Commission interpretative communication on the Community law applicable to public procurement and the possibilities for integrating environmental considerations into public procurement
Date: 2001-07-04
Institutions: European Commission
Subjects: award of contract, environmental protection, environmental standard, public contract, services contract, supplies contract, works contract

C 333/12

EN

Official Journal of the European Communities

28.11.2001

Interpretative communication of the Commission on the Community law applicable to public
procurement and the possibilities for integrating environmental considerations into public
procurement

(2001/C 333/07)

(Text with EEA relevance)

(COM(2001) 274 final)

EXECUTIVE SUMMARY

Achieving sustainable development
in practice requires that
economic growth supports social progress and respects the
economic
environment,
performance, and that environmental policy is cost effective.

underpins

policy

social

that

As stated in the Commission communication of May 2001 on
(cid:145)A sustainable Europe for a better world: a European Union
strategy for sustainable development(cid:146), to be presented to the
meeting of the European Council in Gothenburg in June 2001,
Member States should consider how to make better use of
public procurement
friendly
products and services. The present communication is a
contribution to that end.

environmentally

to favour

The objective of this document is to analyse and to set out the
possibilities of the existing Community legal framework with
regard to the integration of environmental considerations into
public procurement.

The introduction of further possibilities that go beyond the
ones offered by the existing legal framework requires inter-
vention from the Community legislator.

Existing environmental and other legislation, either Community
legislation or national legislation compatible with Community
law, is binding upon contracting authorities and may have an
influence on the choices to be made and the specifications and
criteria to be drawn up by contracting authorities.

The main possibilities for (cid:145)green purchasing(cid:146) are to be found at
the start of a public purchase process, namely when making
the decision on the subject matter of a contract. These
decisions
the public
procurement directives, but are covered by the Treaty rules
and principles on the freedom of goods and services, notably
the principles of non-discrimination and proportionality.

covered by the

rules of

are not

to integrate environmental considerations

The public procurement directives themselves offer different
possibilities
into
public purchases, notably when defining the technical specifi-
cations,
the selection criteria and the award criteria of a
contract.

specific
In addition,
additional conditions that are compatible with the Treaty rules.

contracting authorities may impose

Public contracts not covered by the public procurement
the
directives are subject

to the rules and principles of

Treaty. Here, it depends on national law whether contracting
authorities have further possibilities for (cid:145)green purchasing(cid:146).

INTRODUCTION

The objective of this document is to analyse and to set out the
possibilities of the existing Community legal framework with
regard to the integration of environmental considerations in
public procurement, offering thus to public purchasers the
possibility to contribute to sustainable development.

for
and the

the non-discriminatory

Public procurement policy is one of the many elements of
single market policy, which includes its strategic targets (in
particular the free movement of goods, persons and services).
Public procurement policy aims at contributing to the real-
isation of the single market by the creation of competition
necessary
award of public
contracts
allocation of public money
through the choice of the best offer presented. Implementing
these principles enables public purchasers to obtain the best
value for money, following certain rules on how to define the
subject matter of
the
candidates according to objective requirements and the award
of the contract solely on the basis of the price or alternatively
on the basis of a set of objective criteria.

the selection of

the contract,

rational

for

from 1971, when the

the Community Directives on public
The history of
procurement dates
first directive
relating to public work contracts was adopted. Since then,
directives on public supply contracts and public service
contracts have been adopted, as well as directives for the
the
utilities
directives, though amended several times, was never essentially
modified.

sector (1). The basic concept and system of

The public procurement directives do not contain any explicit
reference to environmental protection or considerations or any
other aspects beyond the core internal market policy, which is,
regarding the time of adoption of
these directives, not
surprising.

Since the adoption of the public procurement directives, action
in the field of environment has evolved at the initiative of the
Community and the Member States.

The Amsterdam Treaty has reinforced the principle of inte-
gration of environmental requirements into other policies,
recognising that it is key in order to achieve sustainable devel-
opment (2).

