Interpretative communication of the Commission on the Community law applicable to public
procurement and the possibilities for integrating environmental considerations into public
procurement
(2001/C 333/07)
(Text with EEA relevance)
(COM(2001) 274 final)
EXECUTIVE SUMMARY
Achieving sustainable development in practice requires that
economic growth supports social progress and respects theenvironment, that social policy underpins economicperformance, and that environmental policy is cost effective.
As stated in the Commission communication of May 2001 on
A sustainable Europe for a better world: a European Union
strategy for sustainable development, to be presented to the
meeting of the European Council in Gothenburg in June 2001,Member States should consider how to make better use ofpublic procurement to favour environmentally friendlyproducts and services. The present communication is acontribution to that end.
The objective of this document is to analyse and to set out the
possibilities of the existing Community legal framework withregard to the integration of environmental considerations intopublic procurement.
The introduction of further possibilities that go beyond the
ones offered by the existing legal framework requires inter-vention from the Community legislator.
Existing environmental and other legislation, either Community
legislation or national legislation compatible with Communitylaw, is binding upon contracting authorities and may have aninfluence on the choices to be made and the specifications andcriteria to be drawn up by contracting authorities.
The main possibilities for green purchasing are to be found at
the start of a public purchase process, namely when making
the decision on the subject matter of a contract. Thesedecisions are not covered by the rules of the publicprocurement directives, but are covered by the Treaty rulesand principles on the freedom of goods and services, notablythe principles of non-discrimination and proportionality.
The public procurement directives themselves offer different
possibilities to integrate environmental considerations intopublic purchases, notably when defining the technical specifi-cations, the selection criteria and the award criteria of acontract.
In addition, contracting authorities may impose specific
additional conditions that are compatible with the Treaty rules.
Public contracts not covered by the public procurement
directives are subject to the rules and principles of theTreaty. Here, it depends on national law whether contracting
authorities have further possibilities for green purchasing.
INTRODUCTION
The objective of this document is to analyse and to set out the
possibilities of the existing Community legal framework withregard to the integration of environmental considerations inpublic procurement, offering thus to public purchasers thepossibility to contribute to sustainable development.
Public procurement policy is one of the many elements of
single market policy, which includes its strategic targets (inparticular the free movement of goods, persons and services).Public procurement policy aims at contributing to the real-isation of the single market by the creation of competitionnecessary for the non-discriminatory award of publiccontracts and the rational allocation of public moneythrough the choice of the best offer presented. Implementingthese principles enables public purchasers to obtain the bestvalue for money, following certain rules on how to define thesubject matter of the contract, for the selection of thecandidates according to objective requirements and the awardof the contract solely on the basis of the price or alternativelyon the basis of a set of objective criteria.
The history of the Community Directives on public
procurement dates from 1971, when the first directiverelating to public work contracts was adopted. Since then,directives on public supply contracts and public servicecontracts have been adopted, as well as directives for theutilities sector (
1). The basic concept and system of the
directives, though amended several times, was never essentiallymodified.
The public procurement directives do not contain any explicit
reference to environmental protection or considerations or anyother aspects beyond the core internal market policy, which is,regarding the time of adoption of these directives, notsurprising.
Since the adoption of the public procurement directives, action
in the field of environment has evolved at the initiative of the
Community and the Member States.
The Amsterdam Treaty has reinforced the principle of inte-
gration of environmental requirements into other policies,recognising that it is key in order to achieve sustainable devel-opment (
2).EN C 333/12 Official Journal of the European Communities 28.11.2001
Also the Commission proposal for the Sixth environmental
action programme, which covers the years 2001-2010, hasidentified public procurement as an area which hasconsiderable potential for greening the market throughpublic purchasers using environmental performance as one oftheir purchase criteria (
3).
Sustainable development offers the European Union a positive
long-term vision of a society that is more prosperous and morejust, and which promises a cleaner, safer, healthier environment a society which delivers a better quality of life for us, forour children, and for our grandchildren. Achieving this inpractice requires that economic growth supports socialprogress and respects the environment, that social policyunderpins economic performance, and that environmentalpolicy is cost-effective (
4). In relation to public procurement,
this means that the legislative framework should facilitate thetaking into account of environmental concerns alongside itsprimary economic purpose.
There is no inherent contradiction between economic growth
and the maintenance of an acceptable level of environmentalquality. Accordingly, the issue should not be seen as one ofeconomic growth versus the environment, but to achievesynergies between the two. The Commission has recognisedin its communication on the single market and theenvironment (
5) that the increasing openness of markets
coupled with growing environmental challenges and greaterenvironmental awareness have revealed synergies, but thatthere are inevitably also tensions between the functioning of
the single market and the implementation of environmental
policy. It is therefore stated that the Community must seek acoherent approach to the pursuit of the objectives of the Treatyin relation to both the single market and the environmentwhilst also honouring its international obligations.
Also at world level, environmental action has evolved
significantly. An example of these evolutions is the adoptionof the Kyoto Protocol. The European Union has made acommitment in the protocol to the climate change conventionagreed in Kyoto, which has set an ambitious target for
reduction of greenhouse gases by the time frame 2008-2012.
With the growing amount of scientific information available
and the increasing public awareness of both the origins aswell as the consequences of environmental pollution, therehas been, for several decades, an increase in the interest incontributing to the prevention of environmental pollutionand contributing to sustainable development. A considerablenumber of consumers in the European Union, both privateand public, tend more and more to purchase environmentallysound products and services.
Public purchasers and other entities covered by the public
procurement directives constitute an important group ofconsumers. By their purchases, which represent more than
EUR 1 000 billion or about 14 % of the Union’s GDP, publicpurchasers could substantially contribute to sustainable devel-opment. Conscious of the responsibility regarding the real-isation of sustainable development, initiatives for greeningpublic procurement at national and local level have alreadybeen launched in a number of Member States.
Even though the Commission has indicated already some of the
main possibilities in the communication of March 1998 (
6),
public purchasers are confronted with the fact that it is often
not clear to what extent environmental considerations are
compatible with the existing Community legislation on publicprocurement.
The Commission has committed itself to explain in greater
detail the possibilities for taking into account environmentalconsiderations in public purchases that are offered by theexisting public procurement legislation.
In addition to this interpretative communication, the
Commission intends to produce a handbook on green publicprocurement with examples on how to draw up green calls fortender in conformity with Community law (
7).
One must keep in mind, as is expressly mentioned in the
communication of 11 March 1998, that the Commissioncannot, in an interpretative document such as this one,propose solutions which go beyond the existing publicprocurement regime. Moreover interpretation of Communitylaw is ultimately of the sole competence of the Court of Justice.
If it is considered that the current public procurement regime
does not allow adequate possibilities for the taking intoaccount of environmental considerations, then modificationof the public procurement directives would be necessary.One should note that in the proposals for modification ofthe public procurement directives, adopted by the Commissionon 10 May 2000, environmental characteristics are listedexplicitly amongst the criteria which may serve to identifythe most economically advantageous tender (
8).
