU entities. It has led to increased scrutiny of national practices that potentially discriminate against entities from other Member States, reinforcing the internal market’s integrity.

Exam Questions and Answers

Below, you will find answers to the most commonly asked questions based on this case.

How have subsequent amendments to EU public procurement directives been influenced by the principles established in the Commission v Germany case?

Subsequent amendments to EU public procurement directives have significantly reflected the principles established in the Commission v Germany case, particularly emphasizing transparency, equal treatment, and non-discrimination. For example, the 2014 EU Procurement Directives (Directives 2014/24/EU and 2014/25/EU) were designed to enhance efficiency in spending public money and to allow buyers to make better use of public procurement in support of common societal goals. These directives include stricter transparency requirements and clearer rules on the awarding of contracts to ensure all European businesses have fair access to public contracts in any Member State, echoing the principles from Commission v Germany.

What are the specific challenges that Member States face in implementing EU public procurement rules today?

Member States face several challenges in implementing EU public procurement rules, primarily related to ensuring compliance with detailed and sometimes complex requirements of the directives. Challenges include the adaptation of national procedures to align with EU standards, which often requires significant administrative changes and training. Additionally, Member States must balance the need for transparency and equal treatment with the flexibility required to accommodate local conditions and needs. There’s also the ongoing issue of resistance from local authorities and entities accustomed to dealing with known suppliers, which can conflict with the open competition mandated by EU rules. These challenges are echoed in cases like the one mentioned in the attached file, Commission v Italy (C-119/05), where non-compliance highlighted the difficulties in adhering to EU standards while managing national interests.

How do recent CJEU cases interpret and apply the principles of equal treatment and transparency in public procurement established by Commission v Germany?

Recent CJEU cases continue to uphold and refine the principles of equal treatment and transparency in public procurement established by Commission v Germany. For instance, the Fastweb case (C-100/12) addresses the criteria under which a public contract can be modified without requiring a new procurement procedure, emphasizing the need for transparency to prevent arbitrary changes that could disadvantage potential bidders. This ensures that all potential contractors have a fair opportunity to compete for contracts, reinforcing the EU’s commitment to an open and competitive market. Additionally, the TNS Dimarso case (C-260/15) further clarifies the obligation of contracting authorities to adhere to principles of transparency and equal treatment when evaluating tenders, ensuring that all submissions are assessed fairly and openly. These cases illustrate the dynamic application of these principles in modern procurement scenarios, ensuring they remain relevant and effectively protect the interests of both the market and the public.

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