1992L0013 — EN — 01.01.1995 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCILDIRECTIVE92/13/EEC
of25February1992
coordinating the laws, regulations and administrative provisions relating to the application of
Communityrulesontheprocurementproceduresofentitiesoperatinginthewater,energy,trans-
portandtelecommunications sectors
(OJ L 76, 23.3.1992, p. 14)
Amended by:
Official Journal
No page date
►A1Act of Accession of Austria, Sweden and Finland C241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
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COUNCILDIRECTIVE92/13/EEC
of25February1992
coordinating the laws, regulations and administrative provisions
relatingtotheapplicationofCommunityrulesontheprocurementproceduresofentitiesoperatinginthewater,energy,transportand
telecommunications sectors
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European EconomicCommunity, and in particular Article 100a thereof,
Having regard to the proposal from the Commission(
1),
In cooperation with the European Parliament(2),
Having regard to the opinion of the Economic and Social
Committee(3),
Whereas Council Directive 90/531/EEC of 17 September 1990 on the
procurement procedures of entities operating in the water, energy,
transport and telecommunications sectors(4) lays down rules for
procurement procedures to ensure that potential suppliers and contrac-tors have a fair opportunity to secure the award of contracts, but doesnot contain any specific provisions ensuring its effective application;
Whereas the existing arrangements at both national and Community
levels for ensuring its application are not always adequate;
Whereas the absence of effective remedies or the inadequacy of
existing remedies could deter Community undertakings from submit-ting tenders; whereas, therefore, the Member States must remedy this
situation;
Whereas Council Directive 89/665/EEC of 21 December 1989 on the
coordination of the laws, regulations and administrative provisionsrelating to the application of review procedures to the award of publicsupply and public works contracts(
5) is limited to contract award
procedures within the scope of Council Directive 71/305/EEC of 26
July 1971 concerning the coordination of procedures for the award ofpublic works contracts(
6), as last amended by Directive 90/531/EEC,
and Council Directive 77/62/EEC of 21 December 1976 coordinatingprocedures for the award of public supply contracts(
7), as last amended
by Directive 90/531/EEC;
Whereas the opening-up of procurement in the sectors concerned to
Community competition implies that provisions must be adopted toensure that appropriate review procedures are made available tosuppliers or contractors in the event of infringement of the relevant
Community law or national rules implementing that law;
Whereas it is necessary to provide for a substantial increase in the
guarantees of transparency and non-discrimination and whereas, for itto have tangible effects, effective and rapid remedies must be available;
Whereas account must be taken of the specific nature of certain legal
orders by authorizing the Member States to choose between the intro-
duction of different powers for the review bodies which haveequivalent effects;
Whereas one of these options includes the power to intervene directly
in the contracting entities' procurement procedures such as by1992L0013 — EN — 01.01.1995 — 001.001 — 2
(1) OJ No C 216, 31. 8. 1990, p. 8; and
OJ No C 179, 10. 7. 1991, p. 18.
(2) OJ No C 106, 22. 4. 1991, p. 82 and
OJ No C 39, 17. 2. 1992.
(3) OJ No C 60, 8. 3. 1991, p. 16.
(4) OJ No L 297, 29. 10. 1990, p. 1.
(5) OJ No L 395, 30. 12. 1989, p. 33.
(6) OJ No L 185, 16. 8. 1971, p. 5.
(7) OJ No L 13, 15. 1. 1977, p. 1.
