Opinion of the Economic and Social Committee on the "Proposal for a Directive of the European Parliament and of the Council on the coordination of procedures for the award of public supply contracts, public service contracts and public works contracts"
Date: 2001-04-26
Institutions: European Economic and Social Committee
Subjects: public contract, services contract, supplies contract, works contract

10.7.2001

EN

Official Journal of the European Communities

C 193/7

Opinion of the Economic and Social Committee on the ‘Proposal for a Directive of the European
Parliament and of the Council on the coordination of procedures for the award of public supply
contracts, public service contracts and public works contracts’

(2001/C 193/02)

On 8 September 2000 the Council decided to consult the Economic and Social Committee, under
Articles 47(2), 55 and 95 of the Treaty establishing the European Community, on the above-mentioned
proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 7 February 2001. The rapporteur was
Mr Green.

At its 381st plenary session on 25 and 26 April 2001 (meeting of 26 April 2001), the Economic and
Social Committee adopted the following opinion by 92 votes to 21, with eight abstentions.

1.

Introduction

1.1.
Following the Commission Green Paper on ‘Public
Procurement in the European Union: Exploring the Way
Forward’ published in November 1996 (1), the ESC unani-
mously adopted an opinion on 28 May 1997 (2).

After analysing the contributions received, the Commission
mapped out the perspectives for future action in its Communi-
cation entitled ‘Public Procurement in the European Union’ of
March 1998 (3). The response from the parties concerned by
the Green Paper made it clear that there was a need to simplify
the relevant legal framework within EU legislation and to adapt
it to the new electronic age, while nevertheless maintaining the
stability of its basic structure. The Commission has therefore
decided to merge the existing directives, in keeping with the
conclusions of the Lisbon European Council, which call for
economic reforms to complete the internal market and to
make it fully operational.

1.2.
The present Commission proposal to combine the
directives into a single legal text involves the following four
aspects:

— simplifying the existing legal framework;

— clarifying unclear or complicated provisions;

— mendments to the content, and

— consolidation of the three ‘classic directives’ so as to
merge them into a single text, which is the object of the
present proposal.

The ESC welcomes the work done by the Commission with
regard to these four aspects, but nevertheless wishes to propose
a number of modifications.

1.3.
After some general comments on the proposed simpli-
fications, which mainly concern the merger of the three
old directives, and on the legislative changes involved, the
Committee presents its proposals.

2. Comments on the merger of the three old directives
into a single legal text and the resultant simplification

2.1.
The directives on public procurement have had very
little effect in encouraging liberalisation in this area and so the
Commission has decided to remove some of the inconsistenci-
es between the three public sector directives, namely Directive
92/50/EEC relating to the coordination of procedures on the
award of public service contracts (4), Directive 93/36/EEC
coordinating procedures for the award of public supply
contracts (5) and Directive 93/37/EEC concerning the coordi-
nation of procedures for the award of public works con-
tracts (5). However, the attempt at clarification has not been
entirely successful in that EU legislation on concessions and
public-private partnerships (PPPs) is still particularly unclear.
The Commission’s interpretative Communication on Con-
cessions in Community law (6) of April 2000 should have been
incorporated into the proposed merger of texts given its crucial
importance. Even though the Commission states that the
Communication does not preclude the possibility of a legislat-
ive proposal specifically on concessions, it would have been a
good idea to include a more concrete definition of concessions
contracts and public-private partnerships in the proposed
directive so as to avoid continually having to modify EU
legislation. The Commission should make a clear-cut decision
in favour of one of two options: either it provides a better

(1) Green Paper on Public Procurement in the European Union —

13.10.1997 (OJ L 328, 28.11.1997).

Exploring the Way Forward, COM(96) 583 final.

(5) OJ L 199, 9.8.1993, as amended by Directive 97/52/EC of

(2) ESC Opinion on the Green Paper, rapporteur Mr Malosse, OJ

13.10.1997 (OJ L 328, 28.11.1997).

C 287, 22.9.1997, p. 92.

