No C 60/16 Official Journal of the European Communities 8. 3. 91 
8. There is a similar need to demarcate areas of 
responsability with regard to the new European 
Environment Agency and the collection of data. The 
Done at Brussels, 18 December 1990. 
The Committee welcomes the proposed Directive, sub­
ject to the following comments. 
General comments 
1. In December 1989 the Council adopted Directive 
89/665/EEC on the coordination of the laws, regu­
lations and administrative provisions relating to the 
application of review procedures to the award of public 
supply and public works contracts. This Directive 
applied to the fields covered by Directives 71/305/EEC 
and 77/62/EEC: purchase of works and supplies by the 
public administration. It did not cover the award of 
works and supply contracts in the water, energy, trans­
port and telecommunications sectors. 
2. The ESC Opinion on the relevant proposal 
pointed out that the framing of EC rules remained 
purely a paper exercise unless backed by the means Committee wishes to see the various EC instruments 
for providing environmental information used as effec­
tively as possible. 
necessary to ensure implementation. Once again the 
ESC stressed the need for an enforcement Directive 
comprising three key points: 
— the Commission should embark on cooperation 
with the Member States on working out uniform 
provisions regarding time limits, penalty payments 
and administrative procedures, 
— the Commission must have the same powers to 
impose sanctions as those to be given to the national 
authorities under the enforcement Directive, 
— some form of arbitration machinery should be set 
up at Community level if systematic recourse to 
the highly cumbersome procedure of the Court of 
Justice is to be avoided. 
3. The current proposal is therefore a welcome step 
in the right direction. 
4. The remedies open to undertakings and suppliers 
in the Member States currently differ widely. The Com-The Chairman 
of the Economic and Social Committee 
Francois STAEDELIN 
Opinion on the proposal for a Council Directive coordinating the laws, regulations and 
administrative provisions relating to the application of Community rules on the procurement 
procedures of entities operating in the water, energy, transport and telecommunications 
sectors 
(91/C 60/06) 
On 4 September 1990, the Council decided to consult the Economic and Social Committee, 
under Article 100A of the Treaty establishing the European Economic Community, on the 
abovementioned proposal. 
The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing 
the Committee's work on the subject, adopted its Opinion on 5 December 1990. The 
Rapporteur was Mr Kaaris. 
At its 282nd plenary session (meeting of 18 December 1990), the Economic and Social 
Committee adopted the following Opinion unanimously. 
8. 3. 91 Official Journal of the European Communities No C 60/17 
mittee therefore specifically welcomes Article 1 of the 
proposed Directive, in which the Commission has 
struck a sound balance between differing traditional 
national practices and the need for some degree 
of Community-wide conformity on rules concerning 
access to remedies for persons having, or having had, 
an interest in obtaining a particular contract and who 
have been, or risk being, harmed by an alleged 
infringement. These provisions are much the same 
as those in Council Directive 89/665/EEC. Another 
significant advance is the specific requirement that 
the fundamental guarantees offered by the different 
national systems must be equivalent in effect, though 
the legal nature of the review bodies may differ, since 
decisions reached at national level may always be 
reviewed by a body which, in particular cases, may 
refer the matter to the Court of Justice. This is a 
necessary check since the Member States are allowed 
considerable latitude as regards practical implemen­
tation of the Directive by virtue of their differing 
administrative and judicial appeal systems, procedural 
requirements for seeking remedy etc. 
5. The Committee also specifically welcomes 
Article 2, which reflects the ESC call for effective 
enforcement provisions in that it distinguishes between 
the possibilities for (a) a speedy hearing of urgent 
cases in the shape of interim measures to halt alleged 
infringements and (b) setting aside unlawful decisions, 
including the removal of discriminatory technical and 
economic specifications in the invitation to tender. 
The specific clause allowing the award of damages 
to persons harmed by an infringement is also a source 
of satisfaction. The Committee notes with pleasure 
that, in claims for damages connected with the 
preparation of a bid, the claimant will only need to 
show that the infringement adversely affected his 
chance of being awarded the contract—not that he 
would have been awarded the contract in the absence 
of the infringement. The Committee welcomes the 
setting of a standard award of one per cent of the 
value of the contract. 
