NoC 179/18 Official Journal of the European Communities 10.7. 91 
Amended proposal for a Council Directive coordinating the laws, regulations and administrative 
provisions relating to the application of Community rules on the procurement procedures of 
entities operating in the water, energy, transport and telecommunications sectors 
(91/C 179/10) 
COM(91) 158 final — SYN 292 
(Submitted by the Commission pursuant to Article 149 (3) of the EEC Treaty on 4 June 1991) 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Article 100a 
thereof, public works contracts (5), as last amended by Directive 
89/440/EEC ('), and Council Directive 77/62/EEC of 
21 December 1976 coordinating procedures for the 
award of public supply contracts (7), as last amended by 
Directive 89/295/EEC (8); 
Having regard to the proposal from the Commission ('), 
In cooperation with the European Parliament, Whereas the opening-up of procurement in the sectors 
concerned to Community competition necessitates 
measures concerning remedies available to suppliers or 
contractors in case of violation of the rules; whereas it is 
also necessary to ensure that there is general evidence of 
compliance with the rules, in order to build up 
confidence in correct application of the rules; 
Having regard to the opinion of the Economic and 
Social Committee (2), 
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 (3), does not contain any 
specific provisions ensuring its effective application; 
Whereas the existing arrangements at both national and 
Community levels for ensuring its application are 
inadequate; Whereas with regard to remedies it is necessary to 
provide for a substantial increase in the guarantees of 
transparency and non-discrimination and whereas, for it 
to have tangible effects, effective and rapid remedies 
must be available in the case of infringements of 
Community law in the field or national rules 
implementing that law; 
Whereas account must be taken of the specific nature of 
certain legal orders by authorizing the Member States to 
choose between the introduction of different powers for 
the review bodies which have equivalent effects; 
Whereas in certain Member States the absence of 
effective remedies or inadequacy of existing remedies 
deter Community undertakings from submitting tenders 
in such Member States; whereas, therefore, the Member 
States concerned must remedy this situation; Whereas one of these options includes the powers to 
directly intervene in the contracting entities' procurement 
procedures such as by suspending them, or by setting 
aside decisions or discriminatory clauses in documents or 
publications; 
Whereas Council Directive 89/665/EEC of 21 
December 1989 on the application of review procedures 
to the award of public supply and public works 
contracts (4) is limited to contract award procedures 
within the scope of Council Directive 71/305/EEC of 26 
July 1971 coordinating procedures for the award of 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 infringements; 
(1) OJ No C 216, 31. 8. 1990, p. 8. 
(2) OJ No C 60, 8. 3. 1991, p. 16. 
(3) OJ No L 297, 29. 10. 1990, p. 1. 
(4) OJ No L 395, 30. 12. 1989, p. 33. (') OJ No L 185, 16. 8. 1971, p. 5. 
(*) OJ No L 210, 21. 7. 1989, p. 1. 
O OJ No L 13, 15. 1. 1977, p. 1. 
(») OJ No L 127, 20. 5. 1988, p. 1. 
10. 7. 91 Official Journal of the European Communities No C 179/19 
Whereas claims for damages must always be possible; 
whereas such claims are in general subject to national 
law; 
Whereas the fact must be taken into account that the EC 
procurement rules grant the right of a fair chance to 
suppliers and contracts; whereas violations of that right 
must be compensated by reimbursement of costs 
incurred; 
Whereas general evidence of compliance with the 
procurement rules requires a regular examination, by 
independent persons, of procurement procedures and 
practices applied by the contracting entities; 
Whereas for this purpose an attestation system, leading 
to certificates available to interested parties, is appro­
priate; 
Whereas the Member States may confer the responsi­
bility for the execution of the examination to govern­
mental authorities, or leave it to private persons; 
Whereas the necessary flexibility in the introduction of 
such a system is guaranteed by laying down the essential 
requirements for it in this Directive; whereas in order to 
allow the attestation system to be used beyond the field 
of application of this Directive, operational details 
should be provided in European standards to which this 
Directive refers; 
Whereas the Member States may need to determine such 
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 auth­
orities of the Member State and of the contracting entity 
concerned so that appropriate steps are taken for ^the 
rapid correction of that infringement; 
Whereas it is necessary to provide for the possibility of 
non-litigious conciliation at Community level to enable 
disputes to be settled amicably; 
Whereas the application in practice of the provisions of 
this Directive should be reviewed at the same time as 
that of Directive 90/531/EEC on the basis of infor­
mation to be supplied by the Member States concerning 
the functioning of the national review procedures, HAS ADOPTED THIS DIRECTIVE: 
CHAPTER 1 
Remedies at national level 
Article 1 
1. The Member States shall take the measures 
necessary to ensure that decisions taken by contracting 
entities may be reviewed effectively and, in particular, as 
