22. 12. 87 Official Journal of the European Communities No C 347/23 
organization there would appear to be the need for an 
entity which includes the project owners or franchise 
holders to cover all aspects of each project except 
financing and to be in a position to report to the 
EIB, as the financing agency. It is suggested that these 
proposals would be more likely to lead to proper 
decision making and financing in respect of a range of 
projects of European interest. 
2.4.3. Self standing authorities, on the US pattern 
would not seem to be the best solution. Indeed investi­
gations show that there is no one US pattern. Further, 
it has to be pointed out that the use of tax free bonds 
is declining. The proposed Florida high-speed rail link 
will not involve tax free bonds and will be entirely 
privately financed, using a range of instruments to be 
suggested by the private sector. Gifts of federal land 
together with some grants will be available if required to 
ensure viability. A Community infrastructure financing 
organization should be the least costly possible, efficient 
and orientated towards socio-economic cost-benefit 
analyses of the means available. 2.4.4. Further it is recommended that the Com­
mission institutes an early investigation into the juri-
dicial and technical aspects involved in the implemen­
tation of the proposals contained in this Opinion. The 
creation of a European infrastructure agency as such is 
not opposed, providing that it is small and flexible, and 
that it does not become involved in construction and 
project management. It should also be considered 
whether non-Member States could also participate as 
associated partners in such an agency, where appropri­
ate. The preference for a clear division between 
financial and project coordination has been made clear. 
2.5. Specific additional comments on the Commission 
Document 
2.5.1. It is submitted that it would be logical for the 
Committee to be given the same rights, as are proposed 
for the Parliament, in regard to consultation under 
Article 7.3. 
2.5.2. In the English text, under Section II. 1.3, there 
is a reference in paragraph two to 'equity capital'. 
The French language version speaks of 'fonds propres'. 
These terms are not synonymous and the point requires 
clarification. 
Done at Brussels, 22 October 1987. 
The Chairman 
of the Economic and Social Committee 
Alfons MARGOT 
Opinion on the proposal for a Council Directive coordinating the laws, regulations and 
administrative provisions relating to the application of Community rules on procedures for 
the award of public supply and public works contracts 
(87/C 347/08) 
The Council of the European Communities, acting in pursuance of Treaty Article 100 
letter a, decided on 14 July 1987 to consult the Economic and Social Committee on the 
abovementioned proposal. 
The proposal was referred to the Section for Industry, Commerce, Crafts and Services. The 
Section adopted its Opinion on 30 September 1987. 
At its 249th plenary session the Economic and Social Committee adopted unanimously less 
5 abstentions the following Opinion: 
1. Introduction 
1.1. Competitive access to public contracts for goods 
and services generates substantial savings. There are 
various estimates of the exact magnitude of the savings, but the latest estimate — in the Padua-Scioppa report 
— puts the saving at up to 25 % for the large Member 
States, 1-2% of the Community's GNP, and 2-4 times 
as much as the Member States spend on development 
aid. 
No C 347/24 Official Journal of the European Communities 22. 12. 87 
1.2. With the draft Directives on greater trans­
parency of public supply and public works procedures, 
and the present draft Directive on sanctions for undue 
restriction of competition, the Commission has taken 
the first step towards capitalizing on these enormous 
rationalization opportunities. The Commission has 
thus taken on board the ESC's statement in April 1986 
that unless provisions were made for sanctions, the EC 
rules in this area would be ineffective. 
The Committee would, however, like the Commission 
to check, after two or three years have elapsed, whether 
the measures adopted have had the desired effect or 
whether possible excessive bureaucracy has been delay­
ing the award of public contracts and has been deterring 
precisely the efficient firms from tendering or at least 
has been considerably impeding the conclusion of con­
tracts between them and the public authorities. There 
could be a need for additional or other proposals to 
deal with the situation. 
1.3. Subject to the following comments, the Commit­
tee endorses the draft Directive, which is an indispens­
able adjunct to the two draft Directives already before 
the Council. 
2. General comments 
2.1. The Committee wholeheartedly endorses the 
basic idea behind the draft Directive, namely that a 
tenderer should be able to initiate proceedings against 
illegal behaviour in the Member State where he makes 
his tender be it on national, regional or local level. 
But the Committee considers that in some respects 
the Commission does not draw the relevant operative 
conclusions from its own premises as stated in the 
proposal's explanatory remarks. The Commission has 
found it expedient to provide for sanctions under the 
Member States' legal systems, rather than equip the 
Community's institutions with powers to ensure respect 
for Community rules. The Commission considers that 
this approach is best calculated to ensure that the 
Member States accept the draft Directive. 
