22. 7. 91 Official Journal of the European Communities No C 191/41 
Voting 
For: 34, against: 45, abstentions: 19. 
Page 9, point 3.6 (b) 
Amend the second sentence to read: 
'The Committee therefore asks the Commission to ensure that the first labelling Directive is carried out 
forthwith.' 
Reason 
We have a Directive which has been agreed; it should be carried out. The delaying tactics suggested in the 
Opinion are unacceptable when Member States are not complying with Community laws. 
Voting 
For: 37, against: 42, abstentions: 16. 
Opinion on the proposal for a Council Directive relating to the coordination of procedures 
on the award of public service contracts (l) 
(91/C 191/16) 
On 4 January 1991 the Council decided to consult the Economic and Social Committee, 
under Article 100A of the Treaty establishing the European Economic Community, on the 
abovementioned proposal. 
The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing 
the Committee's work on the subject, adopted its Opinion on 3 May 1991. The Rapporteur 
was Mr Salmon. 
At its 287th plenary session (meeting of 29 May 1991), the Economic and Social Committee 
unanimously adopted the following Opinion. 
1. Introduction 
1.1. The Commission proposal is designed to cover 
purchases of services by central, regional and local 
public authorities, provided the contracts are of a suf­
ficient size to make cross-frontier operations a worth­
while proposition. It does not cover purchases of ser­
vices by entities operating in the water, energy, trans­
port and telecommunications sectors, which will be the 
subject of a separate directive. 
1.2. The classification of services according to 
whether they are subject to full application of the 
directive (Annex IA) or its minimum requirements 
(Annex IB) is decided on the basis of a number of 
different criteria. Categories of services are defined 
in accordance with the Central Product Classification 
(CPC)of the United Nations. 
(J) OJ No C 23, 31. 1. 1991, p. 1. 1.3. Several derogations are provided for: real estate 
contracts; audio-visual services; arbitration and concili­
ation services; the issuing of government bonds; public 
debt management; certain telecommunications services 
(i.e. those not covered by Directive 90/388/EEC on 
competition in the market for telecommunications ser­
vices). 
1.4. The directive only covers contracts whose value 
exceeds a certain threshold. It also specifies prize and 
payment thresholds for design contests. 
1.5. Design contests are to be open to any Com­
munity participants if the total amount of prizes and 
payments exceeds ECU 200 000. The provision of cer­
tain services may, under certain national regulations, 
No C 191/42 Official Journal of the European Communities 22. 7. 91 
be reserved for specific professions. The directive also 
covers the field of registration and quality assurance. 
1.6. The draft directive takes the same form as exist­
ing directives (on public works and supply contracts) 
by providing for the following award procedures: 
— open procedures, 
— restricted procedures, 
— negotiated procedures. 
2. General comments 
2.1. It is regrettable that, in order to meet the com­
mitments entered into under the White Paper within 
the limited period of time allowed, the Commission has 
had to propose a single general directive regulating a 
very wide range of economic and professional activities. 
2.2. As a result of the Commission's desire to cover 
all public procurement procedures for all types of 'ser­
vices', the proposed directive embraces totally different 
situations and operating rules and regulations. It will 
therefore be extremely difficult to implement. 
2.3. The system introduced by the directive could 
adversely affect certain providers of services, particu­
larly in the professions. 
The climate of trust built up between a client and his 
adviser will in some cases be destroyed by the new 
system, if based solely on economic considerations, and 
will mean that the investor (maitre d'ouvrage) loses 
responsibility for choosing providers of services. 
2.4. The term 'supplier' cannot be applied to some­
one who provides an intellectual service; the knowledge, 
skills and experience involved vary according to the 
performance of the particular intellectual service in 
question. 
The commercial criteria pertaining to products and 
merchandise are not applicable to intellectual services. 
Some professional rules and codes of practice bar pro­
fessionals from quoting for public or private contracts 
when calls for tender are designed to make them com­
pete on prices. 
2.5. It must be noted that the award of a contract 
based solely on the lowest price could have a negative 
effect on the quality of services, particularly public 
services. Aspects such as frequency, manner of supply 
and facility of access for the public are much more 
important than low cost. Contracts must not be won 
by the 'most loss-making' tenders. In Member States where most public services are pro­
vided by public authorities, the award of contracts on 
the basis of the lowest price may give the impression 
of being an indirect way of privatizing such services. 
2.6. However, awarding a contract to the 'economi­
cally' most advantageous tender is more realistic insofar 
as it covers a number of important criteria mentioned 
in the specifications such as quality, technical merit, 
aesthetic and functional characteristics, technical assist­
ance and after sales service, delivery date, period of 
completion and price. 
2.7. What is more, the contracting authority should 
be obliged, within the framework of the Directive 
(Art. 32 and 33), to ensure in all cases that tenders, 
when preparing their bids, have taken account of the 
provisions concerning job protection, social welfare and 
collective wage agreements, as well as the working 
conditions in force in the country concerned, especially 
as regards social security contributions. 