(3) COM(98) 143 final of 11.3.1998.

(6) Commission interpretative Communication on Concessions in

Community law, OJ C 121, 29.4.2000, p. 2.

(4) OJ L 209, 24.7.1992, as amended by Directive 97/52/EC of

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definition of public works concessions, public-private partner-
ships and service concessions, since this draft directive covers
all these areas, or it points out that such contracts are excluded
from the present directive and will be dealt with in a future
directive as the Committee has proposed.

2.2.
The current directives have been restructured without
radically altering the legal obligations which they impose: a
single text will henceforth be applicable to supply, works and
service contracts. This simplification has advantages for users,
but one cannot help feeling that making too many changes to
legislation in this field will be detrimental to the legislation
itself and the smooth implementation of the rules it is intended
to impose. It should also be said that according a high level of
protection to public interests causes problems in an area where
businesses are often in a more vulnerable position than public
purchasers, particularly with regard to time limits for payment.

tenders, provided that

2.3.
It is legitimate for contracting authorities to take social
and environmental aspects into account when assessing the
quality of
the principle of equal
treatment is respected and the current national and European
social and environmental legislation is complied with. The
Directive should state that ILO Convention 94 (Labour Clauses
— Public Contracts) must be complied with.

The ESC also notes that several factors justify adopting

2.4.
a regulation:

— the importance and complexity of the proposals;

— the range of different national regulations currently in
force, which constitute a major obstacle to harmonisation
of the European market;

2.5.
The ESC would also take issue with the lack of
references in the proposal to environmental considerations
which are crucial to Europe’s future. Reasonably compatible
environmental criteria which are directly related to the prod-
ucts or services to be provided could be incorporated in more
specific terms in Article 53. These should only be taken
into account when they have a decisive influence on the
environmental impact depending on how the tenderers intend
to carry out the works.

Equally remarkable is the absence of any social aspects
2.6.
among the criteria for awarding a contract. Social criteria
could also be developed in a specific manner in Article 53. The
Committee realises that it is difficult to cover these points in
detail and recommends that the future Commission interpret-
ative Communications dealing with environmental and social
aspects are transformed into guidelines for Member States,
containing the details on how these aspects could be
implemented. In addition, the Commission is now working on
a Green Public Procurement Handbook in order to guide
public authorities on taking into account environmental
characteristics when awarding a contract. The ESC rec-
ommends the drafting of a Social Procurement Handbook
with a view to guiding public authorities in this field also.

2.7.
The ESC is in favour of simplifying the directives by
merging them into a single text with the effect of replacing
three separate legal texts which largely deal with the same
questions and comprise, respectively, 35 (supplies), 37 (works)
and 45 articles (services), and combining them into a single
legal
text consisting of 82 articles. The ESC points out,
however, that merging the three directives into one obliges the
Member States to transpose the new directive, contrary to
what is stated in the introduction to the new directive, as it
includes amendments and the addition of new provisions.

— the number of countries set to joint the EU which may
each have their own regulations — some of
these
countries have never had any regulations on public
procurement;

2.8.
The ESC points out that equal competition should be
introduced in all Member States and that no Member State
should maintain a system of over-regulation, which hampers
liberalisation. This does not apply to labour law.

— the range of different local regulations;

— the directives will have to be transposed into national
legislation on the grounds that they contain legal inno-
vations.

This raises the question whether it makes sense to adopt a new
directive in an area where economic operators and contracting
authorities often refer to the wording of the directives when
called upon to interpret their own national legal texts. The ESC
feels that a regulation would be more appropriate as it
would prevent discrepancies between individual countries’
formulations in an area where it is extremely difficult to
implement the single market, inter alia because of differing
national regulations which hinder the opening up of the
market. A common text is necessary if European regulations
are to be effective.

2.9.
The ESC has serious doubts as to whether the confiden-
tiality of tenders can at present be guaranteed in practice when
contracts are awarded using electronic methods, given that
computer piracy seems to be a common phenomenon even
within the best protected networks.