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for the Sixth environmental
Also the Commission proposal
action programme, which covers the years 2001-2010, has
an area which has
identified public procurement
considerable potential
through
public purchasers using environmental performance as one of
their purchase criteria (3).

the market

(cid:145)greening(cid:146)

for

as

Sustainable development offers the European Union a positive
long-term vision of a society that is more prosperous and more
just, and which promises a cleaner, safer, healthier environment
(cid:151) a society which delivers a better quality of life for us, for
our children, and for our grandchildren. Achieving this in
practice
social
that
progress and respects the environment,
that social policy
underpins economic performance, and that environmental
policy is cost-effective (4). In relation to public procurement,
this means that the legislative framework should facilitate the
taking into account of environmental concerns alongside its
primary economic purpose.

economic growth supports

requires

communication on the

There is no inherent contradiction between economic growth
and the maintenance of an acceptable level of environmental
quality. Accordingly, the issue should not be seen as one of
to achieve
economic growth versus the environment, but
synergies between the two. The Commission has recognised
in its
and the
single market
environment (5)
the increasing openness of markets
coupled with growing environmental challenges and greater
that
environmental awareness have revealed synergies, but
there are inevitably also tensions between the functioning of
the single market and the implementation of environmental
policy. It is therefore stated that the Community must seek a
coherent approach to the pursuit of the objectives of the Treaty
in relation to both the single market and the environment
whilst also honouring its international obligations.

that

Also at world level,
evolved
environmental
significantly. An example of these evolutions is the adoption
of
the Kyoto Protocol. The European Union has made a
commitment in the protocol to the climate change convention
for
agreed in Kyoto, which has
reduction of greenhouse gases by the time frame 2008-2012.

set an ambitious

action has

target

With the growing amount of scientific information available
and the increasing public awareness of both the origins as
well as the consequences of environmental pollution,
there
has been, for several decades, an increase in the interest in
contributing to the prevention of environmental pollution
and contributing to sustainable development. A considerable
number of consumers in the European Union, both private
and public, tend more and more to purchase environmentally
sound products and services.

Public purchasers and other entities covered by the public
procurement directives constitute an important group of

consumers. By their purchases, which represent more than
EUR 1 000 billion or about 14 % of the Union’s GDP, public
purchasers could substantially contribute to sustainable devel-
the responsibility regarding the real-
opment. Conscious of
initiatives for (cid:145)greening(cid:146)
isation of sustainable development,
public procurement at national and local
level have already
been launched in a number of Member States.

Even though the Commission has indicated already some of the
main possibilities in the communication of March 1998 (6),
public purchasers are confronted with the fact that it is often
not clear to what extent environmental considerations are
compatible with the existing Community legislation on public
procurement.

The Commission has committed itself to explain in greater
detail the possibilities for taking into account environmental
considerations in public purchases that are offered by the
existing public procurement legislation.

this

In addition to
the
interpretative
Commission intends to produce a handbook on green public
procurement with examples on how to draw up green calls for
tender in conformity with Community law (7).

communication,

One must keep in mind, as is expressly mentioned in the
the Commission
communication of 11 March 1998,
cannot,
this one,
propose solutions which go beyond the existing public
procurement regime. Moreover interpretation of Community
law is ultimately of the sole competence of the Court of Justice.

in an interpretative document

such as

that

for

If it is considered that the current public procurement regime
the taking into
does not allow adequate possibilities
account of environmental considerations,
then modification
of
the public procurement directives would be necessary.
One should note that in the proposals for modification of
the public procurement directives, adopted by the Commission
on 10 May 2000, environmental characteristics are listed
explicitly amongst the criteria which may serve to identify
the most economically advantageous tender (8).

The objective of this document is therefore to examine
and clarify the possibilities offered by the existing
public procurement regime in order to enable the
optimum consideration of environmental protection
in public procurement. The document will follow the
different phases of a contract award procedure and
examine at each stage how environmental concerns
may be taken into consideration.