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suspending them, or by setting aside decisions or discriminatory
clauses in documents or publications;
Whereas the other option provides for the power to exert effective
indirect pressure on the contracting entities in order to make them
correct any infringements or prevent them from committing infringe-
ments, and to prevent injury from occurring;
Whereas claims for damages must always be possible;Whereas, where a claim is made for damages representing the costs of
preparing a bid or of participating in an award procedure, the personmaking the claim is not be required, in order to obtain the reimburse-ment of his costs, to prove that the contract would have been awardedto him in the absence of such infringement;
Whereas the contracting entities which comply with the procurement
rules may make this known through appropriate means; whereas this
requires an examination, by independent persons, of procurementprocedures and practices applied by those entities;
Whereas for this purpose an attestation system, allowing for a declara-
tion on the correct application of the procurement rules, to be made innotices published in the Official Journal of the European Communities ,
is appropriate;
Whereas the contracting entities should have the opportunity of having
recourse to the attestation system if they so wish; whereas the Member
States must offer them the possibility of doing so; whereas they can doso either by setting upthe system themselves or by allowing thecontracting entities to have recourse to the attestation system estab-lished by another Member State; whereas they may confer the task ofcarrying out the examination under the attestation system to persons,
professions or staff of institutions;
Whereas the necessary flexibility in the introduction of such a system
is guaranteed by laying down the essential requirements for it in thisDirective; whereas operational details should be provided in EuropeanStandards to which this Directive refers;
Whereas the Member States may need to determine operational details
prior to, or in addition to, the rules contained in European Standards;
Whereas, when undertakings do not seek review, certain infringements
may not be corrected unless a specific mechanism is put in place;
Whereas, accordingly, the Commission, when it considers that a clear
and manifest infringement has been committed during a contract award
procedure, should be able to bring it to the attention of the competent
authorities of the Member State and of the contracting entity concernedso that appropriate steps are taken for the rapid correction of thatinfringement;
Whereas it is necessary to provide for the possibility of conciliation at
Community level to enable disputes to be settled amicably;
Whereas the application in practice of this Directive should be
reviewed at the same time as that of Directive 90/531/EEC on the basis
of information to be supplied by the Member States concerning the
functioning of the national review procedures;
Whereas this Directive must be brought into effect at the same time as
Directive 90/531/EEC;
Whereas it is appropriate that the Kingdom of Spain, the Hellenic
Republic and the Portuguese Republic are granted adequate additionalperiods to transpose this Directive, taking account of the dates of appli-cation of Directive 90/531/EEC in those countries,1992L0013 — EN — 01.01.1995 — 001.001 — 3
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HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
Remediesatnationallevel
Article 1
1. The Member States shall take the measures necessary to ensure
that decisions taken by contracting entities may be reviewed effectivelyand, in particular, as rapidly as possible in accordance with the condi-
tions set out in the following Articles and, in particular, Article 2 (8),
on the grounds that such decisions have infringed Community law inthe field or procurement or national rules implementing that law asregards:
(a) contract award procedures falling within the scope of Council
Directive 90/531/EEC; and
(b) compliance with Article 3 (2) (a) of that Directive in the case of
the contracting entities to which that provision applies.
2. Member States shall ensure that there is no discrimination
between undertakings likely to make a claim for injury in the contextof a procedure for the award of a contract as a result of the distinctionmade by this Directive between national rules implementing Commu-
nity law and other national rules.
3. The Member States shall ensure that the review procedures are
available, under detailed rules which the Member States may establish,at least to any person having or having had an interest in obtaining aparticular contract and who has been or risks being harmed by analleged infringement. In particular, the Member States may requirethat the person seeking the review must have previously notified the
contracting entity of the alleged infringement and of his intention to
seek review.
Article 2
1. The Member States shall ensure that the measures taken
concerning the review procedures specified in Article 1 include provi-sion for the powers:
either
(a) to take, at the earliest opportunity and by way of interlocutory
procedure, interim measures with the aim of correcting the allegedinfringement or preventing further injury to the interests concerned,including measures to suspend or to ensure the suspension of the
procedure for the award of a contract or the implementation of
any decision taken by the contracting entity; and
(b) to set aside or ensure the setting aside of decisions taken unlaw-
fully, including the removal of discriminatory technical, economic
or financial specifications in the notice of contract, the periodic
indicative notice, the notice on the existence of a system of quali-fication, the invitation to tender, the contract documents or in anyother document relating to the contract award procedure in ques-tion;
or
(c) to take, at the earliest opportunity, if possible by way of interlocu-
tory procedures and if necessary by a final procedure on thesubstance, measures other than those provided for in points (a)and (b) with the aim of correcting any identified infringement andpreventing injury to the interests concerned; in particular, making
an order for the payment of a particular sum, in cases where the
infringement has not been corrected or prevented.
Member States may take this choice either for all contracting enti-
ties or for categories of entities defined on the basis of objectivecriteria, in any event preserving the effectiveness of the measures1992L0013 — EN — 01.01.1995 — 001.001 — 4
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laid down in order to prevent injury being caused to the interests
concerned;
(d) and, in both the above cases, to award damages to persons injured
by the infringement.
