EUROPEAN COMMISSION Brussels, 9.9.2015 COM(2015) 454 final COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on Public Procurement rules in connection with the current asylum crisis



The European Union currently faces numerous challenges due to a sudden, steeply increased influx of asylum seekers. Not least, Member States have to satisfy adequately and speedily the most immediate needs of the asylum seekers (housing, supplies and services). This Communication provides an overview of the possibilities for public procurers, the contracting authorities , to provide infrastructure (housing) as well as supplies and services of first necessity quickly. European public procurement rules provide all the necessary tools to satisfy those needs, under the provisions of the current Directive 2004/18/EC (the "Directive") as well as under the newest public procurement Directive 2014/24/EU . This directive has to be transposed by 18 April 2016 and is currently only applicable in those Member States, where transposition measures have already entered into force. The Communication is based on Directive 2004/18/EC, but indicates the specificities of Directive 2014/24/EU, where those are relevant in the present circumstances. This Communication does not create any new legislative rules. It reflects the Commission's understanding of the Treaties, the public procurement directives and the case-law of the Court of Justice of the European Union (the Court). It should be noted that, in any event, the binding interpretation of Union law is ultimately the role of the Court. 1.Scope of Union public procurement rules 1.1.Infrastructure - works Infrastructure (i.e. housing) can be provided either by renting existing buildings not requiring extensive adaptations (i.e. works) or by constructing ex novo or refurbishing existing buildings. Renting existing buildings is not subject to public procurement rules (Article 16(a) of the Directive ). Provided it is available, housing can be provided without public procurement procedures by renting existing buildings on the market or by allocating existing public infrastructure (e.g. barracks, schools, sports facilities) to such use. Where it becomes necessary to build ex novo, to refurbish or otherwise adapt existing buildings, Union public procurement rules may be applicable . For the Directive to be applicable, the estimated value of the concrete building/renovation/adaptation project must be equal to or greater than the current threshold of EUR 5 186 000 Euro. This applies to each functionally independent project. A municipality, which plans to implement several different housing schemes, will, in general, calculate the value of each scheme separately in order to decide whether the threshold is reached. It is not allowed to subdivide works projects to prevent their coming within the scope of the Directive (Article 9(3) of the Directive). Below this threshold, national law applies. However, the basic principles of Union law in this area – the principles of non-discrimination on the basis of nationality, equal treatment and transparency – apply, should the concrete project have a certain cross-border interest . 1.2.Supplies The arrival of numerous asylum seekers will also require the urgent provision of supplies (e.g. tents, containers, clothes, blankets, beds, food). The Directive will apply to all supply contracts awarded by a contracting authority , provided that their estimated value is equal to or greater than the applicable threshold, which can be either EUR 134 000 or EUR 207 000, depending on the nature of the contracting authority . Below these thresholds national law applies. The above-mentioned basic principles of Union law apply under the same conditions as for works contracts. 1.3.Services Finally, the arrival of asylum seekers also requires the procurement of services (e.g. cleaning, health, catering, security). For service contracts the rules of the current Directive and of Directive 2014/24/EU are fundamentally different.

Under Directive 2004/18/EC services are only subject to the Directive in full if they are exhaustively listed. Of these services, bus transport and cleaning services especially might be needed for asylum seekers. For all other services than those exhaustively listed, the Directive only requires ex post transparency and application of the provisions governing technical specifications. Service contracts are subject to the Directive from the same thresholds as supply contracts. In addition, the basic principles of Union law apply to service contracts if they have a certain cross-border interest under the same conditions as for works contracts. Directive 2014/24/EU is, in principle, applicable in full to all services. However, particular procurement rules apply to "social and other specific services", the 'light regime'. The light regime, in the context of providing services to asylum seekers, could be relevant for instance in respect of catering, health and social services. Some services are completely excluded from the application of Directive 2014/24/EU. This applies to rescue and ambulance services under certain conditions. In general, Directive 2014/24/EU will be applicable from the same threshold as under the previous Directive . For the services subject to the light regime, the applicable threshold has been set at EUR 750 000. The light regime obliges contracting authorities to ensure publicity at EU level both before and after the contract award, and to respect some basic procedural obligations (in particular to ensure the principle of non-discrimination). The procedures for the award of these categories of services will be regulated under national law. The general principles of Union law will apply to these services below the threshold provided that they present a certain cross-border interest . 2.Choice of procedures and deadlines under EU public procurement rules 2.1.General For contracts falling within the scope of the Directive, the contracting authority can choose to award the contract following an open or a restricted procedure (Article 28 of the Directive) . The minimum deadline to submit an offer in an open procedure is of 52 days, but it can be reduced to 40 days by using electronic means (Article 38 of the Directive). In a restricted procedure, the general deadlines are 37 days to submit a request for participation and an additional 40 days to submit a tender after selection by the contracting authority of those admitted to submit a tender (Article 38(3) of the Directive; these deadlines may be set at respectively 30 and 35 days where electronic means are used). For open procedures subject to Directive 2014/24/EU, a deadline of 35 days for the submission of tenders will apply. In the case of restricted procedures, Directive 2014/24/EU foresees a deadline of 30 days for the submission of requests to participate followed by an additional deadline of 30 days for the presentation of tenders. This last deadline may, where the national legislation has implemented this option, be agreed between sub-central contracting authorities, such as regional or local authorities, and the participants; if an agreement cannot be reached, then a minimum deadline of 10 days may be applied. 2.2.Urgency If urgency requires it, the Directive foresees a substantial reduction of the general deadlines. In this case, contracting authorities can choose an "accelerated restricted procedure", in which the deadlines to submit a request for participation are 15 days and to submit an offer 10 days . This allows for a speedy award of the contract. Directive 2014/24/EU maintains this procedure and introduces in addition an “accelerated open procedure”, by providing that the deadline for the submission of tenders may be reduced to 15 days in cases of duly justified urgency. Using an "accelerated restricted procedure" means applying a minimum of equal treatment and transparency, making it possible to ensure some competition even in cases of urgency. In many cases, it might be possible to award the necessary contracts using such "accelerated restricted procedures" (or, under Directive 2014/24/EU, “accelerated open procedures”). 3.Negotiated procedure without publication in cases of extreme urgency With the "negotiated procedure without publication", Union law provides an additional tool, which will allow awarding contracts to provide for the asylum seekers' need also in the most urgent cases. Contracting authorities may award public contracts by a negotiated procedure without publication "insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities in question, the time limit for the open, restricted or negotiated procedures with publication cannot be complied with. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authority." (Article 31(1)(c) of the Directive ). As contracting authorities derogate in this case from the basic principle of the Treaty concerning transparency, the European Court of Justice requires that the use of this procedure remains exceptional. All the conditions have to be met cumulatively and they have to be interpreted restrictively (see, for instance cases C-275/08, Commission v Germany, and C-352/12, Consiglio Nazionale degli Ingegneri). A "negotiated procedure without publication" allows contracting authorities to negotiate directly with potential contractors; it does not allow for a direct award to a preselected economic operator unless only one will be able to deliver within the technical and time constraints imposed by the extreme urgency. Each contracting authority will have to evaluate whether the conditions for using such a "negotiated procedure without prior publication" are met. It will have to justify its choice of such a procedure in an individual report. In the individual assessment of each case the following cumulative criteria will have to be fulfilled: 3.1."Events unforeseeable by the contracting authority in question" In many Member States, the number of persons seeking asylum has increased significantly over a relatively short period.