2.1.1. The Committee has doubts as to how far the 
draft Directive in its present form can have the necessary 
effectiveness. The draft Directive seeks to introduce 
effective administrative and judicial remedies but, in 
the Committee's view, it does not achieve the uniform­
ity and the transparency which the Commission itself 
considers to be of crucial importance. The Committee 
considers that the draft Directive, as at present worded, 
fails to guarantee that an injured party will have his 
complaint dealt with in any Member State in accord­
ance with the same criteria and legal principles, and within the same time limits, as those of all the other 
Member States. 
2.1.2. The Committee is not opposed to flexible, 
decentralized arrangements. It sees no point in insisting 
on all Member States using completely identical rules 
for complaints, if this would mean the Member States 
failing to cooperate on the introduction of competition 
in public procurement. 
2.1.3. On the other hand, the Committee is con­
vinced that uniform guidelines for the treatment of 
complaints are essential to ensure general support for 
the liberalization of public procurement. It is neither 
fair nor reasonable to expect individual Member States 
to dismantle their rules protecting domestic producers 
unless they can be basically confident that the other 
Member States will follow suit. The Committee con­
siders that an arrangement such as that proposed in 
Article 2 (Commission able to intervene in the course 
of procedures in the Member States) can only be the 
first step towards guarantees of the requisite reciprocity 
and parallelness. 
The Committee considers that a generally accepted 
legal system for public procurement in the Community 
cannot be created without a maximum effort, from the 
outset, to ensure uniform rules and procedures. 
2.1.4. The Committee therefore urges the Com­
mission, without waiting for adoption of the Directive, 
to cooperate with the Member States on working out 
uniform provisions regarding time limits, penalty pay­
ments and administrative procedures. In this work, the 
Commission could consult the Consultative Committee 
on the opening-up of public markets composed of inde­
pendent experts which it decided to set up on 26 May 
last. In the Committee's view, the Commission should 
also give management, labour and consumer represen­
tatives the opportunity to state their views on matters 
concerning them. 
2.1.5. In conjunction with the Court of Justice, the 
Commission should explore whether a court of first 
instance, with decentralized divisions in the various 
Member States, could be set up under Article 168 A of 
the Treaty (Art. 11 of the Single Act) for the purpose 
of taking decisions, possibly by summary procedure, 
under the supervision of the Court of Justice, on the 
application of Community rules governing the con­
clusion of public supply and works contracts. 
2.2. If the draft Directive under review is to be effec­
tive, the Commission — as in the case of the compe­
tition rules (Treaty Article 87 (2)) — must have the 
same powers to impose sanctions as those to be given 
22. 12. 87 Official Journal of the European Communities No C 347/25 
to the national authorities under the first indent of 
Article 1 (3). The Commission has argued that for legal 
reasons it cannot impose sanctions on Member States. 
The Committee is unconvinced by this argument. The 
opening-up of public markets to more competition is a 
problem relevant to the Treaty's competition rules (of 
which Article 90 explicitly mentions public undertak­
ings) as well as to Article 100 A concerning the establish­
ment of the internal market. The Committee would 
point out that the Commission itself has taken this 
approach in its latest proposal on public works con­
tracts (Doc. COM(86) 679 final) in which it directly 
refers to one of the Treaty's competition rules (Art. 90) 
to justify scrapping the sharp distinction between public 
and private undertakings and bringing within the rel­
evant EC Directives all public and private undertakings 
not subjected to the 'normal' conditions of competition. 
2.3. Furthermore, in order to ensure the effectiveness 
of the national sanctions' arrangement specified in 
Article 1 (3), the Committee suggests that Article 2 be 
redrafted in order to explicitly empower the Com­
mission to require a Member State body responsible 
for sanctions (e.g. Monopoltilsynet in Denmark) to 
implement sanctions proceedings. This will strengthen 
the ability of the Commission to intervene under 
Articles 3 and 4 (suspension) before the damage has 
occurred. 
2.4. In addition to the suspension period specified in 
Article 3, it should be stipulated that — to ensure that 
the illegal practice is discontinued — the contracting 
authority concerned should send a copy of the proposed 
'new' contract to the Commission, which within a short 
period is to check whether it conforms with EEC law. 
In this connection the Committee reiterates the state­
ment in its earlier Opinions that it is necessary to 
provide information on national, regional and local 
administrative formalities and conditions, on EEC legis­
lation in this area and in particular the remedies pro­
vided by EEC Directives. Concretely, the Committee 
proposes that the S editions of the Official Journal and 
the Tenders Electronic Daily should give the telephone 
numbers of the appropriate Commission departments 
and the abovementioned authority administering the 
EC Directive at national level. 
2.5. The Committee considers the earliest possible 
implementation of the Directive as a prerequisite for 
completion of the internal market in 1992. The Com­
mission does not specify a deadline for implementation in Article 5. The Committee suggests that the Com­
mission should press the Member States to ensure that 
the Directive comes into effect at least simultaneously 
with the draft Directive on reciprocity in procedures 
for the award of public supply and public works con­
tracts. The aim is to establish adequate remedies in all 
the Member States, before implementation of the EC 
rules to be proposed for energy, water supplies, telecom­
munications and transport. 
