17. 2. 89 Official Journal of the European Communities No C 40/5 
II 
(Preparatory Acts) 
COMMISSION 
Proposal for a Council Directive on the procurement procedures of entities operating in the 
telecommunications sector 
COM(88) 378 final — SYN 154 
(Submitted by the Commission on 11 October 1988) 
(89/C 40/05) 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Article 100a 
and Article 113 thereof, 
Having regard to the proposal from the Commission, 
In cooperation with the European Parliament, 
Having regard to the opinion of the Economic and 
Social Committee, 
Whereas the measures aimed at progressively establishing 
the internal market during the period up to 31 December 
1992 need to be taken; whereas the internal market 
consists of an area without internal frontiers in which 
free movement of goods, persons, services and capital is 
guaranteed; 
Whereas successive European Councils have drawn 
conclusions concerning the need to realize a single 
internal market; 
Whereas restrictions on the free movement of goods and 
on the freedom to provide services in the telecommuni­
cations sector are prohibited by the terms of Articles 30 
and 59 of the Treaty; 
Whereas those objectives also require the coordination of 
the procurement procedures applied by the entities 
operating in this sector; 
Whereas the White Paper on the completion of the 
internal market lays down an action programme and a 
timetable for opening up public procurement markets in 
sectors which are currently excluded from Council 
Directive 71/305/EEC of 26 July 1971 concerning the 
coordination of procedures for the award of public 
works contracts ('), as last amended by the Act of 
Accession of Spain and Portugal, and Council Directive 77/62/EEC of 21 December 1976 coordinating 
procedures for the award of public contracts (2), as last 
amended by Directive 88/295/EEC (3); 
Whereas the telecommunications sector is among such 
excluded sectors as far as Directive 77/62/EEC is 
concerned; 
Whereas the main reason for their exclusion was that 
entities providing such services are in some cases 
governed by public law, in others by private law; 
Whereas the need to ensure a real opening-up of the 
market and a fair balance in the application of 
procurement rules in these sectors, requires that the 
entities to be covered must be identified on a different 
basis than by reference to their legal status; 
Whereas among the main reasons why entities operating 
in the telecommunications sector do not purchase on the 
basis of Community-wide competition is the closed 
nature of the markets in which they operate, due to the 
existence of special exclusive rights or authorizations 
granted by the national authorities, concerning the 
supply or management of the telecommunications 
network or the right to provide telecommunication-
services; 
Whereas the other main reason for the absence of 
Community-wide competition in this sector results from 
various ways in which national authorities can influence 
the behaviour of these entities, including participations in 
their capital and representation in the entities' adminis­
trative, managerial or supervisory bodies; 
Whereas this Directive should not extend to activities of 
these entities which either fall outside the telecommuni­
cations sector or which fall within that sector but never­
theless are directly exposed to competitive forces in 
markets to which entry is unrestricted; 
(') OJ No L 185, 16. 8. 1971, p. 5. (2)% OJ No L 13, 15. 1. 1977, p. 1. 
(3) OJ No L 127, 20. 5. 1988, p. 1. 
No C 40/6 Official Journal of the European Communities 17. 2. 89 
Whereas this Directive should not apply to procurement 
contracts which affect basic State security interests or 
which are concluded according to other rules set up by 
existing international agreements or international organ­
izations; 
Whereas the Community's or the Member States' 
existing international obligations must not be affected by 
the rules of this Directive; 
Whereas, within certain limits, a preference should be 
given to an offer of Community origin where there are 
equivalent offers of third country origin; 
Whereas this Directive should not prejudice the position 
of the Community in any current or future international 
negotiations; 
Whereas, based on the results of such international 
negotiations this Directive should be extendable to offers 
of third country origin, pursuant to a Council decision; 
Whereas contracting entities must be able to reject offers 
which, because they are based on State aids, are unre­
liable; 
Whereas in the area of standards and technical specifi­
cations it is necessary to adopt common rules taking fully 
into account Community policy in the field; 
Whereas the principles of equivalence and of mutual 
recognition of national standards, technical specifications 
and manufacturing methods are applicable in the field of 
application of this Directive; 
Whereas the rules to be applied by the entities concerned 
should establish a framework, for sound commercial 
practice and should leave a maximum of flexibility; 
Whereas, as a counterpart for such flexibility and in the 
interests of mutual confidence, a minimum level of trans­
parency and appropriate ways for monitoring the 
application of this Directive must be ensured; 
Whereas the arrangements to be introduced should to a 
large extent be the same as those laid down by the 
Directive on the procurement procedures of entities 
providing water, energy and transport services; 
Whereas it is desirable for national provisions in favour 
of regional development to be included in the 
Communities' objectives; 
Whereas the disciplines of this Directive should be 
phased in in two steps, with a transitional period of two 
years during which 30 % of overall annual procurements 
may be made outside this Directive, in order to ensure its 
smooth application as from 1992 on the basis of 
experience gained during the two previous years; 
Whereas no transitional period should be laid down, 
however, as regards the obligation to publish periodic 
information notices; 
Whereas the Commission should review the functioning 
of this Directive and the effects which it has had, after 
four years, in order to make any necessary further 
proposals, HAS ADOPTED THIS DIRECTIVE: 
TITLE I 
General provisions 
Article 1 
The provisions of this Directive shall apply to the award 
of supply, works and software service contracts by 
contracting entities which: 
(a) are public or are granted special or exclusive rights 
by Member States, and 
(b) operate public telecommunications networks or offer 
one or more telecommunications services to the 
public. 
