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

(presented by the Commission)

EXPLANATORY MEMORANDUM

Introduction

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

[1] COM(96) 583 final of 27 November 1996.

After analysing these contributions, the Commission mapped out the perspectives for future action in its Communication "Public Procurement in the European Union" [2]. The main theme to emerge from the Green Paper debate is the need to simplify the legal framework and adapt it to the new electronic age while maintaining the stability of its basic structure. The Commission recognised the need to simplify the existing legal framework by clarifying provisions which were obscure or complex and by amending legislation where the problems to be addressed could not be solved through interpretation of the provisions [3]. In addition, it announced the consolidation of the three "classic Directives" and then their merger into a single text.

[2] COM(98) 143 final of 11 March 1998.

[3] Point 2.1.1.

This proposal meets these objectives.

It was announced by the Commission in its Work Programme for 2000 [4]. It falls within the exclusive competence of the Community regarding the recasting of legislation for completion of the internal market based on Article 95 of the EC Treaty. What is more, it is in line with the conclusions of the Lisbon European Council calling for economic reforms as a means of completing the internal market and making it fully operational.

[4] COM(2000) 155, 9.2.2000.

To facilitate the presentation of the proposal, the amendments are grouped into two parts:

- simplification of the Directive;

- amendments to the legal framework.

The Explanatory Memorandum is followed by analysis of the recitals and of the Articles.

I. Simplification - restructuring and clarification of the directive

1.1. Following the debate on the Green Paper entitled "Public Procurement in the European Union: Exploring the Way Forward [5]", and in the exercise of its responsibilities as "guardian of the Treaty", the Commission found some inconsistencies between the three public sector Directives, namely Directive 92/50/EEC relating to the coordination of procedures on the award of public service contracts [6], Directive 93/36/EEC coordinating procedures for the award of public supply contracts [7] and Directive 93/37/EEC concerning the coordination of procedures for the award of public works contracts [8]. These inconsistencies are not justified by the specific features of the respective Directives and must be removed. This is prompted by the same concern about clarification expressed by the Commission in its Communication on Concessions in Community law [9], which does not prejudge any legislative proposal specifically on concessions.

[5] COM(96) 583 final of 27 November 1996.

[6] OJ L 209, 24.7.1992, as amended by Directive 97/52/EC of 13 October 1997 (OJ L 328, 28.11.1997).

[7] OJ L 199, 9.8.1993, as amended by Directive 97/52/EC of 13 October 1997 (OJ L 328, 28.11.1997).

[8] OJ L 199, 9.8.1993, as amended by Directive 97/52/EC of 13 October 1997 (OJ L 328, 28.11.1997).

[9] Commission interpretative Communication on Concessions in Community law (OJ C 121, 29.4.2000, p. 2).

By way of making the texts consistent, the proposal also has the effect of sometimes rendering applicable to all contracts provisions which, without any particular justification, are currently applicable to some contracts only (see, for example, Article 3). What is more, the Directives will be understood and applied more easily if the current Directives are restructured, though without altering the legal obligations which they impose.

The proposed simplification therefore consists in eliminating inconsistencies and restructuring the existing texts [10].

[10] Point 2.1.3 of Communication (COM(1998) 143 final).

1.2. This proposal is presented in the form of a single text for supply, works and service contracts. At the same time, it provides a means of proposing that the public sector Directives be amended, simplified and combined in a single text. This approach will make it easier to maintain consistency during the legislative process, and also offers real advantages for users. While it is true that Directives have to be transposed into national legislation, economic operators and contracting authorities often refer to the texts of Directives, especially for the interpretation of national texts. There will thus no longer be any need to refer to different texts largely dealing with the same questions and comprising, respectively, 35 (supplies), 37 (works) and 45 (services) Articles, as a single text will be available which is more clearly structured and comprises 82 Articles. This reduction in the number of Articles reflects in particular the presence of identical provisions in the three Directives.

The Committee of the Regions, in its opinion on the 1998 Communication [11], fully supported such a proposal, which, it said, would greatly facilitate the work of local and regional authorities.

[11] CdR 108/98 final of 16 and 17 September 1998.

In addition, several Member States have adopted the same approach in transposing Directives into a single text at national level.

At all events, the merger of the three Directives into one does not per se impose any transposition obligations.

1.3. As far as the structure is concerned, the provisions in the proposed Directive have been set out in six Titles: Definitions, Specific provisions applicable to public contracts, Granting of special or exclusive rights, Specific rules governing design contests in the field of services, Rules in the field of concessions and Final provisions. In these Titles, and particularly in Title II with regard to the specific rules applicable to contracts, the provisions have been ordered in such a way as to follow logically the course of a contract award procedure, starting with the principles and the scope. Chapters and Sections have been introduced to make it easier for the reader. In addition, each Chapter, Section and Article has a heading for quicker identification of the provisions sought by the reader.

1.4. The simplification effort, particularly in relation to thresholds, features other, more substantive amendments. These are set out in detail in the second part of this Explanatory Memorandum.

II. Substantive amendments

1. Introduction

1.1. The emergence of the information society, the gradual withdrawal of the State from certain economic activities, and increased budgetary austerity are leading the Commission to propose amendments to the existing legal framework. These have a threefold objective: modernisation, simplification and flexibility; modernisation to take account of new technologies and changes in the economic environment, simplification to lighten rules which are sometimes too detailed and complex, and flexibility to respond better to the criticism of procedures which are excessively rigid and do not meet the needs of public purchasers.

1.2. The Commission has identified seven areas in which this threefold objective has prompted it to propose substantive amendments.

These are:

- the introduction of electronic purchasing mechanisms, and their consequences in terms of reducing the length of an award procedure (point 2);

- the introduction of a new case for the use of the negotiated procedure, which - for particularly complex contracts - permits a "dialogue" between the contracting authority and the different candidates, while ensuring that there is competition and compliance with the principle of equality of treatment (point 3);

- the possibility for public purchasers of concluding so-called "framework agreements", not all of whose conditions are fixed, and on the basis of which contracts can be awarded without applying all the obligations of the Directive (point 4) to each one;

- clarification of provisions relating to technical specifications; this will encourage effective competition through the participation of the greatest possible number of tenderers and, in particular, innovative businesses (point 5);

- a strengthening of the provisions relating to award and selection criteria (point 6);

- a simplification of thresholds (point 7);

- the introduction of a common procurement vocabulary (point 8).

Moreover, following the amendments proposed by the Commission concerning the "Utilities Directive" 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors [12], in particular the amendments to its scope in the light of the gradual liberalisation in those sectors, it is also necessary to amend some provisions contained in the public sector Directives (point 9).

[12] OJ L 199, 9.8.1993, as amended by Directive 94/22/EC of 30 May 1994 (OJ L 164, 30.6.1994) and Directive 98/4/EC of 16 February 1998 (OJ L 101, 1.4.1998).

What is more, the provisions of this Directive are intended to facilitate the implementation of the rules and principles of the Treaty. Failure to comply with Directives may in some cases constitute a breach of these rules and principles of the Treaty.

2. The introduction of electronic purchasing mechanisms

2.1. The emergence of the new Information and Communication Technologies (ICTs) offers promising opportunities as regards the efficiency, transparency and opening-up of public procurement. In its Communication on Public Procurement in the European Union of 11 March 1998, the Commission set itself a very ambitious target: 25% of all procurement transactions should take place using electronic means by the year 2003. Against this background, it called on all the players involved to develop such a system.

This approach was endorsed by a large number of contributions and responses, particularly from the European Parliament and the Committee of the Regions.

It also featured in the Presidency conclusions from the Lisbon European Council of 23 and 24 March 2000, in which the Commission, the Council and the Member States were requested "to take the necessary steps to ensure that it is possible by 2003 for Community and government procurement to take place on-line" [13].

[13] See point 17, fourth indent, of the conclusions.

Under current legislation on public procurement it is possible, under certain conditions, to use electronic means for the submission of tenders. However, there are procedures for which the use of electronic means has not been mentioned (i.e. transmission of notices) or is not authorised (i.e. accelerated procedure).

As things stand, moreover, this possibility is left to Member States, which are able to authorise the use of means other than direct or postal delivery. The proposal is aimed at enabling each entity to decide in future to use electronic means to the exclusion of all others.

2.2. While some fear that businesses lagging behind in terms of computer equipment could thus be precluded from public contracts which are awarded by electronic means, this situation is set to change rapidly. It would therefore not appear necessary to provide a transitional period during which the parallel use of traditional means would be compulsory, especially as business will benefit de facto from a transitional period by virtue of the time-limits for adoption and transposition put forward in this proposal.

Permitting the use of electronic means in the area of public procurement requires inter alia that their use for communication and information exchange be put on an equal footing with other, more traditional means with the aim of encouraging greater recourse to electronic means in the future.

2.3. Finally, electronic contract award systems should yield a significant time saving in the course of a procedure. Electronic transmission will make it possible to reduce the time-limit of 12 days which are necessary at present, except in the case of accelerated procedures, for transmission to the Publication Office and publication in the Official Journal.

It will thus be possible to reduce the maximum time-limit for publication from 12 days to five.

2.4. The introduction of electronic means has also highlighted the difficulty which may result from laws freezing the use of certain technical facilities, such as the TED database.

Given the rapid development of the technologies used, this explicit reference in the legislation means that regular updating will be required. To lessen these difficulties involved in the adaptation of the legislation, this proposal no longer mentions specific means of publication in the operative provisions of the Directive. The provisions relating to more detailed technical specifications concerning publication are grouped together in a new Annex (Annex VIII).

In order to bring these provisions more quickly into line with technological developments, it is proposed to delegate to the Commission, assisted by the Committee provided for in Article 76, powers to amend this Annex so as to adapt it in step with technical progress.

3. The introduction of a new flexibility allowing a "dialogue" between the contracting authority and candidates

3.1. In its aforementioned Communication [14], the Commission records that "in the case of particularly complex contracts in areas that are constantly changing, such as high technology, purchasers are well aware of their needs but do not know in advance what is the best technical solution for satisfying those needs. Discussion of the contract and dialogue between purchasers and suppliers is therefore necessary in such cases. But the standard procedures laid down by the public sector Directives (Directives 93/36/EEC, supplies, 93/37/EEC, works, and 92/50/EEC, services) leave very little scope for discussion during the award of contracts and are therefore regarded as lacking in flexibility in situations of this type".

[14] See footnote 2.

3.2. It should be noted that, in the light of the case law of the Court of Justice, such a dialogue is not allowed under the current open and restricted procedures. Furthermore, the current provisions on the use of a negotiated procedure with prior publication are limited to exceptional situations and must, in accordance with the Court's established case law, be interpreted restrictively. The present rules do not therefore provide for this possibility.

3.3. However, certain purchases may be particularly complex: the contracting authorities may be objectively unable to define which technical, legal or financial means would best meet their needs. The contracting authorities may also want to allow innovative solutions or may be unable, objectively, to assess what the market has on offer in terms of technical or financial solutions. A case in point is when a contracting authority is unable, objectively, to assess in advance whether the most economically advantageous solution would involve public funding, a risk-sharing model or a purely private-sector solution.

The Committee of the Regions, in its opinion, also cited the example of health sector contracts (surgical equipment and medical imaging devices).

3.4. The contracting authorities do of course have certain means at their disposal to deal with such situations: under the current Directives, they are free to conduct a "technical dialogue" followed by a "normal" award procedure, or to award a service contract followed by a contract for supplies, or to hold a design competition followed by the award of a contract for services, supplies or works. However, as pointed out during the debate launched by the Green Paper [15] and underlined by the European Parliament during the adoption of Directives 97/52/EC [16] and 98/4/EC [17], these possibilities are not always sufficient. In the case of a technical dialogue, a company helping a contracting authority to define its specifications by way of that dialogue cannot participate in the subsequent award procedure based on such specifications to the extent that this would be to the detriment of fair competition, as expressed in the 10th recital of Directive 97/52/EC [18]. Nor is it permissible in the case of split contracts (research contract or design contest) for one and the same company to produce the design and carry out the project.

[15] See footnote 1.

[16] European Parliament and Council Directive 97/52/EC of 13 October 1997 amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC concerning the coordination of procedures for the award of public service contracts, public supply contracts and public works contracts respectively, OJ L 328, 28.11.1997.

[17] Directive 98/4/EC of the European Parliament and of the Council of 16 February 1998 amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, OJ L 101, 1.4.1998.

[18] "Whereas contracting authorities may seek or accept advice which may be used in the preparation of specifications for a specific procurement, provided that such advice does not have the effect of precluding competition".

3.5. Without calling the existing possibilities into question, it would appear appropriate to introduce provisions enabling a dialogue to take place in a single award procedure which will result in the contract being carried out; this should incorporate a phase during which the specifications would be established on the basis of negotiations with the selected participants, followed by the submission of tenders by the participants in the negotiations and then by the award of the contract to the best tender.

3.6. As regards the choice of arrangements, the proposal departs from the conclusions drawn by the Commission in its Communication. The Commission had undertaken to amend the current texts of the Directives "with a view to making procedures more flexible and allowing dialogue in the course of such procedures, and not just in exceptional circumstances. It will propose a new standard procedure, the 'competitive dialogue', which would operate alongside open and restricted procedures and would replace the existing negotiated procedure with prior publication of a notice. The conditions and the rules under which contracting authorities would be allowed to use this new procedure and the details of the procedure itself will have to be spelt out and will be based inter alia on the principles of transparency and equal treatment".

Following consultations, it was felt that it would be more appropriate not to introduce an entirely new procedure: the choice made was to extend the applicability of the negotiated procedure with prior publication to include these cases. This will avoid having a multiplicity of procedures.

3.7. Given the risks of a particular candidate being favoured, the general principles of equality of treatment and transparency can be safeguarded only by way of appropriately supervising the dialogue process through to the award of the contract.

3.8. In this new case, the negotiated procedure will operate as follows in practice:

The contracting authorities publish a notice inviting interested parties to participate. In the notice, the contracting authority defines the objectives it wishes to obtain. It also states the qualitative selection criteria and award criteria. These criteria remain unchanged throughout the procedure.

The contracting authority thereafter has two options: it may:

(a) decide that it wishes to receive only the normal documentation concerning the candidates' personal position and their technical, economic and financial capacity. The qualitative selection criteria must be appropriate and based on the object of the contract concerned;

(b) decide that this documentation must be accompanied by an "outline solution", i.e. a preliminary indication of the solution which the candidate in question intends to propose to meet the contracting authority's needs and requirements. Candidates may also have to give an estimate of the cost of preparing the outline solution.

The contracting authority has to announce its choice between (a) and (b) in the notice.

After receiving the applications, the contracting authority chooses the participants in the negotiations. Selection is based on the previously established qualitative selection criteria (economic, financial and technical capacity, following the usual verification of the information relating to the candidate's personal position).

A further, optional stage is possible, i.e. the contracting authority, after having selected candidates in the qualitative selection procedure on the basis of the information referred to above at (a), may then request these candidates to submit an "outline solution" to form the basis for further negotiations.

In all cases, the contracting authority then consults the selected participants to examine how its needs can best be satisfied. In order to take into account the legitimate concerns expressed by industry regarding the appropriation of other people's ideas, it has been laid down that, during such consultations, the contracting authority shall not divulge to any candidate the solutions proposed by, or any confidential information relating to, other candidates.

At the end of the negotiations, the contracting authority defines the final technical specifications, either by retaining one of the solutions presented by one of the participants or by combining more than one of the solutions presented. Moreover, it goes without saying that, in doing so, the contracting authority must observe the law on the protection of intellectual property.

Once this stage is completed, the contracting authority invites the participants to submit a formal tender. When the contracting authority invites the participants in the negotiations to submit their tenders, it cannot invite fewer than three to do so - provided a sufficient number of candidates satisfy the qualitative selection criteria. A possible limitation on this number is set on the basis of the qualitative selection criteria.

The tenders will then be evaluated on the basis of the award criteria, and the contract will be awarded, there being no further scope for negotiation.

4. The introduction of more flexible purchasing techniques using framework agreements

4.1. In its aforementioned Communication (point 2.1.2.3), the Commission highlighted the need to revamp the Directives with a view to permitting the use of flexible purchasing techniques enabling purchasers to benefit from product developments and price changes. It pointed out that, on markets which are constantly changing, such as the markets for information technology products and services, it is not economically justifiable for public purchasers to be tied to fixed prices and conditions. Public purchasers therefore increasingly feel the need to manage their procurement on a long-term basis. The essential features of purchases of this nature should consequently offer the necessary flexibility. Framework agreements meet this requirement.

Framework agreements are not public contracts within the meaning of the Directives; they are not contracts to the extent that they do not lay down specific terms and thus cannot give rise to performance as a contract does.

By contrast, it is pointed out that contracts with several economic operators (such as widely used purchase order contracts) are public contracts within the meaning of the Directives (see Article 1(2)). They must be awarded in accordance with those provisions if the thresholds are exceeded.

4.2. "Framework agreements" are used, in the case of repetitive purchases, to choose certain economic operators who, when the time comes, will be able to meet the purchaser's needs.

This form of "agreement" between the contracting authority and economic operators cannot, at present, exempt the contracting authority from the obligation to comply with the procedures as per the Directive for each contract awarded - following an order - if these contracts exceed the thresholds. However, in view of the increasing use being made of this arrangement, it appeared necessary to the Commission, in its aforementioned Communication on public contracts [19], to allow contracts based on such agreements to be exempted, under certain conditions, from the obligation to apply the normal procedures under the Directive. Such agreements not only enable purchases to made under better conditions, in keeping with the constant development of the market for certain products and services, but also avoid repetition of procedures each time in the case of repetitive purchases.

[19] See footnote 2.

In this way, contracting authorities would no longer be obliged to apply the normal procedures under the Directive for each contract based on such an agreement.

4.3. However, this possibility is subject to a double condition.

- The framework agreement must itself be awarded in conformity with the Directive. In other words, the contracting authority, if it wishes to avail itself of this possibility, must publish a notice, apply qualitative selection criteria in accordance with the Directive and award the framework agreement - to several service providers - applying objective criteria announced in advance.

- Contracts based on a framework agreement must be awarded in accordance with provisions aimed at ensuring compliance with the principle of equality of treatment when choosing the tenderer. These provisions are the subject of a new Article (Article 32). The choice shall be made after the reopening of competition among the economic operators who are party to the framework contract.

4.4. When a contracting authority has to make a purchase, it consults those economic operators party to the agreement who are likely to be able to meet its requirements. The economic operators submit specific tenders, offering scope to adjust the initial tender in line with market developments, such as technical obsolescence or significant price changes.

4.5. The arrangements are governed by provisions guaranteeing equality of treatment of tenderers.

4.6. Such agreements do not foreclose the market to competition and in particular to new entrants. Contracting authorities are always free to start a new procedure for a public contract if they wish to enjoy better conditions. Moreover, it is worth emphasising that as things currently stand, nothing prevents a contracting authority from entering into a contract with a single economic operator for several years.

Accordingly , it may be in the contracting authority's interest to use a framework agreement for intellectual services which it will need over a given period (for example technical assistance) for which it is not possible to know when the need will arise nor the size of any task to be performed. When the need arises, the authority will use a simplified procedure to consult all the parties to the framework agreement and will be able to award the contract to the best tenderer.

The proposal also contains a clause concerning anti-competitive abuses (notably the risk of cartels) and, to ensure effective competition limits the duration of framework agreements to three years in principle.

It goes without saying that the Treaty rules on competition are not affected by this buying technique.

5. Technical specifications

5.1. The current provisions on technical specifications [20] are designed to require public purchasers to define technical specifications by reference to an exhaustively listed set of instruments so as to avoid conferring any advantage on a given economic operator or giving preference to national production. These instruments are not only well known, transparent and publicly available but also represent, as far as possible, harmonisation of specifications at European or international level. The most important of these instruments is the standard - preferably European, international or, failing that, national. Other instruments which are more sector-specific (European Technical Approval for building products, as provided for in Directive 89/106/EEC) have also been retained as possible references.

[20] The Supply (93/36/EEC), Works (93/37/EEC) and Services (92/50/EEC) Directives contain the same provisions regarding common technical rules. The Utilities Directive (93/38/EEC) contains broadly equivalent provisions.

Application of the provisions of the Directives has led in certain cases to a situation where standards have been treated as de facto requirements; these provisions can be construed as limiting the buyer's choice to only those products which comply with the standard.

Such an interpretation does not fit with the notion of a "reference" according to which other solutions can be compared to the solution provided by the standard. In addition, it has also meant that technical solutions where a standard exists have been unduly preferred to the detriment of other solutions and of new technologies. The rapid technological obsolescence in certain sectors, coupled with the interpretation that standards are de facto requirements, is particularly harmful where, by the very nature of things, the adoption of a standard lags some way behind technological progress (as is the case in the information technology field).

5.2. Accordingly, there is a need to simplify these provisions (so as to clarify the extent of the "reference" obligation and limit referral to provisions specific to certain sectors, such as telecommunications and construction), which add to the complexity of the current texts. These changes will also encourage effective competition through the participation of the greatest possible number of tenderers and in particular innovative businesses.

The proposed changes apply to all purchases of goods, works and services under the public sector Directives as well as purchases under the utilities Directives. This means that the texts of the Directives will be brought more into line with one another, adding to the simplification process. These amendments will enable public purchasers to specify their requirements also in terms of performance levels, while at the same time safeguarding what has been achieved in terms of European standardisation, as reference to the standards will still be an option.

6. Strengthening of provisions relating to award and selection criteria

6.1. The current provisions concerning award criteria (Article 36(2) of Directive 92/50/EEC, Article 26(2) of Directive 93/36/EEC and Article 30(2) of Directive 93/37/EEC) stipulate that these criteria must be listed in the contract notice or in the contract documents, "where possible" in descending order of the importance attached to them by the contracting authority.

As this provision is far from binding as regards the mention of a descending order of importance, it is necessary to clarify the scope of the obligation which flows from it.

6.2 What is more, the Commission has concluded from its investigations of complaints that, even though the contracting authorities have to establish and set out a descending order of importance attached to the award criteria, they still enjoy a considerable margin of discretion when awarding contracts. In merely stating a descending order of importance, the contracting authority retains the option of attaching to the criteria, at the time of evaluation, a specific weighting, and hence a relative value, of which the tenderers are not aware. A possible consequence of this lack of transparency may be that some contracting authorities attach an unexpected or unforeseeable importance to one or more criteria, even after the opening of the tenders, so as to favour one tenderer or another. Thus, if there are two criteria, the order of preference may equally result in 90% or 51% of the relative value being attached to the first criterion. Also, in the absence of a general rule making it compulsory to state the relative weighting of the criteria from the start of the procedure, it is difficult to keep a check on the final choice of the contracting authority. Therefore, it has to be recognised that, at the crucial stage in the award of a contract, such absence renders ineffective the rules governing the preceding stages of the award procedure. All these rules are aimed at the same objective of ensuring that the rights of the tenderers are respected, and in particular that the principles of equality of treatment and transparency are upheld.

The Directive must therefore be amended so as to make it compulsory to state the relative weighting of each criterion at the contract notice stage or in the contract documents. This weighting may take different forms (in particular, it may be expressed as a percentage or in terms of relative share compared with another criterion) and to ensure a certain flexibility, may be expressed as a range within which the value attributed to each criterion shall be stated.

6.3 However, it is not always possible to state the relative weighting of criteria as early as the contract notice stage. This is liable to be particularly difficult in the case of complex contracts.

The provisions must provide scope for waiving the aforementioned obligation.

On the other hand, it has to be ensured that the weighting is known to all tenderers when they draw up their tenders.

An exemption is therefore provided for whereby the relative weighting may be stated, at the latest, in the invitation to tender (for restricted and negotiated procedures) or in the invitation to participate in the dialogue (for negotiated procedures in the case of complex contracts). In other cases - open procedures - failure to state the relative weighting right at the start of the procedure may render the procedure void.

6.4 As regards the selection of tenderers, the proposal strengthens the legal framework in two respects:

- first, it strengthens the instruments for combating organised crime, corruption and fraud by introducing an obligation on the part of contracting authorities to exclude tenderers who have been found guilty in a definitive judgment of organised crime, corruption offences or fraud against the financial interest of the Community. This proposal follows on from the conclusions of the Tampere summit, the action plans to combat organised crime and the 1997 Communication from the Commission on a Union Policy against Corruption [21];

[21] COM(97) 192, 21.5.1997.

- secondly, it introduces an obligation, in restricted and negotiated procedures, to apply objective criteria announced in advance so as not to limit the number of candidates invited to tender; it thus fills a gap in the existing operative provisions.

7. Thresholds

The current Directives lay down different thresholds. Often, it is not easy to establish which threshold is applicable to a specific public contract.

As far as public contracts falling under Directive 92/50/EEC are concerned, the following thresholds apply.

- EUR 200 000 [22] for contracts awarded by central and non-central authorities and relating to the (research and development) services listed in Annex I A, category 8, and to certain telecommunications services such as listed in Annex I A, category 5, with the CPC reference numbers 7524, 7525 or 7526. In addition, this threshold is applicable to all contracts relating to the services in Annex I B. It also applies, finally, to all contracts covered by Article 3(3), namely contracts financed to more than 50%;

[22] Expressed in ecus in the Directives, which predate the changeover to the euro. As a reminder, 1 ecu = 1 euro.

- the equivalent in euro of SDR [23] 130 000 (currently EUR 139 312) is applicable to all contracts awarded by the government authorities listed in Annex I of Directive 92/50/EEC, where the contract in question falls under categories in Annex I A other than those mentioned above (i.e. category 8 (research and development) and category 5 where the CPC reference numbers are 7524, 7525 or 7526);

[23] The SDR is a reference currency defined in by the International Monetary Fund and used in the GPA.

- the equivalent in euro of SDR 200 000 (currently EUR 214 326) is applicable to service contracts awarded by contracting authorities which are not central authorities, if the contracts relate to services listed in Annex I A other than those listed above (i.e. excluding category 8 (R&D) and telecommunications services, with the CPC numbers 7524, 7525 or 7526).

Two different thresholds apply to works contracts subject to Directive 93/37/EEC. One is 5 000 000 ecu (now euro), applicable to works concessions contracts falling under the scope of Article 2(1), contracts subsidised by more than 50%. All other works contracts are subject to a threshold of the equivalent in euro of SDR 5 000 000 (currently EUR 5 358 153).

As far as public contracts under Directive 93/36/EEC are concerned, thresholds are as follows:

- the equivalent in euro of SDR 130 000 (currently EUR 139 312), applicable to supply contracts awarded by the central government authorities listed in Annex I of the Directive. In the field of defence, however, this applies only to contracts relating to the products listed in Annex II of the Directive;

and

- the equivalent in euro of SDR 200 000 (currently EUR 214 326), applicable to all supply contracts awarded by contracting authorities which are not central government authorities and to contracts awarded by central government authorities in the field of defence for products not listed in Annex II of the Directive.

It follows from the above that these thresholds are anything but straightforward and user-friendly. There is thus an urgent need to simplify these thresholds by reducing the number of different thresholds, removing all references to "the equivalent in euro of SDR" and stating all thresholds in euro, up to the full extent compatible with the Community's international obligations under the Government Procurement Agreement (GPA), concluded in the Uruguay Round multilateral negotiations [24]. As the thresholds will henceforth be stated in euro, it is necessary to both

[24] Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the Agreements reached in the Uruguay Round multilateral negotiations (1986 to 1994) (OJ L 336, 23. 12. 1994, p. 1).

- ensure compliance with our international obligations through compliance with the GPA thresholds, and

- establish round-figure thresholds, which will thus not be the straight equivalent of the SDR thresholds.

To this end, the thresholds in euro are rounded to the nearest one hundred or ten thousand euro below the thresholds set by the GPA.

The proposed amendments feature the following thresholds:

- 93/37/EEC: a single threshold of EUR 5 300 000 applicable to all contracts and concessions falling under its scope;

- 93/36/EEC and 92/50/EEC: two thresholds, of EUR 130 000 or EUR 200 000, depending on whether the contracting authority has the status of a central or of a non-central authority; applicable to all contracts and to design contests falling under the respective scope of the Directives;

In the event that euro/SDR parity changes result in euro-denominated thresholds exceeding the equivalent in euro of thresholds set - under the GPA - in SDR, it is proposed that the Commission be empowered to adjust the thresholds laid down by the Directive, in euro, in accordance with the appropriate procedures.