3. Specific comments 
3.1. Article 1 
3.1.1. Article 1 (3) allows damages to be awarded 
for the costs caused by 'unnecessary studies, foregone 
profits or lost opportunities'. The Committee considers 
it important that there should be a financial incentive 
to refuse to passively accept decisions conflicting with 
EC rules. Damages should thus cover more than the 
direct cost of an unsuccessful tender. 'Foregone 
profits', for instance, should be partially or completely 
compensated. But the concept 'lost opportunities' is 
considered too vague and general to warrant damages. 
In this connection, the Committee calls on the Com­
mission to ensure that this provision cannot be misused 
to the detriment of contracting authorities which to all 
intents and purposes comply with legislation. 
3.1.2. The Committee recommends that when the 
common rules for the Member States are drafted, care 
should be taken to prevent sub-contractors being 
adversely affected by delays and sanctions imposed on 
a main supplier illegally awarded a contract. 
3.1.3. The Committee presumes that the Member 
States will introduce uniform rules regarding the 
exclusion of contractors which fail to respect the obli­
gations under the social legislation and the collective 
agreements of the host country or of the country in 
which he is established, in accordance with Article 20 
of the Directive on public supply contracts and 
Article 23 of the Directive on public works contracts. 
3.2. Article 2 
3.2.1. Article 2 should specify that the Commission 
can on its own initiative set in motion the remedy 
procedure in the Member States, on national as well as 
regional and local level, and can intervene on its own 
initiative or on the basis of complaints it has received. 
It should also be specified that the Commission can 
intervene at any stage, including after the contract has 
been awarded. 
No C 347/26 Official Journal of the European Communities 22. 12. 87 
3.3. Articles 3 and 4 
3.3.1. In accordance with the comments made in 2.2 
above, Article 3 should authorize the Commission to 
impose sanctions on the same footing as national 
administrative authorities (first indent of Article 1 (3)). 
3.3.2. The Committee fully agrees that up to the 
moment when the contract is signed, the Commission 
should be able to suspend procedures which breach EC 
Directives. That should always be possible and not just 
in 'case of urgency'. But such a suspension should be 
Done at Brussels, 22 October 1987. 
1. Introduction 
1.1. During 1986, the European Road Safety Year, 
various initiatives aimed at improving road safety were 
launched to implement the EEC objective to at least 
halve, by the year 2000, the figure of 50 000 killed in 
road accidents each year in Europe. 
1.2. The Road Safety Year, inter alia, brought about 
the commonly agreed realization that in the past decade 
significant improvements in traffic safety have been 
achieved as a result of numerous changes in terms of 
vehicle design and safety, but that further improvements 
will mainly occur by an improvement of the highway 
infrastructure and the education and information of all 
road users. immediately revokable in cases where the contracting 
authority within a very short period can satisfy the 
Commission that the tender submitted complies with all 
requirements of the Directive. The Committee therefore 
calls for deletion of the phrase 'in case of urgency' in 
Article 3. It also calls for deletion of the phrase 'at any 
stage of the procedure' and its replacement by 'up to 
the moment when the contract is signed' in Article 4. 
The Committee considers that once the contract has 
been signed, sanctions other than suspension, as for 
example, fines or application for cancellation, would 
be appropriate. 
The Chairman 
of the Economic and Social Committee 
Alfons MARGOT 
1.3. The most suitable field in which to realize an 
improvement of the road infrastructure is the appli­
cation of information technology and telecommuni­
cations. Its aim is to support the driver in his task of 
safely conducting his vehicle and will enable intelligent 
vehicles to make the best possible use of electronic 
on-board equipment, the installation rate of which is 
expected to rise steadily over the next decade. 
1.4. The research programme DRIVE is the frame­
work for assisting technical work programmes such as 
PROMETHEUS and other programmes, which are at 
various stages of execution. 
1.5. The ultimate goal of the DRIVE project is to 
improve the overall efficiency of the whole road traffic 
system by promoting an unimpeded traffic flow, at 
European level thus also further reducing the number 
and severity of accidents. Moreover, positive effects for Opinion on the proposal for a Council Regulation on a Community programme in the field 
of information technology and telecommunications applied to road transport DRIVE — 
(Dedicated road infrastructure for vehicle safety in Europe) 
(87/C 347/09) 
On 4 September 1987, the Council decided to consult the Economic and Social Committee, 
under Article 130 letter q of the Treaty establishing the European Economic Community, on 
the abovementioned proposal. 
The Section for Transport and Communications, which was responsible for preparing the 
Committee's work on the subject, organized its work under Article 47 of the rules of 
procedure (urgency procedure). It adopted its Opinion on 7 October 1987, in the light of the 
report of Mr Perrin-Pelletier. 
At its 249th plenary session (meeting of 22 October 1987), the Economic and Social Committee 
unanimously adopted the following Opinion: