WRITTEN QUESTION P-3183/02

by Astrid Thors (ELDR) to the Commission

(31 October 2002)

Subject: Distortion of open and fair competition in public procurement, access to documents

On the initiative of local council member Ira Shanker (Linz, Austria), the European Commission has required the Government of Austria to amend its law on public procurement

(case 2000/4546 Schulungs- und Weiterbildungsmaßnahmen (AMS) und Arbeitsmarktservice (WIFI, BFI) CP 173/2001). However, the Commission and the Austrian Government have denied access to the relevant documents of this case to the initiator. At the same time, evidence is mounting that the amendments are not being implemented, e.g. public call for tender and also the role of the Chambers has not been altered, e.g. parallel involvement in programme management and project implementation.

Can the Commission specify which amendments the Austrian Government has agreed to implement in response to the Commission's requirements for public procurement and which monitoring mechanisms have been installed by the Commission to guarantee the adequate implementation of the required amendments and to avoid further distortion of open and fair competition?

Particularly concerning the role of the Chambers, what measures has the Commission taken to ensure, in general, that a clear split of competencies is pursued between programme-managing bodies and organisations and companies involved in project implementation in Austria and in the other Member States?

Can the Commission agree that for the proper functioning of the infringement procedure it would be useful and appropriate to give the initiator access to the documents involved in this case?

Answer given by Mr Bolkestein on behalf of the Commission

(4 December 2002)

The Commission received a complaint in which allegations were raised against Austria for infringement of public procurement rules in relation to the award of service contracts. The Arbeitsmarktservice Oberösterreich is said to have attributed service contracts for (a) educational training courses for potential employees and for (b) training of apprentices under the National Action Plan for Employment (NAP) without prior publication. Only an informal selection procedure took place.

Like in all cases where the Commission receives a complaint, the Commission asked the authorities of the Member State concerned to comment on the factual and legal elements. The Austrian authorities submitted their comments which are undergoing thorough analysis of the Commission at the moment. In this context, the Commission takes note of the additional allegations made public in this written question and will investigate in depth further.

The investigations are directed against a Member State and therefore call for genuine co-operation and an atmosphere of mutual trust between the Commission and the competent administrative body of the concerned Member State. Only in such a climate both sides can aspire a rapid solution of legal disputes and also reach such a solution. The Commission can therefore not provide any detailed information of discussions currently carried out with the concerned Member State.

At the beginning of 2002 the complainant requested access to all the documents of the present file. The Commission denied access to the documents of the case on the basis of Article 4 paragraph 2 of Regulation (EC) No 1049/2001(1). In effect, releasing those documents would undermine the ongoing investigation while there is no overriding public interest in disclosing them. This is fully supported by existing case law, since the Court of first instance has, in several judgements, recognised the need to protect ongoing investigations into a possible failure by a Member State to comply with Community law.

However, the complainant has been informed regularly on the state of play in this investigation by the competent service.

(1) Regulation (EC) No 1049/2001 of the Parliament and of the Council of 30 May 2001 regarding public access to Parliament, Council and Commission documents, OJ L 145, 31.5.2001.