3. Specific comments 
3.1. The various definitions in the explanatory mem­
orandum must be consistent with both the recitals and 
the text of the directive and spell out, in particular, the 
distribution between providers of intellectual services 
and suppliers of other services. To achieve overall con­
sistency, complete terminological concordance must be 
ensured throughout the proposal (explanatory memor­
andum, recitals, articles and annexes). 
3.2. Title 1 — Article 1 
3.2.1. In designating the 'contractors' a distinction 
should be made between the terms 'provider' or 'sup­
plier', as indicated above. The relevant term should be 
inserted in all the appropriate passages in the directive. 
3.2.2. Leasing or rentals should not be excluded from 
these public service contract award procedures. 
3.2.3. 'Design contests' for the provision of intellec­
tual services must involve the award of prizes, given 
their heavy costs for the providers. 
3.2.4. 'Public service concessions' must comply with 
the general rules of the directive, bearing in mind the 
general comments made earlier (points 2.5, 2.6, and 
2.7). 
3.2.5. A'public service concession' in respect of an 
activity already covered by an invitation to tender 
22.B91 C^fficialjournal of the European communities ^oCht91^3 
under the public worlds contract procedure should not 
he the subject of any further tendering procedure. 
3.2.6. To avoid any irregularity in the award of 
public service concessions^ the authority must be 
required totransfer the execution of an activitylying 
within its responsibility to an entity of its choice 
immediately. 
3.3. A^^2 
^teps must betaken to ensure that the Aiember states 
taloe all the measures necessary to maloe the contracting 
authorities comply with the present directive. 
3m. A^^3 
It will he difficult to apply advertising rules which are 
different from those laid down in the public worlds and 
supply contract directives^ particularly when dis 
tinguishingbetween service concessions which areor 
are not included in public worlds concessions. 
3.^. A^^^ 
3Bol. Article ^^2^ 
3B0.1.L In the French te^t the term ^planification^ 
^design^m the Lnghshversion^is not the one usually 
employed with contracts for intellectual services^ the 
term^maitnsed^ceuvre^or^pro^eCis preferable. 
3B0.L2. As regards thresholds^ the commission 
should useaconcept which directly covers the value of 
the intellectual service provided in the contracts and 
not the overall cost of the worm 
36 T^^^Arr^^^3 
In the case of invitations to tender for contracts covering 
bothdesign and construction^the applicable directive 
must be specified. 
361 Article 13^ 
In order toensureconsistency with the generalcomD 
ments^ the following paragraph should be added^ 
^ the authorities may use the negotiated pro 
cedure when calling for tenders regarding the pro 
vision of intellectual services requinngahigh degree 
ofs^illB 362. Articlel3^2^ 
The following should also be added^ 
^ for services carried out for purposes of research^ 
testings experimentation or fine tuningB 
3.^ Arr^^ 
This and otherArticles of the draft directive refer to 
informations notices and publicity concerning calls for 
tenders^ decisions and rejections'without stating clearly 
the methods used^ deadlines involved or mstification 
required. In order to avoid any abuse oiany deliberate 
or accidental cases of forgetfulness^ ihe committee 
things that the commission must lay down clear rules 
on this matter. 
3.D. Arr^A^eo 
Aparagraph6should be added^ stating that the authon 
ty may acquire ownership of the plan or project by 
paymgaroyalty to its author. 
3.9. In cases where it is important to provide for 
confidentiality ^for e^ample^ stocl^ exchange oper 
ations^ technicals economic orsocial auditing^ feasibility 
studies by public service enterpnsesmnvestigations into 
possible privatisation of sections of the public serviced 
trials^ experimentation or i^esearch^aprocedure which 
guarantees total confidentiality is required in respect of 
invitationtotender. ^uchconfidentiality willprevent 
ill considered^ needless or speculative movements in 
areas concerned prior to contract award. The C^om 
mission will therefore need to addafifth paragraph to 
Article TA 
310 Arr^23 
3.10.1. In the French version of Article 23^ the 
word^e^ecution^should be replaced by the word^e^er^ 
cice^^performance^m the English versions 
3.10.2. In Article 23^ it would be better to indicate 
that providers of services^ whether natural of legal 
persons^ need only comply with national rules govern 
ing their legal status^ i.e. rules applicable in their coun 
try of establishment and compatible with theTreaty. 
311 Ar^^2e^ 
The authorities must indicate the authority or authon 
ties from whom the social and labour legislation infor 
mation in question may be obtained. 
No C 191/44 Official Journal of the European Communities 22. 7. 91 
3,12. Article 27(3) 
Any candidate must be required to prove that he is 
enrolled in the appropriate business or professional 
register relevant to his activity (trade or occupation), 
and/or that he is a member of a professional organiza­
tion (orders or boards of approval), in keeping with the 
rules and customs of his country of origin. 
3.13. Article 28 
The criteria listed in Article 28(1) seem to discriminate 
against young professionals, and should therefore be 
re-examined. 
To ensure consistency with the new Article 13(2) (d), a 
fourth paragraph should be added, worded as follows: 
'If the tender falls under Article 13(2) (d), the pro­
vider of services must only produce proof of pro­
fessional risk indemnity insurance.' 
