WRITTEN QUESTION P-0875/01 by Hans-Peter Mayer (PPE-DE) to the Commission. Law governing the award of public contracts.
Date: 2001-03-13
Institutions: European Parliament, Provisional data
Subjects: application of EU law, award of contract, invitation to tender, provision of services, public contract, subcontracting

18.9.2001

EN

Official Journal of the European Communities

C 261 E/211

(2001/C 261 E/240)

WRITTEN QUESTION P-0874/01

by Wolfgang Ilgenfritz (NI) to the Commission

(13 March 2001)

Subject: Swarovski binoculars

Is it in keeping with the Treaty for a manufacturer (the firm of Swarovski
in Tyrol, Austria) and/or
Swarovski(cid:146)s wholesaler not to supply or to refuse to supply a retailer (the firm of Saalberger in Carinthia,
Austria) with its products (binoculars)? The reason given so far by Swarovski and/or its wholesaler is
Saalberger(cid:146)s excessively low retail price.

Answer given by Mr Monti on behalf of the Commission

(11 April 2001)

It is not possible for the Commission to take a position on the question on the basis of the information it
contains. A refusal to supply, even when the reason given is the retailer(cid:146)s excessively low retail price, does
not in itself constitute an infringement of Article 81 (formerly Article 85) of the EC Treaty, provided that
there is no anti-competitive agreement or concerted behaviour between firms which appreciably restricts
competition. It may be that a refusal to supply on the ground that the retail price is too low constitutes an
abuse of a dominant position within the meaning of Article 82 (formerly Article 86) of the EC Treaty. If
this were the case, the manufacturer or supplier concerned would have to be in a dominant position on
the relevant market. Furthermore, the provisions mentioned apply only if the measures are such as to
affect trade between the Member States to an appreciable extent. If appropriate, the party concerned may
apply to the Commission with more precise information.

(2001/C 261 E/241)

WRITTEN QUESTION P-0875/01

by Hans-Peter Mayer (PPE-DE) to the Commission

Subject: Law governing the award of public contracts

(13 March 2001)

The municipality of G concludes with undertaking D a buildings management contract (general contrac-
tor(cid:146)s agreement), also known as a (cid:145)caretaking contract(cid:146). No public invitation to tenders was issued in
respect of this contract because the municipality of G claims that it is impossible to draw up a detailed,
comprehensive requirements specification. The contract is for work by skilled tradesmen and services to be
performed in the field of space management (in other words, it is not development planning but the
management of premises within municipality buildings), asset management and maintenance management
(in other words, public works).

The total amount of the contract is not known: it might be more or less than € 200 000.

The general contractor or facility management undertaking is using external subcontractors and its own
undertakings to perform the contract and is not issuing public invitations to tender for the individual
contracts.

It is claimed that the facility management contractor (the general contractor) has no need to issue public
invitations to tender because they are private undertakings, and that negotiations can be held with
subcontractors before and after the contract is concluded.

The aim of the municipality of G in so doing is inter alia to keep as many contracts as possible within the
remit of the municipality.

The trade associations and chambers of trade regard this conduct as a breach of the EU directives on the
award of public contracts and consider that it renders meaningless the German VOB (Verdingungsordnung
f(cid:252)r Bauleistungen (cid:129) contracting rules for the award of public works contracts) and VOL (Verdingungsord-
nung f(cid:252)r Leistungen (cid:129) contracting rules for the award of public supply contracts) adopted under
implementing regulations by the ministers of the L(cid:228)nder.

C 261 E/212

Official Journal of the European Communities

EN

18.9.2001

What is the legal situation with regard to contracts the value of which is less than € 200 000?

What is the legal situation with regard to contracts the value of which is more than € 200 000?

Answer given by Mr Bolkestein on behalf of the Commission

(26 April 2001)

The municipality mentioned in the given example is a contracting authority in terms of European public
procurement law. Therefore, Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of
procedures for the award of public service contracts (1) and Council Directive 93/37/EEC of 14 June 1993
concerning the coordination of procedures for the award of public works contracts (2) as amended by
Parliament and Council Directive 97/52/EC of 13 October 1997 (3) applies to certain public works and
public service contracts of the municipality.

The municipality has to put the building management services out for tender if the following two
conditions are met: the services are building-cleaning services, property management services or integrated
engineering services in terms of categories 12 and 14 of Annex I A of Directive 92/50/EEC and the overall
value of the services to be executed is at least € 200 000. In contrast, the municipality has to put public
works out for tender only in case the overall value of the works is at least € 5 million. If the building
management services cover both public services and public works, the application of the Directive has to
be decided on grounds of what the main performance of the contract is (works or services).

The contract has to be put out for tender via publication of a tender notice. In general, the municipality
must award the contract under the open or restricted procedure. Under particular circumstances, the
municipality may award a public service contract by negotiated procedure with prior publication. This is
the case when the nature of the services to be procured, in particular in the case of intellectual services, is
such that contract specifications cannot be established with sufficient precision to permit the award of the
contract by selecting the best tender according to the rules governing open or restricted procedures. The
burden of proving the existence of exceptional circumstances justifying the negotiated procedure lies on
the municipality seeking to rely on the circumstances.

From the point of view of European law, the municipality is not hindered from awarding the contract to a
general contractor and allowing him to subcontract with third parties. In any case the contract of the
municipality must have been put out for tender via publication of a tender notice. Furthermore, it must
have been awarded according to the rules of the respective Directive. The rules of the Directives apply to
the subcontracting to third parties only in case the general contractor himself is a contracting authority in
terms of the Directives.

In case the overall value of the contracts is below the thresholds, Directives 92/50/EEC and 93/37/EEC do
not apply. Nonetheless the municipality has to abide by Community law while awarding the contracts. In
particular, the municipality has to behave in accordance with the principle of non-discrimination as laid
down in the EC Treaty.

(1) OJ L 209, 24.7.1992.
(2) OJ L 199, 9.8.1993.
(3) OJ L 328, 28.11.1997.

(2001/C 261 E/242)

WRITTEN QUESTION E-0887/01

by Nuala Ahern (Verts/ALE) to the Commission

(27 March 2001)

Subject: Annual quantities of depleted uranium imported into and exported from EU Member States

Will the Commission publish a table of the annual quantities of depleted uranium respectively imported
into and exported from EU Member States for each year since 1991?