WRITTEN QUESTION E-2673/96 by Marianne Thyssen (PPE) to the Commission (15 October 1996)

Subject: Application by the Commission of review procedures under Article 3 of Directive 89/665/EEC on the award of public works contracts

It has been stated in some media that local authorities are not complying with the European rules on public contracts.

Under Article 3 of Directive 89/665/EEC ((OJ L 395, 30.12.1989, p. 33. )) of 21 December 1989, the Commission may call on Member States or contracting authorities directly to correct manifest infringements of the European Rules on public contracts.

Has the Commission ever used this power against local councils and public authorities? If so, in how many cases? Which local authorities were involved?

Answer given by Mr Monti on behalf of the Commission (20 November 1996)

To ensure the correct application of Community law, the Commission may open the procedure laid down in Article 169 of the EC Treaty in case of infringements, including public procurement cases. The Commission first sends the Member State concerned a letter of formal notice, followed if necessary, by a reasoned opinion. In the absence of an acceptable solution which respects Community law, the Commission may then refer the matter to the Court of justice, which will decide on it definitively.

Both the directives on remedies in the field of public procurement, Directive 89/665/EEC for the classical sectors and Directive 92/13/EEC ((OJ L 76, 23.3.1992. )) for the utilities sectors (water, energy, transport and telecommunication), provide in addition that the Commission may send a notification to the Member State and to the contracting authority. The notification to the Member State also counts as the letter of formal notice under Article 169 of the EC Treaty. However, this procedure may only be invoked by the Commission if the contract has not yet been awarded and it concerns a clear and manifest infringement of Community provisions in the field of public procurement. When the Commission uses this mechanism, it is obliged to impose a deadline for reply of 21 days in the case of the classical sectors and of 30 days in the case of the utilities sectors. After receiving this notification, the Member State (and not the contracting authority) is obliged to answer the Commission. This mechanism does not substantially add to the possibilities available to the Commission on the basis of Article 169 of the EC Treaty.

In answer to the question raised by the Honourable Member, it must be stated that this mechanism has been used by the Commission, but that it is not regularly used for several reasons. In the first place, in most cases complainants address themselves to the Commission after the award of the contract, when it is absolutely clear that they have no opportunity to win the contract. In the second place, infringements are not always clear and manifest. In the third place, even though the advantage of this mechanism is that the contracting authority is informed at the same time as and not later than the Member State, the Commission is obliged to respect the deadlines stipulated in both directives. In some urgent cases, the Commission has renounced the use of this mechanism in favour of the use of the Article 169 procedures in order to impose a shorter deadline for reply.

In any case the control of the implementation of the rules by the various contracting authorities or entities, including local authorities, is primarily the responsibility of the Member States themselves and they should set up the appropriate control system.