WRITTEN QUESTION E-1725/02

by Bart Staes (Verts/ALE) to the Commission

(13 June 2002)

Subject: Electronic identity cards and procedures for the award of public service contracts

As part of the e-government programme in autumn 2000 the Belgian authorities decided that by 2005 every Belgian would be required to carry an electronic identity card.

The specifications outline the various stages in the manufacture of the electronic identity cards. A separate set of specifications incorporates the general invitation to tender for the manufacture, personalisation, initialisation and distribution of the digital identity cards and the provision of certification services. One document (special specifications RRN/006/2001, version 2.5, 11 February 2002), issued by the Ministry of the Interior in conjunction with the General Legislation Board and the National Register of Institutions, contained an important remark to the effect that:

The manufacture of the cards, their personalisation and initialisation and the distribution of the reference documents and the cards should be carried out on Belgian territory in such a way that the competent Belgian authorities can carry out checks

In accordance with European law on procurement policy, every firm must have an equal opportunity to take part in a public tender procedure. Does the Commission take the view that the provision outlined above is at odds with European public procurement policy?

If yes: what arguments will the Commission employ and what steps will it take to deal with this breach of public procurement policy?

If no: what counterarguments does the Commission intend to deploy in order to demonstrate that European public procurement policy is not being undermined?

Answer given by Mr Bolkestein on behalf of the Commission

(24 July 2002)

The Honourable Member asks whether the Commission considers that a clause in a set of specifications stating that the manufacture, personalisation, initialisation and distribution of digital identity cards must be carried out on Belgian territory is at odds with Community legislation on public procurement.

The purpose of this legislation is to open up public procurement to companies in other Member States and to help in this way to create an area without frontiers in which goods, persons, services and capital can move freely.

The above-mentioned clause is, in principle, liable to make it more difficult for foreign firms to participate in the tendering procedure and is thus likely to restrict the principle of freedom to provide services, as set out in Article 49 of the EC Treaty.

It follows from Article 46 of the EC Treaty and the relevant case law of the Court of Justice(1) that this principle does not prejudice the applicability of administrative provisions justified on grounds of public policy, public security or public health, on condition that they are necessary for achieving the objective and that this objective cannot be achieved by measures which are less restrictive of free movement.

In its Mannesmann judgment of 15 January 1998 (Case C-44/96), the Court of Justice considered that documents such as passports, driving licences, identity cards etc. were closely linked to public order.

In view of this, certain checks on the manufacture and distribution of digital identity cards could be justified for the protection of public order.

In any case, without concrete information on the scope of the checks which the Belgian authorities wish to carry out, the Commission is unable to give an opinion on whether such checks are necessary and proportionate. The same applies to the requirement to manufacture and distribute such cards in Belgium, since it is based on the need to carry out the said checks.

(1) Commission v Italy judgment of 5 December 1989 (Case C-3/88).