The objective of this document is therefore to examine
and clarify the possibilities offered by the existingpublic procurement regime in order to enable theoptimum consideration of environmental protectionin public procurement. The document will follow thedifferent phases of a contract award procedure andexamine at each stage how environmental concernsmay be taken into consideration.EN 28.11.2001 Official Journal of the European Communities C 333/13
I.DEFINITION OF THE SUBJECT MATTER OF THE CONTRACT
The first occasion for taking into account environmental
considerations relative to a public contract, is the phase justbefore the public procurement directives will be applicable: theactual choice of the subject matter of the contract or, tosimplify the question what do I, public authority, wish toconstruct or purchase? At this stage, purchasing authoritieshave a wide opportunity to take into account environmentalconsiderations and choose an environmentally sound productor service. How far this will effectively be done depends to agreat extent on the awareness and knowledge of the purchasingentity.
It should be emphasised that existing environmental or other
legislation, either Community legislation or national legislationcompatible with Community law, may well limit or influencethis freedom of choice (
9).
The possibilities for the taking into account of environmental
considerations differ according to the different types ofcontracts.
Work contracts cover not only the final product, the work,
but also the design and execution of the works. The bestopportunities for contracting authorities to take intoconsideration environmental concerns are to be found in thephase of the design and the conceptual work. Contracting auth-orities could give clear instructions to the architects and/orengineers to design for example, a low-energy consumingadministrative building, not only taking account of insulationand the use of specific construction materials, but also theinstallation of solar cells for the generation of warmth. They
could equally require that the building be designed so that the
use of elevators is necessary only to a limited extent and thatthe orientation of offices and tables limits the use of artificiallamps (
10).
Contracting authorities are responsible not only for the choice
of the work or concept/design itself, but also for the overallexecution of the works and all that happens on and around theconstruction site. Purchasing entities are therefore entitled todefine the requirements for the execution of the works. Thisoffers a number of possibilities for the taking into account ofenvironmental considerations, through, for instance,requirements relating to energy and water use or wastemanagement on and around the construction site. Here, onecould think of the construction of bridges over rivers in naturalreserves and in areas where tides of the sea must not bedisturbed because of the specific geographical situation where
the work has to be carried out (
11).
For a specific category of work contracts, Community law
imposes an obligation to make, previous to the decision ofhaving the work executed, an environmental impactassessment (
12). This obligation, which originates from environ-
mental legislation and not from the public procurementdirectives, influences the choice of the purchasing entity. Theobligation for the competent authorities to take into account
the results of the environmental impact assessment in thedecision whether or not to give authorisation or consent fordevelopment, tends to lead to more environmentally soundrequirements for the execution of the works.
As to service contracts , the nature of these contracts implies
also a possibility to prescribe a mode of performing.Contracting authorities could, for example, prescribe aspecific method of building cleaning, using only thoseproducts that are least harmful for the environment. Theycould also define that, for instance, public transport servicesare to be carried out by electric buses. They could alsoprescribe the method for the collection of household waste.
Supply contracts relate, generally, to the purchase of final or
end products. Therefore, apart from the basic and essential
choice of the subject matter of the contract (what shall I
purchase?), the possibilities to take into account environmentalconsiderations in addition to this choice are not as extensive asfor works and service contracts. Environmental awareness willinfluence this choice.
The public procurement directives do not prescribe in any way
what contracting authorities should buy and are consequentlyneutral as far as the subject matter of a contract is concerned.
If different possibilities exist for fulfilling their needs,
contracting authorities are free to define the subject matterof the contract in the way that they consider to be the mostenvironmentally sound (
13) even through the use of variants
(see point II.1.4).
This freedom is, however, not entirely unlimited. A contracting
authority, as a public body, has to observe the general rulesand principles of Community law. More precisely, these are theprinciples regarding the free movement of goods and servicesas laid down in Articles 28 to 30 (formerly 30 to 36), and 43to 55 (formerly 52 to 66) of the EC Treaty (
14).
This implies that the subject matter of a public contract may
not be defined with the objective or the result that the accessto the contract is limited to domestic companies to thedetriment of tenderers from other Member States.
Contracting authorities are free to define the subject
matter of the contract, or alternative definitions of thesubject matter through the use of variants, in the waythat that they consider to be the most environmentallysound, provided this choice does not result in arestricted access to the contract in question to thedetriment of tenderers from other Member States.EN C 333/14 Official Journal of the European Communities 28.11.2001
The question of whether a measure is compatible with
Community law depends on a case-by-case assessment. Asannounced in the communication from the Commission tothe European Parliament and the Council on the singlemarket and the environment, the Commission will produce ahandbook on the application of Articles 28 to 30 of the Treaty.
The rules set out above are applicable to all public contracts,
irrespective of the fact whether they fall within or outside thescope of application of the public procurement directives (
15).
After having made the first choice on the subject matter of the
contract, the public procurement directives oblige contractingauthorities to specify the characteristics of the subject in amanner such that it fulfils the use for which it is intendedby the contracting authority. To this end, the directivescontain a number of provisions relating to common rules inthe technical field, to be specified in the contract documentsrelating to each contract.
II.CONTRACTS COVERED BY THE PUBLIC PROCUREMENT
DIRECTIVES
1. TECHNICAL SPECIFICATIONS OF THE SUBJECT MATTER OF
CONTRACTS AND THE POSSIBILITY TO DEFINE REQUIREMENTSRELATING TO ENVIRONMENTAL PERFORMANCE
As a preliminary remark, it should be emphasised that environ-
mental or other legislation, either Community legislation ornational legislation compatible with Community law is ofcourse binding for contracting authorities. All publicprocurement directives contain the rule that the waycontracting authorities define technical specifications iswithout prejudice to the legally binding national technical rules (
16).
This implies that, on condition that this legislation iscompatible with Community law, national legislation may, forinstance, prohibit the use of specific substances which thenational authorities consider harmful for the environment, ormay oblige the observance of a specific minimum level of
environmental performance. Contracting authorities are, of
course, bound to observe such legislation.
In order to enhance transparency, the directives oblige
contracting authorities to indicate the technical specificationsin the general or contractual documents relating to each
contract. The objective of these rules is the opening up of
public markets, the creation of genuine competition andpreventing markets being reserved for national or specificundertakings (i.e. avoiding discrimination). Technical specifi-cations include all characteristics required by the contractingauthority in order to ensure that the product or service fulfilsthe use for which it is intended. These technical specificationsgive objective and measurable details of the subject matter ofthe contract and therefore have to be linked to the subjectmatter of the contract.
The public procurement directives contain a detailed system of
obligatory references to standards and comparable instruments,with a clear hierarchy: preference is given to the Europeaninstruments and in the absence of these, reference can be
made to international or national standards or comparableinstruments (
17).
In addition to this obligation, the directives prohibit
mentioning products of a specific make or source or of aparticular production because these generally favour oreliminate certain undertakings. The indication of trade marks,patents, types, or of a specific origin or production is auth-orised only in cases where the subject of the contract may notbe sufficiently precise and intelligible to all parties concerned.Such indication must always be accompanied by the terms  or
equivalent  where the directives provide such exceptions.
Contracting authorities can depart from these rules and refrain
from the reference to standards or comparable instruments.This is notably the case where the contract is of a genuineinnovative nature for which the use of such instrumentswould not be appropriate.