Where damages are claimed on the grounds that a decision has been
taken unlawfully, Member States may, where their system of internallaw so requires and provides bodies having the necessary powers forthat purpose, provide that the contested decision must first be set asideor declared illegal.
2. The powers referred to in paragraph 1 may be conferred on sepa-
rate bodies responsible for different aspects of the review procedure.
3. Review procedures need not in themselves have an automatic
suspensive effect on the contract award procedures to which they
relate.
4. The Member States may provide that, when considering whether
to order interim measures, the body responsible may take into account
the probable consequences of the measures for all interests likely to beharmed, as well as the public interest, and may decide not to grant suchmeasures where their negative consequences could exceed their bene-fits. A decision no to grant interim measures shall not prejudice any
other claim of the person seeking these measures.
5. The sum to be paid in accordance with paragraph 1 (c) must be
set at a level high enough to dissuade the contracting entity from
committing or persisting in an infringement. The payment of that summay be made to depend upon a final decision that the infringenemt hasin fact taken place.
6. The effects of the exercise of the powers referred to in paragraph
1 on a contract concluded subsequent to its award shall be determinedby national law. Furthermore, except where a decision must be set
aside prior to the award of damages, a Member State may provide
that, after the conclusion of a contract following its award, the powersof the body responsible for the review procedures shall be limited toawarding damages to any person harmed by an infringement.
7. Where a claim is made for damages representing the costs of
preparing a bid or of participating in an award procedure, the personmaking the claim shall be required only to prove an infringement ofCommunity law in the field of procurement or national rules imple-
menting that law and that he would have had a real chance of
winning the contract and that, as a consequence of that infringement,that chance was adversely affected.
8. The Member States shall ensure that decisions taken by bodies
responsible for review procedures can be effectively enforced.
9. Whereas bodies responsible for review procedures are not judicial
in character, written reasons for their decisions shall always be given.Furthermore, in such a case, provision must be made to guaranteeprocedures whereby any allegedly illegal measures taken by the review
body or any alleged defect in the exercise of the powers conferred on it
can be the subject of judicial review or review by another body whichis a court or tribunal within the meaning of Article 177 of the Treatyand independent of both the contracting entity and the review body.
The members of the independent body referred to in the first paragraph
shall be appointed and leave office under the same conditions asmembers of the judiciary as regards the authority responsible for their
appointment, their period of office, and their removal. At least the
Presidentt of this independent body shall have the same legal andprofessional qualifications as members of the judiciary. The indepen-dent body shall take its decisions following a procedure in which bothsides are heard, and these decisions shall, by means determined by eachMember State, be legally binding.1992L0013 — EN — 01.01.1995 — 001.001 — 5
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CHAPTER 2
Attestation
Article 3
The Member States shall give contracting entities the possibility of
having recourse to an attestation system in accordance with Articles 4
to 7.
Article 4
Contracting entities may have their contract award procedures and
practices which fall within the scope of Directive 90/531/EEC exam-
ined periodically with a view to obtaining an attestation that, at that
time, those procedures and practices are in conformity with Communitylaw concerning the award of contracts and the national rules imple-menting the law.
Article 5
1. Attestors shall report to the contracting entity, in writing, on the
results of their examination. They shall satisfy themselves, before deli-vering to the contracting entity the attestation referred to in Article 4,that any irregularities identified in the contracting entity's award proce-dures and practices have been corrected and measures have been taken
to ensure that those irregularities are not repeated.
2. Contracting entities having obtained that attestation may include
the following statement in notice published in the Official Journal of
the European Communities pursuant to Articles 16 to 18 of Directive
90/531/EEC:
‘The contracting entity has obtained an attestation in accordance
with Council Directive 92/13/EEC that, on …, its contract awardprocedures and practices were in conformity with Community law
and the national rules implementing that law.’
Article 6
1. Attestors shall be independent of the contracting entities and must
be completely objective in carrying out their duties. They shall offer
appropriate guarantees of relevant professional qualifications and
experience.
