# EUR-Lex - 52003PC0501 - EN

Avis juridique important

*|*

# 52003PC0501

**Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a Directive of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty /* COM/2003/0501 final - COD 2000/0117 */ **

*

*

OPINION OF THE COMMISSION pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the EC Treaty

2000/0117 (COD)

OPINION OF THE COMMISSION pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors

1. Introduction

Under the third indent, point (c), of the second subparagraph of Article 251(2) of the EC Treaty, the Commission shall deliver an opinion on the amendments proposed by the European Parliament at second reading. The Commission's opinion on the 19 amendments proposed by Parliament is given below.

2. Background

Transmission of the proposal to the EP and the Council (COM(2000) 276 final - 2000/0117(COD)) pursuant to Article 175(1) of the Treaty: // 11 July 2000

Opinion of the European Economic and Social Committee: // 26 April 2001

Opinion of the Committee of the Regions: // 13 December 2000

Opinion of the European Parliament at first reading: // 17 January 2002

Proposal amended by the Commission: // 6 May 2002

Adoption of Council's common position:

Opinion of the European Parliament at second reading: // 20 March 2003

2 July 2003

3. Subject of the commission proposal

The proposal for a Directive coordinating the procurement procedures in the water, energy, transport and postal services sectors pursues a threefold objective of modernising, simplifying and rendering more flexible the existing legal framework in this field: modernising in order to take account of new technologies and changes in the economic environment, including the liberalisations under way or set to take place in some of the activities covered, simplifying to make the current texts more easily comprehensible, so that contracts are awarded in complete conformity with the standards and principles governing this area and the bodies involved (whether they are purchasers or suppliers) are in a better position to know their rights, and making procedures more flexible in order to meet the needs of purchasers.

4. Commission opinion on the amendments proposed by the European Parliament

4.1. Amendments accepted by the Commission (No 15 in part)

Subject to verification, it would appear that the terminology used in certain language versions (at least the Italian, Spanish, German and Portuguese versions) is not in line with Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market in Community postal services and the improvement of quality of service [1] (the Postal Directive). In paragraph 2, for instance, the Italian version refers to a "plico postale" instead an "invio postale", while the Spanish version refers to "la expedición" instead of "el transporte". Even though this change to Article 6 does not concern all the language versions, the Commission can accept Amendment 15 in so far as it concerns aligning the terminology with that used in the Postal Directive.

[1] OJ L 15 of 21 January 1998, p.14, last amended by Directive 2002/39/EC (OJ L 176 of 5 July 2002, p. 21).

4.2. Amendments rejected by the Commission (Nos 1, 7, 12, 13, 14, 15 in part, 16, 18, 28, 29, 35, 39, 40, 41, 50, 53, 54, 55 and 56)

Amendment 1 proposes 1) including a guarantee of "a high standard of reliable services of general interest at affordable prices" among the aims of the Directive, adding that 2) award procedures must be coordinated "taking into account the overall aims laid down in Articles 2 and 6 of the EC Treaty".

1) The Commission cannot accept this part of the amendment, since the Directive is aimed only at coordinating procedures for the award of contracts and does not concern the standard of services of general interest offered in the various Member States.

2) Recital 12 already contains a reference to the aims laid down in Article 6 and the social aims have already been taken into account at the appropriate points in the Directive (for example, in Recital 43 and Article 38 on the implementation clauses, or Article 57 as regards verifying respect for social legislation when examining bids that seem abnormally low etc.). Moreover, given that no reference of this kind to Article 2 of the Treaty has been proposed for the other Directive on public procurement, acceptance of this amendment would be a source of legal uncertainty and could lead to conclusions a contrario as to the possibilities for taking account of the social aims.

Amendments 7 and 28 are aimed at introducing, into the recital and the operative part, an obligation - whenever possible - for public authorities to define their technical specifications in terms of accessibility for people with disabilities and design for all requirements.

Accessibility for people with disabilities is undoubtedly an important social aspect; however, even if it may be technically possible to prescribe it, this will not be appropriate in all cases. The Amendment would make this obligation apply across the board and even to contracts relating to items not intended for use by persons with disabilities, such as the construction of barracks or training facilities for port police).

Following Parliament's first reading, the common position also makes it possible for a public contract to contain requirements regarding accessibility for people with disabilities, thanks to Annex XXI to the Directive, which concerns the technical specifications. The "Public Procurement Directive", the purpose of which is to coordinate procedures, is not, however, the appropriate instrument for imposing an obligation to prescribe requirements of this kind.

Amendment 12 is aimed at restricting the field of application of electronic auctions by prohibiting their use for contracts for works or certain kinds of services (described as "intellectual", "creative" or "complex").

