Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL coordinating the procurement procedures of entities operating in the water, energy and transport sectors

(presented by the Commission)

EXPLANATORY MEMORANDUM

I. Introduction 1. In 1996, the Commission published a Green Paper entitled "Public Procurement in the European Union: Exploring the Way Forward" [1], which drew almost 300 responses emanating from various economic sectors, the Member States and institutions.

[1] COM(96) 583 final of 27 November 1996. After analysing these contributions, the Commission mapped out the perspectives for future action in its Communication "Public Procurement in the European Union" [2]. The main theme to emerge from the Green Paper debate is the need to simplify the legal framework [3] and adapt it to the new electronic age while maintaining the stability of its basic structure. The Commission recognised the need to simplify the existing legal framework by clarifying provisions which were obscure or complex and by amending legislation where the problems to be addressed could not be solved through interpretation of the provisions [4]. This is prompted by the same concern about clarification expressed by the Commission in its Communication on Concessions in Community law [5], which does not prejudge any specific legislative proposal on concessions. Moreover, specifically regarding Directive 93/38/EEC, the Commission also undertook to reexamine the scope in order to verify whether it was still appropriate in the light of the gradual liberalisation in those sectors. [2] COM(98) 143 final of 11 March 1998. [3] Directives 93/36/EEC, 93/37/EEC and 92/50/EEC on public supplies, public works and public services (the public sector Directives), as amended by Directive 97/52/EC; Directive 93/38/EEC on procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (the Utilities Directive"), as last amended by Directive 98/4/EC; Directives 89/665/EEC and 92/13/EEC on review procedures (the "Remedies Directives"). [4] Point 2.1.1. [5] Commission Interpretative Communication on Concessions under Community law (2000/C121/02). OJ C 121, p. 2. 2. This proposal meets these objectives. It was announced by the Commission in its Work Programme for 2000 [6]. It falls within the exclusive competence of the Community regarding the recasting of legislation for completion of the Internal Market and is based on Article 95 [7] of the EC Treaty. Moreover, it is in line with the conclusions of the Lisbon European Council calling for economic reforms to achieve the internal market and make it fully operational. [6] COM(2000) 155, 9.2.2000. [7] Ex Article 100a. 3. To facilitate the presentation of the proposal, the amendments are grouped into two parts: -simplification of the Directive; -amendments to the legal framework. The Explanatory Memorandum is followed by analysis of the recitals and of the Articles. II. Simplification - Restructuring And Clarification Of The Directive 1. Restructuring and clarifying the Directive without changing its substance. 1.1. The amendments described in this part do not include any fundamental changes compared with Directive 93/38/EEC [8], as last amended by Article 12 of Directive 94/22/EC [9] and Directive 98/4/EEC [10]. References to the "Directive", the "Sectors Directive", "Directive 93/38/EEC" or the "current Directive" are therefore to be understood as references to Directive 93/38/EEC, as amended. Similarly, references to the "current Article" (or the "current paragraph" or the "current provision") are to be understood as references to the corresponding Article or paragraph or provision in Directive 93/38/EEC, as amended. [8] OJ L 199, 9.8.1993, p. 84. [9] Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons, OJ L 164, 30.6.1994, p. 3. Article 12 inserted Article 3(5) in Directive 93/38/EEC. [10] Directive 98/4/EC of the European Parliament and of the Council of 16 February 1998 amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors. OJ L 101, 1.4.1998, p. 1. 1.2. For the purpose of making the actual structure of the Directive clearer and easier to use, the provisions contained in the Directive have been set out in four Titles: General provisions applicable to contracts and design contests, Specific provisions applicable to contracts, Specific Provisions applicable to Design Contests and Final provisions. The provisions have been restructured, particularly in Title II with regard to the specific rules applicable to contracts, so as to follow logically the course of a contract award procedure, starting with definitions, the entities and activities covered and the scope. Chapters, sections and sub-sections have been introduced to make it easier for the reader. What is more, each title, chapter, section and sub-section and Article has a heading for quicker identification of the provisions sought by the reader. 1.3. When grouping the various provisions together, it was found that the insertion of "introductory" Articles at the start of chapter provided a further aid to comprehension. The introductory provisions do not add any new obligations. Rather, they are intended to explain how Chapters and Articles link up with one another. By way of example, a new Article 14 has been added, explaining that the Directive shall apply where contracting entities award contracts whose value exceeds the stated thresholds, provided that the contracts are not excluded from the scope of the Directive under various Articles, which are then listed in the provision as a guide for the reader. All of this already applies, but there has hitherto been no provision explaining these rules. 1.4. Another element simplifying the Directive is the grouping together in one and the same Article of the specific provisions concerning a given activity. Thus, the provisions relating to water have been grouped together in the new Article 4 (see point IV.4 below), whereas in the current Directive these same provisions are set out in Articles 2(a)(i), 6(2) and 2(5)(a). Another example of this approach can be cited in relation to the provisions concerning the various types of notices. The provisions regarding the periodic indicative notice, for example, have been grouped together according to whether or not this notice is used as a means of calling for competition. (See points IV.40 and IV.41). 2. Simplification/clarification of the Directive also involving some changes to its substance. 2.1. In this proposal, simplifications of this type are proposed in three cases only. The first relates to the provisions set out in Article 48(1) and (2) of the present proposal. These provisions on the information to be given to participants in an award procedure regarding the outcome of that procedure have been grouped together with provisions on the information to be given to applicants for qualification under a qualification system set up in accordance with the Directive. The structure has thus been simplified. The substance has also been changed, however, as this proposal extends the obligation regarding the giving of information about the outcome of an award procedure to all contracting entities, whereas the corresponding provisions in the current Directive apply only to contracting entities which operate in the sectors (water, electricity, urban transport, ports and airports) covered by the Government Procurement Agreement reached in the Uruguay Round multilateral negotiations [11]. For further details see point IV.48.2. [11] Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the Agreements reached in the Uruguay Round multilateral negotiations (1986 to 1994) (OJ L 336, 23.12.1994, p. 1). 2.2. The second case relates to Article 51 of this proposal. Paragraph 1 of that Article, which corresponds to Article 30(5) of the current Directive, has been extended to include the selection of participants in a restricted or negotiated procedure, because it expresses general principles - mutual recognition and equality of treatment - the application of which cannot be limited only to those cases where the contracting entities operate a system of qualification. The provision is otherwise unchanged. Applying the same logic, and given that quality assurance systems can be applied equally well to service, works and supply contracts, the obligation to refer to European standards concerning quality assurance or certification (the standards of the series EN 29000 and EN 45 000) and to recognise other means of proof has been extended so as to apply when such requirements exist vis-à-vis contractors or suppliers. The provision is otherwise unchanged. 2.3. The final example of this approach is provided by Article 60(3) of this proposal. The text of the current Article 12(1) [12] is ambiguous, as it provides that the Directive shall not apply to "contracts" - a concept which does not cover design contests - but nevertheless explicitly states that the international agreements in question may relate to "...design contests intended for the... implementation..." It thus appeared preferable to provide explicitly that this exclusion may also apply to design contests. At the same time, it appeared that the reasons justifying the exclusion from the Directive's scope of contracts, where they are governed by different procedural rules under an agreement relating to the stationing of troops or under the specific procedure of an international organisation, were also valid in the case of design contests organised under such circumstances. See also point IV.60.3. [12] "This Directive shall not apply to contracts governed by different procedural rules and awarded: ... pursuant to an international agreement concluded in conformity with the Treaty between a Member State and one or more third countries and covering supplies, works, services or design contests intended for the joint implementation or exploitation of a project by the signatory States... " III. Substantive Amendments 1. Introduction 1.1. The emergence of the information society, the gradual withdrawal of the state from certain economic activities, and increased budgetary austerity are leading the Commission to propose amendments to the existing legal framework. These have a threefold objective: modernisation, simplification and flexibility; modernisation to take account of new technologies and changes in the economic environment, simplification to lighten rules which are sometimes too detailed and complex, and flexibility to better respond to the criticism of procedures which are excessively rigid and do not meet the needs of public purchasers. 1.2. The Commission has identified six areas in which this threefold objective has prompted it to propose amendments to Directive 93/38/EEC. These are: -the scope of Directive 93/38/EEC on contracts concluded in the water, energy, transport and telecommunications sectors, which has to be reviewed in the light of the gradual liberalisation in those sectors; -the introduction of electronic purchasing mechanisms and the consequences of these in terms of reducing the length of an award procedure; -clarification of provisions relating to technical specifications; this will encourage effective competition through the participation of the greatest possible number of tenderers and, in particular, innovative businesses; -a strengthening of the provisions relating to award criteria; -a simplification of thresholds; the previously large number of thresholds - differing only slightly among themselves - has been reduced; -the introduction of a common procurement vocabulary. 