2. Member States may identify any persons, professions or institu-
tions whose staff, called upon the act as attestors, they regard as
fulfilling the requirements of paragraph 1. For these purposes, Member
States may require professional qualifications, at least at the level of ahigher education diploma within the meaning of Directive 89/48/EEC(
1), which they regard as relevant, or provide that particular exam-
inations of professional competence organized or recognized by theState offer such guarantees.
Article 7
The provisions of Articles 4, 5 and 6 shall be considered as essential
requirements for the development of European standards on attestation.
CHAPTER 3
Corrective mechanism
Article 8
1. The Commission may invoke the procedures for which this
Article provides when, prior to a contract being concluded, it considersthat a clear and manifest infringement of Community provisions in thefield of procurement has been committed during a contract award1992L0013 — EN — 01.01.1995 — 001.001 — 6
(1) OJ No L 19, 24. 1. 1989, p. 16.
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procedure fallig within the scope of Directive 90/531/EEC or in rela-
tion to Article 3 (2) (a) of that Directive in the case of the contractingentities to which that provision applies.
2. The Commission shall notify the Member States and the
contracting entity concerned of the reasons which have led it to
conclude that a clear and manifest infringement has been committed
and request its correction by appropriate means.
3. Within 30 days of receipt of the notification referred to in para-
graph 2, the Member States concerned shall communicate to theCommission:
(a) its confirmation that the infringement has been corrected; or
(b) a reasoned submission as to why no correction has been made; or
(c) a notice to the effect that the contract award procedure has been
suspended either by the contracting entity on its own initiative or
on the basis of the powers specified in Article 2 (1) (a).
4. A reasoned submission in accordance with paragraph 3 (b) may
rely among other matters on the fact that the alleged infringement is
already the subject of judicial review proceedings or of a review asreferred to in Article 2 (9). In such a case, the Member State shallinform the Commission of the result of those proceedings as soon asit becomes known.
5. Where notice has been given that a contract award procedure has
been suspended in accordance with paragraph 3 (c), the Member State
concerned shall notify the Commission when the suspension is lifted or
another contract procedure relating in whole or in part to the samesubject matter is begun. That new notification shall confirm that thealleged infringement has been corrected or include an reasoned submis-sion as to why no correction has been made.
CHAPTER 4
Conciliation
Article 9
1. Any person having or having had an interest in obtaining a parti-
cular contract falling within the scope of Directive 90/531/EEC andwho, in relation to the procedure for the award of that contract,considers that he has been or risks being harmed by an alleged infrin-gement of Community law in the field of procurement or national rulesimpelementing that law may request the application of the conciliation
procedure provided for in Articles 10 and 11.
2. The request referred to in paragraph 1 shall be addressed in
writing to the Commission or to the national authorities listed in the
Annex. These authorities shall forward requests to the Commission asquickly as possible.
Article 10
1. Where the Commission considers, on the basis of the request
referred to in Article 9, that the dispute concerns the correct application
of Community law, it shall ask the contracting entity to state whether itis willing to take part in the conciliation procedure. If the contractingentity declines to take part, the Commission shall inform the personwho made the request that the procedure cannot be initiated. If the
contracting entity agrees, paragraphs 2 to 7 shall apply.
2. The Commission shall propose, as quickly as possible, a conci-
liator drawn from a list of independent persons accredited for this
purpose. This list shall be drawn up by the Commission, followingconsultation of the Advisory Committee for Public Contracts or, in thecase of contracting entities the activities of which are defined in Article2 (2) (d) of Directive 90/531/EEC, following consultation of the Advi-sory Committee on Telecommunications Procurement.1992L0013 — EN — 01.01.1995 — 001.001 — 7
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Each party to the conciliation procedure shall declare whether it
accepts the conciliator, and shall designate an additional conciliator.The conciliators may invite not more than two other persons as experts
to advices them in their work. The parties to the conciliation procedure
and the Commission may reject any expert invited by the conciliators.
3. The conciliators shall give the person requesting the application
of the conciliation procedure, the contracting entity and any other
candidate or tenderer participating in the relevant contract award proce-
dure the opportunity to make representations on the matter either orallyor in writing.
4. The conciliators shall endeavour as quickly as possible to reach
an agreement between the parties which is in accordance with Commu-
nity law.
5. The conciliators shall report to the Commission on their findings
and on any result achieved.