3. General comments on the modifications to the legis-

lation

The ESC welcomes the clarification provided by this
3.1.
is divided into six titles, namely
new draft directive.
definitions and general principles, rules on public contracts,
granting of special or exclusive rights, rules governing service

It

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design contests, rules on concessions, and final provisions. The
articles are arranged in such a way as to follow logically the
course of a contract award procedure. The ESC is not
satisfied with the definition of bodies governed by public law
(Article 1(5)) which should be elaborated and clarified. The
Commission’s draft interpretative Communication on in-house
activities should be incorporated into the present draft directive
because it should be clearly and precisely spelt out when the
rules laid down in European law on the awarding of contracts
are to be applied between contracting authorities and operators
who are dependent on them. The interpretative Communi-
cation on concessions contains some crucial elements in this
respect, and these should be included in the present draft,
especially the obligation to make the award of contracts
subject to competition and the rule on transparency.

3.2.
The ESC points out that bodies governed by public law
which function as economic operators should not exploit the
advantages associated with their status to disregard the rules
of competition. It is clear in the EU that administrative bodies
or companies with special status enjoy competitive advantages.
Supplementary rules are essential to oblige contracting auth-
orities to look into whether public-law bodies are subject to
the same burdens in terms of fiscal, social and financial costs
as private operators. The obligation to make the award of
contracts or commissions equivalent to contracts in the private
sector subject to competition should also be imposed on
contracting authorities in their dealings with public, semi-
public or private bodies which are dependent on them or other
commissioning bodies.

It is also undesirable for private companies to benefit
3.3.
from monopolistic conditions in certain markets. It is therefore
essential to ensure that neither public nor private operators
are the object of discriminatory treatment in the awarding of
public contracts and that the competitive conditions remain
uniform for all participants and conform to EU law.

3.4.
The ESC can endorse the three principles which the
Commission has applied in drawing up the new provisions:
modernisation, simplification and flexibility, based on a desire
to take account of the advent of the information society, the
gradual withdrawal of the State from certain economic activi-
ties and increased budgetary austerity. However, the ESC
would point out that, in the interests of liberalisation, there is
a need for a clearer definition of public contracts and that
some clarification is required inter alia of what is meant by
‘contracts ... which have as their object ... the realisation, by
whatever means, of a work corresponding to the requirements
specified by the contracting authority.’ In general it is not
satisfactory to retain definitions from the earlier directives as
they are unclear, inter alia with regard to concessions, which
are mentioned in the next point.

3.5.
The Commission proposes seven substantive amend-
ments concerning the introduction of electronic purchasing
mechanisms; the introduction of a new negotiated procedure
which for particularly complex contracts permits a ‘competi-
tive dialogue’ between the contracting authority and the
different candidates; the possibility for public purchasers of
concluding so-called ‘framework agreements’; clarification of
provisions relating to technical specifications; a strengthening
of the provisions relating to award and selection criteria and a
simplification of thresholds. The ESC is pleased to note all
these modifications which both public and private operators
wish to see, but regrets that the Commission does not make
use of the opportunity to come up with a new definition of
concessions contracts and contracts concerning public-private
partnerships as the Committee has suggested in a number of
opinions, most recently in that entitled ‘Strengthening of the
law governing concessions and public/private partnership
(PPP) contracts’ (1):
‘A public works concession is an act
(whether by contract or unilateral) whereby a public authority
delegates to a private organisation the task of designing,
constructing, financing, maintaining and operating an infra-
structure and/or service for a predetermined extended period.’

The amendments the Commission has proposed to the
3.6.
‘utilities directive’ 93/38/EEC coordinating the procurement
procedures of entities operating in the water, energy, transport
and telecommunications sectors (2) in the light of the gradual
liberalisation of certain sectors, make it necessary to amend
some provisions in the ‘classic’ directives. A general procedure
should be adopted for carrying out these amendments.

4.

