Opinion of the Commission pursuant to Article 189B(2) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a European Parliament and Council Directive amending Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors
Date: 1997-06-30
Institutions: European Commission
Subjects: award of contract, free competition, public contract, services contract, small and medium-sized enterprises

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels,  30.06.1997 
COM(97) 290  final 

95/0080  (COD) 

OPINION OF THE COMMISSION 
pursuant to Article  189 b (2)  (d)  of the EC Treaty, 
on the European Parliament's  amendments 
to the Council's common  position regarding the 

proposal  for a 
EUROPEAN PARLIAMENT  AND  COUNCIL  DIRECTIVE 

amending Council Directive 93/38/EEC of 14 June 1993 
coordinating the procurement procedures of  entities operating in the water, energy, transport 
and telecommunications sectors. 

AMENDING  THE PROPOSAL  OF THE COMMISSION 
pursuant to Article  189 a (2) of the EC Treaty 

I 

State of the file 

The proposal was forwarded to the European Parliament and the Council on 30.3.1995. 

The Economic and Social Committee adopted its opinion on 5.7.1995. 

The European Parliament adopted its opinion in first reading on 22.10.1996. 

The  amended proposal was transmitted to the Council on 25.11.1996. 

The Common position was adopted by the Council on 19 December 1996. 

The European Parliament adopted its opinion in second reading on 14.5.1997. 

II 

-Purpose of the Directive 

The Government Procurement Agreement (GPA or, in French, AMP), which entered into force 
in the Community on 1  January  1996 as stipulated in its Article XXIV, forms an integral part of 
the legal order of the Community through Council Decision 94/800/EÉC of 22 December 1994, 
which approves the agreements  reached  in the Uruguay  Round multilateral  negotiations. This 
does not, however, entail that its provisions can be directly invoked before  the jurisdictions of 
the Community and the Member States (last recital of Decision 94/800/EEC). 

The Commission has proposed a series of amendments to the Directive aimed at inserting some 
provisions of the GPA in order to: 

a) 

b) 

avoid discrimination against Community companies and give them the  same advantages 
that third country companies enjoy pursuant to the GPA; and 

ensure coherence between the two legal regimes. This way contracting  entities, which 
are  subject  to both  the  directive  and the  GPA, will be able to  conform  to  the  GPA by 
applying  the provisions  of the amended  Directive. They would  otherwise  be  obliged  to 
know both legal regimes perfectly, to highlight the differences  between them and to draw 
the correct consequences  of these differences.  That would seem to be a difficult  process 
which  could  lead to  significant  differences  in the application  of  Community  law  in the 
different  Member States. 

~1 

iili 

Ike  Commissf.G'i's  position  OR  the  amendments  adopted  by  the 

European 

A 

Amendments  accepted  by the Commission 

Recital 1.3 (technical dialogue - amendment n. 6) 

The part  of amendment  6S which  was  adopted  by  the European  Parliament,  is acceptable  to the 
Commission  given that it is simply  a positive formulation  of Article VI  (4) of the GPA. In  fact, 
whereas  the  GPA  provision  states  that  "entities  shall  not  seek  or  accept,  in  a  manner  which 
wcraM have the effect  of precluding  competition,  advice which may be  used  in the  preparation 
of specifications  for  a specific  procurement  from  a firm that may  have  a commercial  interest  in 
ilm procurement", the text of the European Parliament provides that "contracting authorities may 
seek  or  accept  advice  which  m&y  be  used  in  the  preparation  of  specifications  for  a  specific 
procurement, provided that such advice does not have the effect  of precluding  competition". 

Recital  13 a (new) (training  and information  in favour  of SMEs - amendment n. 2) 

Although  a recital  to  the  public  procurement  directives,  which  is not  mirrored  in  the  Directive 
itself, is not the most appropriate and efficient  means of reaching the legitimate goal pursued, the 
Commission  can  also  accept  this  amendment,  through  which  the  European  Parliament  aims  at 
favouring  the  access  of  SMEs  to  public  procurement  by  placing  appropriate  training  and 
information  facilities  at their disposal. 

B 

Amendments  rejected by the Commission 

Article  Î  (11) - (Article 41 (3) of Directive 93/38/EEC - obligation  to inform  participants  cf 
decisions on contract  awards) 

As the  amendment  limits  this  obligation  solely  to the public  contracting  entities, thus  breaking 
the fundamental  principle  of equal  treatment  of public  and private  entities,  it  is unacceptable  to 
the Commission. 

Article  1 (11) - (Article 41 (4) of Directive 93/38/EEC -  obligation to state the reasons for a 
rejection and the characteristics of the winning tender) 

This  amendment  also  excludes  private  contracting  entities  operating  on  the  basis  of  special  or 
exclusive  rights  from  its  scope  and  is therefore  unacceptable  to the  Commission  for  the  reason 
mentioned above. 

Article 1 (12) - (Article 42 (la) of Directive 93/38/EEC - statistical  obligations) 

The same limitation to public contracting entities only would equally be introduced  through this 
amendment,  which  -  although  less  important  than  the  two  preceding  amendments  in  terms  of 
significance  for  the  liberalisation  of  public  procurement  -  is 
likewise  unacceptable  to  the 
Commission. 

3 

AMENDED PROPOSAL FOR A 
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 

amending 

Directive 93/38/EEC coordinating the procurement procedures of entities operating in the 
water, energy, transport and telecommunications sectors 

(presented by the Commission pursuant to Article 189 a (2) of the EC-Treaty) 

<+ 

Recitai  13 is amended as follows: 
"Whereas contracting authorities may seek or accept advice which may be used in the 
preparation of specifications  for a specific  procurement, provided that such advice 
does not have the effect  of precluding competition;." 

Recital  13 a is inserted: 
"Whereas the Commission  shall make available to small and  medium-sized 
undertakings the training and information  materials they need to enable them to 
participate fully  in the changed procurement  market;" 

.S" 

ISSN 0254-1475 

COM(97) 290 final 

DOCUMENTS 

EN 

14  15  12  07 

Catalogue number  :  CB-C0-97-279-EN-C 

ISBN 92-78-21198-2 

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