Non-official translation

Case 2007/4681: Legal Database Services

DRAFT REASONED OPINION

addressed to the Federal Republic of Germany under Article 226 of the Treaty
establishing the European Community

‘on account of the award of public services contracts concerning legal databases without
publication of a European-wide call for tenders

1. Statement of facts

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2)

juris GmbH, a limited liability company founded in 1984 and established in
Saarbrücken, is the leading provider of legal database services in Germany. After
a partial privatisation in 2001, the Federal Republic of Germany owns currently
50.01 % ofthe shares in juris GmbH, with 45.33 % ofthe shares being held by the
formerly state-owned and now fully privatised company N.V. sdu v/h
Staatsdrukkerij/-Uitgeverij (hereinafter: N.V. sdu) and 2.99 % by the State of
Saarland.

In December 1991, juris GmbH concluded with the Federal Republic of Germany
an “Agreement on cooperation in the field of automated legal documentation
(federal law, administrative provisions, case-law and legal literature)” (the
“cooperation agreement”). In the context of the partial privatisation, this
agreement was revised and amended as of 1 January 2001. By the cooperation
agreement, juris GmbH undertakes to build up, maintain and operate the legal
information system juris. The Federal Republic of Germany provides juris GmbH
with documentation for its exclusive use, covering legislation, court judgments
and legal literature in a specially edited form. This concerns in particular the
complete documentation of federal legislation since 1990 in a consolidated and-
specially edited version prepared exclusively for juris GmbH by the Federal
Ministry of Justice, and the documentation of judgments by the federal courts in a
specially edited version provided directly and exclusively by the documentation
services of the courts themselves. Under the agreement, all federal authorities
have full access to the legal databases operated by juris GmbH.

juris GmbH is paid a remuneration for its services from which license fees for the
documents provided by the federal authorities are deducted. Under the
cooperation agreement in its initial version, the remuneration consisted in an
annual flat sum of 5 500 000 DEM (around 2 812 000 EUR). According to the
revised version, remuneration is determined by an assessment of the value of the
different services exchanged between the parties on the basis of a cost calculation
system described in detail in an annex to the contract. The amended cooperation
agreement may be terminated with two years’ notice to the end of each calendar
year, for the first time with effect to 31 December 2006.

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The cooperation agreement in its initial version of 1991 as well as the amending
agreement of 2001 was concluded directly between the parties without publishing
a European-wide call for tenders. In the context of the partial privatisation, the
consultancy PriceWaterhouseCoopers conducted in 2000 and 2001 on behalf of
the Federal Government a structured bidding procedure for investors. For the
purposes of this procedure, an advertisement was published in German and
European supra-regional newspapers. However, the procedure did not provide the
publication of a European-wide call for tenders nor did it comply with the
procedural requirements set by Directive 92/50/CEE relating to the coordination
of procedures for the award of public service contracts.

In 2006, judicial authorities of the States Baden-Württemberg, Brandenburg,
Hamburg, Hesse, Mecklenburg-Vorpommern, Lower Saxony, North Rhine-
Westphalia, Rheinland-Pfalz, Saarland, Saxony, Saxony-Anhalt, Schleswig-
Holstein und Thüringen awarded contracts for legal database services running for
four years to juris GmbH by way of negotiated procedure without prior
publication of a contract notice.

This contract award decision was preceded by a “competitive market enquiry”
made in 2005 by a special working group set up by the Bund-Länder-Kommission
für Rationalisierung und Datenverarbeitung in der Justiz (BLK) [a mixed
commission with representatives of federal and state authorities dealing with
rationalisation and data processing in judicial authorities]. For this enquiry, the
leading providers of legal databases in Germany were directly contacted and
invited to participate in a presentation. An analysis of the data base services on
offer led to the result that the products of juris GmbH appeared best suited for the
needs of judicial authorities. Subsequently, the working group negotiated in
spring 2006 a model contract and a price scheme with juris GmbH on the basis of
which the aforementioned States awarded the contracts by a negotiated procedure
with juris GmbH as exclusive partner. After the conclusion of the contracts, the
States published contract award notices in the Supplement to-the Official Journal
ofthe European Union. According to these contract award notices, contract values
varied between 1256000 EUR. (Baden-Württemberg) and 271 208 EUR
(Mecklenburg-Vorpommern).

