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Higher Regional Court Düsseldorf confirms: Area exception is applicable in NRW!
The responsible ministry (MAGS) in Düsseldorf specified in a letter on 29.03.2023 (AZ: 93.21.01-000006) that, following the above-mentioned decision of the Public Procurement Council, the exception for emergency services in NRW can also be applied without further amendment to the NRW Rescue Act.
The original legal assessment of the Ministry was thus also confirmed by the Higher Administrative Court and Higher Regional Court. This decision in principle in favour of the aid organisations does not mean that other private organisations are automatically exempt. However, they must strategically consider that in the future, activities in the rescue service will usually also require (voluntary) commitment in civil protection. The planning model creates incentives for this: those who build up and maintain strong voluntary work should also be extensively active in the rescue service. This then strengthens emergency response in the health sector as a whole.
The state law in NRW may nevertheless be concretised.
In its eagerly awaited (not yet published) decision (AZ: VII Verg 28/22), the Higher Regional Court Düsseldorf ruled on 22.03.2023 that the area exception for hazard prevention in North Rhine-Westphalia is already applicable under existing state law. With this decision, the court also overturned the decision of the Public Procurement Chamber North Rhine-Westphalia (VK) from last year. In that decision, the VK was still of the opinion that the area exemption was not applicable due to the lack of implementation at the level of Land law.
The Higher Regional Court Düsseldorf has now decided this dispute for North Rhine-Westphalia and follows the recent case law of the Higher Administrative Court of North Rhine-Westphalia. According to this, the current wording of the law in section 13 RettDG NRW does not preclude the exception for rescue services. The background to the legal dispute was that the current version of the Act does not provide for a privilege for non-profit organisations under Section 107 para 1 no. 4 GWB. Decisions of review bodies and administrative courts in Lower Saxony, Hamburg and Brandenburg considered it necessary for the implementation of the exception for rescue services to grant the contracting authority a discretion to limit the group of service providers to non-profit organisations. The Higher Regional Court Düsseldorf expressly does not follow this line. Rather, it considers the discretion already regulated in section 13 RettDG NRW to be sufficient for the provider to make use of the area exemption under the circumstances of the individual case.
We will report more shortly.