It should be emphasised that the obligation to refer to
(European) standards, does not imply that contracting auth-orities are bound to purchase only products or services in
conformity with these. The obligation is only to refer to
these instruments as a benchmark, leaving the possibility forsuppliers to offer equivalent solutions.
At present very few European and national standards exist that
deal with environmental performance of products andservices (
18). This implies that until environmental performance
attributes will be integrated into standards, contracting auth-orities can define the required level of performance, providedthat this does not lead to discrimination.
Contracting authorities are free to define on specific
points that they require a higher level of environ-mental protection than that laid down in legislationor in standards, on condition that the level requireddoes not limit the access to the contract and lead todiscrimination to the detriment of potential tenderers.
1.1. The possibility to prescribe which basic or primary
materials shall be used
The concept of technical specification includes the possibility
of prescribing the basic or primary materials to be used, if this
contributes to the characteristics of the product or service in
such a manner that it fulfils the use for which it is intended bythe contracting authority. As long as these prescriptionsobserve Community law and are, in particular, non-discrimi-natory, contracting authorities may prescribe for a specificcontract the materials which are to be used. This couldinclude for instance that for a specific contract the windowframes of an administrative building are made of wood or arequirement for recycled glass or other recycled materials.EN 28.11.2001 Official Journal of the European Communities C 333/15
1.2. The possibility to require the use of a specific
production process
The definition of technical specifications in the directives does
not explicitly refer to production processes (19). However,
provided that this will not reserve the market to certain under-takings (
20), the use of a specific production process may be
required by contracting authorities if this helps to specify theperformance characteristics (visible or invisible) of the productor service. The production process covers all requirements andaspects related to the manufacturing of the product whichcontributes to the characterising of the products without thelatter being necessarily visible in the end-product.
This implies that the product differs from identical products in
terms of its manufacture or appearance (whether thedifferences are visible or not) because an environ-mentally-sound production process has been used, e.g.organically grown foodstuffs (
21), or green electricity.
Contracting authorities must be careful that the prescriptionof a specific production process is not discriminatory (
22).
Requirements which do not relate to the production itself, like
the way how the firm is run, on the contrary, are not technicalspecifications and can therefore not be made mandatory (
23).
1.3. The possibility to refer to eco-labels
Eco-labels certify products that are deemed to be more envi-
ronmentally sound than similar products in the same product
group. The labels are awarded on a voluntary basis to productsfulfilling specific criteria and they aim at informing consumersabout environmentally sound products.
Different types of eco-labels exist: the European eco-label (
24),
national eco-labels and pluri-national eco-labels. There are alsoprivate eco-labels (
25).
For the various product groups, the underlying criteria are
specified in the relevant instruments (26).
These criteria are based on the lifecycle of the product and
relate to different aspects, such as: performance of theproducts, materials contained in the products, productionprocesses, take back and recycling, user instructions andconsumer information. They are technical specificationswithin the meaning of the public procurement directives.
European, pluri-national and national eco-label decisions are
taken in accordance with procedures laid down in therelevant instruments (
27). These systems guarantee transparency
and are open to all producers/suppliers.
Private eco-labels are issued by private persons or organi-
sations. In order to use a private eco-label, the authorisationfrom the owner of the label is necessary. There are no commoncharacteristics or a common system agreed or harmonised atnational, pluri-national or Community level. Private eco-labels
do not provide the same guarantees as to their transparencyand equal access, as European and national eco-labels decisions.
In the absence of mandatory references (
28), or where
they require a higher level of environmental protectionthan that laid down in standards or legislation,contracting authorities can define the technical specifi-cations related to the environmental performances inline with eco-label criteria and may indicate thatproducts having these eco-label certificates aredeemed to comply with the technical prescriptions ofthe contract documents.
Contracting authorities have to be careful not to limit the
means of proof only to eco-label certificates (
29). They shall
accept also other means of proof, like test reports. This is ofparticular relevance in the case of national and privateeco-labels, to ensure that the specification and the means toassess the conformity with the specification would not result inthe reservation of the contract to national/local companies (see,also, Article 8 of Directive 93/36/EEC).
1.4. The possibility to use variants
Products and services that are less damaging for the
environment can be, generally speaking, more expensive thanother products and services. When defining the subject matterof a contract, contracting authorities have to find a balancebetween their financial considerations, on the one hand, andtheir objectives of greening their purchases, on the other hand.
The use of variants (
30) enables contracting authorities to assess
which option best meets both of these requirements.
When using this possibility, contracting authorities first define
a standard definition for the subject matter of the contract thatlays down the minimum requirements. In addition to thisstandard definition, contracting authorities can define one ormore variants, laying down alternative definitions of the
subject matter, like for instance a higher environmental
performance or the use of a specific production processwhich was not a requirement in the standard definition.
2. SELECTION OF THE CANDIDATES
This chapter sets out the rules of the public procurementdirectives relating to the selection of those candidates whomthe contracting authority considers able to execute its contract.
The rules laid down in the public procurement directives
consist of three different types.EN C 333/16 Official Journal of the European Communities 28.11.2001
The first set of rules concerns the grounds that justify a
candidate’s exclusion from participating in a public contract.
These relate to, e.g. the state of bankruptcy, conviction foroffences, grave professional misconduct, non-payment ofsocial security contributions or taxes.
The second set of rules concerns the candidate’s
financial and
economic standing. These rules do not offer possibilities to take
into account environmental considerations.
The third set of rules concerns the candidate’s technical
capacity. These rules enable, to a certain extent, environmental
considerations to be taken into account, by defining e.g. aminimum level of equipment or facilities, guaranteeing thecorrect execution of the contract. The directives specify (
31)
that the information required for evidence of the operator’sfinancial and economic standing as well as for technicalcapacity must be confined to the subject matter of thecontract. The possibilities contained in these rules will be setout below.
In the utilities sectors, the contracting entities dispose of a
wider margin of appreciation for the assessment of thecapacity of candidates or tenderers in so far as Directive93/38/EEC only requires that objective rules and criteria areapplied which are defined beforehand and are put at thedisposal of interested candidates or tenderers.
2.1. Grounds for exclusion from participation in the
contract
All public procurement directives define the grounds on which
enterprises may be excluded from participating in tenderprocedures. These grounds read, as far as relevant, as follows:
Any supplier/contractor/service provider may be excluded from
participation in the contract who:
(c) has been convicted of an offence concerning his professional
conduct by a judgment, which has the force of res judicata;
(d) has been guilty of grave professional misconduct proven by
any means, which the contracting authorities can justify; 
In the case where legislation qualifies the non-compliance with
environmental legislation as an offence concerning professionalconduct (
32), the public procurement directives allow a
contracting authority to exclude a candidate from participation
on the ground mentioned under (c) where this undertaking is
convicted for committing this offence and where the judgmenthas the force of res judicata .
Moreover, the Commission has proposed a Community
directive defining a minimum set of criminal offences to thedetriment of the environment (
33).The concept of grave professional misconduct is a concept
which is, as such, not yet defined in European legislation orcase law (
34) and it is therefore left to the Member States to
define this concept in national legislation.