8. Common procurement vocabulary

Use of the Common Procurement Vocabulary (CPV) was the subject of a Commission Recommendation in 1996 [25]. This nomenclature represents a further development of and an improvement to the CPC and NACE nomenclatures, in that it is better suited to the specific characteristics of the public procurement sector. Since 1996, the CPV has been used systematically in every notice published in the Supplement to the Official Journal of the European Communities pursuant to the Directives for identification of the subject-matter of the contracts concerned, as well as for translation into the 11 official languages; it has also become an indispensable research criterion in the selection and identification of contract opportunities. The CPV underwent revision at the end of 1998 in the light of operational practice and on the basis of comments received from users (contracting authorities and potential suppliers). In future it will be necessary to derive maximum benefit from the existence of a nomenclature that is specific to public contracts and to amend the provisions of the Directives concerning the use of the various nomenclatures (CPC, NACE and the Combined Nomenclature) by replacing them with the CPV. In the process, however, it will have to be ensured that the scope of the Directives (categories of services in Annexes I A and I B of Directive 92/50/EEC) is not affected. The use of the CPV alone will make it easier to disseminate and access information, thus contributing towards greater transparency and a greater openness of public procurement in Europe. In parallel with this revision of the Directives, the CPV will be the subject of a proposal by the Council and the Parliament. The latter will then formally adopt it as the Community nomenclature applicable to public contracts and will organise its maintenance (arrangements for revision).

[25] Commission Recommendation 96/527/EC of 30 July 1996 on the use of the Common Procurement Vocabulary (CPV) for describing the subject-matter of public contracts (OJ L 222, 3.9.1996).

9. Amendments due to the exclusion of the telecommunications sector from the scope of Directive 93/38/EEC

Public authorities [26] exercising an activity in the telecommunications sector are currently subject to the provisions of Directive 93/38/EEC; as a result, their purchases for the pursuit of that activity are excluded from the scope of the public sector Directives. In parallel with this proposal, the Commission is also proposing that Directive 93/38/EEC be recast, one of the aspects concerned being the exclusion of the telecommunications sector from its scope. If the public sector Directives were not amended, the proposal for a new Directive to replace Directive 93/38/EEC would mean that public authorities would once again be subject to the public sector Directives as regards purchases relating to their activity in the telecommunications sector. However, it would run counter to the logic of the public procurement Directives if the public authorities, who, as things stood (even in the absence of effective competition in the telecommunications sector), were subject to the more flexible provisions of Directive 93/38/EEC were to become subject to the stricter rules of the public sector Directives, although they have - on account of liberalisation - the same profitability incentives as private-sector enterprises, because effective competition has now been introduced in the sector. It is therefore proposed that the public sector Directives be amended to ensure that public authorities continue to be excluded from the scope of these Directives as regards purchases related to their activities in the telecommunications sector (see Article 15 of this proposal).

[26] This means the State, regional or local authorities, bodies governed by public law, or associations formed by one or more of these authorities or bodies governed by public law. See Article 1(1) of Directive 93/38/EEC.

III. Analysis of the articles

Where the amendments made consist in renumbering or in a renumbering of the Article to which reference is made, the provisions are regarded as remaining unchanged in terms of substance. The same applies to changes in wording which have no effect on the content and scope of a provision. Therefore, where the amendments made are of this type, it is pointed out that the provision is unchanged. As regards structure, this proposal also includes a table of contents providing an overview of the restructuring of the texts.

Title I - Definitions and general provisions

Article 1 - Definitions

This Article sets out all the existing definitions in the current three Directives.

The first three subparagraphs of paragraph 2 have been amended to specify that the concepts of public supply contracts, public service contracts and public works contracts cover contracts concluded with one or more economic operators.

In addition, the nature of the services covered by the concept of public service contracts is clarified by reference to Annex I. This is therefore a non-substantive clarification.

Paragraph 3 relates to the different types of mixed contracts, namely contracts comprising both supplies and works (first subparagraph), supplies and services (second subparagraph) or services and works (third subparagraph).

For instance, the content of the current recital 16, as interpreted by the Court of Justice in its judgment of 19 April 1994 in Case 331/92, Gestión Hotelera, has been inserted into the text of the Directive [27], thus clarifying the scope of the text.

[27] In this judgment, the Court found that "according to the sixteenth recital in the preamble to that Directive, it follows from Directive 71/305/EEC that, for a contract to be a public works contract, its object must be the achievement of a work and that, in so far as those works are incidental rather than the object of the contract, they do not justify treating the contract as a public works contract" paragraph 27 of the judgment.

The first subparagraph of paragraph 4 specifies that a "supplier", "service provider" or "contractor" may be any natural or legal person or public body or group of such persons and/or bodies in order to take account of Article 3 governing the participation of such groups.

A second subparagraph has been added, introducing the definition of an "economic operator", covering the terms "supplier", "service provider" and "contractor", depending on the subject of the contract. This new concept has become necessary because of the insertion of the three public sector Directives into a single text.

The third subparagraph defines the terms "tenderer" and "candidate". Those terms are unchanged.

Paragraph 5, relating to the definition of bodies governed by public law, corresponds to the provisions of the current Article 1(b) of Directive 92/50/EEC, the current Article 1(b) of Directive 93/36/EEC and the current Article 1(b) of Directive 93/37/EEC. It remains unchanged.

Paragraph 6, concerning the different types of procedures, corresponds to the provisions of the current Article 1(d), (e) and (f) of Directive 92/50/EEC, the current Article 1(d), (e) and (f) of Directive 93/36/EEC and the current Article 1(e), (f) and (g) of Directive 93/37/EEC. It remains unchanged.

In paragraph 7, the definition of a "framework agreement" has been introduced. These agreements are not public contracts, as only certain terms are fixed, so that no contractual link is established between the contracting authority and the tenderers. This definition has become necessary owing to the introduction of specific provisions (see Article 32) enabling a contracting authority to be exempted from having to follow the procedures under the Directive for each contract, if the contract is awarded pursuant to a framework agreement itself entered into in accordance with the Directive, namely following the procedures of the Directive in all phases except the actual contract award.

In paragraph 8, a new concept has been introduced, viz. the "outline solution", which has already been explained (see point 3.8. of the Explanatory Memorandum). This addition has become necessary as a result of the amendments made to the negotiated procedure with the aim of making a dialogue possible.

Paragraph 9, relating to the term "design contests", corresponds to the provisions of the current Article 1(g) of Directive 92/50/EEC. It remains unchanged.

Paragraph 10, relating to the term "public works concessions", corresponds to the provisions of the current Article 1(d) of Directive 93/37/EEC. It remains unchanged.

In paragraph 11, a definition of "electronic means" has been introduced. The definition is an adaptation of the one from the Commission proposal concerning electronic commerce.

Paragraph 12 inserts a definition of "in writing" to take account of the new data-transmission technologies.

Paragraph 13 defines the CPV as the reference nomenclature applicable to public contracts, not only for identification of the subject-matter of contracts but also for the purpose of defining the scope of the Directive and implementing statistical obligations.

Paragraph 14 states the definitions necessary for purposes of making exclusions from the scope of the public procurement rules, service design contests and works concessions in the telecommunication sector.

Article 2 - Equality of treatment, non-discrimination and transparency

The prohibition of discrimination laid down in Article 3(2) of Directive 92/50/EEC, Article 5(7) of Directive 93/36/EEC and Article 6(6) of Directive 93/37/EEC, is unchanged.

Compliance with the principle of equality of treatment and transparency has been added. In accordance with the established case-law of the Court of Justice, the general principle of equality of treatment, of which the prohibition of discrimination on grounds of nationality is no more than a specific expression, is one of the fundamental principles of Community law. Under this principle, analogous situations must not be treated in different ways unless the difference in treatment is justified by objective reasons [28].

[28] Judgment of 8.10.1980 in Case 810/79 Überschär, [1980] ECR p. 2747.

TITLE II - rules on public contracts

chapter I - General provisions

Article 3 - Groups of economic operators

Paragraph 1 represents a clarification, as it specifies that a contracting authority may require that groups of economic operators assume a specific legal form only to the extent that such a change is necessary for the satisfactory performance of the contract.

Such a provision already exists in the current Article 18 of Directive 93/36/EEC; its scope has been extended to include service and works contracts.

Paragraph 2, which corresponds to the current Article 26(2) and (3) of Directive 92/50/EEC, remains unchanged.

Article 4 - Conditions laid down by the agreements concluded within the World Trade Organisation

This Article, which corresponds to the provisions of the current Article 38(a) of Directive 92/50 EEC and of the current Article 33(a) of Directive 93/37/EEC, is unchanged. As regards supply contracts, it brings the text of Article 28 of Directive 93/36/EEC into line with the texts of the two other Directives.

Article 5 - Confidentiality

This Article extends to service and works contracts the obligation already included in the current Article 15(2) of Directive 93/36/EEC to the effect that contracting authorities must respect fully the confidential nature of any information furnished by economic operators.

This obligation is also made necessary, however, by the introduction of a new case for the use of the negotiated procedure allowing a "dialogue" between the contracting authority and candidates; the confidentiality of information must be guaranteed, in particular, where the latter submit an "outline solution" (also covered by Article 30).

chapter II - Scope

Article 6

A new Article has been inserted specifying how the scope is determined. It represents the introduction to Chapter II, "Scope", and is of an explanatory nature. It specifies that the Directive applies to public supply, service and works contracts not excluded under the Directive whose estimated value exceeds the thresholds laid down. In does not include any amendment to the obligations deriving from the current Directives.