By letter of formal notice pursuant to Article.226 EC Treaty, dated 23 October
2007 (SG(2007)D/206339) the Commission concluded that,

e by concluding the agreement of 2001 amending the cooperation agreement
with juris GmbH, the Federal Republic of Germany might have infringed
Article 8 in connection with Titles II to VI of Council Directive
92/50/EEC of 18 June 1992 relating to the coordination of procedures for
the award of public service contracts or, in any case, Articles 43 and 49 of
the EC Treaty and the principles of equal treatment, non-discrimination
and transparency, and

e by the award of contracts for legal database services by the judicial
authorities of several of its States, the Federal Republic of Germany might
have infringed Article 23 (2) in connection with Article 2 and Article 20 in
connection with Articles 23 to 55 of Directive 2004/18/EC on the
coordination of procedures for the award of public works contracts, public
supply contracts and public service contracts.

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0)

Pursuant to Article 226 EC Treaty, the Commission invited the Federal Republic
of Germany to submit its observations within two months of receipt of the letter
of formal notice and to submit the contracts concluded between the parties and all
relevant documents. The Commission reserved its right to issue a reasoned
opinion in accordance with Article 226 EC Treaty after examining the
observations or in the case that no observations have been submitted within the
prescribed time-limit.

By communication dated 29 February 2008 and transmitted to the Commission on
18 March 2008, the Government of the Federal Republic of Germany took the
view that neither the conclusion of the agreement amending the cooperation
agreement as of 1 January 2001 nor the award of the service contracts by the
States in 2006 infringed Community law.

In the opinion of the Federal Government, the direct conclusion of the
cooperation agreement and its amendment without conducting a contract award
procedure was justified by overriding reasons in the public interest. The
agreement was intended- solely to maintain the proper functioning of court
proceedings and the judiciary as well as the proper functioning of legislative and
administrative authorities in the Federal Republic of Germany. That necessarily
involves that federal courts, legislative authorities and the federal administration
have an efficient data base at their disposal that gives them complete and up-to-
date access to the existing as well as the historic legislative and regulatory
documentation, case-law of the federal courts and legal literature. This can only
be achieved by a legal information system on which the Federal Republic exerts
decisive influence by way of steering and control mechanisms deriving from
company law and which is subject to the documentary authority of the federal
supreme jurisdictions. In 2001, only juris GmbH fulfilled these requirements since
it was the only service provider subject to fully-fledged control by the Federal
Republic. In the case of-an undertaking “organised as a purely private company”,
it could not be guaranteed that the database is permanently operated in accordance
with the needs and interests of the courts and the_legislative and administrative
authorities and that it is not purely commercially oriented.

The Federal Government claims also that, under Article 11: (3) (b) of Directive
92/50/EEC, it was entitled to award the award the cooperation agreement by a
negotiated-procedure without prior publication of a contract notice. It argues that,
in 2001, because of technical particularities and existing exclusive rights juris
GmbH was in fact the only conceivable service provider. At that time, there was
no other provider in the market who would have been able to offer a database
covering all areas of the law and provide the specific functionalities and search
options of the juris database. Moreover, under the cooperation agreement juris
GmbH was exclusively entitled to make use of the documents in their edited
version prepared by the federal documentation services. It had therefore an
exclusive right within the meaning of Article 11 (3) (b) of Directive 92/50/EEC.
The granting of that exclusive right was necessary to fulfil the public tasks since
otherwise it would not have been possible to ensure the quality and completeness
ofthe database.

Furthermore, according to the Federal Government, it cannot be assumed that the

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cooperation agreement — which had been concluded before the entry into force of
Directive 92/50/EEC — was modified by amendment agreement of 2001 ina way
that would have triggered the application of procurement law. The modification of
the provisions on the remuneration to be paid by the Federal Republic was only
intended for clarification and transparency purposes in view of the partial
privatisation. It had no substantial impact on the amount of the remuneration to be
paid.

Finally, the Federal Governments points out that in view of the direct temporal
and material connection with the competitive bidding procedure for the partial
privatisation of juris GmbH it would have been neither necessary nor practicable
to conduct a separate contract award procedure under Directive 92/50/BEC in
respect of the amendment agreement.

In the view of the Federal Government, the award of the contracts for legal
database service by the States Baden-Württemberg, Brandenburg, Hamburg,
Hesse, Mecklenburg-Vorpommern, Lower Saxony, North Rhine-Westphalia,
Rheinland-Pfalz, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein und
Thüringen was-also in line with Community law.