The entities listed in Annex I fulfil these criteria. 
Article 2 
This Directive shall not apply to contracts: 
(a) which the contracting entities award exclusively for 
purposes other than the pursuit of their activities 
described in Article 1 provided that: 
(i) these activities have been notified to the 
Commission by the contracting entities, and 
(ii) the Commission has published a notification of 
their exclusion, after verification, in the Official 
Journal of the European Communities; 
(b) which the contracting entity awards for purchases 
exclusively in connection with one or more telecom­
munications services where other entities are free to 
offer the same services in the same geographical area 
and under the same conditions. 
Member States shall notify the Commission of the 
services falling within the scope of this paragraph 
and any relevant legal provisions. 
Article 3 
1. For the purpose of this Directive, the provisions of 
Title I of Council Directive .../.. ./EEC concerning 
procurement procedures in the water, energy and 
transport sectors (') shall apply, except Articles 2, 3 and 
5. 
2. Article 1 of Directive .../.. ./EEC shall apply 
except paragraphs 4, 6 and 11. For the purposes of this 
Directive: 
(') COM(88) 377. 
17. 2. 89 Official Journal of the European Communities No C 40/7 
(a) 'software service contracts' means procurement of 
software for use in connection with networks or tele­
communications services and purchased by one of 
the contracting entities defined in Article 1; 
(b) a 'European standard' means a standard approved by 
European standards organizations such as the 
European Committee for Standardization (CEN) 
and the European Committee for Electrotechnical 
Standardization (Cenelec) as 'European Standard 
(CEN)' or 'Harmonization Document (HD)' 
according to the common rules of these organi­
zations. 
Article 4 
This Directive shall apply to the software service 
contracts whose estimated value, net of VAT, is not less 
than ECU 200 000. 
TITLE II 
Technical specifications and standards 
Article 5 
1. Contracting entities shall apply the provisions of 
Title II of Directive .../.. ./EEC (»). 
2. Contracting entities may derogate from Article 9 
(1) of Directive .../.. ./EEC (') if its application would 
prejudice the application of Council Directive 
86/361/EEC of 24 July 1986 on the initial stage of the 
mutual recognition of type-approval for telecommuni­
cations terminal equipment (2). 
TITLE III 
Procedures for the award of contracts 
Article 6 
1. For the award of supply, works and software 
service contracts, contracting entities shall apply the 
provisions of Title III of the Directive .../.. ./EEC ('). 
2. In the case of software service contracts: 
(a) contracting entities may use the negotiated 
procedure without prior call for competition in the 
cases laid down in Article 12 (2) (a) to (e) of 
Directive .../.. ./EEC (l) 
(b) Article 14 (1) (a) of Directive .../.. ./EEC (>) shall 
apply. 
3. The notices to be published in the Official Journal 
of the European Communities shall be established in 
accordance with Annexes II to V to this Directive. 
(') COM(88) 377. 
(2) OJ No L 217, 5. 8. 1986, p. 21. TITLE IV 
Qualification, selection and award of contracts 
Article 7 
Contracting entities shall apply the provisions of Title IV 
of Directive .../.. ./EEC (*). 
