Council of European Municipalities and Regions (CEMR)
European section of United Cities and Local Governments


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Local and regional governments as employers

Public services - 14.10.2005

Public services: The European Court of Justice is creating "de facto legislation outside democratic control"
The Council of European Municipalities and Regions (CEMR) expresses its serious concern in the wake of the European Court of Justice's decision in the "Parking Brixen" case taken on13 October 2005.

We are witnessing an ongoing process of de facto legislation by decisions of an unelected court, outside the democratic control of the European Parliament and the Council of Ministers, says CEMR secretary general Jeremy Smith. The Parking Brixen case represents another worrying line of recent European Court of Justice decisions which is chiseling away our municipalities' right to decide how best to deliver services in their respective areas and to their respective citizens. This is now the third time in as many cases that the Court of Justice rules against Europe's towns and cities.

The Italian municipality of Brixen, in Alto Adige, owns 100% of the capital of Stadtwerke Brixen AG, a company it has created. In 2002, the municipality granted Stadtwerke Brixen AG the right to manage a car park and to collect parking charges. A private local car park operator, Parking Brixen GmbH, seized the Court of Justice, arguing that the municipality should have issued a call for tenders; the municipality replied that since it fully controls the company there was no obligation to issue any call for tenders.

The European Court decided that, despite the fact that the municipality completely controls Stadtwerke Brixen AG, the company enjoys a high degree of independence; this means that the municipality does not exercise a control similar to that it exercises over its own departments. Therefore, says the Court, failing to issue a call for tenders is not compatible with Community law.

Recent EC rulings in the field of public service concession

In January 2005, the Council of European Municipalities strongly criticized the European Court of Justice's decision in the "Stadt Halle" case as an unbalanced prioritization of the market over local democracy and self-government. CEMR called for the law to be changed to respect the principles of subsidiarity and local democracy.
 
 
Last July, CEMR reacted similarly after the Court of Justice's ruling in the Coname v. Comune di Cingia de' Botti case. CEMR stated that the decision would undermine long-standing 'intercommunal" arrangements, under which groupings of local authorities join together to deliver local services across their joint area.
 
 
 
 
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