rapidly as possible in accordance with the conditions set 
out in the following Articles and, in particular, Article 2 
(9), on the grounds that such decisions have infringed 
Community law in the field of procurement or national 
rules implementing that law as regards: 
(a) contract award procedures falling within the scope of 
Directive 90/531/EEC; and 
(b) respect for 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 claiming injury in 
the context of a procedure for the award of a contract as 
a result of the distinction made by this Directive between 
national rules implementing Community 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 a particular 
contract and who has been or risks being harmed by an 
alleged infringement. In particular, the Member States 
may require that 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 provision for the powers at least: 
either 
(a) to take, at the earliest opportunity and by way of 
interlocutory procedures, interim measures with the 
aim of correcting the alleged infringement or 
preventing further damage 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; 
No C 179/20 Official Journal of the European Communities 10.7.91 
(b) to set aside or ensure the setting aside of decisions 
taken unlawfully, including the removal of discrimi­
natory technical, economic or financial specifications 
in the contract notices, periodic indicative notices, 
notices on the existence of a qualification system, the 
invitation to tender, the contract documents or in 
any other document relating to the contract award 
procedure; 
or 
(c) to take, at the earliest opportunity, where necessary 
by way of interlocutory procedure, other measures 
with the aim of correcting the infringement or 
preventing further damage to the interests 
concerned, in particular the power to make an order 
for the payment of a given sum of money in the 
event that the infringement is not corrected or 
avoided; 
and (for either of the above alternatives) 
(d) to award damages to persons harmed by an 
infringement. 
The Member States may exercise this choice either for 
all contracting entities or for categories of contracting 
entities which are defined by objective criteria. 
2. The powers specified in paragraph 1 may be 
conferred on separate 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 conse­
quences of the measures for all interests likely to be 
harmed, as well as the public interest, and may decide 
not to grant such measures where their negative conse­
quences could exceed their benefits. A decision not to 
grant interim measures shall not prejudice any other 
claim of the person seeking these measures. 
5. The sum of money referred to in paragraph 1 (c) 
shall be fixed at the necessary level for dissuading the 
contracting entity from committing or continuing the 
infringement, taking account, as appropriate, of the 
value of the contract and the turnover of the contracting 
entity. It shall at least represent one percent of the value 
of the contract. The payment may be made conditional 
on a final decision being reached to the effect that the 
infringement has been committed. 6. The Member States may provide that where 
damages are claimed on the grounds that a decision was 
taken unlawfully, the contested decision must first be set 
aside or declared illegal by a body having the necessary 
powers. 
7. The effects of the exercise of the powers referred to 
in paragraph 1 on a contract concluded subsequent to its 
award shall be determined by 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 powers of the body responsible for the review 
procedures shall be limited to awarding damages to any 
person harmed by an infringement. 
8. Where a claim is made for damages representing 
the costs of preparing a bid or of participating in an 
award procedure, the person making the claim shall be 
required to prove the infringement of Community law in 
the field of procurement or national rules implementing 
that law and that the infringement adversely affected his 
chance of being awarded the contract. He shall not be 
required to prove that, in the absence of the 
infringement, he would have been awarded the contract. 
9. The Member States shall ensure that decisions 
taken by bodies responsible for review procedures can be 
effectively enforced. 
10. Where 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 guarantee procedures 
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 which is a court or 
tribunal within the meaning of Article 177 of the Treaty 
and independent of both the contracting entity and the 
review body. 
The members of the independent body shall be 
appointed and leave office under the same conditions as 
members of the judiciary as regards the authority 
responsible for their appointment, their period of office, 
and their removal. At least the president of this inde­
pendent body shall have the same legal and professional 
qualifications as members of the judiciary. The inde­
pendent body shall take its decisions following a 
procedure in which both sides are heard, and these 
decisions shall, by means determined by each Member 
State, be legally binding. 
10. 7. 91 Official Journal of the European Communities No C 179/21 
CHAPTER 2 
Attestation system 
Article 3 
The Member States shall take the measures necessary to 
ensure the introduction, operation and supervision of an 
attestation system in accordance with the provisions of 
Articles 4 to 8. 
