Opinion of the Commission pursuant to Article 189B(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 92/50/EEC relating to the coordination of procedures for the award of public service contracts, Council Directive 93/36/EEC coordinating procedures for the award of public supply contracts and Council Directive 93/37/EEC concerning the coordination of procedures for the award of public works contracts
Date: 1997-06-30
Institutions: European Commission
Subjects: administrative procedure, approximation of laws, award of contract, competition, public contract

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COMMISSION OF THE EUROPEAN  COMMUNITIES 

Brussels, 30.06.1997 
COM(97) 289  final 

95/0079 (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 

proposai  for a 
EUROPEAN  PARLIAMENT  AND COUNCIL  DIRECTIVE 

amending Council Directive 92/50/EEC relating to the coordination of procedures for 
the award of public service contracts, Council Directive 93/36/EEC coordinating procedures for 
concerning 

the award of public supply contracts and Council Directive 93/37/EEC 
the coordination of procedures for the award of public works  contracts 

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

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 on the proposal for a European Parliament and Council 
directive amending Council Directive 92/50/EEC relating to the coordination of procedures for 
the award of public service contracts, Council Directive 93/36/EEC coordinating procedures for 
concerning 

the award of public supply contracts and Council Directive 93/37/EEC 
the coordination of procedures for the award of public works  contracts. 

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 28.2.1996. 

The  amended proposal was transmitted to the Council on 16.12.1996. 

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), 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/EC  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/EC). 

The  Commission  has  proposed  a  series  of  amendments  to  the  Directives,  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  authorities, which 
are  subject  to  both  the  Directives  and  the  GPA, will  be  able to conform  to the  GPA by 
applying  the  provisions  of the amended  Directives. 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. 

Z 

Ill  The  Commission's  position  on  the  amendments  adopted  by  the 

Parliament 

European 

A  Amendments accepted by the Commission 

Recital 10 (technical dialogue - amendment n. 4) 

The part of amendment 4, 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 
would  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 
the procurement", the text of the European Parliament provides that "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 10 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. 

Annex I 

Amendment n. 3, whereby the German Federal Ministry of Transport would be added to the list 
of central State purchasing authorities is acceptable to the Commission. 

B 

Amendments rejected by the Commission 

None. 

^ 

AMENDED PROPOSAL FOR A 
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 

amending 

Council Directive 92/50/EEC relating to the coordination of procedures for the award  of 
public service contracts, Council Directive 93/36/EEC coordinating procedures for the 
award of public supply contracts, and Council Directive 93/37/EEC concerning the 
coordination of procedures for the award of public works contracts 

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

v 

Recital  10 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  10 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;" 

3. 

The following  authority is inserted in Annex I under the heading Federal Republic of 
Germany as point  17a : 
"Federal Ministry of Transport" 

S 

ISSN 0254-1475 

COM(97) 289 final 

DOCUMENTS 

EN 

08  01  06 

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ISBN 92-78-21187-7 

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