# CE2004078EN.01061901.xml

| 27.3.2004 | EN | Official Journal of the European Union | CE 78/619 |
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27.3.2004

EN

Official Journal of the European Union

CE 78/619

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(2004/C 78 E/0655)

WRITTEN QUESTION E-3647/03

by Erik Meijer (GUE/NGL) to the Commission

(9 December 2003)

Subject:   Delay in deepening and widening the River Maas north of Maastricht due to objections to gravel quarrying under negotiated contracts

Subject:

| 1. | Is the Commission aware that the decision by the Netherlands, in response to the repeated floods in the area of the River Maas along the Dutch-Belgian border north of Maastricht, no longer to resort to the traditional method of preventing periodic inundations, namely raising dykes, but that instead deepening and widening the river bed and adjoining land could result in more sustainable nature management? |
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1.

Is the Commission aware that the decision by the Netherlands, in response to the repeated floods in the area of the River Maas along the Dutch-Belgian border north of Maastricht, no longer to resort to the traditional method of preventing periodic inundations, namely raising dykes, but that instead deepening and widening the river bed and adjoining land could result in more sustainable nature management?

| 2. | Can the Commission confirm that the implementation of this Maas Border Project, whose cost is estimated at EUR 450 million, is being delayed because the Commission wishes a public invitation to tender to be issued, whereas the Netherlands prefers to negotiate contracts privately, in which connection the quarrying of 50 million tons of gravel forms part of the cofinancing by regional private undertakings without any money changing hands? |
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2.

Can the Commission confirm that the implementation of this Maas Border Project, whose cost is estimated at EUR 450 million, is being delayed because the Commission wishes a public invitation to tender to be issued, whereas the Netherlands prefers to negotiate contracts privately, in which connection the quarrying of 50 million tons of gravel forms part of the cofinancing by regional private undertakings without any money changing hands?

| 3. | Do the Commission's objections concern the inclusion in the contract of a concession for commercial gravel quarrying by businesses which have already previously been permitted to dig deep gravel pits which have filled with stagnant water along the river banks in the same area, destroying the landscape, or is the Commission's concern rather that major public works projects should not be carried out under public-private partnerships? |
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3.

Do the Commission's objections concern the inclusion in the contract of a concession for commercial gravel quarrying by businesses which have already previously been permitted to dig deep gravel pits which have filled with stagnant water along the river banks in the same area, destroying the landscape, or is the Commission's concern rather that major public works projects should not be carried out under public-private partnerships?

| 4. | Will the approach advocated by the Commission lead to higher costs for the Netherlands Government or compel it to use a developer of gravel deposits other than the businesses currently operating in this area? |
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4.

Will the approach advocated by the Commission lead to higher costs for the Netherlands Government or compel it to use a developer of gravel deposits other than the businesses currently operating in this area?

| 5. | Who will bear the cost of any large-scale damage caused by flooding to homes, businesses, public land and farmland while the work is delayed due to the Commission's intervention? |
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5.

Who will bear the cost of any large-scale damage caused by flooding to homes, businesses, public land and farmland while the work is delayed due to the Commission's intervention?

| 6. | What will the Commission do to ensure that the work can be carried out quickly, at the lowest possible cost and in a way which is appropriate to the area? |
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6.

What will the Commission do to ensure that the work can be carried out quickly, at the lowest possible cost and in a way which is appropriate to the area?

Source: 8 o'clock TV news, Nederland 1,26 November 2003.

Answer given by Mr Bolkestein on behalf of the Commission

(29 January 2004)

(29 January 2004)

| 1. | The Commission is aware of the Grensmaas project that has as objectives ecological development, gravel extraction and flood control. The Commission is equally aware of the fact that this project foresees, inter alia, dredging works to be carried out in the Maas River. |
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1.

