Wirtschaftskanzlei Heuking Kühn Lüer Wojtek | Rechtsanwälte, Steuerberater und Notare
12-01-2010

Fight for the Route: Equal Opportunities in Local Mass Transit




Constitutional Court Requests Fair Competition

There can be only one: in local public transport, obviously only one company may obtain a regular service authorization. In Lower Saxony, an authorizing agency used the competitive environment and also notified other companies of applications to identify the most cost-efficient and best provider. An unsuccessful applicant considered its constitutional rights violated by this procedure.

The Federal Constitutional Court strengthened the competition for regular service permits. While the supreme German court failed to view a violation of basic rights in the case at issue, it expressly requests, however, to treat all bidders equally. "Service permits in local public transport are only available on a limited basis," reports Dr. Ute Jasper from law firm Heuking Kühn Lüer Wojtek, who provides counsel on local public transport projects nationwide. "Here specifically, all applicants must have equal opportunity to prevail in the bid - the Federal Constitutional Court consistently applied this principle," Jasper continues. This is only maintained if all applicants on the basis of the same level of knowledge may improve their applications, the Federal Constitutional Court holds.

"The decision of the Federal Constitutional Court is of high significance far beyond the individual case," Dr. Jasper explains. The Constitutional Court made it clear that the State must maintain professional freedom and equal opportunity of competitors. This also applies to other concessions and awards, such as in rail transport. "Here, the basic rights also exclude exclusive negotiations with preferred bidders," Dr. Jasper concludes. And who knows - maybe competition will make local transport more cost-efficient in the end as well.

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