The Federal Government claims that the award of the service contracts to juris
GmbH in a procedure without prior publication-of a contract notice was justified
by overriding reasons in the public interest as already mentioned in relation to the
cooperation agreement. It states further that juris GmbH was selected “on the
basis of market exclusivity characteristics” in view of the results obtained by the
“competitive market enquiry’ conducted by the Bund-Länder-Kommission für
Rationalisierung und Datenverarbeitung in der Justiz (BLK).

The Federal Government contends further that the States were entitled, under
Article 31 (1) (b) of Directive 2904/18/EC, to award the- service contracts by a
negotiated procedure without prior publication of a contraet notice. Similarly to
its argumentation about. the cooperation agreement, the Federal Government
claims that, for technical reasons and because of existing exclusivity rights, juris
GmbH was the only conceivable service provider. The argumentation
concentrates mainly on the editing-of the judgments by the documentation
services of the supreme federal courts which inclüdes the provision of keywords
and of short summaries. Under $ 1 (3) and $ 2 ofthe cooperation agreement, juris
GmbH is exclusively entitled to make use of the edited documents. Therefore,
competing databases contain only the texts of the judgments without the keywords
and short summaries provided by the official documentation services.

According to the Federal Government, the summaries provided by the
experienced collaborators of the documentation services constitute an additional
value which is indispensable for the purposes of its users. That indispensable
additional value consists in the fact that the federal law and the judgments are
edited by the documentation services in the light of the specific needs of the
courts and the legislative authorities and not in function of marketing
considerations. Therefore, the summaries cannot be substituted by other texts
provided by competitors with their own staff. The Federal Governments points
also to a series of other qualitative characteristics distinguish the database of juris
GmbH from competing offers, such as the number of available judgments, the

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complete documentation of the provisions of German federal law, the availability
of “day-to-day versions” of federal law [i.e. the documentation of norms in their
historic wording] back to 1990 and the completeness of the coverage of legal
journals. It results that only juris GmbH was technically able to provide the
collection of judgments, legal literature and legislation needed for the proper

- functioning of the courts and legislative and administrative authorities with the

necessary completeness, quality and authenticity.

In addition, the Federal Government points out that the technical specifications
prepared by the judicial authorities did not infringe the principle of non-
discrimination [“Grundsatz der produktneutralen Ausschreibung”]. According to
the Federal Government, the specifications were drawn up exclusively on the
basis of the objective needs of the judicial authorities. It claims in particular that
the requirement of “day-to-day versions” as from 1 January 1991 was objectively
justified. The fixing of this particular date was not intended to reflect the offer of
juris GmbH; it resulted from an inquiry about the specific needs of the’ courts,
taking into account the time period concerned by the cases before the courts.

Law
The agreement amending the cooperation agreement between the Federal
Republic of Germany and juris GmbH

The Federal Republic of Germany is a contracting authority within ihe meaning of
Article 1 (b) of Directive 92/50/EEC. As such, it is obliged to apply the
procedures set out in Directive 92/50/EEC in awarding contracts falling within the
scope of that Directive.

The cooperation agreement as amended in 2001 contains obligations to provide
data processing services (building, maintaining and operation of databases) for a
consideration. It constitutes thus a_public service contract within the meaning of
Article 1 (a) of Directive 92/50/EEC.

Since the contract value exceeds the threshold for application of Directive
92/50/EEC, the contract had to be awarded, by virtue of Article 7 of this
Directive, in accordance witk- the provisions of the- Directive. The services
covered by the contract are “computer and related services” listed in Category 7 of
Annex I A to the Directive. As results from 8 of Directive 92/50/EEC, the
contract had thus to be awarded in aceordance with Titles II to VI of this
Directive. This legal characterisation has not been called into question by the
Federal Government.

The conclusion of the cooperation agreement in 1991 did not fall within the
temporal scope of Directive 92/50/CEE and is the not the subject-matter of the
present proceedings. However the Commission maintains that the conclusion of
the amending agreement in 2001 resulted in a substantial reorganisation of the
initial agreement and has therefore to be treated for the purposes of public
procurement law as anew contract award decision.