Article 4 
Without prejudice to the remedies provided in chapter 1, 
contracting entities whose contract award procedures fall 
within the scope of Directive 90/531/EEC shall, at least 
once a year, have their purchasing procedures and 
practices examined by an attestor. This examination shall 
seek to establish, in accordance with any relevant 
European standards, whether the purchasing procedures 
and practices of the contracting entities are in 
conformity with national and Community law 
concerning the award of contracts and thereby give 
potential suppliers and contractors a fair opportunity to 
secure the award of contracts. 
Article 5 
1. Attestors shall report in writing, in accordance with 
any relevant European standards, on the results of their 
examination. 
2. The report shall contain, as appropriate: 
either 
(a) an attestation that the purchasing procedures and 
practices of the contracting entities give potential 
suppliers and contractors a fair opportunity to secure 
the award of contracts; 
or 
(b) observations concerning any infringements of 
national or Community law concerning the award of 
contracts and a description of deficiencies in existing 
purchasing procedures and practices which are such 
as to make the attestation in sub-paragraph (a) inap­
propriate. In this case, the report shall also contain a 
description of action needed to prevent their repe­
tition. 
3. The contracting entities shall communicate the 
report to: (b) any competent authority designated by the Member 
State by the law of which the contracting entity is 
governed; 
(c) the Commission. 
On the basis of these reports the Commission may 
publish periodic summary reports in the Official Journal 
of the European Communities. 
Article 6 
The Member States shall provide that attestors shall be 
appointed to office: 
— either by an authority, independent of the 
contracting entities and designated for this purpose, 
— or by the contracting entities themselves, subject to 
the prior approval of such a competent authority. 
Article 7 
Attestors, who shall be independent of the contracting 
entities and of bidders which have participated in award 
procedures of the contracting entities during the period 
covered by the attestation, shall be accredited by a 
competent authority, itself independent of the 
contracting entities and designated for this purpose by a 
Member State. The competent authority shall ensure that 
accredited attestors: 
(a) are holders of a higher education diploma within 
the meaning of Article 1 of Council Directive 
89/48/EECO; 
(b) offer appropriate guarantees of professional qualifi­
cations and specific expertise in this sector; 
(c) have passed an examination of professional 
competence organized or recognized by the State; 
(d) are in conformity with the requirements of any 
relevant European standards. 
Article 8 
Taking account of the provisions of this chapter and of 
the European standards referred to in Articles 4, 5 (1) 
and 7, Member States may establish operational 
provisions on the implementation of the attestation 
system, in particular as regards the manner in which the 
examination is carried out, the form and content of 
the report, and the qualification, accreditation and 
appointment of attestors. 
(a) interested persons, upon their request; (l) OJ No L 19, 24. 1. 1989, p. 16. 
No C 179/22 Official Journal of the European Communities 10.7.91 
CHAPTER 3 
Corrective mechanism 
Article 9 
1. The Commission may invoke the procedures for 
which this Article provides when, prior to a contract 
being concluded, it considers that a clear and manifest 
infringement of Community provisions in the field of 
public procurement has been committed during a 
contract award procedure falling within the scope of 
Directive 90/531/EEC, or in relation to Article 3 (2) (a) 
of that Directive in the case of the contracting entities to 
which that provision applies. 
2. The Commission shall notify the Member State 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. 
3. Within 21 days of receipt of the notification 
referred to in paragraph 2, the Member State concerned 
shall communicate to the Commission: 
(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 or other review proceedings or of a review as 
referred to in Article 2 (10). In such a case, the Member 
State shall inform the Commission of the result of those 
proceedings as soon as it 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 shall notify the 
Commission when the suspension is lifted or another 
contract procedure relating in whole or in part to the 
same subject matter is begun. That notification shall 
confirm that the alleged infringement has been corrected 
or include a reasoned submission as to why no 
correction has been made. CHAPTER 4 
Conciliation 
Article 10 
Any person having or having had an interest in obtaining 
a particular contract falling within the scope of Directive 
90/531 /EEC and who, in relation to the procedure for 
the award of that contract, has been or risks being 
harmed by an alleged infringement of Community law in 
the field of procurement or national rules implementing 
that law may invoke the procedure for which this 
chapter provides by written notification to the 
Commission or to the national authorities of the 
Member States listed in the Annex. 
Article 11 
1. Where the Commission or the national authorities 
of a Member State consider on the basis of a notification 
pursuant to Article 10 that an infringement of 
Community law has occurred, they may seize the 
Advisory Committee for Public Contracts or, in the case 
of contracting entities the activities of which are 
defined in Article 2 (2) (d) of Directive 90/531/EEC, 
the Advisory Committee on Telecommunications 
Procurement. 
