WRITTEN QUESTION E-0922/01

by Reinhold Messner (Verts/ALE) to the Commission

(28 March 2001)

Subject: Pedemontana Lombarda

In its comprehensive transport plan the Italian Government has stated its intention of building the Pedemontana Lombarda motorway to connect Varese to Como and Bergamo. The Lombardy administration supports this plan, and by means of the agreement of 13 March 2000 began a process of institutional negotiation with a view to establishing the project's specifications and route.

Both the government and the regional administration assume that this piece of infrastructure should be built by the concessionaire company Pedemontana Lombarda S.p.A. In fact, this company has been officially involved in all stages of the negotiation process.

However, it appears that the motorway concession in question was awarded to Pedemontana Lombarda S.p.A. without any invitation to tender being issued. The contract relating to the project was approved by ANAS (the National Roads Authority) on 29 May 1990, and subsequently confirmed by interministerial decree No 1524 of 31 August 1990 - i.e. over a month after the deadline for the automatic entry into force of the obligation contained in European Directive 89/440/EEC(1) to award motorway concessions through restricted invitation to tender.

It should also be noted that:

- although it is over ten years since it entered into force, no part of the contract has ever been implemented(2);

- the route currently under discussion is very different to that which was contained in the contract(3).

In view of the above, can the Commission state:

1. Whether, under Community legislation, the concession awarded to Pedemontana Lombarda S.p.A. is unlawful?

2. Whether, therefore, Decree 1524/90 and subsequent legal documents relating to this award provide grounds for initiating European infringement proceedings;

3. Whether it does not consider that backing such a policy in favour of motorway concessionaire firms amounts to a negation of the European Union's priority of rebalancing the share of different modes of transport between road and rail?

(1) OJ L 210, 21.7.1989, p. 1.

(2) As not even one metre of motorway has been built so far, any dispute with the concessionaire can only be quantified in terms of the costs of the studies and designs completed to date (approximately ITL 10 billion, received from the State on a non-refundable basis). Currently, approximately ITL 240 billion is available for design, of which 100 billion was allocated to ANAS by the financial law for 2000. Disbursement of these funds would presumably lead to an immediate increase in the financial significance of the dispute.

(3) The State Legal Advisory Office has expressed the opinion that the concession can be considered valid, since there has been no change to the place-names of the key points along the route - i.e. Dalmine and the Gaggiolo pass to the north of Varese. In the option currently under discussion, however, the Gaggiolo pass is reached via a section of the Varese bypass which is not linked to the main motorway, as this leads to the airport of Malpensa, approximately 40 km from the pass itself.

Answer given by Mr Bolkestein on behalf of the Commission

(11 May 2001)

1. On the basis of the information provided by the Honourable Member in his written question, the concession granted to Pedemontana Lombarda S.p.A. would not seem to be subject to the rules in Council Directive 89/440/EEC of 18 July 1989, amending Directive 71/305/EEC concerning the coordination of procedures for the award of public works contracts, which was required to be implemented no later than 19 July 1990. In its judgment of 5 October 2000 in case C-337/98, the Court of Justice affirmed the principle that, if an awarding authority decided to select a contractor without a prior invitation to tender, the applicable law would have to be determined by taking into account the point in time at which the relevant decision was taken (in this instance, 29 May 1990 at the latest). However, if the main terms of the contract had been changed subsequent to the conclusion of the original agreement, Council Directives 89/440/EEC and 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts(1) could apply.

2. In any event, the Commission intends to ask the Italian authorities to provide any information which can be used to check that the concession granted to Pedemontana Lombarda S.p.A., as indicated by the Honourable Member, is compatible with Community law with respect to public works contracts. If it were to emerge from an examination of the above-mentioned information that the procedures followed were not compatible with Community law, the infringement procedure provided for in Article 226 (ex Article 169) of the EC Treaty could be initiated.

3. As regards the concession system and its impact on rebalancing transport between road and rail, the Commission would remind the Honourable Member of its answer to Question E-0371/01, namely that the Commission generally considers it preferable to make direct users bear the cost of using the particular infrastructure and that it is examining measures which could contribute to a rebalancing of transport between road and rail in the Community, particularly measures concerning the system of charging for the use of infrastructure and infrastructure financing.

(1) OJ L 199, 9.8.1993.