Re-examined proposal for a COUNCIL DIRECTIVE coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors
Date: 1993-05-24
Institutions: European Commission
Subjects: energy distribution, energy production, energy transport, means of public conveyance, public contract, telecommunications

COMMISSION OF THE EUROPEAN  COMMUNITIES 

C0M(93) 236 final  - SYN 361 

Brussels, 24 May  1993 

Re-examined  proposal  for a 

COUNCIL DIRECTIVE 

coordinating  the procurement procedures 

of entities operating in the water, 

energy, transport and telecommunications sectors 

(presented  by  the Commission  pursuant  to Article  149.2(d) 
of  the EEC  treaty) 

z 

EXPLANATORY  MEMORANDUM 

I. General considerations 

The  re-examined  proposal  reflects  the  Commission's  stance  with  regard  to  the  common 
position  adopted by the  Council  on  21  December  1992  and the  proposed  amendments  to 
that common position adopted by the European Parliament on second reading on 21  April 
1993.  As  the Commission stated at the plenary session,  it could accept both amendments 
adopted by Parliament and it would incorporate them in its re-examined proposal. 

II. Analysis of the re-examined proposal 

The  proposal  reflects  the  agreement  existing  between  the  Council,  Parliament  and  the 
Commission,  except  for two  points where the  proposal  reflects  the European Parliament's 
amendments  (in  annex).  The  points  at  which  the  re-examined  proposal  differs from the 
common position are set out below : 

a) Article 13(1). last subparagraph 

Article  13  in  the  common  position  provides  an  exemption,  under  certain  conditions,  for 
certain service contracts awarded by a contracting entity to an undertaking within its group. 
The  Article  contains  a provision  which  requires  contracting  entities  with  more  than  one 
affiliated undertaking providing the "same or identical" services to take account of the total 
turnover derived from the provision of  services by those undertakings.  This should avoid 
abusive splitting of affiliated undertakings to avoid the Directive.  The re-examined proposal 
corrects an unintended error in that provision in that reference is made to services which are 
the  "same  or  similar".  Furthermore,  the  words  "in  the  Community"  are  added.  These 
modifications, which do not change the substance, improve the clarity of the text. 

b) Article 24 (3) 

This Article in the common position contains a provision which allows  contracting entities 
to withhold publication of notices for service contracts awarded in one of the "non-priority" 
categories.  The re-examined proposal deletes this provision in accordance with Parliament's 
amendment, as it is in the service provider's interest that such information is made available. 

3 

Re-examined  proposal 
for a Council  Directive 
coordinating  the procurement  procedures 
of entities operating  in the water, 
energy,  transport  and  telecommunications sectors 

1. 

in  the  proposal, Article  13(1),  last  subparagraph  is replaced  by  the 
following: 

"Where  more  than  one  undertaking  affiliated  with  the  contracting 
entity  provides  the  same  service  or  similar  services,  the  total 
turnover  deriving  from  the provision of  services by  those undertakings 
in the Community  shall  be taken  Into account." 

in the proposal, Article 24(3)  is replaced  by  the following: 

"Contracting  entities  awarding  service  contracts within  category  No 8 
of  Annex  XVI  A  to  which  Article  20(2)(b)  applies  need  mention, 
concerning  point  3 of Annex  XV, only  the main  title thereof within  the 
meaning  of  the  classification  of  Annex  XVI.  Contracting  entities 
awarding  service  contracts  within  category  No  8  of  Annex  XVI  A  to 
which  Article  20(2)(b)  does  not  apply  may,  on  the  grounds  of 
commercial  confidentiality,  limit  the  information  provided  for  in 
point  3  of  Annex  XV.  However,  they  must  ensur  that  any  information 
published  under  this point  Is no  less detailed  than  that  contained  in 
the  notice  of  the  call  for  competition  published  in  accordance  with 
Article  20(1)  or,  where  a  qualification  system  is  used,  no  less 
detailed  than the category  referred  to  In Article  30(7)." 

ISSN025«4' H 

COM(93) 236 final 

DOCUMENTS 

EN 

08 

Catalogue number : CB-CO-93-266-EN-C 

' 

ISBN 92-77-56161-0 

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