16. 3. 87 Official Journal of the European Communities No C 68/7 
Opinion on the proposal for a Council Directive amending Directive 77/62/EEC relating to the 
coordination of procedures on the award of public supply contracts and deleting certain provisions of 
Directive 80/767/EEC 
(87/C 68/06) 
On 6 July 1986 the Council decided to consult the Economic and Social Committee under Article 100 
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 December 1986 in the light of the report by 
Mr Kaaris. 
At its 242nd plenary session (meeting of 16 December 1986), the Committee unanimously with two 
abstentions adopted the following opinion. 
The Committee approves the proposal of the Commission subject to the following reservations: 
1. General comments — establishing statistical records, 
— setting up an information campaign to emphasize and 
explain the benefits of a Community-wide approach 
111 LU13 ctJL^a, 1.1. The Committee refers to its opinion of 23 April 
1986 (*) in which it stresses the importance of opening up 
public contracts to competition as a key to the achievement of 
an internal market. A compartmentalized captive 
Community public purchasing market will make a nonsense 
of efforts in other areas to create the optimal conditions for 
European industry to %face increasingly tough world 
challenges. It will take away the incentive from the economic 
operators to work together to achieve economies of scale and 
to adopt common or mutually compatible standards without 
which a single European market will not be possible. Indeed 
the Committee feels that the political credibility of the 
Community legislation introduced to bring about a true 
internal market is at stake if serious efforts are not made to 
finally bring true progress in this area. 
1.2. The Committee in this earlier opinion proposed the 
following specific measures: 
— the setting up within the Commission of a public 
procurement unit with clearly defined terms of reference 
and adequate financial resources responsible for: 
— monitoring the public procurement market; it would 
examine published invitations to tender, investigate 
complaints and identify practices contrary to the 
spirit of the Directives; in particular, it would check 
that no Member State wrongfully places only an 
abnormally small percentage of its orders with 
foreign firms and that no national firm wrongfully 
obtains an abnormal percentage of the total orders in 
a given sector, 
(») OJ No C 189, 28. 7. 1986, p. 16. — laying down uniform guidelines for the interpretation of 
the Directives; 
— setting up a system of secondment from national 
authorities, the cost of which should be more than offset 
by the potential savings of the realization of a common 
market in public procurement; 
— instituting a system of redress that works; 
— setting up a system of mutual recognition of testing 
stations in the Member States. 
1.2.1. The Committee, in its opinion of April 1986, 
also emphasized that the opening of the 
Community-procurement market to non-member countries, 
parties to the GATT Agreement on Government 
Procurement, cannot take place unilaterally but at the same 
time invited the Member States to take a more positive 
approach in this area not least in view of the possibilities that 
an opening up of international government procurement 
markets might represent for European industries stymied by 
too small national markets. 
1.3. The Committee is fully supportive of the 
Commission's present proposal which is clearly a step in the 
right direction. A better transparency through 
pre-information, the publication of information on awarded 
contracts, better definition of exemptions, lengthening of 
time limits, etc., all are necessary and, indeed, indispensable 
No C 68/8 Official Journal of the European Communities 16. 3. 87 
improvements; in particular it supports the proposal to make 
it mandatory for contracting authorities to refer to European 
standards or to documents on European harmonization 
where these exist. The Committee stresses the importance of 
completing these standards or documents as soon as 
possible. 
1.4. The Committee is not convinced, however, that the 
solutions developed by the Commission will bring about the 
anticipated success; indeed in the Committee's opinion they 
are likely to prove as unsuccessful as the measures hitherto 
applied if they are not improved in order to attack the 
fundamental deficiency in the system: the basic Directive's 
lack of credibility because it permits no efficient 
sanctions. 
1.5. After almost 10 years of Community legislation in 
this field the Committee feels that the Commission 
Directorate responsible for public purchasing, and thus the 
abovementioned public procurement unit which the 
Commission has already decided to set up, must be given the 
power to enforce Community legislation in this area, 
following the example which has already proved effective in 
enforcement of competition policy. 
1.6. The Committee therefore proposes that the 
Commission be given the following administrative powers to 
impose sanctions sufficiently significant to constitute a real 
deterrent against circumvention of the Directives: 
— sanctions for not publishing contracts above 200 000 
ECU; 
— sanctions for not satisfactorily justifying the use of 
restricted, negotiated and single tender procedures under 
the new draft Directive's Article 3; 
— suspension of the tender procedure in the event of the 
disclosure of irregularities as a result of independent 
work by the Unit or on the basis of complaints; 
— sanctions under the complaints procedure; 
— sanctions against unjustified changes in the specifications 
after award of the contract. 
1.7. The unit should have the power to implement these 
sanctions according to guidelines laid down by the 
Committee on Public Procurement. The Commission should 
also establish an appropriate forum for hearing appeals 
against the imposition of sanctions. This procedure, as 
opposed to the threat of increased use of Article 169, would 
have the advantage of being practicable; the Commission 
could be active instead of reactive, and not have to await 
complaints of which there have so far been very few (around 
10) each year; above all it would give the possibility of 
intervention before the contract was awarded and thus lend credibility to the Directive in the eyes of potential 
suppliers. 