2.2. Requirements relating to the technical capacity of the
candidates
The public procurement directives define the means by which
evidence of a contractor’s technical capability may be supplied.The public procurement directives exhaustively list (
35) the
references by which technical capacity may be provedaccording to the nature, quantity and purpose of thecontract. Therefore, each individual requirement relating tothe candidate’s technical capacity, defined by a contractingauthority must come within one of the references listed inthe directives.
The objective of the selection phase is to identify those
candidates, which are considered by the contracting authorityto be capable of executing the contract in the best way.
Therefore, the different requirements must have a direct link
to the subject matter or the execution of the contract atstake (
36).
Among the references listed exhaustively by the public
procurement directives, the following could in specific casesrelate to environmental aspects:
 a statement of the tools, plant and technical equipment
available to the candidate for executing the contract,
 a description of the supplier’s technical facilities, its
measures for ensuring quality and its study and researchfacilities,
 a statement of the technicians or technical bodies which the
candidate can call upon for executing the contract, whetheror not they belong to the firm, especially those responsiblefor quality control.
2.2.1. The possibility to require specific (environmental) experience
If the contract needs specific know-how in the field of the
environment, specific experience is a legitimate criterion oftechnical ability and knowledge for the purpose of ascertainingthe suitability of candidates (
37) and may therefore be required
(e.g. the construction of a waste treatment plant).
2.2.2. The possibility to require suppliers to operate an environ-
mental management scheme
Environmental management schemes have been set up by an
international standard (ISO 14001) and in an EC Regulation(EMAS (
38)).EN 28.11.2001 Official Journal of the European Communities C 333/17
The Regulation establishes a voluntary environmental
management scheme, based on harmonised lines and principlesthroughout the European Union, open to organisationsoperating in the European Union and the EuropeanEconomic Area, in all sectors of economic activities.
The aim of the European environmental management scheme
is to promote continuous environmental performanceimprovements of activities, products and services bycommitting organisations to evaluate and manage theirsignificant environmental impacts.
The implementation of EMAS requires following several steps.
The environmental review is the initial step which allowsorganisations to evaluate their environmental situation andtherefore to build up the appropriate management system tolead to better environmental performance through clearenvironmental objectives. Regular environmental auditsprovide for the means to check that the environmentalmanagement system works and to follow the progress of theorganisation towards better environmental performance.
Amongst these steps, registration in the scheme requires that
the organisation adopts an environmental policy containing, inparticular, the following key commitments:
 compliance with all relevant environmental legislation,
 prevention of pollution, and
 achieving continuous improvements in environmental
performance.
As part of EMAS all participating countries have created verifi-
cation mechanisms, by which compliance to EMAS is verifiedand information validated by independent verifiers who areaccredited by accreditation bodies. This validation leads torequest for registration which is granted by the competentbodies, designated by the Member State.
The lists of registered organisations from the EU Member States
plus the EEA countries is regularly communicated to theCommission and a complete list is available from Commissionservices (
39).
The contents of the environmental programmes and environ-
mental management schemes may differ from company to
company and organisation to organisation because they aretailor-made. This is the reason that it is not possible to givea general answer to the question whether or not EMAS as suchcan be qualified as one of the possible references relative to thetechnical capacity of a company or organisation which arelisted exhaustively in the public procurement directives. Thequestion of whether or not a specific environmentalmanagement and audit scheme can be qualified as one of
these references depends on the contents of the specific system.
It is however important to underline that common to all
environmental management and audit schemes is that thecompany or organisation fulfils a number of minimumcriteria and that all such systems represent a high level ofenvironmental performance and management.
In order to be relevant as a means of proof of technical
capacity, the system should have an impact on thequality of the supply or the capacity of a company(for example the equipment and technicians) toexecute a contract with environmental requirements(for example, a works contract for which thecontractor has to deal with waste on the constructionsite).
Therefore, whenever elements of a company’s or
organisation’s environmental programme andmanagement scheme could be regarded as one ormore of the references that could be required forestablishing a company’s technical capacity (
40) the
EMAS registration could serve as a means of proof.
In such cases, Article 11(2) of the EMAS Regulation states that
In order to encourage the organisation’s participation in EMAS theCommission and other institutions of the Community as well as otherpublic authorities at national level should consider, without prejudiceto Community law, how registration under EMAS may be taken intoaccount when setting criteria for their procurement policies.Contracting authorities could explicitly mention in theircontract documents or the tender notice that whenevercompanies have an environmental management and auditsystem which covers the requirements as to the technicalcapacity, this system will be accepted as a sufficient means ofproof. At the same time, contracting authorities may notexclude other means by accepting only an EMAS registrationas means of proof: any other certificate (e.g. ISO 14001) or anyother means of proof should also be accepted.
3. AWARD OF THE CONTRACT
Once the candidates have been selected, the contracting auth-orities enter the phase of the evaluation of the tenders,resulting in the award of the contract.
The public procurement directives contain two options for the
award of contracts: either the lowest price or the most econ-
omically advantageous tender . The aim of this second option is to
help the contracting authorities get the best value for money.EN C 333/18 Official Journal of the European Communities 28.11.2001
In order to define which tender should be considered the most
economically advantageous, the contracting authority has toindicate beforehand which criteria will be decisive and willbe applied. These different criteria should be mentionedeither in the contract notice or in the contract documents,where possible in descending order of importance.
3.1. The most economically advantageous tender
The directives give examples of the criteria that may be applied
in order to define the most economically advantageoustender (
41). Other criteria are possible.
As a general rule, the public procurement directives impose
two conditions with regard to the criteria which will be
applied for determining the most economically advantageoustender. First, the principle of non-discrimination has to beobserved and second, the criteria applied shall generate aneconomic advantage for the contracting authority. Asconfirmed by the European Court of Justice, the aim of thepublic procurement directives is to avoid both the risk ofpreference being given to national tenderers or applicantswhenever a contract is awarded by the contracting authoritiesand the possibility that a body financed or controlled by theState, regional or local authorities or other bodies governed bypublic law may choose to be guided by considerations that arenot economic (
42). Economic considerations can include aspects
of environmental protection, like, for instance the energyconsumption of a product.
The common factor shared by all criteria used for the
evaluation of tenders is that they must, like those expresslycited, concern the nature of the work to be carried out orthe manner in which it is done (
43). The criteria applied
should give the contracting authority discretion to compareobjectively the different tenders and to accept the most advan-tageous on the basis of objective criteria such as those listed byway of example in the directives (
44).
The objective of this assessment is to establish which tender
best fulfils the needs of the contracting authority. Therefore thefunction of the award criteria is to assess the intrinsic qualityof the tenders. This implies that the award criteria have to belinked to the subject matter of the contract (
45).
Environmental considerations are not explicitly mentioned in
the current public procurement legislation (46); nevertheless the
article on award criteria has to be interpreted in such a waythat environmental considerations can result in the definitionof specific award criteria. The environmental soundness of a
product, without further specification, is, as such, not
measurable and does not necessarily have an economicadvantage for the contracting authority. However, contractingauthorities could take into account the environmentalsoundness of products or services, for example, theconsumption of natural resources, by translating this environ-mental objective into specific, product-related and economicallymeasurable criteria by requiring a rate of energyconsumption (
47)). In most cases, such criteria relate to thequality or performance of the product or the execution of
works or services (i.e. quality or technical merit asmentioned amongst the award criteria). Hence, environmentalaspects relating to a product or service would be considered onan equal footing as the functional and aesthetic characteristicsof goods or services, criteria that are explicitly listed in thepublic procurement directives, in terms of assessment of whatis economically measurable.
