Katja Gnittke / Oliver Hattig
A claim for damages under Section 823 (2) BGB presupposes the unlawful and culpable violation of a protection law within the meaning of Section 823 BGB. Protection law in this sense is any legal norm that also serves at least to protect the individual or a definable group of people from a violation of their legal interests. A prerequisite is the unlawful violation of a regulation contained in formal laws, which also include the Treaty on the Functioning of the European Union (TFEU), in statutory ordinances, in autonomous statutes and in collective agreements, or existing on the basis of customary law by the defendant, which at least also serves the interests of the individual is intended to serve the claimant and is intended to (also) protect the claimant from the damage that the claimant requests compensation in the specific case.
In the case of procurement processes that are to be processed in accordance with Part 4 of the GWB, protective laws within the meaning of Section 823 (2) BGB are initially the provisions of Part 4 of the GWB itself, the provisions of the VgV, the SektVO, the KonzVgV and the VSVgV as well as the provisions of the relevant procurement - and contractual regulations, as long as they do not have a purely regulatory function or are issued solely for reasons of household or household law or do not exclusively serve macroeconomic goals. This follows from Section 97 (6) GWB. For details, reference is made to the comments on the claim from §§ 280 Paragraph 1, 241 Paragraph 2, 311 Paragraph 2 BGB. 1 § 823 Paragraph 2 BGB can be considered in particular if a necessary award procedure is not carried out 2 However, the claim will regularly fail due to the need to present damage.
The claim from Section 823 (2) of the German Civil Code (BGB), on the other hand, cannot be based - which is particularly important in the case of contract awards below the threshold values - that the defendant had the relevant financial regulations or provisions of the relevant public procurement and contract regulations or other self-set own guidelines disregarded. The rules of budget law do not represent protective laws in favor of a company interested in the contract; The first sections of VOL ∕ A and VOB ∕ A, which are applicable on the basis of the financial regulations, do not contain any rules with the quality of legal provisions, but administrative rules.3 The client's own specifications also do not have this quality.
In the case of procurement measures outside the scope of the GWB, however, the contracting authorities must observe the principle of equal treatment of Article 3 (1) of the Basic Law4. A government agency that awards a public contract is therefore prohibited from arbitrarily determining the award procedure or the criteria for awarding the contract.5 The prohibition of arbitrariness is violated if the claimant has not been given a fair chance to win the contract.6 Accordingly, the Claimants sue for the damage in accordance with Section 823 (2) of the German Civil Code (BGB), which occurred as an adequate consequence of a violation of the prohibition of arbitrariness.7 It must be determined whether the unequal treatment of bidders or applicants can still be viewed as an objectively justifiable measure. It also plays a role here whether the opposing party deviated from its self-determined point of view for the selection of the successful offer without any objective reason. This is because the actual awarding practice of the client leads to a self-commitment, which gives the award and contract regulations and the internal administrative regulations on procedures and criteria for awarding an indirect external effect, so that violations of this can justify claims arising from unlawful acts.8 The unequal treatment and the justifying reason must be are also in an appropriate relationship to each other, which requires a differentiated examination of the individual case. A violation of the prohibition of arbitrariness was seen, for example, if the service description is so incomplete and incorrect that it is impossible to compare the offers based on it