2. The scope of Directive 93/38/EEC on public procurement in the water, energy, transport and telecommunications sectors 2.1. Introduction In its aforementioned Communication (see footnote 2), the Commission stated that "Following the liberalisation of some of the sectors covered by Directive 93/38/EEC (water, energy, transport and telecommunications), it is necessary to examine the degree of openness to competition of the liberalised sectors with a view to deciding whether the constraints the Directive imposes on contracting entities are still justified. They were introduced because of the lack of competition resulting from the State's decision to grant a monopoly or a privileged position to an operator. In return for this preferential treatment by the State, monopoly operators had to comply with certain advertising and procedural requirements when awarding contracts. If a sector is found to be effectively open to competition, the constraints imposed by the Directive should be removed." On this point, the Commission has concluded that it would submit proposals to exclude from the scope of Directive 93/38/EEC those sectors or services to which it applies (water, energy, transport and telecommunications) which, in a given Member State, operate in conditions of effective competition. Given the different state of liberalisation and the intended moves towards complete liberalisation of the telecommunications sector, on the one hand, and of the other sectors within the scope of Directive 93/38/EEC, on the other, this proposal introduces different types of solution for those sectors. Furthermore, where the liberalisation of a sector is such that the contracting entities operating in that sector may be exempt from application of this Directive, a necessary counterpart must be that purchases by other entities of the products or services offered by the "liberalised" entities fall within the scope of Directive 93/38/EEC. Such amendments will be proposed wherever necessary. It has been found, however, that the reasons which led to the Community legislator to exclude from the current Article 9 purchases of water by entities distributing water remain valid, and that there is therefore no reason to amend this text. 2.2. The telecommunications sector 2.2.1. The regulatory framework for the liberalisation of telecommunications is based on Article 86(3) [13] of the EC Treaty (liberalisation Directives [14]) and Article 95 [15] (harmonisation Directives [16]) of the EC Treaty. Furthermore, any undertaking providing telecommunications services is subject to the prohibition of any prevention, restriction or distortion of competition in the common market, as laid down in Articles 81, 82 and 86 [17] of the EC Treaty. [13] Ex Article 90(3). [14] The liberalisation Directives in force are Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services, OJ L 192, 24.7.1990, p. 10; Commission Directive 94/46/EC of 13 October 1994 amending Directive 88/301/EEC and Directive 90/388/EEC in particular with regard to satellite communications, OJ L 268, 19.10.1994, p. 15; Commission Directive 95/51/EC of 18 October 1995 amending Directive 90/388/EEC with regard to the abolition of the restrictions on the use of cable television networks for the provision of already liberalised telecommunications services, OJ L 256, 26.10.1995, p. 49; Commission Directive 96/2/EC of 16 January 1996 amending Directive 90/388/EEC with regard to mobile and personal communications, OJ L 20, 26.1.1996, p. 59; and Commission Directive 96/19/EC of 13 March 1996 amending Directive 90/388/EEC with regard to the implementation of full competition in telecommunications markets, OJ L 74, 22.3.1996, p. 13. [15] Ex Article 100(a). [16] The relevant harmonisation directives in force are Council Directive 87/372/EEC of 25 June 1987 on the frequency bands to be reserved for the coordinated introduction of public pan-European cellular digital land-based mobile communications in the Community, OJ L 196, 17.7.1987, p. 85; Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provisional directive, OJ L 192, 24.7.1990, p. 1; Council Directive 90/544/EEC of 9 October 1990 on the frequency bands designated for the coordinated introduction of pan-European land-based public radio paging in the Community, OJ L 310, 9.11.1990, p. 28; Council Directive 91/287/EEC of 3 June 1991 on the frequency band to be designated for the coordinated introduction of digital European cordless telecommunications (DECT) into the Community, OJ L 144, 8.6.1991, p. 45; Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased lines, OJ L 165, 19.6.1992, p. 27; Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services, OJ L 117, 7.5.1997, p. 15; Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP), OJ L 19, 26.7.1997, p. 32; Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997 amending Council Directives 90/387/EEC and 92/44/EEC for the purpose of adaptation to a competitive environment in telecommunications, OJ L 295, 29.10.1997, p. 23; Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, OJ L 24, 30.1.1998, p. 1; Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment, OJ L 101, 1.4.1998, p. 24; Directive 98/13/EC of the European Parliament and of the Council of 12 February 1998 relating to telecommunications terminal equipment and satellite earth station equipment, including the mutual recognition of their conformity, OJ L 74, 12.3.1998, p. 1; and Directive 98/61/EC of the European Parliament and of the Council of 24 September 1998 amending Directive 97/33/EC with regard to operator number portability and carrier pre-selection, OJ L 268, 3.10.1998, p. 37. [17] Ex Articles 85, 86 and 90, 2.2.2. Under Article 2(2) of Directive 90/388/EEC, as amended by Directive 96/19/EC, Member States shall take the measures necessary to ensure that any undertaking is entitled to provide telecommunications services or to establish or provide the telecommunications networks required for the provision of such services by 1 January 1998 at the latest. On request, an additional implementation period of a maximum of five years was granted to the Member States with the least developed networks, and an additional implementation period of two years to the Member States with very small networks. Additional implementation periods were granted to five Member States. These were Luxembourg [18] (1 July 1998), Spain [19] (1 December 1998), Ireland [20] and Portugal [21] (1 January 2000) and Greece [22] (31 December 2000). [18] Commission Decision 97/568/EC, OJ L 234, 26.8.1997, p. 7. [19] Commission Decision 97/603/EC, OJ L 243, 5.9.1997, p. 48. [20] Commission Decision 97/114/EC, OJ L 41, 12.2.1997, p. 8. [21] Commission Decision 97/310/EC, OJ L 133, 24.5.1997, p. 19. [22] Commission Decision 97/607/EC, OJ L 245, 9.9.1997, p. 6. According to its Fourth Report on the Implementation of the Telecommunications Regulatory Package of 25 November 1998 [23], the Commission's overall assessment was that most of the measures provided for in the package have been transposed into national legislation, and that the national measures implementing the principal regulatory topics in the package (regulatory authorities, authorisation, interconnection, universal service, tariffs, numbering, frequency) are being applied in practice. Additional progress was noted in the Fifth Report of 10 November 1999 on the implementation of the regulations in the field of telecommunications [24]. [23] COM(1998) 594 final. [24] COM(1999) 537 final. 2.2.3. The Commission published a notice in the Official Journal of the European Communities [25] inviting contracting entities in the telecommunications sector to indicate the services they consider to be excluded from the scope of Directive 93/38/EEC under the provisions of its Article 8(2). In the light of the responses, the Commission, in accordance with Article 8(2) of that Directive, reached the conclusion that public contracts relating to most telecommunications services in most Member States are considered to be excluded from the scope of that Directive. [25] OJ C 273, 2.9.1998, p. 12. In accordance with Article 8(2), and as confirmed by the Court of Justice [26], the list of telecommunications services which the Commission considers meet the criteria of Article 8(1) was published for information only in the Official Journal [27]. However, many operators called for a degree of legal certainty greater than that provided by such a list, which has no legal value and is published only for information purposes. [26] Case C-392/93, The Queen v H. M. Treasury, ex parte British Telecommunications plc, judgment of 26 March 1996, [1996] ECR I-1631. [27] OJ C 156, 3.6.1999, p. 3. 2.2.4. This proposal thus excludes the telecommunications sector from the scope of Directive 93/38/EEC. It is proposed that the amendments come into force simultaneously in all Member States, since the Commission is certain that the rapid progress towards liberalisation will continue and will produce effects before this proposal can come into force. This confidence is to some extent confirmed by the fact that effective competition has been introduced in Ireland, Greece and Portugal for certain telecommunications services almost one to two years before the expiry of the periods normally provided. 2.2.5. At the moment, the Directives on public procurement regulate two different aspects of the telecommunications sector in the broad sense. Procurement by entities which themselves operate a telecommunications network, or which offer a telecommunications service, is subject to the provisions of Directive 93/38/EEC. Moreover, when public authorities or entities operating in another sector of Directive 93/38/EEC purchase telecommunications services, they are, a priori, subject to the provisions of Directives 92/50/EEC [28] and 93/38/EEC. However, these Directives currently exclude from their scope purchases of voice telephony, telex, mobile telephone, paging and satellite services. The reason for this exclusion was that, when these Directives were being adopted, such services could frequently be provided by only a single provider in a given geographical area because of the absence of effective competition and the existence of special or exclusive rights. [28] Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, OJ L 209, 24.7.1992, p. 1, as last amended by Directive 97/52/EC, OJ L 328, 28.11.1997, p. 1. Now that effective competition has been introduced in the sector, these exclusions are no longer justified. It is therefore proposed that these exclusions be abolished, so that voice telephony, telex, mobile telephone, paging and satellite services will have to be purchased in accordance with the normal rules applying to service contracts, as is already the case with other telecommunications services. 2.2.6. Public authorities [29] engaged in an activity in the telecommunications sector are currently subject to the provisions of Directive 93/38/EEC, and their purchases for the exercise of that activity are excluded from the scope of the public sector Directives (92/50/EEC on public service contracts, 93/36/EEC [30] on public supply contracts, and 93/37/EEC [31] on public works contracts). If the public sector Directives were not amended, the proposed amendments to Directive 93/38/EEC would mean that public authorities would once again be subject to the public sector Directives as regards purchases relating to their activity in the telecommunications sector. However, it would run counter to the logic of the current public procurement Directives if the public authorities, who - even in the absence of effective competition in the telecommunications sector - were subject to the more flexible provisions of Directive 93/38/EEC, were to become subject to the stricter rules of the public sector Directives because effective competition has now been introduced in the sector. The proposal aimed at replacing the current public sector Directives - which is being submitted in parallel with this proposal - contains provisions intended to ensure that the public authorities continue to be excluded from the scope of these Directives as regards purchases related to their activities in the telecommunications sector. [29] This means the State, regional or local authorities, bodies governed by public law, or associations formed by one or more of such authorities or bodies governed by public law. See Article 1(1) of Directive 93/38/EEC and, unchanged, Article 2(1)(a) of this proposal. [30] Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, OJ L 199, 9.8.1993, p. 1, as last amended by Directive 97/52/EC, OJ L 328, 28.11.1997, p. 1. [31] Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, OJ L 199 of 9.8.1993, p. 54, as last amended by Directive 97/52/EC, OJ L 328, 28.11.1997, p. 1. 