WRITTEN QUESTION E-2352/97 by Roberta Angelilli (NI) to the Commission (10 July 1997)

Subject: Call for tenders for an advisor on the privatization of the ACEA by Rome City Council

In its answer to Written Question P-1071/97 ((OJ C 373, 9.12.1997, p. 60.)) on the tendering procedure initiated by Rome City Council in order to find an advisor on the privatization of the Municipal Energy and Environment Board (ACEA), the Commission said that since the amount awarded was LIT 327 726 000 net of VAT, Directive 92/50/EEC ((OJ L 209, 24.7.1992, p. 1.)), which sets a minimum threshold for applicabilty of ECU 200 000 excluding VAT, could not be considered as applicable. However, the Commission also stated that the threshold of ECU 200 000 does not refer to the amount 'awarded', but to the amount 'estimated' when the call to tender is issued. Hence if the amount of the contract estimated by the City Council had been more than ECU 200 000, it would indeed have contravened European legislation.

However, Rome City Council's Decision No 1937 of 1995, which announced the call to tender for an advisor on the privatization of ACEA, did not in fact make any estimate of the amount involved. This means that Rome City Council's infringement was twofold, in that it not only did not forward the call to tender but it did not even estimate the amount of the contract beforehand. However, it is stated clearly on page 5 of that same Decision No 1937 that 'Rome City Council shall forward the call for tenders to the Publications Office of the European Communities by fax, to be confirmed subsequently by registered letter ...'.

In view of the above, can the Commission say:

1. whether Rome City Council's failure to estimate the amount of the contract and to forward the call for tenders to the Publications Office constitutes an infringement of Directive 92/50/EEC;

2. if so, what steps it intends to take to restore compliance with Community law;

3. also, if an infringement has been committed, whether the procedure for finding an advisor, on the basis of the evidence set out above, may be considered as invalidated from the outset?

Supplementary answer given by Mr Monti on behalf of the Commission (4 February 1998)

Further to its answer of 16 September 1997 ((OJ C 82, 17.3.1998, p. 62. )), the Commission can now provide the following details.

The Italian authorities have informed the Commission that they faxed the contract notice concerning Rome City Council's service contract for assistance and for the adviser on the restructuring, conversion and upgrading (by privatisation and other means) of the Municipal Energy and Environment Board (ACEA) to the Office for Official Publications of the European Communities on 13 July 1995. They have also produced a receipt issued by the Italian Post Office which proves that a fax was indeed sent to Luxembourg on that date.

The Publications Office has informed the Commission that it received a two-page document on 17 July 1995 which contained the dispatch note at the top of its first page. This may well be the contract notice in question. However, owing to its virtual illegibility it was taken for a document confirming a previous notification of another contract notice relating to services supplied to Rome City Council, viz. an adviser charged with assessing and, where appropriate, managing the upgrading, conversion or privatisation of the Central Municipal Milk Board (ACCL); the wording of this notice was very similar to that concerning the Municipal Energy and Environment Board (ACEA).

In the case at issue, the failure to publish the contract notice would seem to be due to faulty administration on the part of the Italian Post Office, which did not send the dispatch note on a separate sheet, and it was this which led to the mistake by the Publications Office.