Article 7 - Defence procurement

This Article, which corresponds to the provisions of the current Article 4(1) of Directive 92/50/EEC and of the current Article 3 of Directive 93/36/EEC, is unchanged in terms of substance.

Section 1 - Thresholds

Subsection 1 - Amounts

Article 8 - Public contracts

The Directives currently provide for different thresholds according to contracting authority and the type of contract; this sometimes makes determination of the relevant threshold difficult and can lead to uncertainty considering the number of different thresholds. It is therefore proposed to simplify the number of thresholds as far as international obligations allow.

It is therefore proposed to remove all references to "Special Drawing rights - SDRs", the reference currency used in the GPA, and all references to "the euro equivalent of SDRs". All thresholds will be expressed in euros.

The proposal provides for three thresholds, namely EUR 130 000, EUR 200 000 and EUR 5.3 million. Thus the current provisions are simplified without at the same time significantly changing the value of the current thresholds. The effects of the proposal are as follows:

As regards central government authorities, the threshold will fall by EUR 70 000 for certain Annex 1 A services, namely research and development contracts, telecommunications (Annex 1 A, category 5, CPC 7524, 7525 or 7526) and for Annex 1 B contracts. The thresholds will also fall by EUR 9 312 for all the other Annex 1 A services.

As regards non-central government authorities, the threshold will fall by EUR 14 326 for all Annex 1 A services with the exception of certain services, namely research and development contracts, telecommunications (Annex 1 A, category 5, CPC 7524, 7525 or 7526). For the latter services and for Annex 1 B contracts, the threshold remains unchanged.

As regards services contracts subsidised by more than 50% by contracting authorities (see Article 9 of the proposal), the threshold remains unchanged.

As regards works contracts, the threshold will fall by EUR 58 153.

As regards works contracts subsidised by more than 50% by contracting authorities, works concessions and contracts awarded by concessionaires, the threshold will rise by EUR 300 000.

Article 9 - Contracts subsidised by more than 50% by contracting authorities

Because of the simplification of the thresholds, the corresponding articles of the current Directives (Directive 92/50/EEC, Article 3 (3) and Directive 93/37/EEC, Articles 2 and 6 (1) (b)) have been amended. In addition, the provision has been reworded to make it clear that Member States are required to comply with the Directive when they award a contract themselves, and to ensure that it is complied with when the contract is awarded by other bodies. This amendment clarifies the current text without changing the content.

Subsection 2 - Methods for calculating value

Article 10 - Calculating the value of framework agreements

This new Article takes into account the addition of framework agreements to the proposal. It specifies that the aggregate total value of the contracts must be used to calculate the threshold which applies to a framework agreement.

Article 11 - Calculating the value of public supply contracts

This Article corresponds to the current Article 5(1)(b) and (2) to (6) of Directive 93/36/EEC. It is unchanged.

Article 12 - Calculating the value of public service contracts

This Article orresponds to Article 7(2) to (7) of Directive 92/50/EEC. It is unchanged except for a small amendment to the current Article 7(4), which has now been split into several paragraphs, that is, paragraphs 3 to 5. The provisions concerning lots also apply to all service contracts.

Article 13 - Calculating the value of public works contracts

This Article corresponds to Article 6(3) to (5) of Directive 93/37/EEC. It is unchanged.

Section 2 - Extended contracts

Article 14 - Contracts in the water, energy and transport sectors

This Article is an adaptation of existing Articles in the Supply, Services and Works Directives (Articles 2 (a), 1(a)(ii) and 4 (a), respectively), which lay down that only contracts covered by Directive 93/38/EEC are excluded from their scope.

The adaptation clarifies the text which, as it is currently written, mentions that the fields referred to in Directive 93/38/EEC are excluded, but does not specify that this Directive applies solely to entities which carry out the activities concerned, and not to the activities themselves. This change makes it clear that contracting authorities - for example, towns and cities - are subject to Directive 92/50/EEC for transport services, if they do not carry out the activity itself.

Article 15 - Specific exclusions in the field of telecommunications

This is a new Article which reflects the liberalisation of the telecommunications sector with regard to contracting authorities who are active in telecommunications. For the reasons explained above (see point 8 of the explanatory memorandum), the three "traditional" Directives must be amended to ensure that, with regard to purchases intended principally to allow them to exercise a telecommunications activity, the contracting authorities remain excluded from the scope of those Directives [29].

[29] See also the 7th recital to this Directive.

The provisions correspond to the current provisions of Article 1(14) and (15) and Article 2(2)(d) of Directive 93/38/EEC. The effect of these amendments will be that where a contracting authority - for example, a municipality - operates a telecommunications network, its purchases for the exercise of that activity will be excluded from the scope of the "traditional" Directives, and therefore from the scope of this proposal.

Moreover, a proposal to recast Directive 93/38/EEC suggests that telecommunications should be excluded from its scope, including for contracting authorities exercising such activities.

Article 16 - Secret contracts or contracts requiring special security measures

This Article, which corresponds to the provisions of the current Article 4(2) of Directive 92/50/EEC, Article 2(1)(b) of Directive 93/36/EEC, and Article 4(b) of Directive 93/37/EEC, is unchanged.

Article 17 - Contracts awarded pursuant to international rules

This Article corresponds to the provisions of the current Article 5(a) of Directive 92/50/EEC, Article 4(a) of Directive 93/36/EEC, and Article 5(a) of Directive 93/37/EEC and adapts these provisions without modifying their scope.

Article 18 - Contracts excluded from the definition of a public service contract

The only modifications to this Article, which corresponds to the provisions of the current Article 1(a)(iii) to (ix) of Directive 92/50/EEC, concern certain telecommunications services.

Certain provisions of Directive 92/50/EEC have been deleted. These are Article 1(a)(v) and the footnote on page two of Annex IA [30]. The consequence will be that contracting authorities falling within the scope of Directive 92/50/EEC will be required to apply the provisions on service contracts when purchasing, for example, mobile voice telephony services. These services have once again been included in the scope as a result of the liberalisation of the telecommunications sector, which provides its services in a competitive environment.

[30] Both references specify that contracts for voice telephony, telex, radiotelephony, paging and satellite services are excluded from the scope of Directive 92/50/EEC, in so far as these services are provided by operators who have exclusive rights.

Article 19 - Service contracts awarded on the basis of an exclusive right

This Article, which corresponds to the provisions of the current Article 6 of Directive 92/50/EEC, is unchanged.

Chapter III - Arrangements to public service contracts

Article 20 - Service contracts listed in Annex 1 A

This Article, which corresponds to the provisions of the current Article 8 of Directive 92/50/EEC, is unchanged .

Article 21 - Service contracts listed in Annex 1 B

This Article, which corresponds to the provisions of the current Article 9 of Directive 92/50/EEC, is unchanged .

Article 22 - Mixed contracts including services listed in Annex I A and services listed in Annex I B

This Article, which corresponds to the provisions of the current Article 10 of Directive 92/50/EEC, is unchanged.

Chapter IV - Specific rules governing specifications and contract documents

Article 23 - General provisions

A new Article has been added as an introduction to the chapter on the specifications and contract documents. It reiterates the principles inherent in the current Directives, and therefore does not change the existing arrangements.

Paragraph 1 specifies that, for each contract, the contracting authorities shall draw up a set of specifications which clarify and supplement the information contained in the contract notices. It also states that the contracting authorities shall introduce only technical specifications that comply with Article 24 and, if they accept variants, the provisions set out in Article 25 shall apply.

Paragraph 2 specifies that the contracting authorities may require information on the subject of sub-contracting (Article 26) or stipulate conditions concerning obligations relating to employment protection provisions and working conditions (Article 27).

Finally, paragraph 3 provides explicitly for the options allowed by the Court of Justice, namely that contracting authorities may also impose particular conditions concerning the performance of the contract. These conditions must be compatible with the applicable Community law [31].

[31] See judgment of 20.9.1988 in Case 31/87 Beentjes [1988] ECR 4635.

Article 24 - Technical specifications

The main proposed amendment is based on an approach which would enable purchase specifications to be defined in terms of performance to be achieved. In order to ensure that performances are not such as to benefit a national economic operator, the fact that specifications shall not create unjustified obstacles to fundamental freedoms is reiterated.

Moreover, to ensure that this approach does not have the effect of simplifying recourse to the negotiated procedure with prior publication, it is specified that the performance requirements must be sufficiently precise to allow comparable offers and to allow the contracts to be awarded without negotiation. The relevant provisions are set out in the second subparagraph of paragraph 3 of the new Article.

The buyer may nevertheless still define his requirements by referring to detailed specifications; however, he cannot simply use an exhaustive list of specifications. Just as in the provisions of the current Directives, the new provision lists detailed specifications that can serve as a reference (e.g. European, international or national standards, etc.). These specifications give an appropriate level of transparency and ensure agreement as to how they are adopted. The relevant provision is set out in the first subparagraph of paragraph 3 of the proposal. Reference to the technical reference framework adopted by the European standardisation bodies has been added. This allows account to be taken of the "CEN Workshop Agreements", which amount to a new, harmonised technical reference framework in the field of information technologies.