2.2.7. In addition, this proposal does not include (and therefore removes) all the current provisions specifically applying to the telecommunications sector, such as the current Article 2(2)(d) defining this activity as falling under Directive 93/38/EEC, the special thresholds applying to purchases by entities operating in this sector, and the provisions relating to the Advisory Committee on Telecommunications Procurement. 2.3. Other sectors 2.3.1. Directive 93/38/EEC does not currently contain any general provision which - as regards any of the sectors falling within its scope - would allow the liberalisation of a given sector to be taken into account. The aforementioned Article 8 currently relates exclusively to the telecommunications sector. The Directive contains other specific provisions. For instance, it excludes from its scope entities providing bus transport services to the public where other entities are free to provide such services, either in general or in a particular geographical area, under the same conditions as the contracting entities [32]. It also introduces a special system for entities exploiting a geographical area for the purpose of exploring for or extracting oil, gas, coal or other solid fuels. This system, provided for under Article 3 of the current Directive, allows the Commission, under certain conditions relating to the granting of operating licences, to provide that entities in Member States which have so requested shall not be subject to the detailed provisions set out in the Directive, but must simply respect the principle of non-discrimination and meet certain obligations to ensure competition when awarding contracts, as well as certain statistical obligations. [32] Article 2(4) of the current Directive. 2.3.2. At Community level, the liberalisation of certain sectors other than telecommunications has started, in particular in the energy sector. Nevertheless, since liberalisation has not progressed as far as in the telecommunications sector, a different solution has been adopted for those sectors. Instead of completely excluding these sectors from the scope of the Directive at this stage - which would presuppose that there was already effective competition in all the Member States - it was considered more appropriate to introduce a general mechanism allowing purchases in those sectors to be exempted as and when it was established that they were exposed directly to competition on markets to which access was not limited. Of course, if effective competition were introduced in a given sector, the Commission reserves the right to make an amended proposal to exclude it from the scope of the Directive. If that were not possible before the proposal is adopted, the Commission reserves the right to initiate its own procedure for exemption under Article 29 of the proposal. 2.3.3. To avoid the coexistence of several provisions allowing exemption or exclusion from the scope of the Directive on the basis of differing conditions relating to exposure to competition or access to the exercise of a specific activity, it is proposed that the current Article 2(4) and Article 3 of the current Directive be amended. As a result, entities providing bus transport services, or prospecting for or extracting oil, gas, coal or other solid fuels, may be exempted from the scope of the Directive under the same conditions as apply to any other sector covered by the Directive. However, the intention is not to bring back within the scope of the Directive entities which are currently excluded in accordance with Article 2(4). Similarly, the amendment to the current Article 3 will be without prejudice to Decisions 93/676/EEC [33] and 97/367/EC [34]. This means that entities operating off-shore in the Netherlands and the United Kingdom will continue to apply the special system currently provided for under Article 3(2) unless they are excluded from the scope of the Directive by a Decision in accordance with the general mechanism proposed. Similarly, entities which, on the date of entry into force of this Directive, are excluded from the scope of Directive 93/38/EEC, in accordance with the current Article 2(4), will remain excluded. [33] Commission Decision of 10 December 1993 establishing that the exploitation of geographical areas for the purpose of exploring for or extracting oil or gas does not constitute in the Netherlands an activity defined in Article 2(2)(b)(i) of Council Directive 90/531/EEC and that entities carrying on such an activity are not to be considered in the Netherlands as operating under special or exclusive rights within the meaning of Article 2(3)(b) of the Directive, OJ L 316, 17.12.1993, p. 41. [34] Commission Decision of 30 May 1997 establishing that the exploitation of geographical areas for the purpose of exploring for or extracting oil or gas does not constitute in the United Kingdom an activity defined in Article 2(2)(b)(i) of Council Directive 93/38/EEC and that entities carrying on such an activity are not to be considered in the United Kingdom as operating under special or exclusive rights within the meaning of Article 2(3)(b) of the Directive; OJ L 156, 13.6.1997, p. 55. 2.4. Special or exclusive rights 2.4.1. As things stand, special or exclusive rights are defined in Article 2(3) of Directive 93/38/EEC, which lays down that "special or exclusive rights" are rights deriving from authorisations granted by a competent authority of the Member State concerned, by law, regulation or administrative action resulting in the reservation for one or more entities of the exploitation of an activity. It is also laid down that "a contracting entity shall be considered to enjoy special or exclusive rights in particular where: (a) for the purpose of constructing the networks or facilities referred to in paragraph 2, it may take advantage of a procedure for the expropriation or use of property or may place network equipment on, under or over the public highway; (b) in the case of paragraph 2(a), the entity supplies with drinking water, electricity, gas or heat a network which is itself operated by an entity enjoying special or exclusive rights granted by a competent authority of the Member State concerned." 2.4.2. In its judgment of 12 December 1996, the Court of Justice [35] stated that it was apparent from Article 2 of Directive 94/46 [36], amending the definitions laid down by Directive 90/388/EEC [37] and restated in Article 2(1) and (2) of Directive 90/387/EEC [38], as well as from the factual context in which Directives 90/387, 90/388/EEC and 92/44/EEC [39] were adopted and their objectives, "that the exclusive or special rights referred to must generally be taken to be rights which are granted by the authorities of a Member State to an undertaking or a limited number of undertakings otherwise than according to objective, proportional and non-discriminatory criteria, and which substantially affect the ability of other undertakings to provide or operate telecommunications networks or to provide telecommunications services in the same geographical area under substantially equivalent conditions." [35] The Queen v Secretary of State for Trade and Industry, ex parte British Telecommunications plc., Case C-302/94, [1996] ECR I-6417. [36] Commission Directive 94/46/EC of 13 October 1994 amending Directive 88/301/EEC and Directive 90/388/EEC in particular with regard to satellite communications, OJ L 268, 19.10.1994, p. 15. [37] Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services, OJ L 192, 24.7.1990, p. 10. [38] Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision, OJ L 192, 24.7.1990, p. 1. [39] Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased lines, OJ L 165, 19.6.1992, p. 27. The Court of Justice added that exclusive or special rights for the provision of a public telecommunications network and, where applicable, public telecommunications services within the meaning of Article 2 of Directive 90/387/EEC cannot be characterised by the possibility for the authorised telecommunications organisations to enjoy certain prerogatives, in particular the right to acquire land compulsorily, to enter land for exploratory purposes and to acquire land by agreement or to place network equipment in, over or under the public highway and to place apparatus on private land with the consent of the persons having an interest in that land, which consent can be dispensed with by the court, inasmuch as such rights, "which are merely intended to facilitate the provision of networks by the operators concerned and are or may be conferred upon all those operators, do not give their holders any substantial advantage over their potential competitors." It is true that the judgment interprets the concept of "special or exclusive rights" only with regard to the telecommunications Directives concerned, and this interpretation cannot be applied to the definition of such rights in other Directives if their text clearly shows that the Community legislator explicitly intended to give this concept a different scope, or where the legislative context of the definition is different. This is precisely the case with Directive 93/38/EEC. In the first place, the provisions of the current Article 2(3)(a) and (b) show clearly that the definition covers situations which, for the purposes of the telecommunications Directives interpreted by the Court of Justice, do not amount to special or exclusive rights. Moreover, the general definition in Directive 93/38/EEC is accompanied by a set of specific definitions [40] intended to rectify certain situations for which the scope of the definition would otherwise lead to unsatisfactory results. [40] See, in particular, Article 2(5), Article 6(1) and, to some extent, Articles 2 (4), 7 and 8. 2.4.3. It is, however, detrimental to have one and the same concept defined in two such different ways in Community legislation on the internal market in the broad sense. It would thus seem appropriate to clarify the definition of special or exclusive rights in Directive 93/38/EEC. It is therefore proposed to amend the definition of exclusive and special rights by taking account of the definition given by the Court of Justice, in particular in the aforementioned Case C-302/94, examined in point III.2.4.2. This will have the effect that contracting entities falling under the scope of the current Directive exclusively because they are deemed to enjoy exclusive or special rights under Article 2(3)(a) or (b) [41] will no longer be subject to the Directive. [41] See point III.2.4.1 and the 11th recital to this proposal. 3. The introduction of electronic purchasing mechanisms 3.1. The emergence of the new Information and Communication Technologies (ICTs) offers promising opportunities as regards the efficiency, transparency and opening-up of public procurement. In its Communication on Public Procurement in the European Union of 11 March 1998, the Commission set itself a very ambitious target: 25% of all procurement transactions should take place using electronic means by the year 2003. Against this background, it called on all the players involved to develop such a system. This approach was endorsed by a large number of contributions and responses, particularly from the European Parliament and the Committee of the Regions. It also features amongst the conclusions of the Presidency of the Lisbon European Council of 23 and 24 March 2000, in which the Commission, the Council and the Member States are called upon "to take the necessary steps to ensure that it is possible by 2003 for Community and government procurement to take place on-line" [42]. [42] See point 17, fourth indent, of the conclusions. Under current legislation on public procurement it is possible, under certain conditions, to use electronic means for the submission of tenders. However, there are procedures for which the use of electronic means has not been mentioned (i.e. transmission of notices) or is not authorised (i.e. accelerated procedure in the public sector Directives). As things stand, moreover, this possibility is left to Member States, which are able to authorise the use of means other than direct or postal delivery. The proposal is aimed at enabling each entity to decide in future to use electronic means to the exclusion of all others. 