WRITTEN QUESTION E-3989/00

by Jonas Sjöstedt (GUE/NGL) to the Commission

(21 December 2000)

Subject: Swedish public procurement law in relation to EU directive

A number of local politicians and local authority procurement officers in Sweden are now in revolt against the Swedish law on public procurement. Many local authorities take the view that the law prevents them from requiring companies to comply with social policy criteria, such as environmental considerations.

The law on public procurement was enacted in 1994 to bring the provisions into line with EU legislation but many local politicians believe that Sweden does not need such strict rules as it currently has. A recently published survey shows that Sweden has the most stringent public procurement law in the whole of Europe.

Has the Commission studied the various national laws on public procurement and does the Commission share the survey's analysis that Sweden has been unnecessarily strict in its interpretation of the EU directive on this matter and could therefore relax its rules on public procurement?

Answer given by Mr Bolkestein on behalf of the Commission

(13 February 2001)

The Member States are obliged to take all measures necessary to comply with Community law and, in particular, to take the measures required to transpose Community directives into national law. When checking these national transposing measures, which it does as guardian of the Treaties, the Commission only ensures that all Community provisions have been correctly transposed. In this respect, it ensures in particular that provisions which establish rights for tenderers on the one hand, and public contract awarders on the other, have been transposed correctly.

As regards public procurement, the Commission wishes to remind the Honourable Member that putting all the provisions of the directives together does not make a uniform Community legislation in that several of the obligations pursuant to the directives allow the Member States some interpretative leeway concerning the means and scope of the measures taken. Moreover, in its Judgment of 20 September 1988 in Case 31/87 (Beentjes, Grounds of the Judgment 20), the Court of Justice confirmed that the Member States were therefore free to maintain or adopt substantive and procedural rules in regard to public works contracts on condition that they comply with all the relevant provisions of Community law, in particular the prohibitions resulting from the principles laid down in the Treaty in regard to the right of establishment and the freedom to provide services. Thus for example, some Member States, such as Sweden, have provisions in their legislation for an environmental award criterion. The public works directives(1) and the EC Treaty do not oppose this as such, bearing in mind that such a criterion would be directly linked to the subject of the public procurement and would involve economic gain for the contracting authority. Similarly, the Member States are allowed to provide for provisions which apply below the threshold, provided that they are in line with Community law.

The Commission is not aware of the survey mentioned by the Honourable Member. If the Honourable Member considers that, despite the above, the provisions of Swedish law on public procurement would be against Community law, the Commission would of course be prepared to investigate why this was the case.

As regards, in particular, taking account of environmental and social conditions as part of public procurement, the Commission would draw the Honourable Member's attention to its Communication of 11 March 1998(2), in which it highlighted current possibilities for taking such aspects into consideration within the framework of public procurement. The Commission is committed to adopting two interpretative communications - the first on taking account of environmental targets in public procurement, the other on social objectives. The purpose of these two communications, which the Commission intends to adopt during the first quarter of 2001 for the environment and the first half of 2001 for the social aspects, is to clarify the conditions in which such objectives can be taken into account in accordance with Community law.

(1) I.e. 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); Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ L 199, 9.8.1993); Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ L 199, 9.8.1993) and European Parliament and Council Directive 97/52/EC of 13 October 1997 amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC (OJ L 328, 28.11.1997).

(2) COM(1998) 143 final.