Environmental elements can serve to identify the most
economically advantageous tender, in cases wherethese elements imply an economic advantage for thepurchasing entity, attributable to the product or servicewhich is the object of the procurement.
The question rises whether the concept of economically most
advantageous tender implies that each individual awardcriterion has to have an economic advantage which directlybenefits the contracting authority, or that each individual
award criterion has to be measurable in economic terms,
without the requirement of directly bringing an economicadvantage for the contracting authority in the contract atstake. This question has been put to the European Court ofJustice in case C-513/99 (
48). The judgment is expected by the
end of 2001.
Both in the Green Paper (49) and in the communication (50)o n
public procurement the Commission has clearly taken aposition in favour of the first interpretation.
The Commission notes in this respect that contracting auth-
orities retain the possibility to define the subject matter of acontract and to integrate at this stage of the tender proceduretheir environmental preferences linked to eventual indirecteconomic advantages, including through the use of variants(see II.1.4).
3.2. The possibility to take into consideration all costs
incurred during the whole life cycle of a product
Life cycle costing is the taking into account of all costs incurred
during the production, consumption/use and disposal of a
product or service (cradle to grave approach) (
51).
The price paid by a contracting authority to purchase a
product, reflects and takes account of those costs incurred in
the phases which are already completed (normally: design,materials, production; sometimes also testing and transport)and should therefore not be taken into consideration asecond time in the award process (
52). On the contrary, all
costs occurring after the purchase of the product, which willbe borne by the contracting authority and thus will affectdirectly the economic aspects of the product, may be takeninto account.EN 28.11.2001 Official Journal of the European Communities C 333/19
Costs incurred during the life cycle of a product and
will be borne by the contracting authority may betaken into account for the assessment of the mosteconomically advantageous tender.
The Directives explicitly mention as possible award criteria
running costs and cost effectiveness. Such costs mightinclude direct running costs (energy, water and otherresources used during the lifetime of the product); spendingto save (for example, investing in higher levels of insulation tosave energy and thus money in the future); as well as the costsof maintenance or recycling of the product. In evaluatingtenders, a purchasing organisation can also take account ofcosts of treatment of waste or re-cycling.
3.3. The possibilities to take into account externalities
Externalities are damages or benefits, which are not paid for by
the polluter or beneficiary under normal market conditions.
They are defined as: the costs and benefits which arise whenthe social or economic activities of one group of people havean impact on another, and when the first group fail to fullyaccount for their impact (
53).
External costs and benefits are opposed to traditional costs
and benefits such as operating costs or income from sales.The characteristic of the latter costs is that they are paid forwith a price determined by the market.
As a general rule, externalities are not borne by the purchaser
of a product or service, but by society as a whole and thereforedo not qualify as award criteria as defined above (see 3.1). TheCommission notes in this respect that contracting authoritiesretain the possibility to define the subject matter of a contractor impose conditions relating to the execution of the contractand to integrate at these stages of the tender procedure theirenvironmental preferences linked to eventual occurrence ofexternal costs.
Only in specific cases, for instance where external costs are due
to the execution of the contract and at the same time are bornedirectly by the purchaser of the product or service in question,
these costs could be taken into account.
In such cases, contracting authorities should be careful not to
introduce systems that lead to preferences or disguiseddiscrimination. Up till now, there does not exist a harmonisedsystem for the qualification and economic evaluation of exter-nalities. However, there is work being undertaken in the EUwhich aims at the coordination of the methodologies ofeconomic evaluation of external costs in the field of transport,which could, in time remove risks of discrimination involved inadopting this approach.3.4. Additional criteria
This concept has been developed by the case law of the
European Court of Justice (
54).
The concept was first set out in case 31/87 , where the Court
held that such criteria (the employment of long-term unem-ployed persons) have neither a relationship to the checking of acandidate’s economic and financial suitability and thecandidate’s technical knowledge and ability nor a connectionwith the award criteria as listed in Article 9 of the Directive.The Court held further that these criteria are neverthelesscompatible with the directives on public procurement if theycomply with all relevant principles of Community law.
In case C-225/98 the ECJ held that (
55) the awarding authorities
could apply a condition relating to the campaign against unem-ployment, provided that this condition was in line with all thefundamental principles of Community law, but only where thesaid authorities had to consider two or more economicallyequivalent bids. Such a condition could be applied as anaccessory criterion once the bids had been compared from apurely economic point of view. As regards the criterion relatingto the campaign against unemployment the Court made it clearthat it must not have any direct or indirect impact on thosesubmitting bids from other Member States of the Communityand must be explicitly mentioned in the contract notice so thatpotential contractors were able to ascertain that such acondition existed.
This could be equally applicable to conditions relating to
environmental protection or performance.
4. EXECUTION OF THE CONTRACT
Contracting authorities have the possibility to define the(detailed) contract clauses, relating to the mode of executionof the contract. Contract clauses may not be (disguised)technical specifications, selection criteria or award criteria.They relate merely to the execution of the contract itself.This means that all applicants, should they eventually be
awarded the contract, must be in a position to execute these
clauses. As a matter of transparency, they should be announcedin advance to all applicants.
The public procurement directives do not cover contract
clauses. As such, contract clauses must observe the generalTreaty rules and principles, notably the principle ofnon-discrimination.
Contracting authorities have a broad range of possibilities for
defining contract clauses having as their object the protectionof the environment.
The following are examples of specific additional conditions,
which have a bearing on the performance or execution of thecontract and which ultimately meet general environmentalobjectives, which are sufficiently specific, observe Communitylaw principles and are in conformity with the directives (
56):EN C 333/20 Official Journal of the European Communities 28.11.2001
 delivery/packaging of goods in bulk rather than by single
unit,
 recuperation or reuse of packaging material and the used
products by the supplier,
 delivery of goods in reusable containers,
 collection, take-back recycling or reuse of waste produced
during or after use or consumption of a product by thesupplier,
 transport and delivery of chemicals (like cleaning products)
in concentrate and dilution at the place of use.
As to the question whether it may be required that a certain
mode of environmentally sound transport is used for thedelivery of goods, one should note that such a requirementshould be defined in such a way that it has a bearing on theperformance or execution of the contract and it should comply
with Community law principles. A contracting authority may
therefore require that the transport of products to be deliveredbe effected by a certain type of transport, as long as, in thespecific circumstances of the contract, this requirement doesnot lead to discrimination.
III. CONTRACTS NOT COVERED BY THE PUBLIC
PROCUREMENT DIRECTIVES
For contracts not covered by the public procurement directives,
the detailed rules stemming from the public procurementdirectives and set out in the previous chapters do not apply.
Indeed Community law leaves it to the Member States to decide
whether or not public procurement not covered by theCommunity directives should be subject to nationalprocurement rules.
Within the limits set by the Treaty and Community law,
Member States are free to adopt their national legislation. Itwill therefore depend on the national legislation whether public
procurement may, or even shall be used to fulfil otherobjectives than the best value for money objective of thepublic procurement directives.