3.2. While some fear that businesses lagging behind in terms of electronic equipment could thus be precluded from public contracts which are awarded electronically, this situation is set to change rapidly. It would therefore not appear necessary to provide a transitional period during which the parallel use of traditional means would be compulsory, especially as business will benefit de facto from a transitional period by virtue of the time-limits for adoption and transposition put forward in this proposal. Permitting the use of electronic means in the area of public procurement requires inter alia that their use for communication and information exchange be put on an equal footing with other, more traditional means with the aim of encouraging greater recourse to electronic means in the future. 3.3. Finally, electronic contract award systems should yield a significant time saving in the course of a procedure. Electronic transmission will make it possible to reduce the time-limit of 12 days which is usually necessary at present for transmission to the Publication Office and publication in the Official Journal. It will thus be possible to shorten the maximum time-limit for publication from 12 to 5 days in the case of notices dispatched by electronic means in conformity with certain technical specifications for publication set out in a new Annex (Annex XIX). 3.4. The introduction of electronic means has also highlighted the difficulty which may result from laws prescribing the use of certain technical facilities, such as the TED database. Given the rapid development of the technologies used, this explicit reference in the legislation means that regular updating will be required. To lessen these difficulties involved in the adaptation of the legislation, this proposal no longer mentions specific means of publication in the operative provisions of the Directive. The provisions relating to more detailed technical specifications concerning publication are grouped together in a new Annex (Annex XIX). 3.5. In order to bring these provisions more quickly into line with technological developments, it is proposed to delegate to the Commission, assisted by the Committee provided for in Article 65, powers to amend this Annex so as to adapt it in step with technical progress. 4. Technical specifications 4.1. The current provisions on technical specifications [43] are designed to require (public) purchasers to define technical specifications by reference to an exhaustively listed set of instruments so as to avoid conferring any advantage on a given tenderer or preferring national production. These instruments are not only well known, transparent and publicly available but also represent, as far as possible, harmonisation of specifications at European or international level. The most important of these instruments is the standard - preferably European, international or, failing that, national. Other instruments which are more sector-specific (European Technical Approval for building products, as provided for in Directive 89/106/EEC) have also been retained as possible references. [43] The Supply (93/36/EEC), Works (93/37/EEC) and Services (92/50/EEC) Directives contain the same provisions regarding common technical rules. The utilities Directive (93/38/EEC) contains broadly equivalent provisions. Application of the provisions of the Directives has led in certain cases to a situation where standards have been treated as de facto requirements; as a result, these provisions can be construed as limiting the buyer's choice to only those products which comply with the standard. Such an interpretation does not fit with the notion of a "reference" - according to which other solutions can be compared to the solution provided by the standard. In addition, it has also meant that technical solutions where a standard exists have been unduly preferred to the detriment of other solutions and of new technologies. The rapid technological obsolescence in certain sectors, coupled with the interpretation that standards are de facto requirements, is particularly harmful where, by the very nature of things, the adoption of a standard lags some way behind technological progress (as is the case in the information technology field). 4.2. Accordingly, there is a need to simplify these provisions so as to clarify the extent of the "reference" obligation and limit referral to provisions specific to certain sectors, such as telecommunications and building, which add to the complexity of the current texts. These changes will also encourage effective competition through the participation of the greatest possible number of tenderers and in particular innovative businesses. The proposed changes apply to all purchases of goods, works and services under the so-called public sector Directives as well as purchases under the utilities Directives. This means that the texts of the Directives will be brought more into line with one another, adding to the simplification process. These amendments will enable contracting authorities and contracting entities to specify their requirements in terms of performance levels, while at the same time safeguarding what has been achieved in terms of European standardisation, as reference to the standards will still be an option. 5. Strengthening of provisions relating to award criteria 5.1. The current provisions of the Directive (Article 34(2)) concerning award criteria stipulate that these criteria must be listed in the notice used as a means of calling for competition or in the contract documents, "where possible" in descending order of the importance attached to them by the contracting entity. As this provision is far from binding as regards the mention of a descending order of importance, it is necessary to clarify the scope of the obligation which flows from it. 5.2. What is more, the Commission has concluded from its investigations of complaints that, even though the awarding entities have to establish and set out a descending order of importance attached to the award criteria, they still enjoy a considerable margin of discretion when awarding contracts. In merely stating a descending order of importance, the contracting entity retains the possibility of attaching to the criteria, at the time of evaluation, a specific weighting, and hence a relative value, of which the tenderers are not aware. A possible consequence of this lack of transparency may be that some contracting entities attach an unexpected or unforeseeable importance to one or more criteria, even after the opening of the tenders, so as to favour one tenderer or another. Thus, if there are two criteria, the order of preference may equally result in 90% or 51% of the relative value being attached to the first criterion. Also, in the absence of a general rule making it compulsory to state the relative value of the criteria at the earliest possible stage in the course of the procedure, it is difficult to keep a check on the final choice of the awarding entity. Therefore, it has to be recognised that, at the crucial stage in the award of a contract, such an absence renders ineffective the rules governing the preceding stages of the award procedure. All these rules are aimed at the same objective of ensuring that the rights of the tenderers are respected, and in particular that the principles of equality of treatment and transparency are upheld. It is therefore appropriate to make it compulsory to state the relative weighting of each criteria at the earliest possible stage in the procedure, taking into account the particular characteristics of procedures linked to the various possible means of calling for competition. This weighting may take different forms (in particular, it may be expressed as a percentage or in terms of relative share compared with another criterion). Irrespective of the means employed to call for competition, it has to be ensured that the relative weighting is known to all tenderers when they draw up their tenders. 6. Simplification of thresholds 6.1. The Directive currently lays down numerous thresholds: a threshold of 5 million euro [44] for works contracts awarded by contracting entities operating in the sectors which are not covered by the GPA (the sectors gas and heat, extraction of oil and gas, extraction of solid fuels, transport by railway - other than urban railways - and the telecommunications sector). By contrast, the threshold for works contracts awarded by entities operating in the sectors covered by the GPA (water, electricity, urban transport, ports and airports) is currently set at the equivalent in euro of 5 million Special Drawing Rights (SDR) [45], which for the period 1 January 2000 to 31 December 2001 corresponds to EUR 5 358 153. [44] Expressed in ecus in the Directive, which predates the changeover to the euro. As a reminder, 1 ecu = 1 euro. [45] The SDR is a unit of measure defined in by the International Monetary Fund and used in the GPA. As regards supply contracts, the current situation is that the threshold stands at EUR 600 000 for entities operating in the telecommunications sector, EUR 400 000 for entities operating in the sectors not covered by the GPA, and the equivalent in euro of SDR 400 000 for the sectors covered by the GPA [46]. [46] SDR 400 000 corresponds to EUR 428 653 for the period 1 January 2000 to 31 December 2001. For service contracts, the current situation is even more complex. The threshold is EUR 600 000 for contracting entities operating in the telecommunications sector and EUR 400 000 for contracting entities operating in the sectors not covered by the GPA. In the case of service contracts awarded by contracting entities operating in the sectors covered by the GPA, the threshold stands at EUR 400 000 for service contracts listed in Annex XVI B and for research and development service contracts listed in category 8 of Annex XVI A and telecommunications service contracts listed in category 5 of Annex XVI A, whose CPV headings are equivalent to the CPC reference numbers 7524, 7525 and 7526. For the remaining services listed in Annex XVI A, the threshold is the equivalent in euro of SDR 400 000 [47] when these contracts are awarded by entities operating in the sectors covered by the GPA. [47] Corresponds to EUR 428 653 for the period 1 January 2000 to 31 December 2001. 6.2. It follows from the above that these thresholds are anything but straightforward to apply. A further element making the current provisions difficult to understand and apply is the fact that they refer to amounts expressed as "the equivalent in euro to" SDR X and that these equivalent amounts are anything but "round" sums. There is thus an urgent need to simplify these thresholds to a degree compatible with the Community's international obligations. 6.3. It is therefore proposed to simplify the thresholds, while also taking account of the proposal that entities operating in the telecommunications sector be completely excluded. Simplification operates at various levels. On the one hand, the thresholds will be the same for contracts which are not subject to the GPA as for those which are. On the other hand, all the thresholds are expressed directly in euro, and they are rounded down to the nearest one hundred thousand euro below the thresholds set by the GPA. This simplification makes it possible to arrive at two thresholds. -5 300 000 euro, applicable to works contracts irrespective of the sector in which the contracting entity operates, and -400 000 euro, applicable to supply and service contracts, as well as design contests, irrespective of the sector in which the contracting entity operates or of the service concerned. 6.4. For contracting entities operating in the sectors gas and heat, extraction of oil, gas and solid fuels, and transport by railways other than urban railways (i.e. in the sectors not covered by the GPA), the consequences of the proposal compared with the current situation will be -an increase in the threshold of EUR 300 000 in the case of works contracts. In the case of supply and service contracts as well as design contests awarded or organised by contracting entities operating in these same sectors, the thresholds remain unchanged. 