Specific comments on the proposed modifications

Recognition of

the principle of

4.1.
confidentiality
(Article 5) with regard to information provided by economic
operators is based on the desire to support innovation within
enterprises by protecting their intellectual and technical input.
However,
in a text of this importance, the scope of this
principle should have been defined rather more clearly, inter
alia regarding what kind of confidential information it covers
and how long such information shall be regarded as confiden-
tial. The ESC feels that the principle of confidentiality should
apply not only to tenders received, but to all proposals
submitted to the contracting authority (3), including variant
tenderers, as well as all
tenders and information on all

(1) ESC Opinion, OJ C 14, 16.1.2001, rapporteur Mr Levaux,

point 4.1.3.

(2) OJ L 199, 9.8.1993, as amended by Directive 94/22/EC of
30.5.1994 (OJ L 164, 30.6.1994) and Directive 98/4/EC of
16.2.1998 (OJ L 101, 1.4.1998).

(3) For example, outline solutions, authorised variants, proposals
submitted during negotiations and anything concerning com-
munications between the contracting authority and businesses.

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commercial information and any other information relating to
the operation or businesses. This could be implemented with
reference to Article XIV of the Government Procurement
Agreement.

4.2.
The introduction of electronic purchasing mechanisms
is necessary because of developments in current methods. The
conclusions of the European Council meeting of 23 and
24 March 2000 call upon the Commission, Council and
Member States ‘to take the necessary steps to ensure that it is
possible by 2003 for Community and government procure-
to take place on-line’ (1). The ESC would endorse
ment
this, with the above-mentioned proviso that
the security
of electronic communications and data storage should be
considerably improved. The Member States cannot afford to
run the risk of sensitive information being intercepted by
outsiders or published illegally; it is a crucial condition that
electronic submission and acceptance of tenders be made
secure. Electronic signature and encryption systems must be
reinforced.

4.3.
The procedures laid down in current legislation make
no provision for the exclusive use of electronic means, and
this is not permitted (2). Electronic transmission would make it
possible to reduce the time-limit of 12 days which are
necessary at the moment for transmission to the Publication
Office and publication in the Official Journal. It would thus be
possible to reduce the time-limit for publication from 12 days
to five. These reductions seem to be excessive in two cases:
1) when the minimum time-limit for submission of tenders is
reduced to five days from the time the notice is sent out on
the assumption that the contract documents are made available
electronically as soon as the notice is sent out. Companies will
be unaware that
they are available before the notice is
published; 2) when the time-limit which companies have to
submit their tenders is reduced to a minimum of 10 days in
the case of restricted or negotiated procedures deemed to be
urgent. In any event it is important that the time saving
inherent in electronic procedures should also benefit business-
es/tenderers.

4.4.
‘Competitive dialogue’ between contracting authorities
and tenderers is an excellent innovation in that contracting
authorities should have the opportunity to consider innovative
solutions when they are unfamiliar with or objectively unable
to assess what the market has on offer in terms of technical or

financial solutions. In the light of the case law of the Court of
Justice, such a dialogue is not allowed under the current open
and restricted procedures, and the current provisions on the
use of a negotiated procedure with prior publication are
limited to exceptional situations. The ESC endorses this
proposal, but would reiterate that the principle of confidential
treatment of the information provided by operators should be
elaborated and clarified.

4.4.1.
It is therefore right that the Commission should wish
to introduce provisions enabling dialogue to take place in a
single award procedure which will result in the contract being
carried out. However,
it is desirable for the procedure to
incorporate a phase during which the specifications would be
established on the basis of negotiations with the selected
participants, followed by the submission of tenders by the
participants in the negotiations and then by the award of the
contract to the best tender. This is the only way to really take
account of the interests of the businesses participating in the
dialogue. However, this is not the procedure set out here.
Instead, the Commission is proposing that at the end of the
negotiations with selected participants to determine how its
needs can best be satisfied, the contracting authority will define
the final technical specifications either by retaining one of the
solutions presented by one of the participants or by combining
more than one of the solutions presented (cherry picking).