3.14. Article 29 
For the same reasons as stated previously, a new Article 
29(5), worded as follows, should be added: 
'Where a tender for intellectual services is made 
by self-employed, professional persons, evidence of 
capability may, without prejudice to any obligations 
to respect professional secrecy, be provided by pro­
ducing references concerning certificates, edu­
cational qualifications, professional qualifications, 
previous major works carried out, professional 
organization and, in particular details of the human 
and material resources which the firm has at its 
disposal' 
3.15. Article 33 
In this Article it must be stressed that there is an 
inconsistency between the economic and the aesthetic 
criteria, which are by their very nature different. This 
becomes unacceptable for an investor, who is no longer 
responsible for his choice. 
Article 33(1)(b) should be deleted. 
A new Article 33(4) should also be inserted, worded as 
follows: 
'Paragraph 1 shall not apply either when competing 
tenders consist of tenders submitted under the nego­
tiated procedure in accordance with new Article 
13 (2) (d). In this case the contract must be awarded 
to the offer considered to be the most advantageous 
in accordance with certain award criteria laid down 
in advance but not subordinated to economic cri­
teria.' 3.16. Article 34 
3.16.1. The following should be added at the end of 
the first sentence in Article 34(1), before the words 'it 
shall, in particular, enquire ...'. 
'Without prejudice to any national rules limiting 
the involvement of the authorities in competition, 
it shall, in particular, enquire...'. 
3.16.2. The beginning of Article 34(2) should be 
worded as follows: 
'In the case of any tender submitted by an associ­
ation formed by public authorities or a public 
enterprise, the authority shall, in particular, enquire 
whether the tender is influenced by public funds 
allocated for ...'. 
3.17. Article 39 
Specific sectors should be set up within the Advisory 
Committee to take account of different activities. 
3.18. Article 40 
The procedures proposed with regard to third countries 
should be consistent with those laid down in earlier 
directives, particularly the 'remedies' directive. 
3.19. Article 43 
The deadline for implementing the necessary provisions 
in the Member States (1 March 1992) would appear to 
be too short. 
3.20. Annexes 
3.20.1. It would be a good idea if Annex IA were also 
to include the financial and banking services referred to 
in annex IB (21). 
3.20.2. The Commission should specify what is 
intended in the case of the services mentioned in catego­
ries 25, 26 and 27. 
4. Conclusions 
4.1. Providers of services have played an important 
role in the recent development of the Member States' 
economies; the rules applicable to providers of services 
must therefore vary according to the specific activity 
they are pursuing. 
4.2. If providers of services are to continue to play 
their role and help create jobs, the rules laid down must 
foster competition, be identical for all (though geared 
22. 7. 91 Official Journal of the European Communities No C 191/45 
to the different activities) and offer equality of oppor­
tunity. 
4.3. Public and private sectors must compete on an 
equal footing without unfair competition. 
4.4. Steps must be taken to prevent any 'social dump­
ing' resulting from labour movements triggered off by 
invitations to tender. Labour laws must therefore be 
applied properly by all, and the contracting authority 
must have the powers to check that this is indeed 
happening. 
Done at Brussels, 29 May 1991. 
The Committee broadly approves the Commission pro­
posals, and asks that account be taken of the following 
comments: 
1. On the proposal amending Regulation (EEC) No 
823/87 
The Committee would have preferred the derogation 
allowing the addition of a certain percentage of wine-
sector products from other regions to expire before 31 
December 1994. However, the Committee is prepared 4.5. Care must be taken to ensure that, in the case 
of service contracts in the construction industry, price 
tenders include costing for human safety during and 
after the execution of the project in question. 
4.6 Finally, the quality of public or private services 
both during and after the work has been executed must 
be such that the selected project is the best for both 
users and investors. 
The Chairman 
of the Economic and Social Committee 
Francois STAEDELIN 
to accept this deadline provided that it is definitive, and 
that further derogations will not be permitted there­
after. 
2. On the proposal amending Regulation (EEC) No 
358/79 
The Committee approves the Commission's proposal, 
which in substance intends to ensure that the rules on 
the production of sparkling wines distinguish between 
generic quality sparkling wines of the aromatic type Opinion on: 
— the proposal for a Council Regulation (EEC) amending Regulation (EEC) No 823/87 
laying down special provisions relating to quality wines produced in specified regions, 
and 
— the proposal for a Council Regulation (EEC) amending Regulation (EEC) No 358/79 on 
sparkling wines produced in the Community 
(91/C 191/17) 
On 20 March 1991 the Council decided to consult the Economic and Social Committee, 
under Article 198 of the Treaty establishing the European Economic Community, on the 
abovementioned proposals. 
The Section for Agriculture and Fisheries, which was responsible for preparing the Commit­
tee's work on the subject, adopted its Opinion on 2 May 1991. The Rapporteur was 
Mr Schnieders. 
At its 287th plenary session (meeting of 30 May 1991), the Economic and Social Committee 
unanimously adopted the following Opinion.