6.5. As regards contracting entities operating in the water, electricity, urban transport and ports and airports sectors (the sectors covered by the GPA), the consequences will be: -a decrease in the threshold of 58 153 euro [48] in the case of works contracts awarded by these contracting entities; [48] On the basis of the exchange rate between the euro and SDR used to fix the thresholds for the period 1 January 2000 to 31 December 2001. -a decrease in the threshold of EUR 28 653 in the case of service contracts relating to the services cited in Annex XVI A, except for the research and development services listed in category 8 of Annex XVI A and the telecommunications service contracts listed in category 5 of Annex XVI A whose CPV headings are equivalent to the CPC reference numbers 7524, 7525 and 7526. The same consequences arise where these contracting entities organise design contests relating to these services; -As regards supplies, as well as service contracts relating to the services cited in Annex XVI B and to the research and development services listed in category 8 of Annex XVI A and the telecommunications services listed in category 5 of Annex XVI A, whose CPV headings are equivalent to the CPC reference numbers 7524, 7525 and 7526, the thresholds will remain unchanged. The same consequences arise where these contracting entities organise design contests relating to these services. 7. Common procurement vocabulary Use of the Common Procurement Vocabulary (CPV) was the subject of a Commission Recommendation in 1996 [49]. This nomenclature represents a further development of and an improvement to the CPA and NACE nomenclatures, in that it is better suited to the specific characteristics of the public procurement sector. Since 1996, the CPV has been used systematically in every notice published in the Supplement to the Official Journal of the European Communities pursuant to the Directives for identification of the subject matter of the contracts concerned, as well as for translation into the 11 official languages; it has also become an indispensable research criterion in the selection and identification of contract opportunities. The CPV underwent revision at the end of the 1998 in the light of operational practice and on the basis of comments received from users (contracting authorities and potential suppliers). In future it will be necessary to derive maximum benefit from the existence of a nomenclature that is specific to public contracts and to amend the provisions of the Directives concerning the use of the various nomenclatures (CPC, NACE and the Combined Nomenclature) by replacing them with the CPV. In the process, however, it will have to be ensured that the scope of the Directives (categories of services in Annexes XVI A and XVI B of Directive 93/38/EEC) is not affected. The use of the single CPV will make it easier to disseminate and access information, thus contributing towards greater transparency and a greater openness of public procurement in Europe. In parallel with this revision of the Directives, the CPV will be the subject of a proposal by the Council and the Parliament. The latter will then formally adopt it as the Community nomenclature applicable to public contracts and will organise its maintenance (arrangements for revision). [49] Commission Recommendation 96/527/EC of 30 July 1996 on the use of the Common Procurement Vocabulary (CPV) for describing the subject matter of public contracts (OJ L 222, 3.9.1996, p. 10). IV. Analysis Of The Recitals And The Articles Where the amendments made consist in renumbering or a renumbering of the Article to which reference is made, the provisions are regarded as remaining unchanged in terms of substance. The same applies to changes in wording which have no effect on the content and scope of a provision. Therefore, where the amendments made are of this type, it is pointed out that the provision is unchanged. As regards structure, this proposal also includes a table of contents providing an overview of the restructuring of the texts. 1. Article 1 - Definitions 1.1. Paragraphs 1 and 7 have been worded more specifically in order to clarify that one or more service providers, suppliers or contractors may be parties to one and the same contract or framework agreement. The intention is not to change the current situation, which enables one or more contracting entities to be party to a contract or framework agreement. These proposals correspond, moreover, to the current Article 1(4) and (5). 1.2. Paragraphs 3, 4 and 5 contain provisions making it possible to distinguish mixed contracts, i.e. comprising elements of supplies and works, supplies and services or services and works. The first subparagraph of paragraph 3 corresponds to the second subparagraph of the current Article 1(4), while the second subparagraph does not correspond to any part of the Directive. It does correspond, however, to Article 1(a) of Directive 93/36/EEC. Paragraph 4 is new. The first subparagraph, however, is merely a logical conclusion based on the same Article 1(a) of Directive 93/36/EEC. The second subparagraph reflects the "residual" nature of the definition of service contracts in the Directive and takes into account the provision contained in the current Article 14(11) and (12). Paragraph 5 is new, but is based on the 12th recital of Directive 92/50/EEC and on the case-law of the Court of Justice, in particular the Court's judgment of 19 April 1994 on the "Gestión Hotelera" case [50]. [50] Case C-331/92, [1994] ECR I-1329. Paragraph 6, first subparagraph, is based on the final part of the current Article 1(6), but has been extended to include contractors and suppliers in order to clarify that these concepts are to be interpreted in the same way. A new concept has been introduced, namely that of the economic operator. It does not introduce any substantive change but permits the textual simplification of several other provisions in this proposal by enabling a reference to "economic operators" to be substituted for one to "suppliers, contractors and service providers". 1.3. The third subparagraph corresponds to the first part of the present Article 6 and is unchanged. 1.4. Paragraphs 8 and 9 are unchanged. 1.5. The new provision contained in paragraph 10 introduces a definition of "electronic means". The definition is an adaptation of the one from the Commission proposal concerning electronic commerce. In addition, the new paragraph 11 specifies that the term "(in) writing", which is used in various parts of the Directive, also covers electronic messages. The new paragraph 12 defines the CPV. 2. Article 2 - definition of entities covered 2.1. Paragraph 1, corresponding to Article 1(1) and (2) of the current Directive, and paragraph 2, corresponding to Article 2(1), are unchanged. 2.2. Paragraph 3 is new. It contains the new definition of the concept of exclusive and special rights. The reasons for this amendment are set out under points III.2.4.1 to III.2.4.3. 3. Article 3 - Provisions relating to gas, heat and electricity. The Article is unchanged. Paragraph 1 corresponds to the current Article 2(2)(a)(iii), and paragraph 2 to Article 2(5)(b). Paragraph 3 corresponds to Article 2(2)(a)(ii), and paragraph 4 to Article 2(5)(a). 4. Article 4 - Provisions relating to water The Article remains unchanged. Paragraph 1 corresponds to Article 2(2)(a)(i); paragraph 2 to Article 6(2) and paragraph 3 of this proposal to the current Article 2(5)(a). See also point II.1.3. 5. Article 5 - Provisions relating to transport services 5.1. The first paragraph is unchanged and corresponds to Article 2(2)(c). 5.2. Paragraph 2 is new and is explained in point III.2.3.3. 6. Article 6 - Provisions relating to the exploration for or extraction of oil, gas, coal or other solid fuels, as well as ports and airports. This Article, which is unchanged, corresponds to the current Article 2(2)(b) . 7. Article 7 - Lists of contracting entities Apart from removal of the reference to the current Annex X concerning entities operating in the telecommunications sector (see point III.2.2), the provision is unchanged compared with the current Article 2(6). The non-exhaustive nature of the lists has been made clear. 8. Article 8 - Contracts regarding several activities 8.1. Article 8 deals with a case whereby one and the same contract is intended for the pursuit of several activities - for example, the purchase of several photocopiers for installation and use in a building accommodating the administrative offices of an entity engaged in the distribution of gas and electricity. If it is possible in such a case to split up the contract, i.e. to award a separate contract relating to photocopiers intended for the administration of gas distribution and another for the "electricity" portion, then paragraph 1 has the effect of disapplying the Article, and the rules applicable to entities distributing gas and electricity, respectively, come into play for the contracts in question. 8.2. If the example is changed to the purchase by the same entity of a telephone switch system, and if it can be demonstrated that telephone communications are mostly related to the distribution of electricity rather than gas, then the contract will be subject to the rules applicable to entities distributing electricity. Let us now suppose that the conditions under which electricity distribution is carried out are such that this activity is excluded from the scope of the Directive under the new Article 29 (see point IV.29), whereas the distribution of gas remains subject to the Directive. Let us further suppose that it is objectively impossible to establish whether the switchborad is chiefly intended for use in the one activity or the other. In this case, the paragraph 2 has the effect that the contract will have to be awarded in accordance with the provisions of the Directive. This provision, and also paragraph 3, are based on an analogy with the Court's judgment of 5 December 1989 in the "informatics" Case C-3/88, Commission v Italy [51]. [51] [1989] ECR I-4035. 8.3. The situation referred to in paragraph 3 could, for example, be that of a municipality which, apart from its "normal" local government duties, itself manages, with its own personnel, the bus transport service on its territory. 9. Article 9 - Equality of treatment, prohibition of discrimination and transparency The prohibition of discrimination contained in the current Article 4(2) is unchanged. Compliance with the principles of equality of treatment and transparency has been added. In accordance with the established case-law of the Court of Justice, the general principle of equality of treatment, of which the prohibition of discrimination on grounds of nationality is no more than a specific expression, is one of the fundamental principles of Community law. Under this principle, analogous situations must not be treated in different ways unless the difference in treatment is justified by objective reasons. The fact that this provision is placed in Title I merely serves to make it explicit that this fundamental principle in legislation governing public procurement applies to both contracts and design contests. 10. Article 10 - Groups of economic operators The Article is unchanged compared with the current Article 33. 11. Article 11 - Conditions set out in Agreements concluded within the World Trade Organisation. The Article, which corresponds to Article 42a, is unchanged. 12. Article 12 - Confidentiality The provision is unchanged compared with Article 4(3) and (4). 13. Article 13 - Framework agreements The new Article, which corresponds to the current Article 5, is unchanged. 14. Article 14 - Scope As is explained under point II.1.2, "introductory" Articles have been created for the sake of clarification, in this case in order to clarify the scope. The new Article does not alter the scope of legal obligations. 15. Article 15 - Amounts With the aim of simplifying the Directive, this Article sets out the new thresholds, which are explained under point III.6. It corresponds to the current Article 14(1). 