EN Official Journal of the European Union CE 84/70

(2004/C 84 E/0075)

WRITTEN QUESTION E-3597/03

by Glyn Ford (PSE) to the Commission

(5 December 2003)

Subject: Tendering processes for development and humanitarian assistance

Would the Commission comment on how many Member States have less rigorous controls on tendering than those operated by the EU?

Answer given by Mr Bolkestein on behalf of the Commission

(16 February 2004)

All public contracts undertaken by a Member State for pecuniary interest are subject to the EU Public Procurement Directives (1) provided their value exceeds the threshold set in the relevant directive. This includes contracts financed through bilateral development aid granted by the Member States to which the contracting authorities belong and under whose financial responsibility the tender is organized.

Following a complaint, the European Commission carried out an extensive enquiry into the procurement practices of all 15 Member States concerning purchases financed by development aid, which led to the opening of a number of infringement procedures. Indeed, it appeared that some Member States used to make the grant of aid to developing countries conditional on the purchase of goods, services or works originating from the donor country (‘tied aid’). Pursuant to the Commission's enquiry only four Member States are still in the course of taking steps to remedy infringements to public procurement law.

As regards development aid granted by the Commission itself, specific provisions apply in accordance with the Financial Regulation (2), the Implementing Rules for the Financial Regulation (3), the General Regulation for service, supply and works contracts financed by the European Development Fund (EDF) (4) and the Financial Regulation applicable to the 9th EDF (5). Detailed provisions on controls on public procurement are applied in this framework.

As regards humanitarian aid granted by the Member States, the Commission is not at this stage aware of problems linked to the way Member States organize tender procedures. As far as Community humanitarian aid is concerned, the Commission has adopted, as stipulated by Article 238(3) of the Financial Regulation's Implementing Rules, specific procurement procedures, which are contained in Annex V of the Framework Partnership Agreement applicable to humanitarian operations. These procedures share the objectives of economy and efficiency with other external actions (best value for money, price-quality ratio, absence of conflict of interests). However, they introduce a certain degree of flexibility linked to the specific nature of humanitarian aid. These new rules have been favourably received by the non-governmental organisation (NGO) community as a major improvement as compared to the previous practices.

(1) 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, and 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.

(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002, OJ L 248, 16.9.2002.

(3) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002, OJ L 357, 31.12.2002.

(4) Decision No 2/2002 of the ACP-EC Council of Ministers of 7 October 2002, OJ L 320, 23.11.2002.

(5) Council Regulation of 27 March 2003, OJ L 83, 1.4.2003.