According to the ECJ case-law, amendments to the provisions of a public service
contract during the currency of the contract constitute a new award of a contract
within the meaning of Directive 92/50/EEC when they are materially different in

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character from the original contract and, therefore, such as to demonstrate the
intention of the parties to renegotiate the essential terms of that contract (see
judgments- of 5 October 2000 in Case C-337/98, Commission v France,
paragraphs 44 and 46, and of-19 June 2008 in Case C-454/06, pressetext
Nachrichtenagentur GmbH, paragraph 34). An amendment to a public contract
during its currency may be regarded as being material when it introduces
conditions which, had they been part of the initial award procedure, would have
allowed for the admission of tenderers other than those initially admitted or would
have allowed for the acceptance of a tender other than the one initially accepted.
The price has to be considered, in principle, as an important condition of the
public contract of a public contract whose amendment the period of validity of the
contract, in the absence of express authority to do so under the terms of the initial
contract, might well infringe. the principles of transparency and equal treatment
(judgment pressetext Nachrichtenagentur GmbH, paragraphs 35, 59, 60).

In the present case, the cooperation agreement in its initial version contained a
rather general provision according to which the parties agreed “to renegotiate the
amount of the remuneration ... if, in view of the results of a test of reasonableness
conducted by the auditors, it has to be assumed that a fundamental change in
circumstances has occurred”. However, the amending agreement of 2001 did not
only modify the amount of the remuneration, but it operated a complete
reorganisation of the mechanism for the determination of treremuneration. While
the initial contract contained a flat annual remuneration of 5.5m EUR, the
amended agreement provides for an assessment of the values of the services
provided by both parties under a differentiated system described in a completely
new annex to the contract. This means for the service provider that it has now to
accommodate for a detailed calculation of its costs and the value of the services
provided. Moreover, the amending agreement creates a completely new obligation
for the service provider to pay a licence fee for the documents provided to him.
This reorganisation of the remuneration system operates a substantial
modification of the economic balance of the contract and constitutes therefore a
new contract award.

Furthermore, it has to be taken into account that the amending of the cooperation
agreement was closely connected with the sale-by the Federal Gevernment of
45% of the shares in. juris GmbH to N.V. sdu in the context of the partial
privatisation. Under ECJ case-law, the transfer.of shares to a third party during the
currency of a public contract constitutes an actual change of contractual partner,
which might, under certain circumstances, be considered as an amendment to an
essential term of the contract. Such an occurrence would be liable to constitute a
new award of contract within the meaning of Directive 92/50/EEC (judgment
pressetext Nachrichtenagentur GmbH, paragraph 47).

It has therefore to be concluded that the award of the agreement of 2001
amending the cooperation agreement constituted a new contract award and should
therefore have been done by application of the procedures set out by Directive
92/50/EEC.

Regarding the argumentation by the Federal Government that the direct award of
the amending agreement was justified by overriding reasons in the public interest,
it has first to be pointed out that a measure restricting the free movement of

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service may be justified by such reasons only if it is appropriate for securing the
attainment of the objective it pursues and does not go beyond what is necessary to
attain it (see, for example, judgment of 4 March 2004 in Case C-334/02,
Commission v France, paragraph 28). These conditions are not met in the present
case.

The Federal Government claims that the public interest in the proper functioning
of the courts and the legislative authorities made it absolutely necessary to
conclude the amending agreement directly with juris GmbH because only that
company allowed, by its company law structures, for a complete steering and
control by the Federal Republic. However, here it has to be taken into account that
the amending agreement was concluded in close connection with the partial
privatisation of juris GmbH. The Federal Government aimed at transferring the
services which hitherto had been provided by a fully controlled state company to
an institutionalised public-private partnership.

Under these circumstances, the Federal Government had the possibility to conduct
a contract award procedure in accordance with Directive 92/50/EEC covering
both the public service contract which is to be awarded to the future public-
private entity, and the private partner's operational contribution to perform these
tasks and/or his contribution to the management of the public-private entity (see
Commission Interpretative Communication on the application of Community law
on Public Procurement and Concessions to Institutionalised Public-Private
Partnerships (IPPP), C(2007)6661 of 5 February 2008). By conducting such a
procedure, the Federal Government would have ensured, by choosing the
appropriate steering and control mechanisms provided by company law, that the
public-private entity be subject to the determining influence of the Federal
Republic while fully respecting the Community law provisions on the award of
public contract.

Insofar as the Federal Government relies on Article 11 (3) (b) of Directive
92/50/EEC, it has again to be taken into account that the subject-matter of the
procurement operation was the provision of legal database services as a private
partner in an institutionalised public-private partnership. It was intended that the
successful bidder contributes within this framework towards the-operation of the

‚existing databases of juris GmbH. This did not require that the bidders were

already active with competing databases in the German market. In fact, the
partnership was eventually concluded with an undertaking that was not present on
the German market. It is therefore besides the point to argue that only juris GmbH
would have been able to offer a database system with the required functionalities.