TITLE V 
Final provisions 
Article 8 
Contracting entities shall apply the provisions of Title V 
of Directive .../.. ./EEC (') except Articles 26 (1) and 
29. 
Article 9 
Annex I to this Directive may be amended by the 
Commission: 
(a) to delete entities to which Annex I refers because 
they no longer fulfill the criteria for their inclusion 
set out in Article 1, or 
(b) to include entities which meet those criteria. 
Article 10 
1. In the case of supplies and software service 
contracts the provisions of this Directive shall apply to: 
— at least 70 % in estimated value of the procurement 
procedures carried out in the year 1990 and the year 
1991, 
— all procurements carried out from 1992 onwards. 
2. Notwithstanding the above, the provisions of 
Article 14 of Directive .../.. ./EEC (*) shall apply to all 
supply and software service contracts from 1 Januar 
1990. 
Article 11 
For the purposes of Article 28 of Directive 
.../.. ./EEC ('), Member States shall communicate to 
the Commission evidence that the levels of progressive 
implementation of this Directive established in Article 10 
are complied with. 
Article 12 
1. The Commission shall be assisted by a committee 
of an advisory nature which shall be the Advisory 
Committee on Telecommunications Procurement. The 
committee is composed of representatives of the Member 
States and chaired by a representative of the 
Commission. 
No C 40/8 Official Journal of the European Communities 17. 2. 89 
2. The Commission shall consult the committee on: 
(a) amendments to Annex I; 
(b) revision of the thresholds; 
(c) procurement rules established under international 
agreements; 
(d) the review of the operation of this Directive. 
Article 13 
1. Article 2 (2) of Directive 77/62/EEC, as amended by 
Directive 88/295/EEC of 22 March 1988, shall be 
replaced by the following: 
'This Directive shall not apply. 
(a) to the award of supply contracts by contracting 
authorities in the fields covered by the 
provisions of Directive .../.. ./EEC (*) and 
those of Directive .../.. ./EEC (2), 
(b) to supplies which are declared secret or when 
their delivery must be accompanied by special 
security measures in accordance with the laws, 
regulations or administrative provisions in force 
in the Member State concerned or when the 
(l) COM(88) 377 final. 
O COM(88) 378 final. protection of the basic interest of that State's 
security so require.' 
2. Article 3 (4) and (5) of Directive 71/305/EEC as 
amended by Directive .../.. ./EEC of . . . (J) shall be 
replaced by the following: 
'This Directive shall not apply to works contracts by 
contracting authorities in the fields covered by the 
provisions of Directive .../.. ./EEC (') and those of 
Directive .../.. ./EEC (2).' 
Article 14 
1. Member States shall implement the measures 
necessary to comply with this Directive by 31 December 
1989 at the latest and shall inform the Commission 
thereof. 
2. Recommendation 84/550/EEC is withdrawn on 31 
December 1989. 
Article 15 
This Directive is addressed to the Member States. 
(3) Proposal for a Council Directive amending Directive 
71/305/EEC concerning the coordination of procedures for 
the award of public works contracts, (COM(88) 354 final of 
20 June 1988). 
17. 2. 89 Official Journal of the European Communities No C 40/9 
ANNEX I 
CONTRACTING ENTITIES 
Belgium 
Regie des Telegraphes et des Telephones 
Regie van Telegrafie en Telefonie 
Denmark 
Kobenhavens Telefon Aktieselskab 
Jydsk Telefon 
Fyns Kommunale Telefonselskab 
Post- og Telegrafvaesenet 
Statens Teletjeneste 
Federal Republic of Germany 
Deutsche Bundespost 
Greece 
OTE / Hellenic 
ization Telecommunications Organ-
Spain 
Campaflia Telef6nica Nacional de Espafia 
France 
Direction generale des telecommunications 
Transpac 
Telecomservice mobile 
Societe francaise de radiotelephone Ireland 
Telcom Eireann 
Italy 
Amministrazione delle Poste e delle Telecomuni-
cazioni 
Azienda di Stato per i Servizi Telefonici 
Societa Italiana per l'Esercizio Telefonico SpA 
Italcable 
Telespazio SpA 
Luxembourg 
Administration des Postes et des Telecommuni­
cations 
The Netherlands 
Post, Telegraaf en Telefoon 
Portugal 
Telefones de Lisboa e Porto 
Companhia Portugesa Radio Marconi 
Correios e Telecomunicac5es de Portugal 
United Kingdom 
British Telecommunications pic 
Mercury Communications Ltd 
City of Kingston Upon Hull 
^ooe^OBlO C^ffici^l]ourn^lof rh^Enro^^nOeornrnunin^^ t^ ^ ^ 
l.The name, address, telephone number, telegraphic address, tele^ and telecopier number of the 
contracting entity 
2. Eor supply and software service contracts^ form of contract for which offers are invited 
^. ^ ^laceofdelivery,orsite^ 
^ mature and quantity of the goods to be supplied 
or 
The nature and extent of the services to be provided and,inthe case of works, general nature of 
the work, 
^ indication of whether the suppliers can tender for some andBor all of the goods required, 
or, for works contracts^ if the work or the contract is subdivided into several lots, the order of si^e 
of the different lots and the possibility of tendering for one, serveral, or all of the lots 
^ authorisation to submit variants 
^ where applicable, information concerning the purpose of the work or the contract where the later 
also involves the drawing up of proiects 
^. Uerogation from the use of European standards, common technical specifications or European 
technical approvals, in accordance with ^rticle^. 