Paragraph 4 corresponds to the provisions of the current Article 10(5)(b) of Directive 93/37/EEC. It takes into account the particularities of works contracts. It is unchanged. To make it explicitly clear that solutions other than detailed specifications must always be possible, it is stated that referring to such specifications does not authorise the contracting authority to reject offers of products or services which do not comply with these detailed specifications, so long as the supplier of goods or services can show that his solution is equivalent to the reference specifications. Any appropriate means (the manufacturer's statement of conformity, or certification by a third party) may be used to demonstrate this. The purpose of this last provision is to ensure that any non-standardised solution can also be taken into consideration; it should allow public purchasers to benefit from a broad choice. The burden of proof will be on the tenderer. The relevant provisions are set out in paragraph 5 of the new Article.

It must also be ensured that this new flexibility (that is to say, specifying in terms of performance) is not abused so as to close markets to competition and question the acquis communautaire regarding standardisation. Therefore, paragraph 6 also states that a public purchaser may not disregard a tender which complies with European or international standards on grounds that the standard would not satisfy the required performance except where the specification is not appropriate (incompatibility with equipment, for example) or if the specification does not deal with the same requirement. This would be the case if the standard covers safety requirements, whilst the buyer's requirements are of an environmental nature. It is for the tenderer to show - for example by means of a technical dossier or a third party's test report - that the solution in compliance with the standard will meet the performance requirement. The relevant provisions are set out in paragraph 6 of the new Article.

Lastly, the provision in the current Directive that forbids referring to brands or a specific origin has not been substantially amended; only the wording has been changed to reinforce its exceptional nature. The relevant provision is in paragraph 7.

Annex VI, which lists and defines the technical specifications, has been modified to take account of changes in the definitions of the concepts in Community law after the amendments made to Directive "98/34/EC - technical standards and regulations" [32]. It makes no changes to the substance of the current text, except for the addition of the concept of technical reference framework adopted by the European standardisation bodies.

[32] Directive 98/34/EC of 22 June 1998 - repealing and replacing Directive 83/189 - OJ L 204, 21.7.1998, p. 37.

Article 25 - Variants

This Article corresponds to Article 24 of Directive 92/50/EEC, Article 16 of Directive 93/36/EEC and Article 19 of Directive 93/37/EEC. The wording of paragraph 1 takes into account the new flexibility regarding technical specifications, and paragraph 3 specifies that rules on technical specifications (Article 24) must be followed when the contracting authorities take variants into account.

Article 26 - Subcontracting

This Article, which corresponds to the provisions of the current Article 25 of Directive 92/50/EEC, Article 17 of Directive 93/36/EEC, and Article 20 of Directive 93/37/EEC, is strengthened in the sense that it gives the contracting authorities the possibility of asking the tenderer to also indicate, in his tender, the designated subcontractors.

Article 27 - Service and works contracts: obligations relating to employment protection provisions and working conditions

This Article, which corresponds to the provisions of the current Article 28 of Directive 92/50/EEC and Article 23 of Directive 93/37/EEC, is unchanged.

Chapter V - Procedures

Article 28 - Use of open, restricted and negotiated procedures

A new paragraph 2 has been added, which explicitly states the principle that the open procedure and the restricted procedure are the standard procedures.

A new paragraph 3 describes the exception, which is that contracting authorities may only use the negotiated procedure in the specific cases and under the specific conditions listed in Articles 29, 30 and 31.

These two paragraphs do not create new obligations. They simply incorporate the substance of the Court's case law into the legislation.

Article 29 - Cases justifying use of the negotiated procedure with publication of a contract notice

In paragraph 1(b), a definition of the new circumstances in which the use of a negotiated procedure is allowed has been introduced. It should be pointed out that the concept is not exhaustively defined in the proposal. The fact is that it is impossible to draw up an exhaustive list of "particularly complex" cases, or even to provide a definition which is valid in the long term and in all circumstances.

Therefore the new provision sets two conditions:

- the award criterion must be the most economically advantageous tender, as price alone is obviously not an appropriate criterion for complex contracts;

- the complexity must be established and able to be objectively justified by the contracting authority. This does not therefore concern subjective impossibility, i.e. due to deficiencies on the part of the contracting authority itself. The authority may not simply affirm that it is unable to provide a definition or an evaluation. On the contrary, the contracting authority must prove that this is objectively impossible, given the nature of the specific contract. Depending on the case, this might mean that the contracting authority would be required to prove that there are no precedents for the project, or that disproportionate time or money would be required to acquire the necessary knowledge.

Of course, within the limits laid down by the other provisions of the Directive, the contracting authorities remain free to use other procedures as well when they could have chosen a negotiated procedure on the basis of the new case. There is no obligation to choose this procedure.

The other cases of negotiated procedures with prior publication of a contract notice are unchanged.

Paragraph 1(a) corresponds to the provisions of the current Article 11(2)(a) of Directive 92/50/EEC, Article 6(2) of Directive 93/36/EEC, and Article 7(2)(a) of Directive 93/37/EEC. It is unchanged.

Paragraph 2 corresponds to the provisions of the Article 11(2)(b) of Directive 92/50/EEC and Article 7(2)(c) of Directive 93/37/EEC. It is unchanged.

Paragraph 3 corresponds to the provisions of the current Article 11(2)(c) of Directive 92/50/EEC . It is unchanged.

Paragraph 4 corresponds to the provisions of the current Article 7(2)(b) of Directive 93/37/EEC. It is unchanged.

Article 30 - Specific rules on particularly complex public contracts

The way the negotiated procedure with prior publication functions in this new case of "particularly complex contracts" is described in paragraph 1 of the new Article 30 (see point 3.8 of the explanatory memorandum). It should be specified that the contracting authorities are in no case required to ask for an outline solution, neither at the beginning of the procedure, nor after having selected the participants in the negotiations.

When the contracting authorities decide to make use of the possibility of requesting an outline solution at the beginning of the procedure, as set out in point (b) of the second subparagraph of paragraph 2, the fourth subparagraph of the same paragraph allows them to set their requirements for economic, financial and technical capacity according to the outline solution. In other words, they may, for instance, ask candidates to prove that they have a turnover of x% of the estimated cost of their outline solution, or that they have the skills and experience needed to implement their proposed solution.

To ensure compliance with the principles of non-discrimination, equality of treatment and transparency in this new form of negotiated procedure [33], the third subparagraph of paragraph 2 and paragraph 4 stipulate that the qualitative selection and award criteria should remain unchanged throughout the procedure. The selection criteria may nonetheless be amended where they have become inappropriate to the final arrangement as set out in the contract documents. They add that the qualitative selection criteria must be given in the contract notice and the award criteria must be given either in the contract notice or in the document specifying the contracting authority's requirements. This is required in order to ensure that the criteria are not established in such a way as to favour a particular solution or candidate. It should also be noted that the provisions in Article 53(2) on indicating the weighting of the award criteria do apply to the new form of negotiated procedure with prior publication. Article 54 concerning abnormally low tenders also applies.

[33] Cf. also the 24th recital to this proposal.

Paragraph 3 lays down that contracting authorities shall set out their needs and requirements as precisely as possible so that these specifications may provide the basis for preparing any outline solutions and the negotiations. By way of derogation from the provisions of Article 24(3), which leaves the contracting authorities the choice of whether to formulate the technical specifications in terms of either performance or functional requirements, or by reference to national standards implementing European standards, paragraph 3 states that contracting authorities may only specify these needs and requirements in terms of performance. The very nature of a "particularly complex contract", where the creativity of those taking part in the negotiations must be given full rein, does not allow these requirements to be specified in precise terms.

Lastly, precisely because participants' creativity is particularly important where complex contracts are concerned, paragraph 9 explicitly permits the contracting authorities to provide for prices and payments to the participants, on the condition that these be taken into account when estimating the value of the contract, and thus, when calculating the threshold.

It should be pointed out that no conclusion contradicting this may be drawn from the fact that these prices and payments are not mentioned elsewhere in the Directive.

Article 31 - Cases justifying use of the negotiated procedure without prior publication of a contract notice

This Article corresponds to the provisions of Article 11(3) of Directive 92/50/EEC, Article 6(3) of Directive 93/36/EEC, and Article 7(3) of Directive 93/37/EEC. These various provisions have been gathered together to take into account the single text, and to avoid repetition. The Article is unchanged.

Article 32 - Framework agreements

This new Article allows the contracting authorities to use a specific procedure, if their purchases follow on from a framework agreement which has been concluded according to the Directive (see the definition of framework agreements in Article 1(7)).

Paragraph 1 provides that contracting authorities who have opted for a framework agreement as defined in Article 1(7) of the Directive must award the contracts based on the framework agreement under the special procedure and hence are not required to comply with the other provisions of the Directive concerning the awarding of contracts.

For the awarding of each contract, the contracting authorities shall reopen competition between the parties to the agreement.

For this purpose, the Article specifies that the contracting authorities must consult in writing the parties to the agreement who may be able to meet their needs, and set a period sufficiently long to permit tendering. They must take into account the special characteristics of each contract.

For their part, the suppliers or service providers shall submit their tenders in writing. Their content must remain confidential until the time-limit for responses set by the contracting authority has expired. The contracting authority may not conclude the contract until this time-limit has expired. Contracts shall be awarded on the basis of the award criteria laid down in compliance with Article 53 of the Directive.

Paragraph 2 emphasises that contracting authorities must comply with the provisions of the Directive for the award of each contract if they have not used the procedure set out in paragraph 7, i.e. if they have not concluded the framework agreement in accordance with the provisions laid down in the Directive. In such cases, they may not make use of the procedure described in paragraph 1.

Paragraph 3 provides that framework agreements are only valid for three years, and, exceptionally and in duly justified cases, for a period of up to five years. In accordance with the Court's case law on derogations, the burden of proof lies with the contracting authority.