Finally, the Federal Government points out itself that it would have been possible
in the context of the partial privatisation to conduct a single contract award
procedure complying with the principles of Community law covering both the
selection of the private partner and the award of the public service contract to the
public-private entity. However, contrary to the allegations of the Federal
Government, such a procedure did not take place in the present case. Since the
amending agreement had to be considered as new award of a public service
contract within the scope of Directive 92/50/EEC, the combined award procedure
should have been conducted in a manner that complied with the conditions of that
Directive. Yet, the structured bidding procedure conducted by

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2.2

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PriceWaterhouseCoopers on behalf of the Federal Government did not fulfil the
procedural requirements of Directive 92/50/EEC.

It has therefore to be concluded that the award of the agreement amending the
cooperation agreement without conducting a contract award procedure and
publishing a European-wide call for tenders infringed Article.8 in connection with
Titles II to VI of Directive 92/50/BEC.

The contracts for legal database services awarded by the judicial authorities
of the States

The: States Baden-Württemberg, Brandenburg, Hamburg, Hesse, Mecklenburg-
Vorpommern, Lower Saxony, North Rhine-Westphalia, Rheinland-Pfalz,
Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein und Thüringen are
contracting authorities within the meaning of Article 1 (9) of Directive
2004/18/EC.

The agreements for the utilisation of the legal database system juris against
remuneration are contracts for pecuniary interest having as their object the
provision of “computer and related services” within the meaning of Category 7 of
Annex I A to Directive 2004/18/EC. As the contract award notices published in
the Supplement to the Official Journal of the European Union show, this
characterisation is not disputed by the contracting judicial authorities. It results
also from the contract award notices that the value of the contracts exceeded the
threshold for application of Directive 2004/18/EC. The States were therefore
obliged to award the agreements in accordance with the procedural rules provided
by Directive 2004/18/EC. In the view of the Commission, these rules were
infringed in two respects.

First, after a thorough examination of the elements submitted by the Federal
Government, the Commission maintains its view that the technical specifications
provided by the judicial authorities are infringing Article 23 (2) in connection
with Article 2 of Directive 200418/EC. According to these provisions,
contracting authorities shall treat economic operators equally and non-
discriminatorily; technical specifications shall afford equal access for tenderers
and not have the effect of creating unjustified obstacles to the opening up of
public procurement to competition.

In the opinion of the Commission, the violation of these principles follows
already from the procedural approach taken in the present case: According to the
undisputed facts of the case, the states conducted as a first step a market enquiry,
carried out by BLK, comparing the characteristics and the capacities of different
legal databases present in the German market. This enquiry was not preceded by a
European-wide call for tenders or any other form of advertisement; in fact, the
participants were directly approached and invited to make a presentation. In the
evaluation of results, the product proposed by juris GmbH was considered to be
the most suitable one. Subsequently, BLK negotiated a price scheme and a model
contract. On the basis of these documents — which were in detail tailored to the
offer submitted by juris GmbH - the judicial authorities elaborated the technical
specifications for the service contracts to be awarded. Under these circumstances
it does not astonish that juris GmbH was considered to be the only suitable service

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provider.

In fact, such an approach does not comply with the requirements set by Articles
23 (2) and 2 of Directive 2004/18/EC. It violates the fundamental principles .of
non-discrimination and equal treatment of bidders. As the Federal Government
has rightly pointed out, it is up to the contracting authorities to determine
themselves the subject-matter of the eontract in its details by setting technical
specifications under Article 23 of Directive 2004/18/EC. They are free to require
an ambitious and far-reaching performance profile exactly tailored to their
individual needs. This applies even in cases where the specifications set by the
contracting authority result in a situation where only a few or even only one
suitable service provider remains.

However, it is of decisive importance that the determination of technical
specifications and of criteria for qualitative selection and award criteria as well as
the evaluation of the offers submitted takes place in the framework of a proper
procurement procedure conducted in compliance with Directive 2004/18/EC. The
ECJ has explicitly pointed out that “the criteria adopted to determine the
economically most advantageous tender must be applied in conformity with all
the procedural rules laid down in [the Procurement Directives], in particular the
rules on advertising”. It follows that, “all such criteria must be expressiy
mentioned in the contract documents or the tender notice ... so that operators are
in a position to be aware of their existence and scope” (judgment of 17 September
2002 in Case C-513/99, Concordia Bus, paragraph 62).