16. Article 16 - General rules for calculating the value of contracts and framework agreements 16.1. Paragraph 1 corresponds to the current Article 14(13). It has remained unchanged and its title makes it plain that it concerns a general principle applicable to all contracts, i.e. to works, supply and service contracts alike. 16.2. Paragraph 2, which corresponds to the current Article 14(9), is unchanged and is placed in this general Article because it applies equally to framework agreements concerning works, supplies or services. 16.3. With the aim of simplification and greater ease of application, the various rules governing the estimation of contract value have been grouped together in such a way that all the rules applicable specifically to works contracts are to be found in Article 17, those for supplies in Article 18 and services in Article 19. As stated in point IV.16.1, Article 15 also applies. 17. Article 17 - Calculating the value of works contracts Paragraph 1 corresponds to the current Article 14(11), paragraph 2 to the current provision of Article 14(12). Paragraph 3 corresponds to the first subparagraph of the current Article 14(10), while paragraph 4 corresponds to the second subparagraph of the same Article 14(10). Article 17 is unchanged. 18. Article 18 - Calculating the value of supply contracts Paragraph 1 corresponds to the current provisions of Article 14(10), first and second sentences of the second subparagraph and paragraph 2 to the current Article 14(6). The provisions of paragraph 3 correspond to the current provisions of Article 14(7), those of paragraph 4 to the current Article 14(4) and paragraph 5, finally, corresponds to the provisions of the current Article 14(8). These provisions are unchanged. 19. Article 19 - Calculating the value of service contracts Paragraph 1 corresponds to the current Article 14(2), The fact that reference is made only to the provisions of paragraphs 2 to 7 and not to the provisions of paragraphs 1 and 2 of Article 16 does not mean that existing law has been amended. An explicit reference to Article 16 only in the case of service contracts could give rise to the idea that the Article is not applicable for works or supply contracts, whereas, as stated in points IV.16.1 and 16.2, these are general provisions applicable to all types of contract and all framework agreements, whether relating to services, works or supplies. 19.2 Paragraph 2 corresponds to the current provisions of Article 14(10), first and second sentences of the second subparagraph, and paragraph 3 to the current Article 14(6). The provisions of paragraph 4 correspond to the current provisions of Article 14(7), while paragraph 5 corresponds to the current Article 14(8). The provisions in paragraph 6 correspond to those of the current Article 14(3), and paragraph 7, finally, corresponds to the current provisions of Article 14(5). Article 19 is unchanged. 20. Article 20 - Contracts awarded for purposes of resale or hire to third parties This Article, corresponding to the current Article 7, has remained unchanged. Its place in the new structure serves to clarify that it applies to all contracting entities, irrespective of their status and the activity carried out, and to all types of contract (for works, supplies or services). 21. Article 21 - Contracts awarded for purposes other than the pursuit of an activity covered or for the pursuit of such an activity in a third country This Article, corresponding to the current Article 6(1) and (3) has remained unchanged. Its place in the new structure serves to clarify that it applies to all contracting entities, irrespective of their status and the activity carried out, and to all types of contract (for works, supplies or services). 22. Article 22 - Contracts which are secret or require particular security measures This Article, corresponding to the current Article 10, has remained unchanged. Its place in the new structure serves to clarify that it applies to all contracting entities, irrespective of their status and the activity carried out, and to all types of contract (for works, supplies or services). 23. Article 23 - Contracts awarded pursuant to international rules In the provision set out in point (a), the reference to contracts awarded by entities operating in the telecommunications sector and to the Advisory Committee on Telecommunications Procurement has been deleted for the reasons explained in point III.2.2. The Article, which corresponds to the current Article 12, is otherwise unchanged. See also point IV.60. 24. Article 24 - Contracts relating to certain services excluded from the scope. Annex XVI A The provision set out in the current Article 1(4)(c)(ii), which excludes service contracts for voice telephony, telex, radiotelephony, paging and satellite telecommunications, has not been included. The effect of this change, coupled with the deletion of footnote 2 to Annex XVI A, is that contracting entities subject to Directive 93/38/EEC will henceforth apply the normal provisions on service contracts when purchasing, for example, (fixed) voice telephony services. Such services must therefore be acquired on the basis of competition, unless a procedure without competition is permitted in accordance with the exceptions listed exhaustively in Article 39(3) of this proposal. See also point II.2.2.4. The Article, which corresponds to the current Article 1(4)(c)(i) and (iii) to (vi), and the Annex are otherwise unchanged. 25. Article 25 - Service contracts awarded on the basis of an exclusive right The Article, which corresponds to the current Article 11, is unchanged. The reference in the current Article 11 to "a contracting authority within the meaning of Article 1(b) of Council Directive 92/50/EEC..." has been changed, for greater ease of reading, into a reference to "a public authority within the meaning of point (a) of Article 2(1)" of this proposal. This in no way changes the substance, as the definition of these two concepts is identical. 26. Article 26 - Service contracts awarded to an affiliated undertaking or to a contracting entity forming part of a joint venture. This Article has remained unchanged. Paragraphs 1 and 3 correspond to the current Article 13. The definition of an affiliated undertaking, which is contained in Article 1(3) of the current Directive, has been incorporated into this new Article for greater ease of reading, as this concept is meaningful only in the context of Article 26 of this proposal. The place of this exception in the new structure serves to clarify that it applies to all contracting entities, irrespective of their status and the activity carried out, but only to service contracts. 27. Article 27 - Contracts awarded by certain contracting entities for the purchase of water. 27.1. Paragraph 1, which corresponds to the current Article 9(1)(a) has been amended merely to specify that references to the Annexes are to be understood as references not to the entities named in those Annexes but to the activities referred to therein. Paragraph 2, corresponding to the current paragraph 2 of Article 9, is unchanged. The place of this provision in the new structure serves to clarify that it applies only to entities explicitly mentioned in the Article itself. 27.2. The new provision does not include the exemption contained in the present Article 9(1)(b), which currently leaves out of the scope of the Directive contracts for the purchase of energy (or fuels for the production of energy) when they are awarded by entities operating in the energy sector in the broad sense. As was mentioned in the seventeenth recital of Directive 93/38/EEC, this exemption was introduced to take account of the absence of liberalisation, in particular in the electricity sector. Since the energy market concerned has now been liberalised, this exemption is deleted. This change means that contracting entities operating in the energy production sector will have to abide by the provisions of the Directive (i.e. unless there is an exceptional situation, they will have to publish a notice of call for tenders) when they launch a contract for the supply of energy (or fuel for the production of energy) necessary for the production of energy. It must be stressed, however, that, if the "product" to be supplied is quoted and purchased on a commodities market - a cash contract - the purchaser benefits from the derogation allowing such purchases without issuing a prior call for tenders. This change will also make it possible to avoid situations in which, in accordance with the new Article 25, it was established that there is sufficient free competition in a given sector to allow entities operating in that sector to be exempted from the rules of the Directive, while maintaining an exemption based on the absence of competition for the goods produced by those entities. 27.3. Paragraph 2, corresponding to the current paragraph 2 of Article 9, is unchanged. 28. Article 28 - Contracts subject to special arrangements Under certain conditions relating to the granting of licences to carry on the activity in question, the current Article 3 allows the Commission, at the request of the Member States, to decide that contracting entities operating in this sector shall be exempt from the obligations in the detailed rules of procedure in the Directive, but shall simply observe the principle of non-discrimination and fulfil certain obligations relating to competition for the award of the contracts and to statistics. For the reasons set out in point III.2.3.3, the new provision of Article 28 guarantees that contracting entities operating in the off-shore sectors [52] in the United Kingdom and the Netherlands can continue to benefit from the special arrangements granted by Decisions 93/676/EEC [53] and 97/367/EEC [54]. They must, therefore, continue to apply these special arrangements unless they are excluded from the scope of the Directive by a decision in accordance with the general mechanism proposed in Article 29 of this proposal, applicable to all the activities referred to. For further details on this general mechanism, see point IV.29. [52] More precisely, exploiting a geographical area for the purpose of exploring for or extracting oil or gas. [53] Commission Decision of 10 December 1993 establishing that the exploitation of geographical areas for the purpose of exploring for or extracting oil or gas does not constitute in the Netherlands an activity defined in Article 2(2)(b)(i) of Council Directive 90/531/EEC and that entities carrying on such an activity are not to be considered in the Netherlands as operating under special or exclusive rights within the meaning of Article 2(3)(b) of the Directive, OJ L 316, 17.12.1993, p. 41. [54] Commission Decision of 30 May 1997 establishing that the exploitation of geographical areas for the purpose of exploring for or extracting oil or gas does not constitute in the United Kingdom an activity defined in Article 2(2)(b)(i) of Council Directive 93/38/EEC and that entities carrying on such an activity are not to be considered in the United Kingdom as operating under special or exclusive rights within the meaning of Article 2(3)(b) of the Directive; OJ L 156, 13.6.1997, p. 55. 29. Article 29 - General mechanism for the exclusion of activities directly exposed to competition 29.1. It is proposed to limit the applicability of this new Article solely to contracting entities which are public undertakings within the meaning of Article 2(1)(b) and to private entities operating on the basis of exclusive or special rights. Public authorities within the meaning of Article 2(1)(a) would thus not be covered by this possibility of exclusion. This limitation is not unique either in the proposal [55] or in the current Directive, and its rationale is the fact that public authorities, by their very nature, may be led to act on the basis of considerations other than purely economic ones, even when they are acting in a market directly exposed to competition. [55] It is also to be found in Article 3(2) and (4) of this proposal (identical to the current Article 2(5)(b)) and in Article 4(3) (identical to the current Article 2(5)(a)). 