Lastly, this paragraph forbids the use of framework agreements in such a way as to restrict or distort competition, since they could close the market to competition.

Article 33 - Public works contracts: particular rules on public housing schemes

This Article, which corresponds to the provisions of the current Article 9 of Directive 93/37/EEC, is unchanged .

Chapter VI - Rules on publication and transparency

Section 1 - Publication of notices

Article 34 - Contract notices

This Article corresponds to the provisions of the current Article 15(1) and (2), Article 16(1), (3) and (5) and Article 17(2), second subparagraph of Directive 92/50/EEC, Article 9 of Directive 93/36/EEC, and Article 11(7), second subparagraph, (2) and (5) of Directive 93/37/EEC. It is unchanged except for two aspects.

The first concerns the specifications according to which notices have to be sent. For reasons explained above in the explanatory memorandum, the provisions containing more detailed technical specifications on publication are combined in a new Annex VIII [see also Article 35(3)]. The common rules on publishing are adapted accordingly, and in all the remaining relevant provisions in the Directive a reference to this new Annex is introduced.

The second aspect concerns framework agreements concluded in accordance with Article 1(7). It would be best to avoid making an award notice necessary for each contract awarded on the basis of a framework agreement. The second subparagraph of paragraph 3 therefore provides for an exemption.

As for public supply contracts, the French version of paragraph 1 (a) which concerns this version only has been changed to replace a reference to the CPA nomenclature with the nomenclature specifically created to meet the public procurement needs, namely the CPV.

Article 35 - Form and manner of publication of notices

First of all, reference is made to the standard forms adopted by the Commission in accordance with the procedure set out in Article 76(2), which must be used for the contract notices. At all events, the minimum information shown in Annex VII must be included in the notices.

Some detailed information regarding the current directives on the publication of notices is contained in new Annex VIII 'Technical Specifications for Publication".

Article 35 includes provisions which have been introduced in response to the widespread use of electronic means of communication (paragraph 4). These specify that if electronic transmission is used, publication shall take place within a maximum of five days. In other cases, the current arrangements - publication time-limit of 12 days, or five days for the accelerated procedure - remain unchanged.

Lastly, paragraph 2 addresses the particular case of framework agreements and regulates the means of publication when a contracting authority makes use of Article 32.

Article 36 - Non-mandatory publication

This Article incorporates the similar provisions of the three public sector Directives providing for Community-wide publication of contracts where application of those Directives is not compulsory. The text has been adapted to take into account the amendments made to the provisions on publication. This Article corresponds to Article 21 of Directive 92/50/EEC, Article 13 of Directive 93/36/EEC and Article 17 of Directive 93/37/EEC on the possibility offered to contracting authorities of publishing notices in accordance with Annex VIII for public contracts which are not subject to publication requirements.

Section 2 - Time-limits

Article 37 - Requests to participate and receipt of tenders

This Article introduces a general principle, adopted from the GPA, that all time-limits must be sufficiently long to enable tenders to be prepared, taking into account in particular their degree of complexity. This general principle is accompanied by specific rules laying down minimum time-limits, which are to be viewed as "safety nets", and which vary depending on the type of procedure chosen.

The time-limits currently set for receipt of tenders in open procedures and for receipt of requests to participate and submit tenders in restricted procedures remain unchanged. The time-limit for requests to participate in negotiated procedures also remains unchanged. The Directives do not lay down a time-limit for the receipt of offers in negotiated procedures. Paragraph 3 fills this gap by providing for a time-limit for the submission of tenders which is the same as that in restricted procedures.

With regard to the shortened time-limits applicable to the receipt of tenders where contracting authorities have published an indicative notice, paragraph 4 provides for harmonisation of the time-limits set both for open procedures and for restricted procedures, i.e. minimum time-limits of 36/26 days, instead of the 36/22 days currently laid down for open procedures and the 26 days currently laid down for restricted procedures. The current lack of time-limit for negotiated procedures is resolved by setting the same time-limits as those for the other procedures.

With the aim of encouraging the use of electronic means, paragraph 5 provides for a reduction by seven days of the time-limits for receipt of tenders in open procedures and of the time-limits for requests to participate in restricted and negotiated procedures where the contracting authority has drawn up and sent the contract notice by electronic means complying with the technical specifications for publication laid down in Annex VIII. This reduction corresponds to the reduction in the time-limits for publishing notices at Community level.

With the same objective, paragraph 6 provides for a reduction by five days of the time-limits for receipt of tenders, which can be cumulated with the previous reduction, where the contracting authority offers free direct access by electronic means to the entire contract documents and any other documents required to draw up tenders as from the date on which the contract notice is sent.

Paragraph 8 incorporates Articles 11(6) of Directive 93/36/EEC, 18(5) of Directive 92/50/EEC and 12(5) of Directive 93/37/EEC.

Paragraph 9 adapts the current provisions relating to accelerated procedures to take into account the use of electronic means for drawing up and sending the contract notice. In this case, the time-limit for receipt of requests to participate is 10 days from the date on which the contract notice is sent, instead of 15.

The reductions justified by the use of electronic means and the time-limits set for accelerated restricted and negotiated procedures are not applicable to particularly complex contracts awarded under the procedural rules laid down in Article 30.

Article 38 - Contract documents and additional information

This Article, which corresponds to the provisions of Article 18(3) and (4), Article 19(6) and Article 20(2) of Directive 92/50/EEC, Article 10(2) and (3), Article 11(5) and Article 12(2) of Directive 93/36/EEC and Article 12(3) and (4), Article 13(6) and Article 14(2) of Directive 93/37/EEC remains unchanged, but addresses publication by electronic means.

Section 3 - Information content and means of transmission

Article 39 - Means of transmission of requests to participate

A new provision is inserted to allow the introduction of the use of electronic means for requests to participate. Means of communication no longer commonly in use (telex and telegram) have been deleted. The telephone has been deleted from the means that can be used.

Furthermore, provisions resulting from recent modifications [34] allowing Member States to authorise the submission of tenders "by any other means" need to be extended as a rule to all types of communications and exchanges of information and, where appropriate, adapted. The relevant Articles, i.e. Article 19(5) and Article 20(3) of Directive 92/50/EEC, Article 11(4) and Article 12(3) of Directive 93/36/EEC, and Article 13(5) and Article 14(3) of Directive 93/37/EEC, are amended accordingly.

[34] Directive 97/52/EC of 13.10.1997, OJ L 328.

Article 40 - Invitations to submit a tender or negotiate

This Article incorporates the provisions on restricted and negotiated procedures (Article 19(2) of Directive 92/50/EEC, Article 11(2) and Article 12(3) of Directive 93/36/EEC and Article 13(2) and Article 14(3) of Directive 93/37/EEC) and takes electronic means into account as well as the new case of invitation to negotiate when especially complex contracts are concerned.

Article 41 - Information to candidates and tenderers

This Article, which corresponds to the provisions of the current Article 12(1) and (2) of Directive 92/50/EEC, of the current Article 7(1) and (2) of Directive 93/36/EEC and of the current Article 8(1) and (2) of Directive 93/37/EEC, is unchanged.

Section 4 - Means of communication

Article 42

This is a provision putting electronic means on an equal footing with other means of communication. Moreover, obsolete technologies - such as the telex - are no longer mentioned (paragraph 1).

Paragraph 2 provides the requisite guarantees concerning the integrity and confidentiality of tenders, including in the event of electronic means being used.

Paragraph 3 takes account of the fact that, in the case of tenders being transmitted by electronic means, some documents, certificates and declarations that may be required for the selection of candidates cannot be transmitted by the same means. Provision is therefore made for their being transmitted by other means at the latest on the day before the tenders are opened.

Finally, paragraph 4 contains a key provision for guaranteeing that electronic means are not used for the purpose of reserving contracts: it stipulates that, whatever means is chosen, it must not have the objective or effect of hindering the smooth running of the internal market.

Articles 23(2) of Directive 92/50/EEC, 15(3) of Directive 93/36/EEC and 18(2) of Directive 93/37/EEC are therefore amended.

Section 5 - Reports

Article 43 - Content of reports

This Article corresponds to the provisions of Article 12(3) of Directive 92/50/EEC, of Article 7(3) of Directive 93/36/EEC and of Article 8(3) of Directive 93/37/EEC.

However, the list of elements to be inserted into reports is extended to include two further items of information: the reasons for the rejection of tenders found to be abnormally low and the reasons why the contracting authority has decided not to award a contract.

This amendment simplifies the obligations currently imposed on contracting authorities to inform the Commission of tenders which they find to be too low in cases of awarding to the lowest bidder (Articles 37, third indent, of Directive 92/50/EEC, 27, third indent, of Directive 93/36/EEC and 30(4), third indent, of Directive 93/37/EEC) and to inform the Office for Official Publications of the European Communities of their reasons for not awarding a contract in respect of which a prior call for competition was made or for not recommencing a procedure (Articles 12(2) of Directive 92/50/EEC, 7(2) of Directive 93/36/EEC and 8(2) of Directive 93/37/EEC).

Chapter VII - Conduct of the procedure

Section 1 - General provisions

Article 44 - Selection of participants and award of contracts

The objective of this Article is threefold:

- to introduce Chapter VII with a preliminary paragraph, explaining that contracts are awarded after the suitability of the economic operators has been checked. With a view to making such checks more transparent, additions have been made, via paragraph 2, to the operative provisions of the current Directives referring to the only criteria of qualitative selection (Articles 23(1) of Directive 92/50/EEC, 15(1) of Directive 93/36/EEC and 18(1) of Directive 93/37/EEC) to allow the contracting authorities to determine the level of capacity and experience required for a specific contract, as they are already permitted to do under the case-law of the Court of Justice [35];

[35] Bellini and Beentjes judgments.