The abovementioned Committee should also ensure, in line 
with Article 20 of Directive 77/62/EEC, that checks to 
determine whether tenders are reasonable cover compliance 
with social legislation and collective wage agreements. 
1.8. The Committee welcomes the Commission's 
proposal (Article 6) to oblige contracting authorities to 
publish the results of the tender by means of a notice. It is 
particularly important that enough transparency be required 
for a firm whose tender failed to be able to learn which offer 
was successful and at what price. It might be added that 
information about contact persons should be added to the 
model notice to give interested parties a point of reference 
and easy access to information. 
2. New sectors 
2.1. In view of the fact that those branches of industry 
where public procurement plays the biggest role, i.e. energy, 
telecoms, transport and water, must be fully opened to 
competition in only 72 months if a real internal market is to 
be achieved, the Committee invites the Commission to 
establish early information contacts with these branches. 
The past lack of success in making the Directive work 
indicates in the Committee's view that the following 
transitional measure might be envisaged for these new 
sectors: so as to legitimize local employment concerns, the 
present de facto situation should be made dejure by allowing 
buying authorities the right to set aside a priori a certain 
percentage of their contracts for local enterprises. At the 
same time, however, it should be made equally clear that any 
contracts above this percentage set aside for national 
suppliers would be sanctioned as per point 1.6 above. This 
would have the advantage of partly legalizing known 
practices, but also of bringing them out into the open. The 
longer-term objective of arriving at a situation of full 
competition without restrictions would, of course, remain 
intact. 
2.2. The Committee finally proposes that the firm being 
awarded the main contract should be obliged to publish 
information on sub-contracts above a certain amount, which 
should under no circumstances exceed the level fixed for 
public purchasing organizations, i.e. 200 000 ECU. The 
same time limits should be valid as for the main contracts and 
the same conditions of public notices, i.e. cost paid by 
the Community should apply. This would constitute an 
important step in the direction of creating a European public 
procurement data centre. Equally important, however, is the 
fact that small and medium-sized businesses would then be 
more clearly involved in official procurement and thus help 
boost the main supplier's competitiveness by contributing to 
16. 3. 87 Official Journal of the European Communities No C 68/9 
an efficient sub-contractor network. Looking ahead in 
particular to the extension of the Directive to new sectors, the 
Committee regards such action as of key importance. 
3. Lastly, the Committee wishes once again to draw 
attention to its proposal (') concerning the introduction of a 
system for secondment of staff (e.g. senior officials of 
procurement and audit departments) from national 
authorities for the purpose of working in the new public 
procurement unit and liaison with their counterparts in other 
Member States. It is out of the question for the Commission's 
staff at its present strength to cope with the duties on which 
the effectiveness of the Community Directive hinges and, 
since difficulties are bound to arise in simply recruiting new 
staff under the Community budget, other solutions such as 
the one described above will have to be found. 
4. Specific comments 
4.1. Article 4 
The Committee requests that point 2 (b) of the new Article 6 
stipulating that contracts by single tender may be awarded 
'when the articles involved are manufactured purely for 
(!) OJ No C 189, 28. 7. 1986, p. 16. 
Done at Brussels, 16 December 1986. 
Introduction 
1. The draft Directive on shipbuilding aid is a follow-up 
to the orientation paper on future aid strategy for 
(>) OJNoC281, 7. 11. 1986, p. 4. purposes of research, experiment, study or development' be 
deleted; otherwise the doors would be opened wide to abuse 
and circumvention of the letter and the spirit of this Article, 
i.e. that awards by single tender only take place under 
exceptional circumstances. 
4.2. Article 5 
The Committee invites the Commission to make it clear that 
the order of preference to be followed by the contracting 
authorities in the absence of European standards or 
documents on harmonization is mandatory, not optional. It 
proposes to add the following phrase to point 4 'any other 
standard': 'bearing in mind the climatic conditions 
involved'. 
4.3. Article 12 
The Committee, though supporting the Commission's efforts 
to obtain significant and reliable statistical information from 
the Member States, feels that the Commission should specify 
in point (a) which contracting authorities are obliged to 
report, and that the data required concern only the total 
number and value of awarded contracts both above and 
below the threshold. 
The Chairman 
of the Economic and Social Committee 
AlfonsMARGOT 
shipbuilding on which the Committee was not officially 
consulted - much to its astonishment. The proposals 
contained in these documents arouse deep concern about the 
future of the Community's shipbuilding industry and the jobs 
it provides. Opinion on the proposal for a Council Directive on aid to shipbuilding (*) 
(87/C 68/07) 
On 13 October 1986 the Council decided to consult the Economic and Social Committee, under 
Article 198 of the Treaty establishing the European Economic Community, on the proposal for a 
Council Directive on aid to shipbuilding. 
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 December 1986 in the light of the report by 
Mr Arena. 
At its 242nd plenary session (meeting of 16 December 1986), the Economic and Social Committee 
adopted the following opinion by 88 votes to 15, with 5 abstentions.