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I. DEFINITION OF THE SUBJECT MATTER OF THE CONTRACT

the subject matter of

The first occasion for
taking into account environmental
considerations relative to a public contract, is the phase just
before the public procurement directives will be applicable: the
to
actual choice of
simplify the question (cid:145)what do I, public authority, wish to
construct or purchase?(cid:146) At this stage, purchasing authorities
have a (cid:145)wide(cid:146) opportunity to take into account environmental
considerations and choose an environmentally sound product
or service. How far this will effectively be done depends to a
great extent on the awareness and knowledge of the purchasing
entity.

the contract or,

It should be emphasised that existing environmental or other
legislation, either Community legislation or national legislation
compatible with Community law, may well limit or influence
this freedom of choice (9).

The possibilities for the taking into account of environmental
types of
considerations differ according to the different
contracts.

to

for

take

authorities

contracting

Work contracts cover not only the final product, the work,
the works. The best
but also the design and execution of
opportunities
into
consideration environmental concerns are to be found in the
phase of the design and the conceptual work. Contracting auth-
orities could give clear instructions to the architects and/or
engineers to design for example, a low-energy consuming
administrative building, not only taking account of insulation
and the use of specific construction materials, but also the
installation of solar cells for the generation of warmth. They
could equally require that the building be designed so that the
use of elevators is necessary only to a limited extent and that
the orientation of offices and tables limits the use of artificial
lamps (10).

Contracting authorities are responsible not only for the choice
of the work or concept/design itself, but also for the overall
execution of the works and all that happens on and around the
construction site. Purchasing entities are therefore entitled to
define the requirements for the execution of the works. This
offers a number of possibilities for the taking into account of
environmental
instance,
relating to energy and water use or waste
requirements
management on and around the construction site. Here, one
could think of the construction of bridges over rivers in natural
reserves and in areas where tides of
the sea must not be
disturbed because of the specific geographical situation where
the work has to be carried out (11).

considerations,

through,

for

For a specific category of work contracts, Community law
imposes an obligation to make, previous to the decision of
having
impact
assessment (12). This obligation, which originates from environ-
mental
from the public procurement
directives, influences the choice of the purchasing entity. The

legislation and not

environmental

the work

executed,

an

the environmental

obligation for the competent authorities to take into account
the results of
in the
decision whether or not to give authorisation or consent for
development, tends to lead to more environmentally sound
requirements for the execution of the works.

impact assessment

As to service contracts, the nature of these contracts implies
a mode of performing.
also a possibility to prescribe
Contracting authorities
a
example, prescribe
specific method of building cleaning, using only those
products that are least harmful
for the environment. They
could also define that, for instance, public transport services
are to be carried out by electric buses. They could also
prescribe the method for the collection of household waste.

could,

for

the subject matter of

Supply contracts relate, generally, to the purchase of final or
end products. Therefore, apart from the basic and essential
choice of
I
purchase?(cid:146)), the possibilities to take into account environmental
considerations in addition to this choice are not as extensive as
for works and service contracts. Environmental awareness will
influence this choice.

the contract

((cid:145)what shall

The public procurement directives do not prescribe in any way
what contracting authorities should buy and are consequently
neutral as far as the subject matter of a contract is concerned.

exist

If different possibilities
fulfilling their needs,
contracting authorities are free to define the subject matter
of the contract in the way that they consider to be the most
environmentally sound (13) even through the use of variants
(see point II.1.4).

for

This freedom is, however, not entirely unlimited. A contracting
authority, as a public body, has to observe the general rules
and principles of Community law. More precisely, these are the
principles regarding the free movement of goods and services
as laid down in Articles 28 to 30 (formerly 30 to 36), and 43
to 55 (formerly 52 to 66) of the EC Treaty (14).

This implies that the subject matter of a public contract may
not be defined with the objective or the result that the access
is limited to domestic companies to the
to the contract
detriment of tenderers from other Member States.

Contracting authorities are free to define the subject
matter of the contract, or alternative definitions of the
subject matter through the use of variants, in the way
that that they consider to be the most environmentally
sound, provided this choice does not result
in a
restricted access to the contract in question to the
detriment of tenderers from other Member States.