- to specify how contracting authorities can eliminate tenderers, in the case of open procedures, and candidates, in the case of restricted and negotiated procedures, and, in parallel, how they must reject them;

- to set out how contracting authorities who, in restricted procedures and in negotiated procedures with the publication of a contract notice, have set a range or maximum number of candidates to invite to tender, can effect that reduction.

Paragraph 3 builds on paragraph 2, stipulating that no candidate can be excluded from a procedure on the basis of criteria or levels of capacity and experience not previously publicised.

Paragraph 4 addresses the conditions under which contracting authorities can restrict the number of candidates in a restricted or negotiated procedure to achieve the range or maximum number they have set (see Article 45). This restriction must be based on objective selection criteria; this means that only those criteria may be used. Moreover, the levels of ability and experience required must be set out in the contract notice.

Paragraph 5 explicitly provides for the duty, in any type of procedure, to eliminate competitors who do not have the abilities or the experience previously demanded by the awarding authority.

Paragraph 6 extends to public works contracts the provisions of Article 32(4) of Directive 92/50/EEC and of Article 23(3) of Directive 93/36/EEC.

Section 2 - Selection

Article 45 - Specific rules governing restricted and negotiated procedures

This Article corresponds to Article 27 of Directive 92/50/EEC, Article 19 of Directive 93/36/EEC and Article 22 of Directive 93/37/EEC.

Paragraph 1 incorporates the texts of paragraph 1 of those Articles.

Paragraph 2, first indent, and paragraph 3 of those Articles are amended to correct the inconsistencies in Directives 92/50/EEC and 93/36/EEC, in which the provisions of the Articles concerned (referring only to a range for restricted procedures and only to a number for negotiated procedures) differ from those of contract notices (which refer to both the number and the range for both procedures) and the inconsistencies between those Directives and Directive 93/37/EEC (range for restricted procedures, number for negotiated procedures, no specific reference for contract notices). This amendment is all the more necessary, since the combination of provisions in Directives 92/50/EEC and 93/36/EEC has been interpreted as making compliance with the minimum numbers of candidates to be invited to submit a tender compulsory only in cases where a range is set.

Paragraph 2 therefore allows for the fixing of only a minimum number of candidates whom it is proposed to invite (though the number may be exceeded at the time of the invitation), or else of such minimum together with a maximum. It is further provided that the maximum must be set out in such a way as not to restrict competition, which means that its determination must have regard to the market. The obligation to state numbers in the contract notice remains unchanged.

The current provision that, in restricted procedures, the number of candidates invited to tender must, in any event, be sufficient to ensure genuine competition (paragraph 2, second indent, of the Articles referred to above) has been deleted so that contracts in respect of which a call for competition has already been made are not subject to additional procedures. It remains the case that contracting authorities are free to reopen competition in relation to these contracts for objective reasons.

Section 3 - Criteria for qualitative selection

Article 46 - Personal situation of the candidate or tenderer

This Article corresponds to the provisions of the current Article 29 of Directive 92/50/EEC, of the current Article 20 of Directive 93/36/EEC and of the current Article 24 of Directive 93/37/EEC. Paragraph 1(f) brings the text of Article 29, first indent, (f) of Directive 92/50/EEC into line with the corresponding parts of Directives 93/36/EEC and 93/37/EEC.

A new obligation has been introduced as paragraph 1 of this Article, under which contracting authorities are obliged to exclude from a call for tenders any tenderer who has been the subject of a final judgment for membership of a criminal organisation, for corruption or for fraud against the financial interest of the Community. This obligation strengthens the Community's arsenal of means of combating these phenomena. They are based on a Community definition of these phenomena.

Furthermore, the cases in which competitors may lawfully be eliminated have been extended. In paragraph 2, point (h), it is proposed to allow the exclusion of any economic operator who has been sentenced, whether or not by final judgment, on grounds of fraud or of any other illegal activity within the meaning of Article 280 of the Treaty, apart from the activities set out in paragraph 1, point (c), which make exclusion compulsory. Similarly, the right to exclude participants for an offence concerning their professional conduct has been extended to cases of non-final judgments.

Article 47 - Suitability to pursue the professional activity

This Article, which takes over the substance of the provisions of the current Article 30 of Directive 92/50/EEC, of the current Article 21 of Directive 93/36/EEC and of the current Article 25 of Directive 93/37/EEC, is unchanged except for one minor amendment: the relevant professional and trade registers and the declarations and certificates for each Member State (see Article 30(3) of Directive 92/50/EEC, Article 21(2) of Directive 93/36/EEC and Article 25 of Directive 93/37/EEC) are provided in the Annexes (see Annexes IX A, IX B and IX C).

Article 48 - Financial and economic standing

This Article, which corresponds to the provisions of the current Article 31 of Directive 92/50/EEC, of the current Article 22 of Directive 93/36/EEC and of the current Article 26 of Directive 93/37/EEC, is unchanged.

Article 49 - Technical and/or professional capability

This Article, which corresponds to the provisions of the current Article 32 of Directive 92/50/EEC, of the current Article 23 of Directive 93/36/EEC and of the current Article 27 of Directive 93/37/EEC, is unchanged.

Article 50 - Quality assurance standards

This Article, which corresponds to the provisions of the current Article 33 of Directive 92/50/EEC, is unchanged. It does, however, introduce an amendment by extending these rules to public works contracts and public supply contracts. This extension is justified by the fact that quality assurance is widespread in all sectors.

Article 51 - Additional documentation and information

This Article, which corresponds to the provisions of the current Article 34 of Directive 92/50/EEC, of the current Article 24 of Directive 93/36/EEC and of the current Article 28 of Directive 93/37/EEC, is unchanged.

Article 52 - Official lists of approved economic operators

This Article, which corresponds to the provisions of the current Article 35 of Directive 92/50/EEC, of the current Article 25 of Directive 93/36/EEC and of the current Article 29 of Directive 93/37/EEC, is unchanged.

Section 4 - Award of contracts

Article 53 - Contract award criteria

A new paragraph 2 has been included. It lays down the obligation for contracting authorities to specify at the start of the procedure the relative weighting given to each of the award criteria chosen to determine the most economically advantageous tender. This weighting could be expressed in terms other than those of percentages, but could in no case be limited to the indication of a simple descending order of importance attaching to these criteria. This allows 99% or 51% of the relative value to be attached to the first criterion, leaving tenderers unable to draw up informed tenders.

In certain exceptional cases, i.e. when the nature of the contract makes it impossible to fix the relative weighting of each criterion at the start of the procedure, the contracting authorities must indicate the value of each award criterion at the latest when the invitation to tender is made [restricted and negotiated procedures] and, where the new procedure for particularly complex contracts is used (see Article 30), at the latest when the invitation to negotiate is made (see also recital 30).

Article 30(3) of Directive 93/37/EEC, referring to the possibility of using award criteria other than those specified in its paragraph 1, is deleted for the following reasons: firstly, the explanatory memorandum relating to the proposal [36] for what became Directive 93/36/EEC stated, in relation to the corresponding provision of Directive 88/295/EEC [37] that "Reports from the Member States show that there are no schemes eligible to benefit from the provision of the old Article 25(4) [38]...". This provision was thus deleted from Directive 93/36/EEC. What is more, the explanatory memorandum relating to the amended proposal [39] for what became Directive 92/50/EEC stated that the proposal (like the Directive as adopted) no longer contained any provisions corresponding to that of Article 30(3) of Directive 93/37/EEC. It was added that this deletion was in accordance with the recent judgments of the Court of Justice of the European Communities [40] and with the Commission's viewpoint with regard to the compatibility of preferential systems with Article 28 [41] of the Treaty. This provision is thus also no longer featured in Directive 92/50/EEC. However, the current provisions of Article 30(3) were introduced by Directive 89/440/EEC, i.e. before the judgment of the Court cited above and before the Commission had received confirmation that there were no longer any schemes eligible to benefit from this exception. It was thus not possible to draw any conclusions for that Directive. It is now appropriate [42], therefore, to draw the conclusions from these factors and thus delete this provision and bring the provisions of all the Directives into line [43].

[36] COM(92) 346 final of 7.9.1992.

[37] Council Directive 88/295/EEC of 22 March 1988 amending Directive 77/62/EEC relating to the coordination of procedures on the award of public supply contracts and repealing certain provisions of Directive 80/767/EEC, OJ L 127, 20.5.1988.

[38] Corresponding to Article 35(1) of the current Directive.

[39] COM (91) 322 final of 30.8.1991.

[40] Judgment of the Court dated 20 March 1990, Du Pont de Nemours Italiana S.p.A. v Unità Sanitaria Locale No 2 di Carrarain Case C-21/88 [1990] ECR I-889.

[41] Ex Article 30.

[42] Given that the substance of the acquis communautaire was not called into question during the adoption of either Directive 93/37/EEC or Directive 97/52/EC.

[43] Similarly, the proposal for a Directive relating to utilities deleted the corresponding Article of Directive 93/38/EEC.

The provisions set out in the current Article 31 of Directive 93/37/EEC have not been taken over, as this paragraph is of historic interest only - its applicability having expired on 31 December 1992.

Article 54 - Abnormally low tenders

This Article, which corresponds to the provisions of the current Article 37 of Directive 92/50/EEC, of the current Article 7 of Directive 93/36/EEC and of the current Article 30(4) of