Quite apart from the difficulty of defining such categories of services at Community level, the amendment is unacceptable as it would be inconsistent with the delimitation of the field of application of electronic auctions provided for in Recital 22 and Article 56. It should also be pointed out that the possibility of banning, or restricting the scope for, electronic auctions at national level is explicitly provided for by the common position in paragraph 1 of Article 56.

Amendment 13 is aimed at giving purchasing groups set up by the State, local authorities or bodies governed by public law the status of contracting authorities. The effect of this amendment would be to regard any body whatsoever as a contracting authority provided that it had been set up in order to centralise purchasing. This element would be in addition to the definition of purchasing groups already given in Article 1(2)(8), which is based on two elements - i.e. being a contracting authority, and acquiring goods and services for other contracting authorities. The amendment would introduce a manifest contradiction with the definition in Article 2(1)(a), which lays down conditions for qualification as a contracting authority.

Amendment 14 is aimed at modifying the definition of "special or exclusive rights".

1) On the one hand, it broadens the concept by eliminating the condition that such rights must "substantially affect[s] the ability of other undertakings to carry out such activity".

2) At the same time, it restricts the scope of the concept by inserting into the operative part a provision from Recital 25, according to which rights granted "to a limited number of undertakings, on the basis of objective, proportional and non-discriminatory criteria that allow any interested person who satisfies them the opportunity to benefit from them, shall not constitute special or exclusive rights".

1) The broadening of the definition is not acceptable, as it would unjustifiably make private businesses subject to the Directive.

2) Since the final subparagraph of the amendment is superfluous, it is also unacceptable. Moreover, if this provision were included in the operative part, it would be all the more tempting to conclude a contrario that Community law legitimated rights granted on the basis of subjective, disproportional and discriminatory criteria.

In addition to proposing the terminological alignment accepted by the Commission (see 4.1 above), Amendment 15 is aimed at introducing a difference in treatment between "reserved postal services" and "other postal services" by eliminating the difference introduced in the common position between these and "ancillary postal services".

This change is not acceptable, as it could lead to differences in treatment of postal operators under the Directive, since operators offering the same services - in the category "other postal services" - might or might not be covered by the Utilities Directive, depending on whether or not they also conducted an activity coming under "reserved postal services". The common position, on the other hand, had come to give the same treatment to all postal activities, whether reserved or not, and provides for different treatment only in the case of non-postal ("ancillary" activities. This is justified, since "reserved postal services" and "other postal services" are services of the same kind: as liberalisation of the postal sector progresses, some services will shift from the reserved category to the "other services" category [2].

[2] Thus, handling of postal items weighing between 50 g and 100 g will be a "reserved postal service" until 1 January 2006, after which it will come under "other postal services".

Amendment 16 introduces, into the operative part, an obligation on the part of contracting entities to respect the fundamental principles of Community law in connection with all contracts, including those falling below the thresholds for the application of the Directive.

Clearly, these principles, as repeatedly acknowledged by the Court in its case law, apply to all public contracts irrespective of their value. It is not legally appropriate, however, to lay down an obligation of this kind in this Directive, which applies only above certain thresholds. In the case of contracts below these threshold, it could lead to legal uncertainty as regards the field of application of the Directive and hence the extent of the procedural obligations it lays down. In the case of contracts that are covered by the Directive, on the other hand, this provision would be duplicating Recital 9 of the common position.

Amendment 18 is aimed at increasing the obligations of contracting entities as regards respect of the confidentiality of data provided by the economic operators, particularly by giving a list of the information or documents concerned and specifying that these obligations must be respected both during and after the award procedures.

Now that the two public procurement Directives have been aligned in the common positions, part of this amendment (the list of information or documents concerned) has already been taken into account. The absolute nature of the provision ("throughout the procedure and at its end) is not, however, acceptable. On the one hand, a provision of this kind could distort competition (the business that had designed a project under a services contract would then be the only one able to carry it out, as the plans could not be given to a different tenderer), and on the other, there might be a conflict between the obligations of transparency (vis-à-vis the inspection bodies) and the obligations of confidentiality.

Amendment 29 proposes 1) adding references to a specific producer or supplier to a provision that prohibits references to a "specific production" other than on an exceptional basis. Furthermore, it 2) eliminates the condition that reference to a specific production is prohibited only if it has "the effect of favouring or eliminating certain undertakings or certain products.".

This amendment is unacceptable for various reasons:

- eliminating the condition referred to in point 2), which is an aspect of the law as it stands, would be to suppress a provision that limits the prohibition to cases in which the specific origin/production has a restrictive effect on participation in contracts. The reason for this suppression would appear to be a fear that this provision would prevent contracting entities from requiring production processes that only a small number of economic operators could provide (e.g. biologically-grown or less-polluting products). There are no grounds for this fear, as the "Concordia Bus Judgment" [3] deemed such requirements to be legitimate.