6. The person requesting the application of the concilation procedure
and the contracting entity shall have the right to terminate the proce-
dure at any time.
7. Unless the parties decide otherwise, the person requesting the
application of the conciliation procedure and the contracting entityshall be responsible for their own costs. In addition, they shall each
bear half of the costs of the procedure, excluding the costs of inter-
vening parties.
Article 11
1. Where, in relation to a particular contract award procedure, an
interested person within the meaning of Article 9, other than the person
requesting the conciliation procedure, is pursuing judicial review
proceedings or other proceedings for review within the meaning ofthis Directive, the contracting entity shall inform the conciliators.These shall inform that person that a request has been made to applythe conciliation procedure and shall invite that person to indicatewithin a given time limit whether he agrees to participate in that proce-
dure. If that person refuses to participate, the conciliators may decide,
acting if necessary by a majority, to terminate the conciliation proce-dure if they consider that the participation of this person is necessaryto resolve the dispute. They shall notify their decision to theCommittee and give the reasons for it.
2. Action taken pursuant to this Chapter shall be without prejudice
to:
(a) any action that the Commission or any Member State might take
pursuant ot Articles 169 or 170 of the Treaty or pursuant to
Chapter 3 of this Directive;
(b) the rights of the persons requesting the conciliation procedure, of
the contracting entity or of any other person.
CHAPTER 5
Finalprovisions
Article 12
1. Not later than four years after the application of this Directive,
the Commission, in consultation with the Advisory Committee forPublic Contracts, shall review the manner in which the provisions ofthis Directive have been implemented and, in particular, the use of theEuropean Standards and, if necessary, make proposals for amendments.
2. Before 1 March each year the Member States shall communicate
to the Commission information on the operation of their nationalreview procedures during the preceding calendar year. The nature ofthe information shall be determined by the Commission in consultationwith the Advisory Committee for Public Contracts.1992L0013 — EN — 01.01.1995 — 001.001 — 8
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3. In the case of matters relating to contracting entities the activities
of which are defined in Article 2 (2) (d) of Directive 90/531/EEC, theCommission shall also consult the Advisory Committee on Telecom-
munications Procurement.
Article 13
1. Member States shall take, before 1 January 1993, the measures
necessary to comply with this Directive. The Kingdom of Spain shalltake these measures not later than 30 June 1995. The Hellenic Republicand the Portuguese Republic shall take these measures not later than 30June 1997. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain an refer-
ence to this Directive or shall be accompanied by such reference on the
occasion of their official publication. The methods of making such a
reference shall be laid down by the Member States.
2. Member States shall bring into force the measures referred to in
paragraph 1 on the same dates as those (laid down in Directive 90/531/EEC).
3. Member States shall communicate to the Commission the texts of
the main provisions of domestic law which they adopt in the field
governed by this Directive.
Article 14
This Directive is addressed to the Member States.1992L0013 — EN — 01.01.1995 — 001.001 — 9
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ANNEX
National authorities to which requests for application of the conciliation
procedurereferred toinArticle9maybeaddressed
Belgium
Services du Premier Ministre
Diensten Van de Eerste Minister
Ministère des Affaires économiquesMinisterie van Economische Zaken
Denmark
Industri- og Handelsstyrelsen (supply contracts)
Boligsministeriet (works contracts)
Germany
Bundesministerium für Wirtschaft
Greece
ΥπουργείοΒιοµηχανίας,ΕνεργείαςκαιΤεχνολογίαςΥπουργείοΕµπορίουΥπουργείοΠεριβάλλοντος,Χωροταξίαςκαι∆ηµο-
σίωνΈργων
Spain
Ministerio de Economía y Hacienda
France
Commission centrale des marchés
Ireland
Department of Finance
Italy
Presidenza del Consiglio dei Ministri Politiche Comunitarie
Luxembourg
Ministère des travaux publics
Netherlands
Ministerie van Economische Zaken
Portugal
Conselho de mercados de obras publicas e particulares
United Kingdom
HM Treasury
Austria
Bundesministerium für wirtschaftliche Angelegenheiten
Finland
Kauppa- ja teollisuusministeriö — Handels- och industriministeriet
Sweden
Nämnden för offentlig upphandling1992L0013 — EN — 01.01.1995 — 001.001 — 10
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