WRITTEN QUESTION E-1727/03

by Antonio Di Pietro (ELDR) to the Commission

(23 May 2003)

Subject: The Merloni Law on public procurement

In Italy, Law No 166 of 1 August 2002 on public procurement the so-called Merloni Law abolished the principle whereby, even in the case of contracts of under the threshold value of EUR 40 000

(the limit is now EUR 100 000), the contracting authority must in all cases adequately publicise the call for tenders (phrase now deleted).

Does the Commission not consider that this change brings Italian legislation in this area into conflict with Community Directive 92/50/EEC(1) of 18 June 1992?

Is it true that the Commission has initiated infringement proceedings against Italy in respect of this and other aspects of the Merloni Law that contravene the principles laid down in the Treaty regarding competition and the freedom to provide services?

If so, can it provide detailed information on the grounds, timing and current stage of the proceedings?

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

Answer given by Mr Bolkestein on behalf of the Commission

(4 July 2003)

Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts(1) applies as a general rule to contracts with an estimated value excluding VAT equal to or more than the equivalent in EUR 200 000 special drawing rights, i.e. EUR 249 681 for 2002 and 2003. For central government departments, the Directive applies as a general rule to contracts with an estimated value excluding VAT equal to or more than the equivalent in EUR 130 000 special drawing rights, i.e. EUR 162 293 for 2002 and 2003. The amendment to Italian law on public works referred to by the Honourable Member which aims to raise the threshold for the need for appropriate advertising from EUR 40 000 to EUR 100 000 does not therefore infringe on Directive 92/50/EEC. However, as the Court of Justice ruled in its recent case law, contracting authorities which conclude contracts are still bound to comply with the fundamental rules of the EC Treaty, particularly those relating to the freedom of establishment and the freedom to provide services, and also with the general principles of non-discrimination, equality of treatment and transparency(2), even for contracts not exceeding the thresholds set by the Community directives on public contracts. On the subject of compliance with the latter principle, the Court stipulated that the obligation of transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed(3).

On 19 December 2002 the Commission initiated proceedings against Italy with regard to several provisions of Law No 109/1994 (framework law on public works), recently amended by Law No 166/2002. One of these provisions, which appears to violate the general principle of transparency, relates to service contracts for engineering and architecture falling below the threshold of EUR 100 000.

In addition to the provision mentioned above, the proceedings initiated by the Commission also concern the scope of the rules on works contracts vis-à-vis those of service and supply contracts, the rules on works carried out in order to set off development charges, provisions on works management and project validation services, technical control services (collaudo), and the role of the promoter in the project-financing procedure (Article 37(a) ff. of the law referred to above). The Commission will decide how to continue with the proceedings on the basis of the remarks made by the Italian Government, which are expected shortly.

(1) OJ L 209, 24/07/1992.

(2) See the Order of 3 December 2001, Case C-59/00, § 19-20.

(3) See in particular the Judgment of 7 December 2000, Case C-324/98, § 61-62.