this is tantamount

The ESC notes that

4.4.2.
to the
Commission giving the contracting authority the opportunity
to appropriate the results of participants’ inventiveness and
innovation and to create competition between them. It is
reasonable to expect that under these circumstances applicants
will be reluctant
to submit highly detailed proposals if
these are going to be in competition with their commercial
competitors. If each candidate were invited to submit their
best and final tender after the negotiation stage based on the
proposals they submitted earlier, the draft directive would be
consistent with standard legislation on the procurement of
goods, construction and services drawn up by the United
Nations Commission on International Trade Law which refers
to a procedure involving a ‘request for proposals’ (Article 48).
The ESC therefore feels that
the provisions on complex
procurement should be amended and clarified in line with the
above comments in order to strike a better balance between
the contracting authority and economic
the interests of
operators. This is a clear move away from so-called ‘cherry
picking’. The ESC also feels that these procedures will enable
SMEs to take part in large-scale projects.

(1) See Conclusions, point 17, fourth indent.
(2) According to the Commission, it would therefore not appear
necessary to provide a transitional period during which the
parallel use of traditional means would be compulsory, especially
as businesses will benefit de facto from a transitional period by
virtue of the time-limits for adoption and transposition put
forward in the present proposal.

4.5.
The Commission considers it necessary to introduce
more flexible purchasing techniques using framework agree-
ments as a means of revamping the directive with a view to
permitting the use of flexible purchasing techniques enabling
purchasers to benefit from product developments and price
changes. Framework agreements are not contracts to the extent
that they do not lay down specific terms and thus cannot give
rise to performance as a contract does. The ESC has its doubts
about this measure, and feels it should not be part of the

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directive. It constitutes nothing more than a pre-selection, in
that ‘framework agreements’ are to be used in the case of
repetitive purchases to choose certain economic operators
who, when the time comes, will be able to meet the purchasers’
needs, enabling purchases to be made under better conditions
in keeping with the constant development of the market
for certain products and services. Exempting contracting
authorities from the obligation to publish details of contracts
awarded once a framework agreement is in place is question-
able in the light of the overall objective of transparency in the
conditions governing the awarding of public contracts. There
is also a risk that the envisaged procedure will encourage
certain contracting authorities to haggle over prices.

and in the TED database. The proposed directive merely states
that the EU Publications Office must publish notices of calls to
tender through the official channels. It is therefore no longer a
requirement that calls to tender be accessible on a particular
database, but simply that they be made public on the Internet
and in a non-indexed form. Some 3 000 to 4 000 invitations
to tender are published every week, making it difficult,
especially for SMEs, to determine which of these are relevant
to their field of activity. The ESC has misgivings about calls to
tender not being published on the TED or similar indexed
database, which can be searched quickly and accurately. The
Committee therefore feels that invitations to tender should at
the very least continue to be published in this database.

The current provisions on technical specifications (1)
4.6.
are designed to require public purchasers to define technical
specifications by reference to an exhaustively listed set of
instruments so as to avoid conferring any advantage on a
given economic operator or giving preference to national
production. The most important of these instruments is the
standard - preferably European, international or failing that,
national; European Technical Approval for e.g. building prod-
ucts (cf. Directive 89/106/EEC) may also be used as a reference.

4.6.1.
Application of the provisions of the directives has
led in certain cases to a situation where standards have been
treated as de facto requirements, thereby limiting the buyer’s
choice to only those products which comply with the standard
and introducing hidden constraints.

This obstructs the introduction of

technological
4.6.2.
innovations. The proposed changes apply to all purchases of
goods, works and services under the so-called ‘classic’ directives
as well as purchases under the Utilities Directive.

4.6.3.
The ESC feels that the new wording (Article 24) is to
be welcomed in that it adds performance and functional
requirements to the list of permitted references (Article 24(5)
ff.)

4.7.
Article 25 allowing recourse to variants, including the
provision that these should be subject to the same provisions
as for technical specifications, is also to be welcomed. The use
of standards in individual countries must not lead to a situation
where an experimental standard is recognised on an equal
footing with a fully valid European standard.