[3] Court Judgment of 17 September 2002, Concordia Bus Finland Oy Ab, formerly Stagecoach Finland Oy Ab v Helsingin kaupunki and HKL-Bussiliikenne, Case C-513/99, ECR 2002 p. I-07213.

- as far as point 1) is concerned, given that Article 34 of the operative part and Annex XXI thereto already refer to "a specific make or source", a "particular process" and "specific origin or production", the addition of references to producers or suppliers would also be superfluous.

- finally, if this amendment were accepted, it would lead to inconsistency between the two Directives, given that an essentially identical amendment (No 90) has not been adopted for the other proposal for a Directive on public procurement.

Amendment 35 is aimed at increasing the scope for awarding contracts for the purpose of research, experiment, study or development without competition by eliminating the conditions provided for in the law as it stands, according to which such contract may not be awarded "for the purpose of securing a profit or of recovering research and development costs, and in so far as the award of such contracts does not prejudice the competitive award of subsequent contracts which do seek, in particular, those ends".

If these conditions were eliminated, the amendment would exempt contracts that currently must be awarded competitively from this obligation, thus calling the Community patrimony [acquis communautaire[ into question. The amendment could also create captive markets for very long periods of time, since the application of this exception could easily be followed by the invocation of another exception on technical grounds (compatibility, for example) so that contracts could continue to be awarded to the tenderer who was awarded the original research contract. The amendment is therefore unacceptable.

Amendment 39 calls for the use of an advanced electronic signature within the meaning of Directive 1999/93/EC and of reliable security if tenders submitted by electronic means are to be accepted.

According to the justification given, the amendment "is intended to provide appropriate data security when tenders are submitted by electronic means".

The main objective seems to be to obtain a guarantee that it will be possible to detect changes made to tenders after they have been submitted and thus reconstitute their original content, and to guarantee that only authorised persons can know about the content of tenders.

In this sense the amendment is superfluous, and it could on the contrary hold back the adaptation of the Directive to technical progress, given that there are other technical means, in accordance with Annex XXIII, of ensuring the security of tenders on reception. In other words, the integrity of data can be ensured by technical or organisational means other than advanced signatures. Since this a field where technological development is rapid, accepting the amendment would mean having to amend the Directive to take account of technical progress.

The amendment could also, however, have the purpose of guaranteeing that the identity of a tender's author can be established with certainty at the tender submission stage. It should be pointed out that there is no such requirement at Community level for conventional (non-electronic) tenders and that the use of electronic means of transmission does not imply any such requirement. All the same, if - for reasons of legal security - a contracting authority wants to require this level of identification and authentication in the case of electronic signatures, the Directive already offers the possibility of doing so. Indeed, recital (47) of the common position explicitly states that Directive 1999/93/EC shall apply. As things stand, that means that any requirement to be able to identify with certainty tenderers and their bids can be satisfied by means of a reference to the national legislation transposing Directive 1999/93/EC, which ensures that only an advanced electronic signature can be used to meet these requirements.

Amendment 40 is aimed at requiring the use of an accredited third party to safeguard the confidentiality of data sent by tenderers.

The confidentiality of data sent by tenderers would appear to be sufficiently safeguarded by the provisions of Annex XXIII

Furthermore, stipulating that the certification bodies must be accredited could lead to distortions stemming from differences between the various Member States where accreditation is concerned.

Amendment 41 is aimed, on the one hand, at stipulating that contracting entities must inform economic operators of their decisions as to qualification within two months. It also adds an obligation for contracting entities to inform applicants in the month following the submission of the application if the decision will take more than two months.

Given that the amendment would oblige contracting entities to complete their evaluation of an application for qualification within two months, it is unacceptable, since one of the reasons for the inclusion of the qualification systems in this Directive was to take account of the fact that the contracting entities need highly complex industrial equipment (such as railway rolling stock), for which the technical evaluation may call for long periods of tests and analyses etc. The amendment is also self-contradictory, in that it refers to a "maximum" period of two months for decisions, while also providing for an extension of this period. The second part of the amendment is also unacceptable, as the complexity of the equipment and the tests required could be such that the contracting entities would not know by the end of one month whether or not it would be possible to take a decision within two months.

Amendment 50, as far as the criterion of "the most economically advantageous tender" is concerned, is aimed at:

1) eliminating the phrase "for the contracting entities",

2) eliminating the emphasis on the most "economically" [4] advantageous tender,

[4] Translator's note The term "economically" has been retained in the English version of the amendment despite the fact that the term "économiquement" has been deleted in the French version.

