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(2004/C 88 E/0721)

WRITTEN QUESTION E-0661/04

by Alexander de Roo (Verts/ALE) to the Commission

(9 March 2004)

Subject:   Public procurement for the Júcar-Vinalopó water transfer

The Spanish Government has been setting up so-called ‘state water companies’ since 1997, just as it has done in the past in other administrative areas. These companies include Aguas del Júcar SA (AJUSA), established by the Spanish Government to acquire, construct and operate all kinds of water works. It is a single-member company, with the Spanish State as its sole shareholder. One of the projects entrusted to AJUSA is the transfer of water from the Júcar to the Vinalopó river. The completion of the project requires a budget of EUR 240m, of which EUR 54m is expected to come from Community funds. Since April 2001, AJUSA has issued several calls for tender in relation to the Júcar-Vinalopó water transfer. In January 2003, it announced an open invitation to tender for technical assistance in carrying out the compulsory purchase procedure necessary to complete the Júcar-Vinalopó diversion project, which was published in edition 20 of the Spanish Official Journal (BOE) on 23 January 2003, with an overall budget of EUR 417 600. However, in spite of the value of the tender, it did not appear in the Official Journal of the European Union. Nor was it published in Tenders Electronic Daily, the supplement to the Official Journal. The award of the contract for carrying out the compulsory purchase procedure was published in BOE No 87 of 11 April 2003 (Annex I). The contract for carrying out the compulsory purchase procedure for the water transfer from the Júcar to the Vinalopó river is a ‘public services contract’, which is subject to the Community rules set out under Article 2 of Council Directive 92/50/EEC (1) of 18 June 1992 relating to the coordination of procedures for the award of public service contracts.

How does the Commission intend to respond to this failure to comply with Community law?

Has the Commission already taken any action on this matter?

Does the Commission not think that compliance with Community rules on public procurement should be a precondition for any cofinancing by the Community of the Júcar-Vinalopó water transfer?

Answer given by Mr Bolkestein on behalf of the Commission

(22 April 2004)

The Commission has received a complaint regarding the award of a service contract concerning the procedure for compulsory purchase of the land to build the infrastructure for the transfer of the river Júcar to the river Vinalopó. Although the tender budget was above the thresholds set forth in Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, it appears that no tender notice was published in the Official Journal of the European Union. However, in accordance with Article 9 of the Directive, services that fall within one of the categories listed in Annex IB to the Directive are not subject to a number of the obligations set forth therein, among others the obligation of prior publication of the tender notice in the Official Journal. Annex IB includes the category of ‘legal services’ and a residual category of ‘other services’. The latter category of ‘other services’ has to be interpreted restrictively, and it is only possible to classify a service in this category if it cannot plausibly fall within one of the other categories in Annexes IA or IB to Directive 92/50/EEC.

The Commission does not yet have enough information on the contract and cannot therefore exclude that the type of service that was the subject-matter of the tender falls within one of the categories listed in Annex IB, in which case the lack of publication of a tender notice in the Official Journal would not be inconsistent with Directive 92/50/EEC. On the other hand, if it appears that the specific service does not fulfil any of the categories listed in Annex IB, the lack of publication of the tender notice in the Official Journal would be an infringement of Directive 92/50/EEC. In this regard, the Commission considers that AJUSA is a ‘body governed by public law’ and a ‘contracting authority’ as defined in that Directive.

The Commission has contacted the Spanish authorities in order to obtain further information on the type of service involved and the circumstances of the tender.

As the Honourable Member points out, and as is clear from the current EU regulatory framework, compliance with EU public procurement rules is an essential requirement for any project financed with Community funds.

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(1)OJ L 209, 24.7.1992, p. 1.

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