EN Official Journal of the European Union CE 78/664

(2004/C 78 E/0708)

WRITTEN QUESTION E-3877/03

by Francesco Fiori (PPE-DE) to the Commission

(16 December 2003)

Subject: Breach of Community principles — Article 24 of Law 289/2002

Article 26 of the Italian law No 488 of 23 December 1999 lays down the rules governing the supply of goods and services to the public sector on the basis of procedures open to public scrutiny. Article 24(3) of Law No 289 of 27 December 2002 reinforces the obligation to use the framework conventions defined by the Consip SpA for the bodies indicated in table C and for institutional bodies.

The general principles which, according to the Italian government, underlie this provision are the objectives of competition and transparency, with the aim of achieving savings, containing expenditure and ensuring efficiency in the supply systems concerned.

Nonetheless, the Italian government intends to pursue those objectives via the above-mentioned law, which appears to be in breach of both the Italian constitution (numerous regions have appealed to the Constitutional Court on the same point) and Community law and principles. Three points may be raised here:

(a) the opportunity given to the Italian legislative branch of independently revising (downwards) the Community threshold set by the Community directives and by the corresponding incorporating laws;

(b) inconsistency of the centralised supply system mediated through the Consip procedures with Community competition law;

(c) the creation of a legislative and administrative framework unfavourable to the development of small businesses.

In view of the above, what measures will the Commission take in support of the SMEs' associations whose members appear to be the inevitable target of this legislation?

Answer given by Mr Bolkestein on behalf of the Commission

(2 February 2004)

The Commission has examined the legal aspects relating to the centralised procurement system set up in Italy by Consip on a number of occasions and has never found any breach of Community law which would warrant instituting infringement proceedings. It would first like to draw the Honourable Member's attention to the proposal for a Parliament and Council Directive on the coordination of procedures for the award of public supply, services and works contracts which is intended to replace the three directive currently in force. Article 11 of the common position adopted by the Council on 20 March 2003 does in fact lay down that ‘Member States may provide for the possibility of contracting authorities procuring works, supplies and/or services by having recourse to purchasing groups’, adding that ‘contracting authorities which procure works, supplies and/or services by having recourse to a purchasing group … shall be deemed to have complied with the provisions of this Directive provided that the purchasing group has complied with them.’

First of all, with regard to the Honourable Member's statement that Italy might revise the application threshold set by the Community directives for public contracts downwards, it should be noted that the provisions of these Community directives impose minimum obligations on the Member States, whilst allowing the latter to set stricter rules in order to open up public contracts to wider and more general competition. Indeed, as the Court of Justice has often repeated, the Community directives in question are legislative texts which coordinate, but do not harmonise, procedures for the award of public contracts at European level.

Furthermore, it should be observed that from the point of view of Community law, all public contracts are — in principle — subject to disclosure obligations. For contracts in which the amount is lower than the Community thresholds, as the Court of Justice has clarified in its case-law, there is an obligation to ensure that they have been adequately advertised, taking into account the amount and nature of the contract. It is up to the Member States to determine how these should be advertised, leaving them free to decide whether this should be done at European level, notably through publication in the Official Journal of the European Union (1).

In the light of the foregoing, it should be explained that the application threshold in the directives has not been amended by the provision in the law mentioned by the Honourable Member. It is clear that the national legislator, in simply referring to the application of the national rules transposing the aforementioned Community directives, wished to refer in full to the methods of publication provided for by these provisions, including in particular those relating to the publication of a contract notice in the Official Journal of the European Union.

Secondly, with regard to the comment that the centralisation of procurement would create a legislative and administrative environment which was unfavourable to the development of small businesses (SMEs), the Commission would emphasise that the issue of the impact of centralising procurement through the Consip on reference markets and particularly on the activity of SMEs is a problem which falls within the competence of the national competition authority, which has already looked at the system in question on a number of occasions, as, on a more general level, have the competent political and administrative authorities.

In this respect, the Commission would add that it is aware of the fact that the national competition authority has sent a number of recommendations to the Consip which seek to avoid excessive restrictions on competition in the invitations to tender it launches — recommendations which the Consip does in fact seem to follow. In addition, the national political and administrative authorities, i.e. the government, Parliament and Consip, have recently held talks on how to limit the potential negative effects of the aforementioned centralised procurement system on the activities of small and medium-sized enterprises.

The Commission would point out that the recent Decree-Law No 143/2003, which was converted into Law No 212/2003 published in the national Official Journal 131/L of 11 August 2003, made significant changes to the field in question — including, in particular, the annulment of Article 24(3) in Law No 289/2002 mentioned by the Honourable Member — precisely in order to reduce the impact of the centralised procurement system on the activities of small and medium-sized enterprises. According to information currently at the Commission's disposal, other changes to the legislation in force are planned as part of the process of approving the financial law for 2004.

(1) This possibility is, moreover, explicitly covered by the aforementioned directives, which lay down — see Article 13 of Directive 93/36/EEC for supplies and Article 21 of directive 92/50/EEC for services — that contracting authorities may arrange for the publication in the Official Journal of the European Communities of notices announcing public supply and service contracts which are not subject to the publication requirement laid down in these Directives.