WRITTEN QUESTION E-1174/96 by Gerhard Schmid (PSE) to the Commission (15 May 1996)

Subject: The Commission's complaint procedure P/94/4521 against the Federal Republic of Germany - my written question E-0413/96

As mentioned in my written question E-0413/96 ((OJ C 173, 17.6.1996, p. 57. )), on the basis of the above-mentioned complaint procedure, the Federal Ministry for Economic Affairs has written to all the Bundesländer requesting that, in future, the public contracts of local authorities and associations of local authorities contain a clause opening up the tender, even if the invitations to tender are not subject to Community directives for EU-wide competition because of the contract value.

1. If a local authority organises an invitation to tender for the supply of fire hydrants, what precisely should be in the invitation to tender in order to satisfy the requirements of the European Court of Justice laid down in the order of its President of 13 March 1987 (Case 45/87 R), and what wording is in future prohibited from such invitations to tender?

2. In this specific instance, is the local authority allowed to require compliance with a national standard in order to ensure that the hydrants supplied also fit the hose connections of the local fire brigade?

Answer given by Mr Monti on behalf of the Commission (11 July 1996)

1. Case 45/87 ((Commission v Ireland [1988] ECR 4929. )) concerned a clause included in the contract specification for the Dundalk Water Supply Augmentation Scheme. The clause specified that the 'asbestos cement pressure pipes shall be certified as complying with Irish standard specification 188: 1975 in accordance with the Irish Standard Mark Licensing Scheme of the Institute for Industrial Research and Standards'.

The Court of Justice noted that 'the inclusion of such a clause in an invitation to tender may cause economic operators who produce or utilize pipes equivalent to pipes certified as complying with Irish standards to refrain from tendering'. Since only one firm, located in Ireland, had been certified by the Institute to IS 188: 1975, inclusion of the clause had the effect of restricting the supply of the pipes needed for the scheme to Irish manufacturers alone. The Irish authorities should have inserted the words 'or equivalent' after the reference to the Irish standard, as required by Article 8(6) of Directive 93/36/EEC coordinating procedures for the award of public supply contracts, ((OJ L 199, 9.8.1993, p. 1. )) and Article 10 of Directive 93/37/EEC concerning the coordination of procedures for the award of public works contracts. ((OJ L 199, 9.8.1993, p. 54. )) They would thus have been able to verify compliance with the technical conditions without from the outset restricting the contract to tenderers who proposed to use Irish materials. The Court held that Ireland had infringed Article 30 of the EC Treaty by including the above-mentioned clause in the contract specification.

Where the specifications of an invitation to tender refer to national standards, and where there are no European standards, European technical approvals or common technical specifications, the contracting authority (in this case the urban district council) is required, pursuant to Article 30 of the EC Treaty or under Directives 93/36/EEC and 93/37/EEC, in so far as these apply to the invitation to tender, to include a clause to the effect that products from other Member States or contracting parties to the Agreement on the European Economic Area may also be used if they comply with standards providing a level of security equivalent to that required under the national standards ('opening-up clause'). At least 'or equivalent' must be added to the reference to the national standards.

2. If, as in the present case of an invitation to tender issued by an urban district council in respect of water pipes, reference is to be made to a national standard in order to specify a particular size of joint, the 'opening-up clause' or the words 'or equivalent' must be included. This ensures, firstly, that tenderers who intend to use products from other Member States may respond to the invitation to tender. The possibility of there being equivalent technical standards in other Member States cannot be ruled out from the outset. Moreover, the contracting authority may, in the case of products that have not been manufactured in accordance with the national standard, examine whether they comply with national technical requirements. Where products are rejected, it is for the said authority to provide proof that they do not adequately meet safety requirements.