WRITTEN QUESTION E-0928/03

by José Mendiluce Pereiro (PSE), Alexander de Roo (Verts/ALE),Chris Davies (ELDR), Miquel Mayol i Raynal (Verts/ALE)and Rijk van Dam (EDD) to the Commission

(24 March 2003)

Subject: Public contracting of environmental surveys on transfers of water from the Ebro

The European Commission is currently considering whether the Spanish National Hydrological Plan (NHP) is compatible with Community law.

The Spanish Government has set up the state-owned company called Infraestructuras del Trasvase Sociedad Anónima (Trasagua) in order to implement transfers of water from the Ebro under the NHP(1).

For the purposes of the directives on public procurement, Trasagua would appear to be a body governed by public law since it was set up by the government and is financed and controlled by it. It is therefore subject to Council Directive 92/50/EEC(2) relating to the coordination of procedures for the award of public service contracts.

However, in August 2002, Trasagua contracted out the environmental surveys for transfers of water from the Ebro(3), for an amount totalling EUR 1 705 524, without publishing a call for tenders for them in the Official Journal of the European Union(4).

What action will the Commission take with regard to this infringement of Community law?

Has it already taken action in this respect?

Does it not consider that the Community rules on public procurement must be complied with before any Community cofinancing can be granted for transfers of water from the Ebro?

(1) The creation of the state-owned company Infraestructuras del Trasvase S.A. (Trasagua) was approved by the Spanish cabinet on 7 December 2001.

(2) OJ L 209, 24.7.1992, p. 1.

(3) Literally technical assistance for the drawing up of an environmental survey on the transfers authorised under Article 13 of Law 10/2001 of 5 July 2001 (NHP). See newspaper La Verdad, edition of 3.8.2002.

(4) Official Journal of the Spanish State (BOE) No 260, 30.10.2002.

Answer given by Mr Bolkestein on behalf of the Commission

(13 May 2003)

In January 2003 the Commission received two complaints concerning the Spanish hydrological plan, particularly with regard to the incompatibility of the invitations to tender issued in 2002 for technical assistance contracts for drawing up environmental studies on the diversion of water from the Ebro.

As the honourable Members mention in their question, the Trasagua company was set up by the government in March 2002 for the purpose of awarding contracts for the construction and/or operation of the facilities and other activities connected with the transfer of water from the Ebro.

The Commission is in the process of giving detailed consideration to the content of these complaints. If Trasagua is in fact considered to be a body governed by public law(1), and as such is an awarding authority, it is required to comply with the Community rules on awarding public contracts, particularly the principle of publicity.

The Commission would point out that there is already a case before the Court of Justice(2) concerning the notions of awarding authority and body governed by public law, with particular regard to the interpretation of these terms in Spanish law. The Advocate-General delivered his opinion on 7 November 2002.

As part of the infringement procedure, the Commission will be contacting the relevant Spanish authorities to inform them of its observations and seek further clarification on the possible violation of Community law.

Community financing under the Structural and Cohesion Funds is explicitly conditional on compliance with all applicable Community legislation including that regarding public procurement.

(1) Body governed by public law means any body: established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and having legal personality and financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law.

(2) C-283/00 Commission v Spain.