6. Chapter 3 of the proposal firstly provides for 
a corrective mechanism fully consistent with the one 
specified in Directive 89/665/EEC, i.e. the Commission 
is entitled to intervene and enforce compliance with 
Community provisions in the field of procurement dur­
ing a contract award procedure. 
7. The ESC call for arbitration machinery is catered 
for in Chapter 4, which contains more detailed pro­
visions regarding a conciliation procedure open to any 
person who has, or has had, an interest in obtaining a particular contract within the scope of the Directive 
and who has been, or risks being, harmed by an alleged 
infringement. However, the Commission or the 
national authorities of the Member States must be 
prepared to submit the matter to the Advisory Commit­
tee for Public Contracts or, in the case of the telecom­
munications sector, the Advisory Committee on Tele­
communications Procurement. 
8. However, the Commission's proposal is marred 
by one serious flaw. The whole system of remedies, 
Commission intervention procedures, conciliation and 
awards for damages is compromised by the provisions 
in Articles 4 to 10 of Chapter 2 for an alternative 
procedure ('attestation' procedure) whereby contract­
ing entities having obtained attestation are exempted 
from the provisions on suspension of contract award 
procedures or setting aside of unlawful decisions, also 
in the case of unlawful specifications. These Articles 
seriously undermine the potential impact of the Direc­
tive even though such entities are still subject to other 
interim measures (e.g. to prevent infliction of further 
harm on the person concerned) and provisions regard­
ing damages pursuant to Article 11. Weighty reasons 
are needed if the Commission, in its own proposal, 
is to permit the Member States themselves to diverge 
from the 'traditional' method applicable to public 
authorities by waiving, on relatively weak grounds, 
measures embodying such significant principles as 
suspension of procedures and setting aside of 
decisions. The Commission gives the explanation that 
'the preparatory work and consultations on this 
proposal have shown that the particular characteristics 
of the utilities concerned ... require a degree of 
flexibility to be introduced into the proposal'. From 
the legal and political angles, the suspension of 
contract award procedures and setting aside of award 
decisions are not acceptable to all Member States. 
For instance, Germany is mentioned as one country 
where the proposed Directive's remedies could clash 
with the right to free exercise of a trade or profession 
enshrined in the Basic Law. The Committee is aware 
that the relative precedence of Community law and 
national constitutional law has aroused considerable 
interest in recent years. However, legally speaking, 
the matter is not clearcut. For instance, in one case 
in point, the Court of Justice ruled (Case 44-79) that 
regulation of commercial activity could not normally 
be considered incompatible with the right to owner­
ship and to free exercise of a trade or profession. 
However, the German Federal Constitutional Court 
(judgement of 22 november 1986) abandoned its broad 
reservation on Community law when it stated that 
it would refrain from an independent appraisal of 
EC rules as long as EC (and particularly Court of 
Justice) practice generally ensured effective protection 
of basic rights. 
No C 60/18 Official Journal of the European Communities 8. 3. 91 
9. While the Committee fully understands that some 
Member States may have legal and political difficulties 
in implementing the basic arrangements proposed by 
the Commission, it must nevertheless insist that the 
Directive should not be a dead letter from the very start 
under the guise of 'flexibility'. As the Commission itself 
points out, Article 5 of the Treaty confers on the 
Member States a general duty to make effective judicial 
remedies available for the enforcement of directly appli­
cable Community rights. In Case 14-83 the Court 
invoked Article 5 to stress the Member States' duty to 
implement effective sanctions to ensure compliance 
with the prohibitions inherent in EC Directives. Should 
Chapter 2 be retained, the proposal can scarcely be said 
to meet this requirement. Further, the ESC Opinion of 
March 1989 (*) concerning Directives in the excluded 
sectors called on the Commission to limit the number 
of exemptions from the Directive to a minimum and 
pointed out that all activities of contracting entities 
which are public or operate on the basis of special or 
exclusive rights must be covered if the Directive is to 
have any chance of making an effective impact. This 
call has not been heeded, however, and key sectors still 
lie outside the scope of these basic Directives. If the 
enforcement Directive now being proposed provides 
scope for evading the basic enforcement rules, the Com­
munity has little or no chance of fostering openness 
and free competition in a sector where preferential 
treatment of national entities still remains the norm. 
