WRITTEN QUESTION E-1847/01

by Francesco Turchi (UEN) to the Commission

(26 June 2001)

Subject: Invitation to tender issued by the Trambus company

The Trambus company (formerly ATAC) has issued an invitation to tender for depot, vehicle, and other cleaning services for the period from October 2001 to December 2003. The tendering procedure is based on a reference amount of ITL 53 375 000 000, equivalent to ITL 25 500 000 000 a year, and the contract will be awarded for the most advantageous bid, determined on the basis of a points score broken down into 55 points for the lowest price and 45 points for the project (28 of which will be accounted for by the hours offered). For the last five years the contract has been administered by a consortium that employs some 750 workers to cover the necessary 950 000 hours of work. That being the case, the hourly wage used to calculate the reference amount is apparently ITL 26 842 or the cost of a daytime fifth level worker. Most of the necessary workers currently employed are on the fourth and third levels. The work is done at night (entailing a 30 % increase in the cost) and also on Sundays and holidays (for which the cost is 50 % higher). A substantial outlay is required for machines, safety, consumables, overheads, and so forth. The employment contract approved on 25 May 2001, after the call for tenders, further increases the labour costs. According to the tender documents, prices will not be adjusted for the entire duration of the contract, which could be as long as five years.

The Commission:

1. Does it consider the invitation to tender to be in accordance with the relevant Community legislation in force, especially bearing in mind that the incorrectly valued reference amount could induce dishonest companies to use illegal labour or resort to forms of tax and social security fraud and the failure to lay down an obligation to take over all the existing staff, a condition provided for in the national employment contract for workers in the category concerned, could have serious repercussions in terms of employment?

2. How will it proceed in this matter and what action does it intend to take?

Answer given by Mr Bolkestein on behalf of the Commission

(17 September 2001)

1. In response to the honourable Member's question, the Commission points out that as Community law currently stands there is no provision in the directives on public contracts for any requirement on the part of awarding authorities in connection with setting a base price for a contract.

2. In any case, the fact that a transfer is performed following an award procedure does not create specific problems concerning the application of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses(1). In addition, this directive and Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts(2) are not irreconcilable with regard to their purpose, as recently confirmed by the Court of Justice ruling in the Oy Liikenne case(3). The rights of the workers in question should therefore be safeguarded if the features indicating the transfer of an undertaking according to Directive 2001/23/EC apply in this instance.

In view of the fact that Italian legislation has transposed the content of the reference directive into national law with regard to the points raised by the honourable Member, it is for the national authorities to settle any disputes which may arise in this matter.

(1) OJ L 82, 22.3.2001.

(2) OJ L 209, 24.7.1992.

(3) Ruling of 25.1.2001, case C-172/99, especially paragraphs 21/22.