When defining the subject matter of such a contract, a broad
range of requirements and conditions may be imposed, even ifthese conditions and requirements may probably not have adirect link to the subject matter of the contract. Of coursethese requirements and conditions must observe the rules of
the Treaty and principles flowing from the Treaty. Thus, the
Court of Justice has held that inclusion of clauses referring tonational standards or a specific origin in an invitation to tendermay cause economic operators who produce productsequivalent to products certified as complying with thenational standard to refrain from tendering (
57). If measures
impose on the national of one Member State more rigorousrules, or put him in law or in fact in an unfavourable positioncompared with the national of the Member State imposing themeasure, these measures could infringe the Treaty rules on freemovement of goods and services.
As regards the qualification of candidates, purchasing auth-
orities are free to impose requirements and define conditionsthat go beyond what is possible under the public procurementdirectives. The criteria need not to be limited to the financialand economic situation of a candidate, or to his technicalcapacity. Of course, the requirements for qualification have to
be compatible with Community law and Community law prin-
ciples, notably the rules and principles relating to the freeprovision of services, such as non-discrimination and mutualrecognition.
As regards the evaluation of tenders, award criteria may be
defined freely by a purchasing authority, as long as theTreaty rules and Community law principles are observed, andthe criteria remain objective, transparent and non-discrimi-natory.
The question of whether the Treaty rules or the principles of
Community law are observed, depends on a case-by-caseassessment.
(1) Council Directive 71/305/EEC concerning the coordination of procedures for the award of public works contracts, replaced by Council Directive
93/37/EEC, amended by European Parliament and Council Directive 97/52/EC;
Council Directive 77/62/EEC coordinating procedures for the award of public supply contracts, replaced by Council Directive 93/36/EEC,amended by European Parliament and Council Directive 97/52/EC;Council Directive 92/50/EEC relating to the coordination of procedures for the award of public service contracts, amended by European
Parliament and Council Directive 97/52/EC;
Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement of entities operating in the water, energy, transport and tele-communications sectors, amended by European Parliament and Council Directive 98/4/EC.
(
2) Article 6 of the consolidated version of the Treaty establishing the European Community states that environmental protection requirements must
be integrated into the definition and implementation of the Community policies and activities referred to in Article 3, in particular with a view to
promoting sustainable development.
(3) Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the
Regions on the sixth environment action programme of the European Community: Environment 2010: our future, our choice  adopted by the
Commission on 24 January 2001  COM(2001) 31 final.EN 28.11.2001 Official Journal of the European Communities C 333/21
(4) Communication from the Commission: A sustainable Europe for a better world: a European Union strategy for sustainable development.
Commission’s proposal to the Gothenburg European Council; COM(2001) 264 final, adopted on 15 May 2001.
(5) Adopted by the Commission on 8 June 1999; COM(1999) 263 final, p. 4.
(6) Commission communication Public procurement in the European Communities, adopted by the Commission on 11 March 1998; COM(1998)
143 final.
(7) Commission communication in integrated product policy, adopted by the Commission on 7 February 2001  COM(2001) 68 final.
(8) Article 53 of the Proposal for a Directive of the European Parliament and of the Council on the coordination of procedures for the award of
public supply contracts, public service contracts and public works contracts (COM(2000) 275 final of 10 May 2000) and Article 54 of theProposal for a Directive of the European Parliament and of the Council coordinating the procurement procedures of entities operating in thewater, energy and transport sectors (COM(2000) 276 final of 10 May 2000).
(
9) Like, for instance, the obligation, for certain categories of works, to carry out an environmental impact assessment. See footnote 11.
(10) Different national administrations have already issued guidelines to their contracting authorities on sustainable construction.
(11) Example of the Oresund bridge construction or the Vasco de Gama bridge in Lisbon.
(12) Projects covered by Directive 85/337/EEC (OJ L 175, 5.7.1985, p. 40), as amended by Directive 97/11/EC (OJ L 73, 14.3.1997 , p. 5).
(13) Contracting authorities have the possibility to either prescribe the solution chosen, or avoid prescribing requirements which would lead the
tenderers to offer products whose production processes would damage the environment more. They could, for example, require recycled paper
which is not bleached.
(14) COM(1999) 263 final of 8 June 1999, p. 8.
(15) With the exception of those contracting entities which are covered by the Utilities Directive (Directive 93/38/EEC), but which are nevertheless
private bodies.
(16) These are technical specifications the observance of which is mandatory by law or regulation in order to place a product on the market or to
use it.
(17) See the annexes to this communication.
(18) The Commission supports European standardisation organisations in integrating environmental aspects into the standardisation process.
(19) It should be observed that the Government Procurement Agreement explicitly lists production process in the definition of technical specification .
(20) See for example Article 8 paragraph 6 of Directive 93/36/EEC.
(21) Contracting authorities may, for instance, for the description of what they consider organically grown foodstuffs, use the technical specificati ons
laid down in Council Regulation (EEC) No 2092/91 of 24 June on organic production of agricultural products and indications referring thereto onagricultural products and foodstuffs (OJ L 198, 22.7.1991, p. 1).
(
22) They may not prescribe that green electricity is generated by wind-energy only; indeed, water energy and solar energy can also be used for the
production of green electricity and the technical prescription should therefore be that the green electricity is produced by using renewable energysources.
(
23) For example, the use of recycled paper in offices, the application of specific waste disposal methods on the contractors premises, the engagement
of specific groups of workers (ethnic, handicapped, women).
(24) The European eco-label system was first laid down in Council Regulation (EEC) No 880/92 of 23 March 1992 on a Community eco-label award
scheme (OJ L 99, 11.4.1992, p. 1). This regulation has been repealed and replaced by European Parliament and Council Regulation (EC) No
1980/2000 of 17 July 2000 on a revised Community eco-label award scheme (OJ L 237 , 21.9.2000, p. 1).
The Internet site: http://europa.eu.int/comm/environment/ecolabel/prodgr.htm contains a list of all product groups for which a European eco-la bel
exists or is under development or revision.
(25) An important group of private eco-labels are the labels identifying timber as being the product of sustainable forestry.
(26) So, for instance, criteria for the European eco-label for personal computers are specified in the Commission Decision of 26 February 1999
establishing ecological criteria for the award of the Community eco-label to personal computers (OJ L 70, 17.3.1999, p. 46).
(27) European eco-label decisions are taken in accordance with the procedure defined in European Parliament and Council Regulation (EC) No
1980/2000 and (pluri-)national eco-label decisions are taken on the basis of the procedures defined in the national rules. Article 10 of the
European eco-label Regulation states that in order to encourage the use of eco-labelled products the Commission and other institutions of theCommunity, as well as other public authorities at national level should, without prejudice to Community law, set an example when specifyingtheir requirements for products.
(
28) Like for instance a European, international or national standard covering also environmental aspects of a product  see II.1.
(29) Eco-labelled products often represent a limited part of a certain product market: European eco-labelled products represent normally less than 20 %
and in some cases even less than 5 % of the product markets.