In addition, according to the case law of the European Court of Justice, clients within the meaning of the EU procurement directives also have to award public contracts that do not reach the respective threshold or for which Part 4 of the GWB does not apply for another reason (e.g. because of § 107 ff. GWB), to observe the fundamental freedoms. These include, in particular, the prohibition of discrimination on grounds of nationality (Art. 18 TFEU), the free movement of goods (Art. 34 TFEU), the freedom of establishment (Art. 49 TFEU) and the freedom to provide services (Art. 56 TFEU). On the basis of these Community law requirements, the contracting authorities are obliged to create an appropriate degree of publicity in the case of procurement in favor of the potential bidders, which opens the market to competition.10 This does not apply to contracts that are not relevant to the internal market 11, i.e. because of special circumstances such as a very insignificant economic importance for economic operators from other Member States, so that the effects on the fundamental freedoms are too random and indirect to suggest that they have been violated.12 Whether the contract in question, its estimated If the value is below the respective threshold value, could be of interest to companies from other Member States, i.e. "relevant to the domestic market", the client must check in each individual case. This review is subject to judicial control.13 For this purpose, the client must make a prognosis as to whether the order will also be carried out across borders in accordance with the specific market conditions, i.e. with a view to the sectors of industry addressed and their willingness, if necessary, taking into account their volume and the place of execution of the order , could be of interest to foreign providers.14 If the client comes to the conclusion that this is the case, the award must be made in compliance with the basic requirements derived from Community law.15 The case law, e.g. for the border triangle of Passau, has without further ado affirmed a cross-border interest .16 In the interest of potential bidders, the aforementioned Community law requirements require that the respective procurement needs be made known in such a way that an interest in the respective order can be expressed in good time, 17 the needs-based service is non-discriminatory determine 18 to enable the person who is actually interested to submit an offer that meets the demand in good time and to make an appropriate decision about the bid impartially19 and without arbitrariness. According to the established case law of the European Court of Justice, the obligation to adhere to these principles in the case of cross-border interests results in a Europe-wide invitation to tender.20 Since these requirements are intended to benefit companies that might be interested in public contracts, they can also be used as protective laws within the meaning of Section 823 Para. 2 BGB. If a client does not adhere to these requirements under the conditions mentioned, a company affected by this can also claim damages from Section 823 (2) BGB.
1 See Rn. 72 et seq. 2KG, judgment v. 11/27/2003 - 2 U 174 ∕ 02.3 E.g. OLG Jena, judgment v. December 8, 2008 - 9 U 431 ∕ 08.4 but on the sale of real estate, OLG Brandenburg, judgment v. April 24, 2012 - 6 W 149 ∕ 11.5BVerfG, decision of June 13, 2006 - 1 BvR 1160 ∕ 03.6BVerfG, decision of June 13, 2006 - 1 BvR 1160 ∕ 03.7 OLG Stuttgart, judgment v. April 11, 2002 - 2 U 240 ∕ August 01, Brandenburg Higher Regional Court, decision of 12/17/2007 - 13 W 79 ∕ 07.9LG Frankfurt ∕ Oder, judgment v. 11/14/2007 - 13 O 360-07; LG Cottbus, judgment v. October 24, 2007 - 5 O 99 ∕ 10/07 ECJ, judgment of December 7, 2000 - Case C-324 ∕ 98 (Telaustria), No. 62.11 Cf. on this in detail Deling, NZBau 2012, 17; dies., NZBau 2011, 725.12EuGH, judgment v. July 21, 2005 - Case C-231 ∕ 03 (Coname), No. 20 with further references; Judgment v. October 20, 2005 - Case C-264 ∕ 03, Rn. 32.13 OLG Düsseldorf, decision of. 7.3.2012 - VII-Verg 78 ∕ 11.14BGH, judgment v. 8/30/2011 - X ZR 55∕10; See European Commission, Communication on questions of interpretation with regard to Community law that applies to the award of public contracts that are not or only partially covered by the Public Procurement Directives, OJ No. 1.8.2006, p. 2, as well as EGC, judgment v. May 20, 2010 - Case T-258 ∕ 06, Rn. 80.15 OLG Dresden, decision of. October 12, 2010 - WVerg 009 ∕ 10.16 OLG Munich, decision of 30.6.2011 - Verg 5 ∕ 09.17EuGH, judgment of. July 21, 2005 - Case C-231 ∕ 03 (Coname), Rn. December 3, 2001 - Case C-59 ∕ 00 (Vestergaard), Rn. 10.19 ECJ, judgment of December 7, 2000 - Case C-324 ∕ 98 (Telaustria), Rn. 7.3.2012 - VII-Verg 78∕11.