According to Paul Heinrichsmeier, presiding judge of the public procurement chamber and vice president of the BayObLG, contrary to the opinion of Egger and his lawyers, there is no obligation to operate the Oktoberfest tents. There is therefore no service concession that is relevant under procurement law. The city, as the person responsible for the Oktoberfest, merely provides the framework for the festival in which the sponsors can operate. Accordingly, there is no need to advertise across the EU. Contrary to the plaintiff's argument, Heinrichsmeier does not see any “systematic circumvention” of the law. “In the end, we think that none of this is enough,” says Heinrichsmeier.
The dispute has been making waves in Munich for months. The innkeepers as well as representatives of the Munich breweries had always warned that if Egger was right, the Oktoberfest would lose its unique face.
The presiding judge said that the case raised “really difficult questions,” but the Senate was clear in its preliminary assessment. And this despite Heinrichsmeier noting that it was not “completely fortunate” that the city only changed the operating regulations after Egger’s lawsuit and deleted the reference to the operating obligation. Likewise, at one point it still says that an early closure may only take place for “valid reasons”. That was indeed “an oversight,” said Heinrichsmeier.
What is also “not happy” is that economics officer Christian Scharpf (SPD) said in a meeting that the opening times of the Oktoberfest resulted in an obligation to operate. However, from the court's point of view, the plaintiff's objections and these contradictions are not "pervasive". Overall, it remains the same: there is no contractually agreed obligation to operate.
The innkeeper showed up with five lawyers and a law professor
An argument that the lawyers of plaintiff Egger, who smiles and remains silent during the hearing, reject. The innkeeper appeared in court with five lawyers and a law professor. The arguments put forward by the court are “unconvincing” in detail, says lawyer Bernhard Stolz. They are “unjustifiable” and “untenable”. His colleague Benno Ziegler is creating a display board with which he wants to illustrate in court that a supposedly non-existent duty to operate in the event of overcrowding, as happened last year, could have real consequences for people at the Oktoberfest. “People almost died there,” said Ziegler. Ergo: There is no safety without an obligation to operate. He therefore sees the existing security concept as proof that there is indeed an obligation to operate.
Lawyer Marco König, who specializes in public procurement law and represents the city, emphasizes: There was never really an obligation to operate - and “definitely not anymore”. However, that does not mean that there is no security concept. In fact, the hosts would also be measured by this. Michael F. Schottenhamel, who is the affected Oktoberfest host and his lawyers, also emphasizes: The tents are integrated into the security concept. Schottenhamel, who, along with Egger, is the only Oktoberfest host present in the courtroom that day, emphasizes: The opening times are less an obligation than a right. If he had his way, his tent would have been open longer.
The presiding judge Heinrichsmeier signaled during the hearing that he would weigh up all the arguments - but they did not want to examine the security concept in more detail. He says he sees no need for this at the moment.
The question of the amount in dispute remains open this Friday. This is based on the turnover of the tents; the court assumes ten million euros per tent. For the two affected tents – Schottenhamel and Paulaner – this would be 20 million euros. Egger's lawyer Stolz suggested using only one tent as the basis for determining the amount in dispute. After all, despite two applications, his client was only interested in getting a tent, “that’s what it’s all about.”
Egger used to run a small tent – the “Münchner Stubn” – at the Oktoberfest and had applied in vain for a large tent. He was also awarded the contract for the “Münchner Stubn” this year, but turned it down. Because he also came away empty-handed when it came to allocating a tent at the traditional part of the folk festival, the Oidn Wiesn, a lawsuit is currently being filed at the Munich Administrative Court. However, according to the court, no trial date has yet been set. At the Oktoberfest - beyond the Oidn Wiesn - 14 large beer tents and 21 small ones are set up every year.
Since the BayObLG is the final authority for Egger and his legal team, process observers are asking themselves how things could proceed. Theoretically, the case could now go to the administrative court, where the Schützenlisl case, whose award Egger had also questioned, is pending. Since the plaintiffs, according to Heinreichsmeier, are aiming for a Europe-wide tender, a decision by the administrative court will ultimately not help the applicants.
The decision of the Bavarian Supreme Regional Court is to be announced on October 16th, then again in the actual court headquarters on Schleißheimer Straße, not in the high-security courtroom in Stadelheim as on Friday. If the Senate rejects Egger's application, there is no legal remedy; at best, Egger's lawyers could still file a constitutional complaint with the Federal Constitutional Court in Karlsruhe. If the Senate ultimately submits the matter to the ECJ to clarify the legal basis, the Munich proceedings would be suspended.