4.8.
The existing directives provide for publication of
invitations to tender in the Official Journal (‘S’ supplement)

4.9.
Strengthening the provisions relating to award and
selection criteria is an excellent innovation in that the current
provisions concerning award criteria (Article 36(2) of Directive
92/50/EEC, Article 26(2) of Directive 93/36/EEC and
Article 30(2) of Directive 93/37/EEC) stipulate that these
criteria must be listed in the contract notice or in the
contract documents, ‘where possible’ in descending order of
the importance attached to them by the contracting authority.
This provision is far from binding as regards the mention of a
descending order of importance, and contracting authorities
still enjoy a considerable margin of discretion when awarding
contracts. It makes sense to establish a general rule making it
compulsory to state the relative weighting of the criteria from
the start of each procedure. The aim of the new directive is to
make it compulsory to state the relative weighting of each
criterion at
the contract notice stage or in the contract
documents (2). The ESC fully endorses the weighting of criteria
for awarding the contract to the most economically advan-
tageous tender under Article 53 of the directive as this will
increase transparency in the procedures for awarding contracts
and ensure equal treatment of tenderers. The obligation to
apply objective criteria announced in advance so as not to
limit the number of candidates invited to tender in the case of
restricted and negotiated procedures is also an excellent
provision. A guarantee of remuneration according to the legal
and administrative provisions in force in individual states
cannot be required for services by self-employed persons, e.g.
architects and lawyers, alone. There must also be some binding
provision in the directive giving analogous material protection
for the established rights of workers in the EU. The following
sentence of
should therefore be inserted in the first
Article 53(1) after ‘... of certain services’:
‘... and existing
remuneration obligations deriving from collective agreements
and laws in force in the place where the contract is to be
carried out, ...’.

(1) The Supply (93/36/EEC), Works

(93/37/EEC) and Services
(92/50/EEC) Directives contain the same provisions regarding
common technical rules. The Utilities Directive (93/38/EEC)
contains broadly equivalent provisions.

(2) This weighting may take different forms (in particular, it may be
expressed as a percentage or in terms of relative share compared
with another criterion) and to ensure a certain flexibility, may be
expressed as a range within which the value attributed to each
criterion shall be stated.

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4.9.1.
If the contracting authority can justify the provisions
on complex contracts (Article 29) the proposed arrangements
may be deemed satisfactory. The ESC would stress that it is
not desirable to give too narrow and complex a definition of
the term ‘public contract’ as both economic and technical
developments make an exact specification difficult. Neverthe-
less, the ESC welcomes the fact that the contracting authority
is required to state the criteria and weighting in the invitation
to tender (for restricted and negotiated procedures) or in
the invitation to participate in the dialogue (for negotiated
procedures in the case of complex contracts). In other cases —
open procedures — failure to state the relative weighting right
at the start of the procedure may render the procedure void.

The directive leaves it up to the contracting authority
4.9.2.
to set the specific level of economic operators’ capacity and
experience required for a given contract; this makes it possible
to select applicants on the basis of their ability to carry out the
contract under optimum conditions. In the case of restricted
procedures and negotiated procedures with publication of a
contract notice, imposing the obligation to justify any limi-
tation of the number of applicants on the basis of specific
levels of capacity and experience increases the transparency of
these procedures.

4.9.3.
Similarly, the Committee proposes that the text of
the Directive specifies that a tenderer could also be excluded if
a serious infringement of social or environmental laws has
been established. This is already possible under the current
Directives but it will be reinforced and clarified by a specific
mention in the text of the future Directive.

4.9.3.1.
In particular, the Committee believes that consider-
ation should be given to the personal record of the tenderer,
excluding from participation in a contract any economic actor
who has breached employment laws, including equal treatment
provisions, of the Member States. In this way procurement
agencies could exclude tenderers who do not respect national
and regional regulations which aim to achieve certain social
objectives.

