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03.01.2018
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Katarzyna Kuźma and Wojciech Hartung from the public procurement team in DZP's Infrastructure & Energy Practice have successfully represented FBSerwis Karpatia spółka z o.o. before the National Appeal Chamber (NAC) in a dispute over a procedure to collect and manage municipal waste in Ryglice Municipality, which Tarnów City Municipality intended to contract by way of in-house procurement to its own municipal company.
The basis for the Tarnów City Municipality's decision to award the contract in-house to its own company was an inter-municipality agreement concluded pursuant to the Act on Municipal Government. It provided for Tarnów City Municipality to take over the task of organising collection and management of municipal waste in Ryglice Municipality and to this end to conduct a procedure pursuant to the Public Procurement Law in exchange for covering implementation costs and an additional administrative charge.
The NAC accepted the arguments put forward by FBSerwis Karpatia spółka z o.o. and the acceding AVR sp. z o.o., according to which, for the possibility of using the exception provided for in-house procurement, this type of agreement should meet the conditions laid down in case law of the Court of Justice of the European Union replicated in Directive 2014/24/EU and the Public Procurement Law for so-called public-public cooperation.
Otherwise, the award of an in-house contract by a municipality to which a given task is not assigned should be deemed an action aimed at circumventing the law and therefore invalid.
The NAC also confirmed that the municipality is an entrepreneur as defined in the Competition and Consumer Protection Act and its conduct on the public services market, including the waste collection and management market, should be seen in the context of abuse of a dominant position. The above said actions of Tarnów City Municipality are, in the Chamber's view, a manifestation of abuse of a dominant position.
The NAC judgment is the first in which the Chamber took into account a wider aspect of in-house transactions, including their impact on the situation of private entrepreneurs and the co-dependence of provisions regulating the situation of local government units in the context of EU law.
The judgment is not yet final and non-revisable so it is possible that Tarnów City Municipality or its municipal company, MPGK sp. z o.o., will file an appeal to the regional court.
From 25 May 2018 the General Data Protection Regulation (GDPR) applies in Poland and other European Union countries. We would therefore like to give you several details on the subject of how DZP processes personal data.
The administrator of the personal data is Domański Zakrzewski Palinka Sp.k. (“DZP”; address: Rondo ONZ 1, 00-124 Warszawa). Data are processed for contact purposes and to impart information on changes to provisions and authority practices and on other issues, including events concerning day-to-day legal, economic and cultural issues, inter alia, by sending DZP newsletters. The above is carried out on the basis of legitimate interests, i.e. in accordance with art. 6(1)(f) of the GDPR. Data can also be processed where necessary for the conclusion or performance of a contract and for compliance with a legal obligation to which DZP is subject, i.e. pursuant to art. 6(1)(b) and (c) of the GDPR. Data can be transferred to entities with whose help DZP achieves the indicated aims, including entities maintaining IT infrastructure. Giving data is voluntary and in contractual relations is a requirement for concluding and performing a contract. It is possible to object to data processing, request access to, rectification and erasure of personal data or restriction of processing and data portability. Data are kept until an objection is made, and in contractual relations – throughout the term of the contract and thereafter for a period specified in provisions on archiving and limitations period for claims. Anyone has the right to file a complaint with the President of the Personal Data Protection Office. Questions concerning privacy at DZP can be sent to DZP’s Data Protection Inspector, Macieja Maciejewskiego, at: iod@dzp.pl.
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