Position of the EC on the competition for the design of the new NK building

Brno - The stance of the European Commission regarding the competition for the design of the new building of the National Library, sent to the Office for the Protection of Economic Competition (UOHS):
    
    
    Mgr. Jindřiška Koblihová
    Vice-Chairwoman of UOHS entrusted with
    the management of the public procurement section of UOHS
    Kpt. Jaroše Avenue 7
    604 55 Brno
    e-mail:koblihova@compet.cz
    
    Subject: Your request for an opinion on the use of Article 15 (c) of Directive 2004/18/EC
    
    Dear Ms. Koblihová,
    
    I am contacting you regarding your request for an opinion on the use of the exemption from the application of Directive 2004/18/EC, which is regulated in Article 15 (c) of this directive. In the specific case you describe, the contracting authority published the commencement of the competition for the architectural design of the building, but subsequently did not comply with the legal regulations governing public contracts. The contracting authority concluded during the proceedings that it was not obliged to apply European (and Czech transposition legal regulations) because it could use the rules of another international organization and referred to Article 15 (c) of Directive 2004/18/EC. Specifically, it concerned the application of the UNESCO Standard Regulation for international architectural and spatial planning competitions, or the Guidelines of the International Union of Architects. The contracting authority further believes that for the same reasons it can award the contract for project work to the author of the winning proposal in a negotiating procedure without publication, according to Article 31 (3) of Directive 2004/18/EC. A forensic opinion was also attached to your request, which deals with the question of whether the aforementioned UNESCO regulation and the guidelines of the International Union of Architects can be considered binding rules of an international organization in the sense of public international law.
    Before my letter, I must inform you that the only body that provides a binding interpretation of European law is the European Court of Justice. The opinion below relates only to the data provided in your request and does not bind the European Commission in any respect, in case it would decide to open a case for a violation of the law of the European Communities.
    Directive 2004/18/EC in Article 15 (c) states that this directive does not apply to contracts that are governed by other procedural rules and are awarded according to the special procedure of an international organization.
    The aforementioned provision therefore presupposes the existence of specific procurement rules of an international organization that differ (are different) from community regulations. They must of course be binding rules, usually approved by the founding treaty of this international organization or its implementing rules, as established by this founding treaty. The expert opinion you submitted deals in detail with the issue of the binding nature of the above-mentioned UNESCO rules and the status of the International Union of Architects, and we do not find it necessary to comment further on it.
    My response focuses on explaining the provision of Article 15 (c). It should be noted that according to the established case law of the European Court of Justice, exceptions must be interpreted strictly (narrowly). A typical example of the application of the provision of Article 15 (c) is the situation when a contracting authority from a member state of the European Union is awarding a contract for construction, supplies, or services, for which the costs are covered by the relevant international organization. International financial institutions often provide financing for various projects on the condition that contracts funded from the provided financial resources will be awarded according to the rules of that institution. In these cases, the relevant international organization has a direct and legitimate interest in the way in which the relevant contracts are awarded.
    Directive 2004/18/EC in Article 15 (c) responds to and prevents a potential conflict of two legal regimes. In no case, however, does the directive give contracting authorities from EU member states the freedom to choose between different legal systems. In a situation when a contracting authority covered by Directive 2004/18/EC awards a contract in the sense of this directive, it is not possible to exclude the application of the European directive and choose another legal system. Even less can the given legal regime be changed during the procurement procedure.
    From the information you provided about the case in question, it appears that the project will be fully financed from the budget of the Czech Republic, not from UNESCO funds. Therefore, I believe that the contracting authority had no reason not to proceed according to the relevant Directive 2004/18/EC.
    Since the contracting authority did not apply the relevant provisions of the directive for the design competition, it cannot further invoke its provisions on the use of a negotiating procedure without publication in connection with the award of the contract following the design competition. The provision of Article 31 (3) could be applied if the contracting authority had first correctly applied the relevant provisions of the directive regarding the design competition. In this case, the conditions for using the negotiating procedure without publication for the award of project work on the building are presumably not met.
    
    Ugo Bassi
    
    Handled by:
    Petr Wagner, tel.: (32-2)2968068, e-mail:Petr.Wagner@cec.eu.int