(30) All public procurement directives provide for the possibility that where the criterion for the award of the contract is that of the most
economically advantageous tender, contracting authorities may take account of variants which are submitted by a tenderer and meet theminimum specifications required by the contracting entities. Contracting authorities shall state in the contract documents the minimum spec-ifications to be respected by the variants and specific requirements for their presentation. Where variants are not permitted, they shall so indicat e
in the tender notice. Article 24 of Directive 92/50/EEC; Article 16 of Directive 93/36/EEC; Article 19 of Directive 93/37/EEC and Article 34(3) ofDirective 93/38/EEC.
(
31) See, for example, Article 23(3) of Directive 93/36/EEC.EN C 333/22 Official Journal of the European Communities 28.11.2001
(32) Some countries have framed what are called ecological offences in their criminal code. For instance, Article 325 of the current Spanish Criminal
Code (Organic Law No 10/1995 of 23 November 1995) provides that anyone who, in breach of the laws or other general provisions to protect
the environment, causes or whose actions directly or indirectly give rise to emissions, discharges, radiation, extraction or excavation, silting, noise,
vibrations, injections or deposits in the atmosphere, soil, subsoil, or inland, marine or ground waters, including any influencing transboundaryareas, or who undertakes water abstraction which may seriously upset the balance of natural systems, shall be liable to a term of imprisonment of
between six months and four years, penalties payable over periods of between eight and twenty-four months and disqualification from pursuing
an occupation or holding office for a period ranging from one to three years. If there is a risk of serious damage to human health, the term ofimprisonment shall be in the upper half of the range.
(
33) An approximation of a minimum set of offences against the environment, as envisaged in the Commission proposal, would not prevent Member
States from providing for additional offences and/or additional sanctions as more stringent protective measures (Article 176 EC).
(34) Final report on the Falcone study on procurement and organised crime (1998)  Volume I: 24.5.1999  Institute of Advanced Legal Studies 
University of London.
(35) Case 76/81: Transporoute et travaux vMinistŁre des travaux public ; judgment of 10 February 1982; ECR 417.
(36) The service directive (92/50/EEC) indicates expressly that these requirements must be defined according to the nature, quantity and purpose of the
services to be provided.
(37) Case 31/87: Gebroeders Beentjes bv vState of the Netherlands , judgment of 20 September 1988; conclusion, paragraph 35; ECR 4635.
(38) The ECO management and audit scheme was first developed in Council Regulation (EEC) No 1836/93 of 29 June 1993 (OJ L 168). The Regulation
has been revised and replaced by Regulation (EC) No 761/2001 of the European Parliament and of the Council allowing voluntary participation byorganisations in a Community eco-management and audit scheme (EMAS).
(
39) A list of registered sites is also published on the Internet: http://europa.eu.int/comm/environment/emas. At the beginning of 2001, over 3 000
sites have been registered in the EU.
(40) See above, point 2(2): (a) a statement of the tools, plant and technical equipment available to the candidate for executing the contract; (b) a
description of the supplier’s technical facilities, its measures for ensuring quality and its study and research facilities; or (c) a statement of th e
technicians or technical bodies which the candidate can call upon for executing the contract, whether or not they belong to the firm, especiallythose responsible for quality control.
(
41) Price, delivery date, delivery period, period for completion, running costs, cost-effectiveness, quality, aesthetic and functional characteri stics of the
goods or services, after-sales service, technical assistance, profitability, technical merit.
(42) Case C-380/98: The Queen and HM Treasury, ex parte : University of Cambridge; judgment of 3 October 2000; Reference for a preliminary ruling.
(ECR I-8035, 2001) and Case C-237/99: Commission/France (HLM); judgment of 1 February 2001 (not yet published).
(43) Case 31/87: Gebroeders Beentjes (infra)  Conclusion of the Advocate-General.
(44) Case 31/87: Gebroeders Beentjes (infra)  paragraph 27 .
(45) See for example Article 26(1)(b) Directive 93/36/EEC various criteria according to the contract in question.
(46) One should note that in the proposals for modification of the public procurement directives, which are adopted by the Commission on 10 May
2000, environmental characteristics are listed explicitly amongst the criteria which may serve for identifying the most economically advantageou s
tender (see footnote 8).
(47) Eco-label criteria can be used to define the most economically advantageous tender where they satisfy the conditions set out in this section.
(48) Case C-513/99: Stagecoach Finland Oy Ab, formerly Oy Swebus Finland Ab, of Espoo (request for a preliminary ruling) (OJ C 102, 8.4.2000, p.
10).
(49) Green Paper: public procurement in the European Union: exploring the way forward, adopted by the Commission on 27 November 1996,
COM(1996) 583 final.
(50) Commission communication Public procurement in the European Communities, adopted by the Commission on 11 March 1998, COM(1998)
143 final.
(51) In general, these phases are, not necessarily in the following order: design of the product; purchase of the materials; production; transport; test ing;
use; disposal; recycling.
(52) Transport costs or costs for testing the product, if borne by the supplier and reflected in the price, may not be taken into consideration a second
time by the contracting authority by adding them to the price to be paid to the supplier.
(53) European Commission, DG Environment: A study on the economic valuation of environmental externalities from landfill disposal and incineration
of waste. Final main report; October 2000, p. 9.
(54) Case 31/87: Gebroeders Beentjes (infra) and Case C-225/98: Commission of the European Communities vFrench Republic , judgment of 26 September
2000, construction and maintenance of school buildings by the Nord-Pas-de-Calais Region and the DØpartement du Nord. (ECR I-7445, 2000).
(55) See the General Report on the activities of the European Union in 2000, point 1119, p. 407.
(56) OECD document ENV/EPOC/PPC(98) 17REV1.
(57) Case 45/87: Commission/Ireland (Dundalk); judgment of 22 September 1988, ECR 4929, and Case C-243/89: Commission/Denmark (bridge over
the Storebaelt); judgment of 22.6.1993, ECR I-3353.EN 28.11.2001 Official Journal of the European Communities C 333/23
ANNEX I
COMMON RULES IN THE TECHNICAL FIELD
The common rules in the technical field are laid down in Article 14 of Directive 92/50/EEC (services), Article 8 of
Directive 93/36/EEC (supplies) and Article 10 of Directive 93/37/EEC (works). Even though the wording of these articlesis not entirely identical the content of the rules articles is the same. Therefore, and by way of example, the text of Article
14 of Directive 92/50/EEC is reproduced below.
DIRECTIVE 92/50/EEC
TITLE IV
Common rules in the technical field
Article 14
1. The technical specifications defined in Annex II shall be given in the general documents or the contractual documents
relating to each contract.
2. Without prejudice to the legally binding national technical rules and insofar as these are compatible with Community
law, such technical specifications shall be defined by the contracting authorities by reference to national standards
implementing European standards or by reference to European technical approvals or by reference to common
technical specifications.
3. A contracting authority may depart from paragraph 2 if:
(a) the standards, European technical approvals or common technical specifications do not include any provisions for
establishing conformity, or technical means do not exist for establishing satisfactorily the conformity of a productwith these standards, European technical approvals or common technical specifications;
(b) the application of paragraph 2 would prejudice the application of Council Directive 86/361/EEC of 24 July 1986
on the initial stage of the mutual recognition of type approval for telecommunications terminal equipment.Amended by Directive 91/263/EEC, or Council Decision 87/95/EEC of 22 December 1986 on standardisation in
the field of information technology and telecommunications or other Community instruments in specific service
or product areas;
(c) these standards, European technical approvals or common technical specifications would oblige the contracting
authority to use products or materials incompatible with equipment already in use or would entail dispropor-tionate costs or disproportionate technical difficulties, but only as part of a clearly defined and recorded strategy
with a view to the transition, with a given period, to European standards, European technical approvals or
common technical specifications;
(d) the project concerned is of a genuinely innovative nature for which use of existing European standards, European
technical approvals or common technical specifications would not be appropriate.