3) changing "justified by the subject-matter of the contract" to "linked to the subject-matter of the contract",

4) adding production methods to the criteria to be taken into account, and

5) adding "the tenderer's equal treatment policy".

As for point 1), the elimination of the phrase "for the contracting entities" would make it possible to take account of vague and often unquantifiable elements in connection with a possible benefit for "society" in the broad sense. Award criteria of this kind would no longer perform their intended function of permitting an evaluation of the intrinsic qualities of bids in order to identify the one that offered the purchaser the best value for money. This would also run counter to the purpose of the public procurement Directives by creating serious risks of inequality of treatment.

As for point 2), these risks would be greatly aggravated if this part of the amendment were taken into account, and this would also be a fundamental change in the entire thinking underlying not only Community coordination as it stands and the Commission's proposal for a Directive, but also public procurement in general, which would be denied its budgetary function. This part of the amendment would also lead to considerable inconsistency between the two Directives.

As for point 3), this part of the amendment is aimed at ensuring that the new Directive will afford the same scope for taking account of certain criteria as the existing law, as interpreted by the Court in the above-mentioned Concordia Bus Judgment. This amendment is superfluous, as the common position already provides the necessary clarifications and guarantees in Article 55 in conjunction with Recital 54.

As for point 4, production methods come under the broader definition of "environmental characteristics" explicitly listed among the criteria given as examples. Since production methods are acknowledged in Annex XXI as possible technical specifications, there is nothing to prevent these same specifications from constituting award criteria. It would therefore be excessive to mention them explicitly among the examples of criteria, which are not exhaustive to begin with.

As for point 5), taking account of matters not linked to the subject-matter of the contract - such as the tenderer's equal treatment policy - would run counter to the purpose of the public procurement Directive, which is to guarantee "healthy" public spending and equal access to public contracts, and turn it into an instrument that excluded other policies. The tenderer's equal treatment policy does not permit an evaluation of the quality of a bid with a view to determining the best value for money; taking it into account would be in order to give preference to a "socially responsible" business, and perhaps award contracts to tenderers whose bids did not represent the best value for money.

Amendments 53 and 56 concern Article 59. This provision, currently applicable only to service contracts, is intended to cover any difficulties encountered by European economic operators in their attempts to obtain access to service contracts in third countries. Under this provision, the Commission must endeavour to solve any problems concerning access to the contracts of third countries. The amendment would extend the existing provisions to three types of contract, and also introduce an obligation to approach third countries if they fail to respect certain ILO Conventions.

There is no justification for extending the existing obligations to approach third countries to cover supply and works contracts too, since other instruments exist for these types of contract - either in the Directive (see, for example, Article 58), or under bilateral or multilateral agreements or negotiations. This aspect of the amendment is therefore not acceptable.

As for the new case in which the Commission would have to approach a third country, a Directive on public procurement is not the appropriate instrument for introducing an obligation on the part of the Commission to monitor respect by third countries of international labour law.

Amendment 55 would introduce a legal presumption of free access to the railway sector in the event of implementation and correct application of Directives 91/440/EEC on the development of the Community' s railways [5], Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings [6] and Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification [7]. The amendment is linked up with the general exclusion mechanism provided for in Article 30.

[5] OJ L 237 of 24 August 1991, p. 25, last amended by Directive 2001/12/EC, OJ L 75 of 15 March 2001, p. 1.

[6] OJ L 143 of 27 June 1995, p. 70, last amended by Directive 2001/13/EC, OJ L 75 of 15 March 2001, p. 26.

[7] OJ L 75 of 15 March 2001, p. 29.

This package of Directives on the railway sector does not, as it stands, constitute liberalisation in the same sense as the other Directives quoted in Annex XI. It would also be premature to introduce a legal presumption of free access at this stage, given that other measures are currently being discussed with a view to fully liberalising goods transport by 2008.

Amendment 54, which addresses a specifically German situation, would introduce a legal presumption of freedom of access to activities comprising exploration for and extraction of coal or other solid fuels in the event of a Member State voluntarily making a Directive (94/22/EC) relating to hydrocarbons licences applicable to the coal sector. This amendment links up with the exclusion mechanism provided for in Article 30.

The introduction of a legal presumption linked to the voluntary application of a Community Directive beyond its actual scope poses major problems in terms of legal certainty and does not take into account the differences between the hydrocarbons sector and that of coal and other solid fuels. Such a voluntary application cannot be ignored, however. Moreover, following the first reading, the common position already contains a Recital (40) making it clear that voluntary application of this kind constitutes a fact that has to be taken into account for the purposes of Article 30 of the Directive.

5. Conclusion

Under Article 250(2) of the EC Treaty, the Commission alters its proposal as described above.