10. The Committee is unable to accept the equal 
efficiency and validity of ex post damages awarded on a 
basis of attestation and suspension of illegal procedures 
before they have led to the conclusion of invalid con­
tracts. 
If however the option of attestations is deemed indis­
pensable for the adoption of the Directive, the Commit­
tee would be seriously concerned if this option was not 
extended to all purchasing agencies in the Community. 
In the Committee's view, the Commission should ensure 
that the same judicial procedure should apply to all 
purchasing entities in the sectors concerned regardless 
of their 'public' or 'private' nature. 
In effect on Member State's 'public' entity would be 
unable to evade the application of existing national remedies, which often include a suspension decision by 
the administrative or ordinary court, whereas another 
Member State's 'private' entity would escape suspen­
sion. 
The proposed Directive actually accentuates this dis­
crepancy. 
In our opinion the quality and cohesion of the directive 
would be considerably improved if the purchasing agen­
cies had equal access to a derogation from Article 2 on 
the condition that they could prove their compliance 
with Treaty obligations by obtaining an attestation to 
that effect from a certified and qualified auditor for a 
period of the last two consecutive years. If Article 2 
and Chapter 2 were linked in this fashion, the possibility 
of suspension of award procedure would exist only vis­
a-vis companies with a public record of disregard to 
Community regulations. This would make sense. It 
would restore objectivity and equality before the la.w 
in place of flexibility. 
11. The system would need to be supplement with 
a complaint and review procedure of auditors reports 
to ensure equality in the application of the Directive 
in different Member States. The suppliers concerned 
should have an opportunity to express themselves— 
through their organization, if they so desire—on the 
accuracy and validity of the auditors reports. 
Specific comments 
The Committee offers the following comments on the 
individual Articles of the proposed Directive. 
Article 1, 3) 
The wording of the text should permit complaints to 
be effected by professional organizations on behalf of 
their members. 
Article 2, 2) 
The word 'aspects' should be replaced by 'phases'. 
Article 2, 7) 
It seems advisable to specify on what basis the value is 
calculated when applying the indemnity percentage. 
Article 7 
(*) OJ No C 139, 5. 6.1989. The Committee would prefer to see it expressly speci­
fied in the Article that the auditors must ascertain 
8. 3. 91 Official Journal of the European Communities No C 60/19 
ventions. This requirement could be deleted. A deletion 
would be all the more logical if a positive auditors 
report was accepted as a condition of non application 
of Article 2 as proposed in point 10 above. In case of 
Treaty contraventions the attestation should simply not 
be given. 
Done at Brussels, 18 December 1990. 
The Chairman 
of the Economic and Social Committee 
Frangois STAEDELIN 
Opinion on the 19th report on competition policy 
(91/C 60/07) 
On 23 July 1990 the Commission decided to consult the Economic and Social Committee, 
under Article 198 of the Treaty establishing the European Economic Community, on the 19th 
report on competition policy. 
The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing 
the Committee's work on the subject, adopted its Opinion on 5 December 1990. The 
Rapporteur was Mr Bagliano. 
At its 282nd plenary session (meeting of 19 December 1990), the Economic and Social 
Committee adopted the following Opinion with no dissenting votes and three abstentions. 
1. General introduction 
1.1. A goal achieved at last 
The 19th report on competition policy opens by high­
lighting the successful conclusion—at the very end of 
the year—of work on merger controls. 
The ad hoc Regulation was approved on 21 December 
1989 and entered into force on 21 September. 
The Committee shares the Commission's satisfaction 
at this, although it remains concerned about possible 
problems of interpretation and implementation. whether real possibilities have been afforded prospec­
tive bidders irrespective of their national origin. 
Article 8, C) 
The Committee does not see why auditors should be 
given the task to propose remedies for Treaty contra-
1.2. The Commission and the ESC 
It is right and proper to be pleased with the results 
achieved over the year under review. It is, however, 
equally helpful to examine the quality of these results, 
and to consider how complete they are, how easy to 
implement, and what reactions they have aroused or 
are likely to arouse. 
Regular criticism (and self-criticism) can only be heal­
thy, particularly if it is offered in a spirit of cooperation 
and of participation in the pursuit of the Commission's 
annual goals for completion of the internal market. 
It is in this spirit that the Committee approaches its 
tasks. The present Opinion will thus offer assessments,