^. Time limits for delivery or completion 
D. (a^ ^ame and addressoftheservicefrom which thecontractdocumentsand additionaldocuments 
may be requested 
d^ Where applicable, the amount and terms of payment of the sum to be paid to obtain such 
documents 
^. ^ the final date for receipt of tenders 
d^ the address to which they must be sent 
^ the language or languages in which they must be drawn up 
^. ^ The persons authorised to be present at the opening of tenders 
d^ the date, hour and place of such opening 
^. Where applicable any deposits and gurantees required 
10. Mainterms concerning financing and payment andBor references to the provisions inwhichthese are 
contained 
It. Where applicable, the legal form to be taken by the grouping of suppliers or contractors to whom the 
contract is awarded 
12. Economic and technical standards required of the supplier or contractor to whom the contract is 
awarded 
1^. period during which the tenderer is bound to keep open his tender 
17. 2. 89 Official Journal of the European Communities No C 40/11 
14. The criteria for the award of the contract. Criteria other than that of the lowest price shall be 
mentioned where they do not appear in the contract documents 
15. Other information 
16. Where applicable, date of publication of the periodic information notice in the Office Journal to which 
this contract refers 
17. Date of dispatch of the notice 
18. Date of receipt of the notice by the Office for Official Publications of the European Communities. 
No C 40/12 Official Journal of the European Communities 17. 2. 89 
B. RESTRICTED PROCEDURES 
1. The name, address, telephone number, telegraphic address, telex and telecopier number of the 
contracting entity 
2. For supply and software service contracts: form of contract for which offers are invited 
3. Where applicable justification for the use of the accelerated procedure 
4. (a) Place of delivery, or site 
(b) Nature and quantity of the goods to be supplied 
or 
The nature and extent of the services to be provided and for works, general nature of the work 
(c) indication of whether the suppliers can tender for some and/or all of the goods required 
or, for works contracts: if the work or the contract is subdivided into several lots, the order of size 
of the different lots and the possibility of tendering for one, serveral, or all of the lots 
(d) authorization to submit variants 
(e) information concerning the purpose of the work or the contract where the latter also involves the 
drawing up of projects 
5. Derogation from the use of European standards, common technical specifications or European 
technical approvals 
6. Time limits for delivery or completion 
7. Where applicable, the legal form to be taken by the grouping of suppliers or contractors to whom the 
contract is awarded 
8. (a) the final date for receipt of requests to participate 
(b) the address to which they must be sent 
(c) the language or languages in which they must be drawn up 
9. The final date for dispatch of invitations to tender 
10. Where applicable, any deposits and guarantees required 
11. Main terms concerning financing and payment and/or the provisions laid down by law or regulation in 
which these are contained 
12. Information concerning the supplier's or contractor's position and economic and technical standards 
required of him 
13. The criteria for the award of the contract where they are not mentioned in the invitation to tender 
14. Other information 
15. Where applicable date of publication of the periodic information notice in the Official Journal to 
which this contract refers 
16. Date of dispatch of the notice 
17. Date of receipt of the notice by the Office for Official Publications of the European Communities 
17. 2. 89 Official Journal of the European Communities No C 40/13 
C. NEGOTIATED PROCEDURES 
1. The name, address, telephone number, telegraphic address, telex and telecopier number of the 
contracting entity 
2. For supply and software service contracts: form of contract for which offers are invited 
3. (a) Place of delivery, or site 
(b) Nature and quantity of the goods to be supplied 
or 
The nature and extent of the services to be provided for works general nature of the work 
(c) indication of whether the suppliers can tender for some and/or all of the goods required 
or, for works contracts: if the work or the contract is subdivided into several lots, the order of size 
of the different lots and the possibility of tendering for one, several, or all of the lots 
(d) information concerning the purpose of the work or the contract where the latter also involves the 
drawing up of projects 
4. Derogation from the use of European standards, common technical specification or European 
technical approvals. 