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The question of whether a measure is compatible with
Community law depends on a case-by-case assessment. As
announced in the communication from the Commission to
the European Parliament and the Council on the single
market and the environment, the Commission will produce a
handbook on the application of Articles 28 to 30 of the Treaty.

The rules set out above are applicable to all public contracts,
irrespective of the fact whether they fall within or outside the
scope of application of the public procurement directives (15).

After having made the first choice on the subject matter of the
contract, the public procurement directives oblige contracting
authorities to specify the characteristics of the subject in a
manner such that it fulfils the use for which it is intended
by the contracting authority. To this end,
the directives
contain a number of provisions relating to common rules in
the technical field, to be specified in the contract documents
relating to each contract.

these, reference can be
instruments and in the absence of
made to international or national standards or comparable
instruments (17).

In addition to this obligation,
the directives prohibit
mentioning products of a specific make or source or of a
particular production because
these generally favour or
eliminate certain undertakings. The indication of trade marks,
patents, types, or of a specific origin or production is auth-
orised only in cases where the subject of the contract may not
be sufficiently precise and intelligible to all parties concerned.
Such indication must always be accompanied by the terms (cid:145)or
equivalent(cid:146) where the directives provide such exceptions.

Contracting authorities can depart from these rules and refrain
from the reference to standards or comparable instruments.
This is notably the case where the contract is of a genuine
innovative nature for which the use of such instruments
would not be appropriate.

II. CONTRACTS COVERED BY THE PUBLIC PROCUREMENT

DIRECTIVES

1. TECHNICAL SPECIFICATIONS OF THE SUBJECT MATTER OF
CONTRACTS AND THE POSSIBILITY TO DEFINE REQUIREMENTS
RELATING TO ENVIRONMENTAL PERFORMANCE

the obligation to refer

should be emphasised that

It
to
(European) standards, does not imply that contracting auth-
orities are bound to purchase only products or services in
conformity with these. The obligation is only to refer to
these instruments as a benchmark, leaving the possibility for
suppliers to offer equivalent solutions.

for

rule

contracting

authorities. All

contain the
define

As a preliminary remark, it should be emphasised that environ-
mental or other legislation, either Community legislation or
legislation compatible with Community law is of
national
course
public
binding
procurement directives
the way
is
authorities
contracting
(cid:145)without prejudice to the legally binding national technical rules(cid:146) (16).
This
legislation is
compatible with Community law, national legislation may, for
instance, prohibit
the use of specific substances which the
national authorities consider harmful for the environment, or
may oblige the observance of a specific minimum level of
environmental performance. Contracting authorities are, of
course, bound to observe such legislation.

that, on condition that

specifications

technical

implies

that

this

to enhance

In order
the directives oblige
transparency,
contracting authorities to indicate the technical specifications
in the general or contractual documents relating to each
contract. The objective of these rules is the opening up of
public markets,
the creation of genuine competition and
preventing markets being reserved for national or specific
undertakings (i.e. avoiding discrimination). Technical specifi-
cations include all characteristics required by the contracting
authority in order to ensure that the product or service fulfils
the use for which it is intended. These technical specifications
give objective and measurable details of the subject matter of
the contract and therefore have to be linked to the subject
matter of the contract.

The public procurement directives contain a detailed system of
obligatory references to standards and comparable instruments,
with a clear hierarchy: preference is given to the European

At present very few European and national standards exist that
deal with environmental performance of products
and
services (18). This implies that until environmental performance
attributes will be integrated into standards, contracting auth-
orities can define the required level of performance, provided
that this does not lead to discrimination.

Contracting authorities are free to define on specific
points that they require a higher level of environ-
mental protection than that laid down in legislation
or in standards, on condition that the level required
does not limit the access to the contract and lead to
discrimination to the detriment of potential tenderers.

