WRITTEN QUESTION E-1427/97 by Ernesto Caccavale (UPE) to the Commission (23 April 1997)

Subject: Capodichino Airport (Naples): Infringement of Community rules on the awarding of contracts.

Recent press reports have revealed that, under a private agreement with the Mayor of Naples and the President of the Province of Naples, the British Airports Authority is to be awarded a contract for the administration of the Naples Capodichino International Airport.

If this proves to be the case, the contract must be considered invalid since it infringes both Community rules on the awarding of public service contracts and international provisions, including GATT rules, which, in accordance with the basic principles of transparency laid down in the Treaties, require:

- compulsory issuing of international invitations to tender;

- publication thereof in the Official Journal of the European Communities ('S' series);

- strict rules governing any invitations to tender carried out by private agreement.

Will the Commission investigate the conduct of the Naples City and Provincial authorities so as to establish whether any unlawful action occurred?

Will the Commission lodge a complaint with GATT in this connection?

Answer given by Mr Monti on behalf of the Commission (11 June 1997)

The Honourable Member does not specify whether the contract by which the operation of Capodichino airport was entrusted to British Airport Authority (BAA) takes the form of a services concession contract, i.e. a contract for which at least part of the remuneration to BAA consists of the right to exploit the airport at its own economic risk, for instance by operating shops or selling the right to do so, or of a 'normal' service contract, in which BAA is fully paid by the contracting authority for the services rendered.

There is, however, sufficient information to conclude that the absence of publication of a notice calling for competition in the supplement to the Official journal does not infringe the directives on public procurement.

In fact, if the contract in question takes the form of a service concession contract, then it does not fall within the scope of either Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts ((OJ L 209, 24.7.1992. )) or Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors ((OJ L 199, 9.8.1993. )).

If, on the other hand, the contract takes the form of a 'normal' service contract, then it falls under category 20 ('Supporting and auxiliary transport services', specially CPC number 7461 'Airport operation services') in Annex I B of Directive 92/50/EEC or Annex XVI B of Directive 93/38/EEC. In both cases this entails that the award procedure is subject to two obligations only, namely the obligation to apply the provisions on technical specifications and to inform the Commission of the fact that a contract has been awarded, adding whether this notice on the award of the contract may or may not be published. There is, however, no obligation whatsoever to publish a tender notice or any other notice used as a means of calling for competition.

This issue is an internal Community matter which can be adequately dealt with under Community law. It is not therefore necessary, or indeed appropriate, to involve the World trade organisation.