4.9.3.2.
It is also important to evaluate the technical and
professional abilities of tenderers through establishing certain
criteria which allow verification of compliance with compul-
sory legislation regarding the promotion of employment,
integration of persons excluded from the labour market and
equal treatment, such criteria to be duly published in the notice
for tender.

4.9.4.
As regards Article 49, the ESC would point out
that some Community countries use a system of service
certification and this type of certification should be included
among the criteria referred to in this article, but without
allowing it to become a hidden obstacle to competition.

4.10.
In the case of abnormally low tenders (Article 54) it
should be stipulated that contracting authorities are to examine
tenders which seem to be abnormally low compared to the
others submitted in line with the Government Procurement
Agreement (Article XIII(4)(a)). It should be clearly stated that
the tenders in question are to be rejected if adequate justifi-
cation is not forthcoming. The ESC proposes that the directive
should incorporate a method of providing contract (or per-
formance) bonds and would provide an option for the
contracting authority to require such a bond for large contracts,
i.e. those which exceed the thresholds provided for in Article 8c
of the Directive. The objective should be to guarantee trans-
parency and equality of treatment with regard to fiscal and
economic conditions. The contracting authorities must follow
a specific procedure for identifying, examining and eliminating
such tenders regardless of whether the tenderers are public or
private bodies.

The current directives lay down a wide range of
4.11.
thresholds. Often, it is not easy to establish which threshold is
applicable to a specific public contract. There is an urgent need
to reduce the number of different thresholds and to remove all
references to ‘the equivalent in euro of SDR’, stating all
thresholds in euros up to the full extent compatible with the
Community’s international obligations under the Government
Procurement Agreement (GPA), concluded in the Uruguay
Round multilateral negotiations (1). The thresholds will hence-
forth be stated in euros and rounded up. The ESC regards the
proposed thresholds as satisfactory (2).

Use of a Common Procurement Vocabulary (CPV)
4.12.
was the subject of a Commission Recommendation in 1996 (3).
This nomenclature represents a further development of and an
improvement to the CPC and NACE nomenclatures in that it
is better suited to the specific characteristics of the public
procurement sector. Since the CPV will be the subject of a
proposal by the Council and the Parliament for it to be
formally adopted as the Community nomenclature applicable
to public contracts, and this proposal will lay down arrange-
ments for its revision, the ESC is not in favour of it being
retained in the present directive.

(2) Directive

(1) Council Decision 94/800/EC of 22.12.1994 concerning the
conclusion on behalf of the European Community, as regards
matters within its competence, of the Agreements reached in the
Uruguay Round multilateral negotiations (1986 to 1994) (OJ
L 336, 23.12.1994, p. 1).
93/37/EEC:

of
a
EUR 5 300 000 applicable to all contracts and concessions falling
under the scope of
the directive. Directives 93/36/EEC and
92/50/EEC: two thresholds, of EUR 130 000 or EUR 200 000,
depending on whether the contracting authority has the status of
a central or of a non-central authority; applicable to all contracts
and to design contests falling under the respective scope of the
directives.

threshold

single

(3) Commission Recommendation 96/527/EC of 30.7.1996 on the
use of the Common Procurement Vocabulary (CPV) for describing
the subject-matter of public contracts (OJ L 222, 3.9.1996).

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4.13.
The ESC wholeheartedly endorses the repetition of
Article 55 on exclusive rights as this is extremely important.
Unfortunately, simply repeating it does not solve the question
of prior awarding of exclusive rights which is a particular
problem in the awarding of service concessions. This goes
back to the comments made above on concessions contracts

and public-private partnerships, and the ESC would reiterate
that the interpretative communication is extremely important
in this respect in that it states quite clearly that the award of
exclusive rights is to be subject to the rules of the Treaty and
the guiding principles of Court of Justice case law.

Brussels, 26 April 2001.

