WRITTEN QUESTION E-0816/00

by Juan Naranjo Escobar (PPE-DE), Carlos Carnero González (PSE) and Salvador Jové Peres (GUE/NGL) to the Commission

(21 March 2000)

Subject: Compatibility of Member States' social policies with Community law, particularly with the directives on the award of public works contracts

On the basis of the Beentjes case law findings, the Commission appears to be taking the view that requirements of a social nature can be included in the conditions for implementation of the contract, provided that certain publicity requirements are fulfilled and non-discrimination is guaranteed. Does the Commission not consider that including these requirements in the contract's implementing conditions, instead of in the criteria for awarding contracts, reduces the chances of success for some EU businesses competing in the tender, and thus implies a major obstacle to the internal market? (A business that does not have a certain number of fixed posts cannot compete in a tender whose implementing conditions demand this minimum, whereas it could take part in a tender in which the creation of stable employment was one of the criteria for awarding the contract, for instance with a value of 20 % of the total points, and might gain the contract if it did well on the other award criteria.)

Paragraph 9 of the 1999 employment guidelines says that each Member State must give special attention to the needs of disabled people and develop preventive and active policies to promote their integration into the labour market. In paragraph 7 of the Council's Resolution on equal employment opportunities for people with disabilities of June 1999, the Council says such opportunities will be enhanced if specific attention is given to recruitment and retention of employees. Are these not sufficient reasons to justify a public administration in including disabled access to employment as a tie-breaking criterion in the award of contracts, especially when the same Resolution encourages the Community's own institutions to promote equal employment opportunities for disabled people within their own services, by enacting rules while taking full advantage of existing legal instruments and practices (paragraph 5)?

Is there not a need to amend Directive 93/37/EC(1) concerning the coordination of procedures for the award of public works contracts, with the aim of clarifying the above concepts, taking account of the European Union's current priorities, to ensure that in this way the Member States can adapt their social measures to meet their citizens' needs?

(1) OJ L 199, 9.8.1993, p. 54.

Joint answer to Written Questions E-0816/00 and E-0817/00 given by Mr Bolkestein on behalf of the Commission

(12 May 2000)

Community directives on the award of public works contracts concern the internal market and are aimed, on the one hand, at optimising the management of public procurement by trying to obtain the best value for money and on the other at ensuring effective competition and equal conditions of access to the contract for all businesses. For this purpose they allow two alternatives for the award of contracts: award to the lowest bid or award to the bid offering the best value for money, the latter being assessed according to a set of objective criteria, some of which are listed as examples in the directives. The objective criteria all refer to the bid in question and provide information on the quality of the offer, but they may not refer to the structure of the business. The case law in the Beentjes judgment referred to by the honourable members specifically rules out the use of social criteria (in this case the employment of the long-term unemployed) as a basis for the award of a contract. The recent conclusions of the Advocate-General in Case C-225/98 support this interpretation. However, as the Commission stated in paragraph 4.4 of its Communication on public procurement of 11 March 1998(1), it follows from this case law that it is possible to require, as a condition for the implementation of public works contracts awarded, the observance of obligations of a social nature, aimed, for instance, at promoting the employment of women or the protection of certain disadvantaged groups. Of course, only those implementing conditions which do not have a direct or indirect discriminatory effect on tenderers from other Member States are authorised. Furthermore, adequate transparency must be ensured by specifying these conditions in the invitations to tender or in the specifications.

Contrary, therefore, to what the honourable members suggest, the implementing conditions may not aim to exclude in advance certain businesses (the directives provide for selection criteria for this purpose), but they can require a commitment on the part of tenderers to take certain measures if the contract is awarded to them. To use the example given by the honourable members, there can be no question of requiring businesses to already have a certain percentage of permanent employees, but they can be asked to undertake to create new permanent posts for implementing the contract once it has been awarded.

Similar considerations apply regarding the use of the number of disabled workers in a business as a tie-breaking criterion. The Advocate-General considered in the above-mentioned case that the use of a subsidiary criterion as a tie-breaking criterion for equivalent tenders resulted in this criterion becoming the only decisive criterion for the award of the contract, which was expressly ruled out in the light of the Beentjes judgment and contravened the directives. On the other hand, nothing would prevent tenderers

being required to undertake to employ, for the implementation of the contract, a number or percentage of disabled workers in accordance with the rules on transparency and non-discrimination regarding nationality. Furthermore, as the Commission pointed out in its above-mentioned communication, the rules in the directives on public works contracts allow applicants that contravene legislation on social matters to be excluded.

During the preparatory work for Council Directive 93/37/EEC of 14 June 1993 concerning the co-ordination of procedures for the award of public works contracts, the Member States specifically expressed their opposition to the introduction of criteria which were not strictly economic for the award of contracts.

The Commission announced in the above-mentioned communication its intention to adopt an explanatory communication on the social aspects of public works contracts. The purpose of this will be to clarify the principles applicable when social objectives are taken into account in the field of public works contracts and the conditions under which pursuit of this type of objective is compatible with the principles and rules of Community law on public works contracts.

(1) COM(98) 143.