5. Time limits for delivery or completion. 
6. Where applicable, the legal form to be taken by the grouping of suppliers or contractors to whom the 
contract is awarded 
7. (a) the final date for receipt of tenders 
(b) the address to which they must be sent 
(c) the language or languages in which they must be drawn up 
8. Where applicable, any deposits and guarantees required 
9. Main terms concerning financing and payment and/or the provisions laid down by law or regulation in 
which these are contained. 
10. Information concerning the supplier's or contractor's position and economic and technical standards 
required of him 
11. Where applicable the name and addresses of suppliers or contractors already selected by the 
contracting entity 
12. Where applicable, date of previous publications in the Official Journal of the European Communities 
13. Other information 
14. Where applicable date of publication of the periodic information notice in the Official Journal to 
which this contract refers 
15. Date of dispatch of the notice 
16. Date of receipt of the notice by the Office for Official Publications of the European Communities. 
No C 40/14 Official Journal of the European Communities 17. 2. 89 
ANNEX III 
NOTICE ON THE EXISTENCE OF A QUALIFICATION SYSTEM 
1. Name, address, telephone number, telegraphic address, telex and telecopier number of the contracting 
entity. 
2. Purpose of the qualification system. 
3. Address where the rules concerning the qualification system can be obtained (if different from the 
address mentioned under 1 above). 
4. Where applicable, duration of the qualification system. 
rB ^ ^ COffici^l]ourn^lof rh^Euron^nC^ornrnuniric^ ^o^^OBt^ 
A Eors^pptya^dsofrw^ese^ceco^tr^cts 
t. Name, address, telephone, telegraphic address, telex and telecopier number of the contracting entity 
or the service from which additional information may be obtained 
2. Nature and quantity or value of the products to be supplied or, for software service contracts, nature 
and value of the services 
3. (a^ Estimated date of the commencement of the procedures of the award of the contracts (if 
l^nown^ 
(b^ rype of award procedure to be used 
^. (Other information 
^. EOate of dispatch of the notice 
D. L^ate of receipt of the notice by the (office for (Official publications of the European (communities 
t. the name, address, telephone, telegraphicaddress, telex and telecopier numberof the contracting 
entity 
2. (a^ the site 
(b^ the nature and extent of the services to be provided, the main characteristics of the worl^ or of 
the lots by reference to the worl^ 
(c^ an estimate of the cost of the services to be provided 
3. (a^ type of award procedure to be used 
(b^ the date scheduled for initiating the award procedures in respect of the contract or contracts 
(c^ the date scheduled for the start of the wDrl^ 
(d^ planned timetable for completion of the worl^ 
^. Terms of financing of the worl^ and of price revision 
^. (Other information 
D. tOate of dispatch of the notice 
B5 Uate of receipt of the notice by the (Office for (Official publications of the Europeans 
No C 40/16 Official Journal of the European Communities 17. 2. 89 
ANNEX V 
NOTICE ON CONTRACTS AWARDED 
1. Name and address of contracting entity 
2. Award procedure 
3. Date of award of contract 
4. Criteria for award of contract 
5. Number of offers received 
6. Name and address of successful supplier(s) or contractor(s) 
7. Nature and quantity of goods supplied, where applicable, by supplier 
or 
the nature and extent of the services provided, general characteristics of the finished structure 
8. Price or range of prices (minimum/maximum) paid 
9. Other information 
10. Date of publication of the tender notice in the Official Journal of the European Communities 
11. Date of dispatch of the notice 
12. Date of receipt of the notice by the Office for Official Publication of the European Communities.