1.1. The possibility to prescribe which basic or primary

materials shall be used

The concept of (cid:145)technical specification(cid:146) includes the possibility
of prescribing the basic or primary materials to be used, if this
contributes to the characteristics of the product or service in
such a manner that it fulfils the use for which it is intended by
the contracting authority. As
these prescriptions
observe Community law and are, in particular, non-discrimi-
natory, contracting authorities may prescribe for a specific
contract
the materials which are to be used. This could
include for instance that for a specific contract the window
frames of an administrative building are made of wood or a
requirement for recycled glass or other recycled materials.

long as

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1.2. The possibility to require the use of a specific

production process

The definition of technical specifications in the directives does
to production processes (19). However,
not explicitly refer
provided that this will not reserve the market to certain under-
takings (20), the use of a specific production process may be
required by contracting authorities if this helps to specify the
performance characteristics (visible or invisible) of the product
or service. The production process covers all requirements and
aspects related to the manufacturing of
the product which
contributes to the characterising of the products without the
latter being necessarily visible in the end-product.

its manufacture or
visible
are

This implies that the product differs from identical products in
the
terms of
environ-
differences
or
mentally-sound production process has been used,
e.g.
foodstuffs (21),
electricity.
organically
Contracting authorities must be careful that the prescription
of a specific production process is not discriminatory (22).

appearance
because

(whether
an

grown

(cid:145)green(cid:146)

not)

or

Requirements which do not relate to the production itself, like
the way how the firm is run, on the contrary, are not technical
specifications and can therefore not be made mandatory (23).

1.3. The possibility to refer to eco-labels

Eco-labels certify products that are deemed to be more envi-
ronmentally sound than similar products in the same product
group. The labels are awarded on a voluntary basis to products
fulfilling specific criteria and they aim at informing consumers
about environmentally sound products.

Different types of eco-labels exist: the European eco-label (24),
national eco-labels and pluri-national eco-labels. There are also
private eco-labels (25).

For the various product groups, the underlying criteria are
specified in the relevant instruments (26).

These criteria are based on the lifecycle of the product and
relate to different aspects,
the
products, materials contained in the products, production
instructions and
processes,
consumer
specifications
within the meaning of the public procurement directives.

take back and recycling, user
information. They

such as: performance of

technical

are

national, pluri-national or Community level. Private eco-labels
do not provide the same guarantees as to their transparency
and equal access, as European and national eco-labels decisions.

In the absence of mandatory references (28), or where
they require a higher level of environmental protection
than that
legislation,
laid down in standards or
contracting authorities can define the technical specifi-
cations related to the environmental performances in
line with eco-label criteria and may indicate that
products having
are
deemed to comply with the technical prescriptions of
the contract documents.

certificates

eco-label

these

Contracting authorities have to be careful not to limit
the
means of proof only to eco-label certificates (29). They shall
accept also other means of proof, like test reports. This is of
relevance in the case of national and private
particular
eco-labels, to ensure that the specification and the means to
assess the conformity with the specification would not result in
the reservation of the contract to national/local companies (see,
also, Article 8 of Directive 93/36/EEC).

1.4. The possibility to use variants

are

that

and services

less damaging for

Products
the
environment can be, generally speaking, more expensive than
other products and services. When defining the subject matter
of a contract, contracting authorities have to find a balance
between their financial considerations, on the one hand, and
their objectives of greening their purchases, on the other hand.

The use of variants (30) enables contracting authorities to assess
which option best meets both of these requirements.

When using this possibility, contracting authorities first define
a standard definition for the subject matter of the contract that
lays down the minimum requirements.
In addition to this
standard definition, contracting authorities can define one or
more variants,
the
laying down alternative definitions of
instance a higher environmental
subject matter,
like for
performance or
the use of a specific production process
which was not a requirement in the standard definition.

European, pluri-national and national eco-label decisions are
taken in accordance with procedures
laid down in the
relevant instruments (27). These systems guarantee transparency
and are open to all producers/suppliers.

Private eco-labels are issued by private persons or organi-
sations. In order to use a private eco-label, the authorisation
from the owner of the label is necessary. There are no common
characteristics or a common system agreed or harmonised at

2. SELECTION OF THE CANDIDATES

This chapter sets out
the public procurement
the rules of
directives relating to the selection of those candidates whom
the contracting authority considers able to execute its contract.