29.2. The criterion for exempting contracts concluded for the exercise of liberalised activities is that, in the Member State in which the activity is exercised, it is "directly exposed to competitive forces in markets to which entry is unrestricted [56]". To assess whether these conditions are met, reference might be made to the findings of the Court of 26 March 1996 [57] in the "BT" judgment - bearing in mind, however, the provisions of paragraphs 2 and 3. [56] Cf. the 13th recital to Directive 93/38/EEC. [57] The Queen v H. M. Treasury, ex parte British Telecommunications plc. Case C-92/93. [1996] ECR I-1631. 29.3. Paragraph 2 lays down that establishing whether an activity is directly exposed to competition must be based on objective criteria. The criteria mentioned in the provision [58] are not exhaustive and must take account of the specific characteristics of a given sector [59], since the specific criteria used to assess the competitive situation in, for instance, the airport sector are obviously rather different from those to be applied to, say, the distribution of heat. In particular, it should be noted that paragraph 2 lays down explicitly that potential competition may be taken into account. The fact that a given service or product is offered by only one entity in a given sector is not necessarily a sign that the activity is not exposed directly to competition. Such a situation may also be the result of a decision reached freely by potential competitors that it is not of commercial interest to be present on (part of) that particular market. [58] "The characteristics of the goods or services concerned, the existence of alternative goods or services, prices and the actual or potential presence of more than one supplier of the goods or services in question." [59] See also the 13th recital to this Directive. It should also be noted that the assessment of the conditions of entry to the activity in question may have a direct impact on the assessment of the competitive situation in the sector concerned. If, for instance, application of the legal conditions governing entry to a particular activity implies not only that entry is free, but also that this activity is carried on under conditions which promote effective competition, that must be taken into account for the assessment under paragraphs 2 and 3. 29.4. In the same way as the current Article 3(5) [60], paragraph 3 introduces the legal presumption that entry to a given market is free when the Member State in question has correctly implemented and applied the provisions of the Community legislation liberalising the sector concerned. The corresponding legislation is indicated in Annex X to this proposal [61]. To ensure that the Annex can be updated rapidly and easily, Article 67 lays down that this can be done by the "advisory committee procedure" provided for by Article 65. See also points IV.65 and IV.67. [60] The current Article 3(5) introduces a legal presumption that the conditions of Article 3(1) for granting licences to operate are met if the Member State in question has implemented the provisions of Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons, OJ L 164, 30.6.1994, p. 3. [61] This new Annex replaces the current Annex X indicating the contracting entities in the telecommunications sector which, as set out in point II.2.2, is no longer required. It should be noted, however, that mere notification of the adoption of measures aimed at transposing the Community legislation liberalising the sector in question is not enough. It is also necessary to verify these measures and, in particular, whether the application of this Community legislation is correct. Moreover, it goes without saying that the exemption - even in cases where there is a legal presumption to the stated effect - can only be decided on after verification of the conditions set out in paragraph 2, i.e. the conditions relating to effective competition described in point IV.29.3. 29.5. Where free entry to a given market is not ensured by the Community legislation - because none has been adopted or because the Member State in question has not implemented or applied it - the Member State in question must show that entry to that market is free de jure and de facto, as explicitly laid down in paragraph 5. 29.6. In the same way as the current Article 3, and taking into account the numerous comments of the telecommunications sector, which has asked for a greater degree of legal certainty than that offered by the current system under Article 8(2), as interpreted by the Court of Justice in the aforementioned "BT case" [62], it is proposed that an exemption under Article 29 be made by a formal Commission Decision reached by the "advisory committee procedure" provided for by Article 65. The Member States must also play an active role in this context: not only can the procedure under Article 29 be initiated at the request of a Member State, but they must also inform the Commission of all the appropriate facts needed for assessing whether the conditions in paragraph 1 are met. In this context, the national regulatory agencies [63], set up to monitor developments in one or more sectors currently covered by the Directive, will be active in the process. It is proposed that, if such an authority or agency has pronounced on questions of relevance for the purposes of paragraphs 1 and 2 (i.e. relating to both entry to the market and direct exposure to competition), its opinion must be transmitted to the Commission. [62] See also point IV.29.2 and the 12th recital to this Directive. [63] Or "independent authority that is competent in the activity concerned". The term "independent authority that is competent in the activity concerned" may, where appropriate, cover competition authorities. 29.7. Taking into account fears that the procedure for the possible granting of an exemption under the new Article 29 may take too long, it is proposed that a system be set up along the lines of the one known from the competition law sector in Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings [64] or, more recently, in Commission Regulation (EC) No 447/98 of 1 March 1998 on the notifications, time-limits and hearings provided for in Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings [65]. [64] OJ L 257, 21.9.1990 (amended), p. 13. [65] OJ L 61, 2.3.1998, p. 1. It is therefore proposed that the Commission be given a time-limit of six months to take its decision and that the exemption be deemed to be applicable if no decision has been taken within that period. This period shall commence on the working day following the date on which the Commission receives a complete request by the Member State concerned. Thus, paragraph 7 lays down that, in the event of information being incomplete or inexact in respect of an key point, the Commission shall inform the Member State concerned without delay and set a time-limit by which the information is to be completed. In this case, the period of six months commences only on the date on which the complete and exact information is received. Turning to paragraph 8, this lays down that if the facts as reported by the Member State undergo any substantive changes, these must be notified to the Commission without delay. If these substantive changes are liable to influence the Commission's assessment significantly, it may decide that the six-month period will commence only on the date on which it receives the (complete) information concerning these substantive changes. The Commission will inform the Member State concerned in writing without delay. 29.8. The time-limits contained in this Article - like all the time-limits set out in this Directive - are to be calculated in accordance with Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time-limits [66], which is the horizontal act that applies. See also the 37th recital of this proposal. [66] OJ L 124, 8.6.1971, p. 1 30. Article 30 - Service contracts listed in Annex XVI A This provision, which corresponds to the current Article 15, is unchanged. The elimination of the reference to works and supply contracts, aimed at specifying that these contracts are also subject to the "full arrangements" of the Directive, is counterbalanced by the fact that the new structure [67] also clarifies that the provisions of Articles 30 to 32 apply only to service contracts. Thus, the substance does not change. [67] The fact that the provision is contained in a Chapter III, "Arrangements applicable to service contracts", and the title of the Article is "Service contracts listed in Annex XVI A". 31. Article 31 - Service contracts listed in Annex XVI B This Article, corresponding to the current Article 16, is also unchanged. 32. Article 32 - Mixed service contracts listed in Annex XVI A and service contracts in Annex XVI B This provision has remained unchanged. It corresponds to the current provision of Article 17. 33. Article 33 - General provisions This is another "introductory" Article (see point II.1.2.), which describes the rules governing certain items of information to be included in notices used as a means of calling for competition and/or in the specifications, as well as reflecting the provisions of Articles 34, 36, 37 and 38. The third paragraph of the Article provides that contracting entities may require specific conditions concerning performance of the contract [68]. These conditions must be compatible with the applicable Community law. The new Article thus does not change the current legal status and has been included for the sake of clarity and ease of reading. [68] See judgment of 20 September 1988 in Case 31/87 Beentje" [1988] ECR I- 4635. 34. Article 34 - Technical specifications 34.1. The substantive amendment proposed in this new Article is based on an approach where purchasing specifications will be able to be defined in terms of the expected performance of the product or service, when descriptive or conceptual technical requirements (describing the product's method of production) cannot meet the needs of the contracting entity, or when the standard prescribes the technical solution and excludes further concepts. It will thus allow the greatest possible number of candidates to take part [69]. [69] This is in line with the approach of the current Article 18(4), which, for additional specifications, obliges contracting entities to "prefer specifications which indicate performance requirements rather than design or description characteristics...". However, to prevent this approach encouraging the use of "specifications" which are so vague as to leave broad scope for arbitrary decisions or make it impossible for tenderers to give an adequate response, the performance requirements will have to be sufficiently precise to ensure offers are comparable and to allow the contract to be awarded. The relevant provisions are set out in paragraph 3, second indent, of the new Article. The use of detailed requirements nevertheless remains a possibility for the contracting entities. The buyer can also define his requirements by reference to detailed specifications; however, he cannot simply have recourse to a restrictive list of specifications. In the same way as in the current text [70], the new provision lists detailed specifications that can serve as a reference point (European, international or national standards, etc.). Mention is also made of the possibility of referring to documents drawn up by European standardisation bodies (CEN workshop agreements) which, while not having the status of standards, make it easier to take account of technical progress.These do provide an appropriate level of transparency and ensure agreement as to how they are adopted. The relevant provision is set out in paragraph 3, first indent, of the proposal. [70] Current Article 18. Paragraph 4 has been included in order to take account of some particular characteristics of works contracts. It corresponds, mutatis mutandis, to Article 10(3)(b) of Directive 93/37/EEC, but with the important addition that these references to national technical specifications must be accompanied by the words "or equivalent". 