2. The Chairman of the committee in question shall 
convoke as rapidly as possible a working group of at 
least two members of the committee and himself or 
another Commission official designated by him. The 
working group shall normally meet within ten working 
days of the seizure of the relevant committee. It may 
decide on a proposal from any of its members to invite 
not more than two other persons as experts to advise it 
in its work. Any other member of the committee may 
attend any meeting of the working group as an observer. 
3. The working group shall give the person invoking 
this procedure, the contracting entity and any other 
candidate or tenderer participating in the contract award 
procedure to which the notification relates the oppor­
tunity to make representations on the matter either orally 
or in writing. 
4. The working group shall endeavour to reach an 
agreement between the parties which is in accordance 
with Community law. 
5. The working group shall report to the committee 
on its findings and any result achieved. 
6. The person invoking the procedure and the 
contracting entity shall bear their own costs of partici­
pating in the procedure. 
10.7.91 Official Journal of the European Communities No C 179/23 
Article 12 
1. Where, in relation to a particular contract award 
procedure, an interested person within the meaning of 
Article 10 other than the person invoking the conciliation 
procedure is pursuing judicial or other review 
proceedings in the sense of this Directive, the contracting 
entity shall inform the working group. The chairman 
shall inform that person that the conciliation procedure 
has been invoked and shall invite that person to indicate 
within a given time limit whether he agrees to participate 
in the conciliation procedure. If that person refuses to 
participate, the working group may decide, acting if 
necessary by majority, to stop the conciliation procedure, 
if it considers that the participation of this person is 
necessary to resolve the dispute. It shall notify its 
decision to the committee and give its reason for so 
doing. 
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 to Articles 169 or 170 of 
the Treaty or pursuant to chapter 3; 
(b) the rights of the person invoking the conciliation 
procedure, of the contracting entity or of any other 
person. 
CHAPTER 5 
Final provisions 
Article 13 
1. Not later than four years after the application of 
this Directive the Commission, in consultation with the 
Advisory Committee for Public Contracts, shall review 
the manner in which the provisions of this Directive have 
been implemented and, if necessary, make proposals for 
amendments. 2. By 1 March each year the Member States shall 
communicate to the Commission information on the 
operation of their national review procedures during the 
preceding calendar year. The nature of the information 
shall be determined by the Commission in consultation 
with the Advisory Committee for Public Contracts. 
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, the Commission shall also 
consult the Advisory Committee on Telecommunications 
Procurement. 
Article 14 
1. Member States shall adopt, before 1 July 1992, the 
measures necessary to comply with this Directive. They 
shall forthwith inform the Commission thereof. 
2. The provisions adopted by Member States shall 
contain a reference to this Directive or be accompanied 
by such a reference at the time of their official publi­
cation. The practical details of this reference shall be 
adopted by the Member States. 
3. Member States shall bring into force the necessary 
measures adopted pursuant to paragraph 1 on the same 
dates as those contained in Directive 90/531/EEC. 
4. Member States shall ensure that the texts of the 
basic provisions of domestic law, whether laws, regu­
lations or administrative provisions, which they adopt to 
implement this Directive, are communicated to the 
Commission. 
Article 15 
This Directive is addressed to the Member States. 
No C 179/24 Official Journal of the European Communities 10. 7. 91 
ANNEX 
National authorities of the Member States to which written notifications may be sent invoking the concil­
iation procedure pursuant to Article 10 
BELGIUM 
Ministere des affaires economiques 
Ministerie van Economische Zaken 
DENMARK 
Indk0bsaftalter: Industri- og Handelsstyrelsen 
Bygge- og anlaegskontrakter: Boligministeriet 
GERMANY 
Bundesministerium fur Wirtschaft 
GREECE 
Ministry of Industry, Energy and Technology 
Ministry of Commerce 
Ministry of the Environment, Planning and Public Works 
SPAIN 
Ministerio de Economia y Hacienda 
FRANCE 
Commission centrale des marches 
IRELAND 
Department of Finance 
ITALY 
Presidenza del Consiglio del ministri — Politiche comunitarie 
LUXEMBOURG 
Ministere des travaux publics 
THE NETHERLANDS 
Ministerie van Economische Zaken 
PORTUGAL 
Ministerio das Obras Publicas, Transportes e CommunicacOes 
Conselho Superior de Obras Publicas, Transportes e CommunicacOes 
UNITED KINGDOM 
HM Treasury