4. Contracting authorities invoking paragraph 3 shall record, wherever possible, the reasons for doing so in the contract
notice published in the Official Journal of the European Communities or in the contract documents and in all cases shall
record these reasons in their internal documentation and shall supply such information on request to Member States
and to the Commission.
5. In the absence of European standards or European technical approvals or common technical specifications, the
technical specifications:
(a) shall be defined by reference to the national technical specifications recognised as complying with the basic
requirements listed in the Community directives on technical harmonisation, in accordance with the procedureslaid down in those directives, and in particular in accordance with the procedures laid down in Directive89/106/EEC;
(b) may be defined by reference to national technical specifications relating to design and method of calculation and
execution of works and use of materials;
(c) may be defined by reference to other documents.
In this case, it is appropriate to make reference in order of preference to:
(i) national standards implementing international standards accepted by the country of the contracting authority;
(ii) other national standards and national technical approvals of the country of the contracting authority;
(iii) any other standard.EN C 333/24 Official Journal of the European Communities 28.11.2001
6. Unless it is justified by the subject of the contract, Member States shall prohibit the introduction into the contractual
clauses relating to a given contract of technical specifications which mention products of a specific make or source or
of a particular process and which therefore favour or eliminate certain service providers. In particular, the indicationof trade marks, patents, types, or of specific origin or production shall be prohibited. However, if such indication isaccompanied by the words or equivalent, it shall be authorised in cases where the contracting authorities are unable
to give a description of the subject of the contract using specifications which are sufficiently precise and intelligible to
all parties concerned.
For the utilities sector, the common rules in the technical field are laid down in Article 18 of this Directive. These rules
differ from the ones in Directives 92/50/EEC, 93/36/EEC and Directive 93/37/EEC in that they are less detailed andexhaustive. Article 18 of Directive 93/38/EEC is reproduced below.
DIRECTIVE 93/38/EEC
TITLE III
Technical specifications and standards
Article 18
1. Contracting entities shall include the technical specifications in the general documents or the contract documents
relating to each contract.
2. The technical specifications shall be defined by reference to European specifications, where these exist.3. In the absence of European specifications, the technical specifications should as far as possible be defined by reference
to other standards having currency within the Community.
4. Contracting entities shall define such further requirements as are necessary to complete European specifications or
other standards. In so doing, they shall prefer specifications which indicate performance requirements rather thandesign or description characteristics, unless the contracting entity has objective reasons for considering that suchspecifications are inadequate for the purposes of the contract.
5. Technical specifications which mention goods of a specific make or source or of a particular process, and which have
the effect of favouring or eliminating certain undertakings, shall not be used unless such specifications are indis-
pensable for the subject of the contract. In particular, the indication of trade marks, patents, types, of specific originor production shall be prohibited; however, such an indication accompanied by the words or equivalent shall beauthorised where the subject of the contract cannot otherwise be described by specifications which are sufficiently
precise and fully intelligible to all concerned.
6. Contracting entities may derogate from paragraph 2 if:
(a) it is technically impossible to establish satisfactorily that a product conforms to the European specifications;(b) the application of paragraph 2 would prejudice the application of Council Directive 86/361/EEC of 24 July 1986
on the initial stage of the mutual recognition of type approval for telecommunications terminal equipment, or ofCouncil Decision 87/95/EEC of 22 December 1986 on standardisation in the field of information technology and
telecommunications;
(c) in the context of adapting existing practice to take account of European specifications, use of those specifications
would oblige the contracting entity to acquire supplies incompatible with equipment already in use or would entail
disproportionate cost or disproportionate technical difficulty. Contracting entities which have recourse to this derogation shall
do so only as part of clearly-defined and recorded strategy with a view to a changeover to European specifications;
(d) the relevant European specification is inappropriate for the particular application or does not take account of
technical developments which have come about since its adoption. Contracting entities which have recourse tothis derogation shall inform the appropriate standardising organisation, or any other body empowered to reviewthe European specification, of the reasons why they consider the European specification to be inappropriate and
shall request its revision;
(e) the project is of a genuinely innovative nature for which use of European specifications would not be appro-
priate.
7. Notices published pursuant to Article 21(1)(a) or Article 21(2)(a) shall indicate any recourse to the derogations
referred to in paragraph 6.
8. This Article shall be without prejudice to compulsory technical rules insofar as these are compatible with Community
law.EN 28.11.2001 Official Journal of the European Communities C 333/25
ANNEX II
DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS
The contents of the definition of certain technical specifications of Annex II of Directive 92/50/EEC (services), Annex III
of Directive 93/36/EEC (supplies), Annex II of Directive 93/37/EEC (works), and Article 1, paragraphs 8 to 13 ofDirective 93/38/EEC (utilities) are the same, even though the wording of these definitions is not entirely identical.
Therefore, and by way of example, the text of Annex II of Directive 92/50/EEC is reproduced below.
ANNEX II
DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS
For the purpose of this Directive the following terms shall be defined as follows:
1. Technical specifications: the totality of the technical prescriptions contained in particular in the tender documents,
defining the characteristics required of a work, material, product or supply, which permits a work, a material, a
product or a supply to be described in a manner such that it fulfils the use for which it is intended by the contractingauthority. These technical prescriptions shall include levels of quality, performance, safety or dimensions, includingthe requirements applicable to the material, the product or to the supply as regards quality assurance, terminology,
symbols, testing and test methods, packaging, marking or labelling. They shall also include rules relating to design
and costing, the test, inspection and acceptance conditions for works and methods or techniques of construction andall other technical conditions which the contracting authority is in a position to prescribe, under general or specificregulations, in relation to the finished works and to the materials or parts which they involve.
2. Standard: a technical specification approved by a recognised standardising body for repeated and continuous
application, compliance with which is in principle not compulsory.
3. European standard: a standard approved by the European Committee for Standardisation (CEN) or by the European
Committee for Electrotechnical Standardisation (Cenelec) as European Standards (EN) or Harmonisation documents
(HD) according to the common rules of these organisations or by the European Telecommunications Standards
Institute (ETSI) as a European telecommunication standard (ETS).
4. European technical approval: a favourable technical assessment of the fitness for use of a product, based on fulfilment
of the essential requirements for building works, by means of the inherent characteristics of the product and the
defined conditions of applications and use. European approval shall be issued by an approval body designated for thispurpose by the Member State.
5. Common technical specification: a technical specification laid down in accordance with a procedure recognised by
the Member States to ensure uniform application in all Member States which has been published in the Official
Journal of the European Communities .
6. Essential requirements: requirements regarding safety, health and certain other aspects in the general interest, that the
construction works can meet.EN C 333/26 Official Journal of the European Communities 28.11.2001