34.2. To make it explicitly clear that other solutions are always possible, it is stated that reference to such specifications does not authorise the contracting entity to reject offers of products or services which do not comply with these detailed specifications, so long as the supplier or service provider can show that his solution is equivalent to the reference specifications. This can be shown by whatever appropriate means (the manufacturer's statement of conformity, or certification by a third party). The purpose of this last provision is to ensure that any non-standardised solution can also be taken into consideration; it should allow contracting entities the benefit of a broad choice. The burden of proof will be on the tenderer. The relevant provisions are set out in paragraph 5 of the new Article. 34.3. It must also be ensured that this new flexibility (that is to say, specifying in terms of performance) is not abused so as to close markets to competition and question the acquis communautaire regarding standardisation. Therefore, paragraph 6 also states that a contracting entity may not disregard a tender which complies with European or international standards on the grounds that the standard would not satisfy the required performance, except where the specification is inappropriate (incompatibility of the equipment, for example) or if the specification does not deal with the same requirement. This would be the case if the standard covers safety requirements, whilst the buyer's requirements are of an environmental nature. It is for the tenderer to show - for example by means of a technical dossier or a third party's test report - that the solution in compliance with the standard will reach the performance requirement. The relevant provisions are set out in paragraph 6 of the new Article. 34.4. Finally, the provision set out in Article 18(5) of the current Directive forbidding reference to brands or a specific origin has not been substantially amended; only the wording has been changed to reinforce its exceptional nature. The relevant provision is in paragraph 7. 34.5. The definitions contained in the current Article 1(9) to (13), which list and define the technical specifications, have been transferred to a new Annex XX. They have been adapted to take account of developments in the definition of the concepts in Community law following changes to Directive "98/34/EEC on technical standards and regulations [71]", without this entailing significant changes to the current text. Only the concept of a technical reference framework is new. [71] Directive 98/34/EC of 22 June 1998 - repealing and replacing Directive 83/189 - OJ L 204, 21.7.1998, p. 37. 35. Article 35 - Communication of technical specifications This provision, corresponding to the current Article 19, is unchanged. 36. Article 36 - Variants Apart from the addition of the words "performance levels or" - necessary in order to ensure consistency with the new Article 34 relating to technical specifications - the first paragraph, corresponding to Article 34(3), is unchanged. The second paragraph, which makes the provisions described in point IV.34 concerning technical specifications applicable to variants, is new. It replaces the current Article 34(4) and guarantees tenderers offering variants greater protection against arbitrary rejection on the grounds of their technical choice. Paragraph 3 is also new. The first subparagraph corresponds to Article 16(2) of Directive 93/36/EEC, the second to the provisions of Article 24(2) of Directive 92/50/EEC. This provision was inserted ex toto and serves merely to clarify the legal situation. A practical example of a situation covered by these provisions might be that of a contracting entity which puts a new service contract up for tender in the field of computing because it feels it is necessary to develop a new software system (and hence to execute a service contract) to meet its needs, whereas a tenderer proposes, as a variant, to solve the problem by offering an existing software system (i.e. a product). In this case, the contracting entity cannot reject the variant on the sole ground that its acceptance would convert the contract into a supply contract. 37. Article 37 - Subcontracting Apart from the possibility to ask for information concerning designated sub-contractors, this Article, which corresponds to the provision in the current Article 27, has remained unchanged. 38. Article 38 - Obligations relating to employment protection provisions and working conditions This provision, which corresponds to the current Article 29, is unchanged. 39. Article 39 - Use of open, restricted and negotiated procedures Paragraph 1, which corresponds to the current Article 4(1), is unchanged. This is also the case for paragraphs 2 and 3, which correspond to the current provisions of Article 20. 40. Article 40 - Periodic indicative notices and notices on the existence of a system of qualification Paragraph 1(b) has been changed to bring it into line with the new provisions concerning thresholds. Thus, the obligation to publish a periodic indicative notice applies to all works contracts as from the same threshold, i.e. where the estimated amount is equal to or greater than 5 300 000 euro. Paragraph 1, which corresponds to the current Article 22(1), is otherwise unchanged. This is also the case for paragraphs 3 and 4, which correspond respectively to the provisions set out in the current Articles 22(4) and 30(9). Apart from the removal of the reference to publication in the OJEC in paragraph 2, which corresponds to the current Article 22(2), this provision is likewise unchanged. This Article combines the provisions applicable to periodic indicative notices and to notices on the existence of a system of qualification where the latter are not used as a means of calling for competition. The rules applicable to notices used as a means of calling for competition are collectively set out in Article 37. 41. Article 41 - Notices used as a means of calling for competition This Article combines the specific provisions applicable to notices used as a means of calling for competition. Apart from the reference to publication in accordance with the new Annex XIX in paragraph 2(c), the Article is unchanged. Paragraph 1 corresponds to the current Article 21(1), paragraph 2(a) and (b) to the current provisions of Article 21(2)(a) and (b). The provisions set out in point (c) of paragraph 2, and its last subparagraph, correspond to the current Article 22(3). 42. Article 42 - Contract award notices This Article combines the provisions applicable to contract award notices. A reference to publication in accordance with the new Annex XIX has been included in paragraphs 2 and 5, while paragraphs 3 and 4, corresponding to the provisions of the current Article 24(3), have been clarified without any change in content (see also point II.1.4). The Article is otherwise unchanged compared with the current Article 24. 43. Article 43 - Form and manner of publication of notices This Article is based on the current provisions of Article 25. It has been amended, in particular, as regards the specifications according to which notices have to be sent. References to standardised model notices have also been included. For reasons explained above (see point III.3.1.4), the provisions containing more detailed technical specifications on publication are combined in a new Annex XIX. (see also paragraph 1). The common rules on publishing are adapted accordingly, and in all the remaining relevant provisions in the Directive a reference to this new Annex is introduced. Article 43 also contains provisions which have been introduced in response to the widespread use of electronic means (2). These provisions stipulate that, in the case of electronic transmission, all notices - i.e. irrespective of type ("ad hoc", periodic or on the existence of a system of qualification) and regardless of any request from the entity - must be published within five days. In other cases, the current arrangements - publication time-limit of 12 days, or five days in certain cases - remain unchanged. The second sentence of paragraph 3 takes over the current Article 25(1) and is unchanged. Paragraph 4, corresponding to the current Article 25(4), is unchanged, whereas paragraph 5 is new, although it corresponds, mutatis mutandis, to the analogous provisions of the public sector Directives [72]. Paragraph 6 corresponds to the current Article 25(1). [72] Articles 21, 13 and 17, respectively, of Directives 92/50/EEC, 93/36/EEC and 93/37/EEC. 44. Article 44 - Requests to participate and receipt of tenders 44.1. Paragraph 1 introduces the general principle applicable to all time-limits, i.e. they must be sufficiently long to enable interested parties to submit valid tenders, taking into account the various factors (complexity of the contract, etc.) mentioned in the provision. 44.2. Paragraph 2 has been simplified and is otherwise unchanged. It corresponds to the current Article 26(1), first sentence. 44.3. Paragraph 3, which corresponds to the current Article 26(2), is unchanged. It has been clarified that the minimum time-limit (currently expressed as the period available to the Publications Office for the publication of notices, plus 10 days) is 15 days if the notice has been sent by electronic means or fax and 22 days if it has not been sent by such means. 44.4. Apart from the insertion of the reference to Annex XIX concerning technical specifications for publication, the provisions of paragraph 4 are unchanged. 44.5. The new provisions set out in paragraph 5 introduce the general rule that the time-limits for the receipt of requests to participate in restricted or negotiated procedures and for the receipt of tenders in open procedures may be shortened by seven days where notices are sent by electronic means in accordance with Annex XIX. It should be noted that the time-limits for the receipt of tenders in restricted and negotiated procedures cannot be shortened, as the advantage deriving from rapid publication in the case of electronic transmission has already been taken into account by allowing the shortening of the time-limit for the receipt of requests to participate. It should also be noted that a shortening of time-limits pursuant to this paragraph may be aggregated with any shortening under paragraphs 4 and 6. However, given that the cumulative effect of these possible reductions could, in certain cases, lead to excessively short deadlines, provisions have been introduced with the aim of ensuring that - in all cases - deadlines are not shortened beyond certain absolute limits. (see the comments in paragraphs 7 and 8 of this Article). It has to be emphasised, finally, that the possibility of shortening the time-limit for the receipt of tenders in open procedures by seven days, as provided for in this paragraph, may be used even if the contract documents are not made available on the Internet and no periodic indicative notice has been published under the conditions provided for in paragraph 4. 44.6. The new paragraph 6 introduces the general principle that the time-limits for the receipt of tenders (and thus not the time-limits for the receipt of requests to participate) may be shortened by five days in all types of procedures where the contracting entities offer direct access to the specifications (and to other contract documents) free of charge via the Internet. It has to be ensured, however, that this access is offered as from the date of dispatch of the notice used as a means of calling for competition, so that tenderers can derive an advantage from such access justifying a shortening of the time-limits. It should be noted that the possibility of shortening the time-limits under the conditions described here obtains independently of the existence of another possibility to shorten the deadlines for one and the same contract. In other words, it is perfectly possible to shorten the time-limit for the receipt of tenders by five days in an open procedure in which the notice has not been sent by electronic means and for which no periodic indicative notice has been published under the conditions provided for in paragraph 4. It should also be noted that a shortening of time-limits pursuant to this paragraph