The Commission is aware of the Grensmaas project that has as objectives ecological development, gravel extraction and flood control. The Commission is equally aware of the fact that this project foresees, inter alia, dredging works to be carried out in the Maas River.

| 2. | On the basis of a large number of complaints, the Commission has opened an infringement procedure with regard to the Grensmaas project and has sent a letter of formal notice to the Dutch government on 2 May 2003. In this letter of formal notice, the Commission explains that it considers that the relationship between the Dutch authorities and those who are going to execute works in the framework of the Grensmaas project gives rise to a public works contract in the meaning of the applicable Union public procurement directives: such a contract should consequently be awarded in conformity with Union legislation. The Commission does not dispose of any data according to which one can conclude that the Grensmaas project has been delayed because of the ongoing infringement procedure. On the basis of the information available, it rather appears that this project is scheduled to be completed by 2022 and that the competent authorities do not foresee its execution to start before 2005. A tendering procedure as foreseen by European public procurement legislation usually takes no more than six months. |
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2.

On the basis of a large number of complaints, the Commission has opened an infringement procedure with regard to the Grensmaas project and has sent a letter of formal notice to the Dutch government on 2 May 2003. In this letter of formal notice, the Commission explains that it considers that the relationship between the Dutch authorities and those who are going to execute works in the framework of the Grensmaas project gives rise to a public works contract in the meaning of the applicable Union public procurement directives: such a contract should consequently be awarded in conformity with Union legislation. The Commission does not dispose of any data according to which one can conclude that the Grensmaas project has been delayed because of the ongoing infringement procedure. On the basis of the information available, it rather appears that this project is scheduled to be completed by 2022 and that the competent authorities do not foresee its execution to start before 2005. A tendering procedure as foreseen by European public procurement legislation usually takes no more than six months.

| 3. | As said in point 2, the Commission's concerns relate to the modalities of awarding the works at stake. In the above-mentioned letter of formal notice, the Commission considers that the Grensmaas project entails a public works contract which should be awarded in conformity with European public procurement directives. Furthermore, the Commission underlines that, even if the contract were to be considered as a concession, it should be awarded to the private partner in accordance with European law, i.e. in full compliance with the Treaty principles of non-discrimination, transparency and equality of treatment which impose on any awarding body the duty to carry out tendering procedures in a transparent manner, by ensuring adequate publicity thereof. |
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3.

As said in point 2, the Commission's concerns relate to the modalities of awarding the works at stake. In the above-mentioned letter of formal notice, the Commission considers that the Grensmaas project entails a public works contract which should be awarded in conformity with European public procurement directives. Furthermore, the Commission underlines that, even if the contract were to be considered as a concession, it should be awarded to the private partner in accordance with European law, i.e. in full compliance with the Treaty principles of non-discrimination, transparency and equality of treatment which impose on any awarding body the duty to carry out tendering procedures in a transparent manner, by ensuring adequate publicity thereof.

| 4. | The Commission does not dispose of any specific elements allowing it to respond to this question. However, the aim of tendering procedures is to guarantee that public contracts are awarded to the tenderer submitting the best bid, i.e. to ensure better — and not worse — value for public money. |
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4.

The Commission does not dispose of any specific elements allowing it to respond to this question. However, the aim of tendering procedures is to guarantee that public contracts are awarded to the tenderer submitting the best bid, i.e. to ensure better — and not worse — value for public money.

| 5. | The Commission refers to the response to point 2. The Commission equally underlines that, even if a delay would occur because of the ongoing infringement procedure, such delays are not attributable to the Commission. Article 226 of the EC Treaty foresees such procedures in the case where a Member State has failed to fulfil an obligation under the EC Treaty, this Member State consequently bearing the responsibility for the consequences of this failure. |
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5.

The Commission refers to the response to point 2. The Commission equally underlines that, even if a delay would occur because of the ongoing infringement procedure, such delays are not attributable to the Commission. Article 226 of the EC Treaty foresees such procedures in the case where a Member State has failed to fulfil an obligation under the EC Treaty, this Member State consequently bearing the responsibility for the consequences of this failure.

| 6. | Since the dispatch of the letter of formal notice, the Commission has already met the Dutch authorities twice with a view to finding a solution compatible with public procurement law and taking due account of the importance of the project. Further contacts are due to take place in the near future. |
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6.

Since the dispatch of the letter of formal notice, the Commission has already met the Dutch authorities twice with a view to finding a solution compatible with public procurement law and taking due account of the importance of the project. Further contacts are due to take place in the near future.

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