The President

of the Economic and Social Committee

Göke FRERICHS

APPENDIX

to the Opinion of the Economic and Social Committee

The following amendments were rejected during the debate, but received more than a quarter of the votes cast:

Point 2.3

Amend as follows:

‘When assessing the quality of the tenders, the contracting authorities must in principle work within the objective
criteria related to the tender in questionwhich are directly related to the product or service and which are designed to
select the best , most favorable tender, in order to avoid discrimination between the tendering parties.

Nevertheless it is legitimate for the contracting authorities to take social and environmental aspects into account,
provided that they are designed to ensure that current national and European social and economic legislation is
complied with.’

Reason

Assessment of tenders for the award of public contracts must be carried out on the basis of criteria directly related to
the object of the contract, which further the aim of selecting the best and most advantageous tender, in the interests
of transparency, competition, non-discrimination and the most appropriate award of public contracts.

Although environmental assessment criteria may be accepted provided they comply with the principle set out in the
paragraph above, we believe that the introduction of social considerations — where not relating exclusively to
compliance with a legal requirement — do not have the purpose of assessing tenders objectively in terms of the
planned project, but may reflect political issues or the demands of particular social organisations, and these should
not encroach upon the award of public contracts. The possibility of public authorities arbitrarily introducing such
clauses, which go beyond the requirements of law, inevitably leads to distortions of competition and is damaging to
the principle of equality of opportunity and transparency — in contradiction with the aim of the draft directive,
which is to harmonise procedures and enhance the functioning of the internal market.

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Result of the vote

For: 46, against: 59, abstention: 0.

Point 2.6

Change the second sentence to read:

‘Social criteria could also be developed in a specific manner in Article 53, as long as they have no direct or indirect
discriminatory effect and are compatible with the main purpose of the contract.’

Reason

The further requirement that there should be no discriminatory effect is important in order to prevent protectionist
practices. This amendment also corresponds to the text of the parallel opinion INT/074. We must ensure that the
two opinions are consistent with each other.

Result of the vote

For: 50, against: 61, abstention: 1.

Point 4.9

Delete the last three sentences (from ‘A guarantee of remuneration ...’).

Reason

The guarantee of remuneration provided for in Article 53 in accordance with legal and administrative provisions in
force in individual states is already very problematic. The call to extend this to ‘collective agreements and laws in
force in the place where the contract is carried out’ would in practice seriously hamper, if not prevent, cross-border
competition. Taking local laws into account would create a high barrier for external competitors. Furthermore,
collective agreements are not legal provisions but agreements between the parties. Requiring that they be observed
would discriminate against any company not covered by a collective agreement.

Result of the vote

For: 51, against: 61, abstention: 1.

Point 4.9.3

Amend the end of the first sentence to read:

‘... if a serious infringement ... has been established by a court’.

Reason

Exclusion can only be permitted if a tenderer has been legally convicted.

Result of the vote

For: 40, against: 73, abstentions: 4.

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Points 4.9.3.1 and 4.9.3.2

Delete.

Reason

The requirement that tenderers who have breached member state employment laws should be excluded indefinitely
and that tenderers should be evaluated on the basis of ‘certain criteria which allow verification of compliance with
compulsory (i.e. national) legislation’ would in practice lead to completely unmanageable and possibly even arbitrary
discrimination, especially against external competitors. Even minor breaches of national provisions could lead to
exclusion of tenderers or prolonged checks and legal disputes. The process of monitoring these criteria alone would
cause huge problems for public authorities.

The amended version of point 4.9.3 is sufficient to prevent serious violations. The other requirements go against the
principle of proportionality and should not be included.

Result of the vote

For: 53, against: 71, abstention: 1.

The following point in the section opinion was rejected during the discussion in favour of an amendment, but
received more than a quarter of the votes cast:

‘2.5.
The ESC would also take issue with the lack of references in the proposal to environmental considerations
which are crucial to Europe’s future. Reasonably compatible environmental criteria which do not distort the contract
could be incorporated in more specific terms in Article 53. These should only be taken into account when they have
a decisive influence on the environmental impact depending on how the tenderers intend to carry out the works.’

Result of the vote

For: 48, against: 30, abstentions: 4.