These procedural requirements — which are crucial for the respect of the principle
of non-discrimination — have not been complied with in the present case. By way
of an anticipated evaluation of offers conducted outside a formal contract award
procedure within the meaning of Directive 2004/18/EC and without applying the
rules on advertising contained in that Directive, the States identified juris GmbH
as the best placed bidder and adjusted the technical specifications for the
subsequent contract award procedures to the- characteristics of the offer submitted
by juris GmbH. This is particularly evident when it comes to performance criteria
that reflect exactly the characteristics of the juris database, such as the temporal
and material extent of the-requirement for “day-to-day versions” of federal law,
and the importance attached to the availability of historic decisions by the
Reichsgericht and the Reichsfinanzhof [German supreme courts before 1945] or
of certain law journals. Such an approach infringes Article 23 in connection with
Article 2 of Directive 2004/18/EC. The fact that the States may, in retrospect,
invoke elements explaining why the individual performance criteria corresponded
to concrete needs of the judicial authorities cannot affect the conclusion that the
contract award procedure was in a discriminatory manner tailored to the specific
performance profile of one particular service provider.

Second, according to Article 20 of Directive 2004/18/EC, contracts which have as
their object services listed in Annex II A shall be awarded in accordance with
Articles 23 to 55 of the Directive. Article 28 of the Directive provides that public
contracts shall be awarded by applying the open or restricted procedure. The use
of the negotiated procedure without prior publication of a contract notice is only
exceptionally permitted ifthe conditions laid down in Article 31 of the Directives
are fulfilled.

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The Federal Government considers — in the same way as the judicial authorities —
that the award of the contracts by negotiated procedures without prior publication
of contract notices was justified under Article 31 (1) (b) of Directive 2004/18/EC
for technical reasons and for reasons connected with existing exclusive rights. Its
argumentation is based on the technical specifications for the contracts drawn up
by the States. According to the Federal Government, juris GmbH had, on the basis
of these specifications, a market exclusivity position because it was the only
undertaking that was technically able to offer a database complying with the
requirements set by the States.

With regard to Article 31 (1) (b) of Directive 2004/18/CE, it has to be pointed out
that this derogatory provision has to be’interpreted strictly. The_burden of proving
the-actual existence ef exceptional circumstances justifying a derogation lies on
the party relying on that provision (see judgment-of 3 Mai 1994 in Case C-328/92,
Commission v Spain, paragraphs 14 to 17).

Justification by technical reasons presupposes that the contracting authority can
provide specific technical elements explaining that, under the circumstances of
the individual case, only one economic operator is able to provide the service.
This could include, for instance, a strict technical impracticability for a bidder
other than the chosen economic operator to achieve the required goals, or the
necessity to use specific know-how, tools or means which only one operator has at
its disposal. The elements put forward by the Federal Government are, however,
not such as to demonstrate the existence of technical reasons within the meaning
of Article 31 (1) (b) of Directive 2004/18/EC. They are not related to the technical
conditions of the service performance but describe rather certain specific
characteristics of the services offered by juris GmbH which are intended to
suggest that — on the basis of discriminatory technical specifications — the offer
made by juris GmbH is preferable. This conclusion is also shared by the
competent national review authorities. The 1" Procurement Chamber of the
Federal Government [1. Vergabekammer des Bundes, a review body competent
for contract awards made by federal authorities] declared in a decision of 5
February 2009 (VK. 1-186/08) that juris GmbH does not have a position of
exclusivity. It stated that, besides juris GmbH, “there are other undertakings that
could, in principle, provide the services in question; a possible enlargement in the
range of their services, which might at the time being be smaller than that of [juris
GmbH] ... would, in any event, not be impeded by technical particularities or by
the protection of exclusive rights”. Under such circumstances, the conditions for
application of Article 31 (1) (b) cannot be met.

Insofar as the Federal Government relies on exclusive rights in connection with
the editing of the documents, it has first t0 be emphasised again that the particular
importance given to this specific characteristic of the services offered by juris
GmbH is the result of a violation of the principle of non-discrimination. Moreover
the Commission maintains its view that Article 31 (1) (b) of Directive
2004/18/EC may only be invoked on the basis of exclusive rights that have been
created in accordance with Community law. In the present case, the exclusive
rights referred to by the Federal Government are resulting from the cooperation
agreement. As has already been stated under 2.1, this agreement has been the
subject of a new award conducted in breach of Community law. Therefore, it

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