The rules laid down in the public procurement directives
consist of three different types.

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justify a
The first set of rules concerns the grounds that
candidate’s exclusion from participating in a public contract.
These relate to, e.g. the state of bankruptcy, conviction for
offences, grave professional misconduct, non-payment of
social security contributions or taxes.

The concept of grave professional misconduct is a concept
which is, as such, not yet defined in European legislation or
case law (34) and it is therefore left to the Member States to
define this concept in national legislation.

The second set of rules concerns the candidate’s financial and
economic standing. These rules do not offer possibilities to take
into account environmental considerations.

rules concerns

the candidate’s

technical
The third set of
capacity. These rules enable, to a certain extent, environmental
considerations to be taken into account, by defining e.g. a
minimum level of equipment or facilities, guaranteeing the
the contract. The directives specify (31)
correct execution of
that the information required for evidence of the operator’s
technical
financial and economic standing as well as for
capacity must be confined to the subject matter of
the
contract. The possibilities contained in these rules will be set
out below.

In the utilities sectors, the contracting entities dispose of a
wider margin of appreciation for
the
capacity of candidates or tenderers in so far as Directive
93/38/EEC only requires that objective rules and criteria are
applied which are defined beforehand and are put at
the
disposal of interested candidates or tenderers.

the assessment of

2.2. Requirements relating to the technical capacity of the

candidates

The public procurement directives define the means by which
evidence of a contractor’s technical capability may be supplied.
The public procurement directives exhaustively list (35)
the
references by which technical
capacity may be proved
the
according to the nature, quantity and purpose of
contract. Therefore, each individual requirement relating to
the candidate’s technical capacity, defined by a contracting
authority must come within one of the references listed in
the directives.

The objective of
the selection phase is to identify those
candidates, which are considered by the contracting authority
in the best way.
to be capable of executing the contract
Therefore, the different requirements must have a direct link
to the subject matter or the execution of
the contract at
stake (36).

Among the references
listed exhaustively by the public
procurement directives, the following could in specific cases
relate to environmental aspects:

2.1. Grounds for exclusion from participation in the

contract

(cid:151) a statement of the tools, plant and technical equipment
available to the candidate for executing the contract,

All public procurement directives define the grounds on which
enterprises may be excluded from participating in tender
procedures. These grounds read, as far as relevant, as follows:

(cid:145)Any supplier/contractor/service provider may be excluded from
participation in the contract who:

(c) has been convicted of an offence concerning his professional
conduct by a judgment, which has the force of res judicata;

(d) has been guilty of grave professional misconduct proven by
any means, which the contracting authorities can justify;(cid:146)

the public procurement directives

In the case where legislation qualifies the non-compliance with
environmental legislation as an offence concerning professional
conduct (32),
allow a
contracting authority to exclude a candidate from participation
on the ground mentioned under (c) where this undertaking is
convicted for committing this offence and where the judgment
has the force of res judicata.

(cid:151) a description of

its
measures for ensuring quality and its study and research
facilities,

the supplier’s

technical

facilities,

(cid:151) a statement of the technicians or technical bodies which the
candidate can call upon for executing the contract, whether
or not they belong to the firm, especially those responsible
for quality control.

2.2.1. The possibility to require specific (environmental) experience

If the contract needs specific know-how in the field of the
environment, specific experience is a legitimate criterion of
technical ability and knowledge for the purpose of ascertaining
the suitability of candidates (37) and may therefore be required
(e.g. the construction of a waste treatment plant).

2.2.2. The possibility to require suppliers to operate an environ-

mental management scheme

Moreover,
the Commission has proposed a Community
directive defining a minimum set of criminal offences to the
detriment of the environment (33).

Environmental management schemes have been set up by an
international standard (ISO 14001) and in an EC Regulation
(EMAS (38)).

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a

establishes

environmental
The Regulation
management scheme, based on harmonised lines and principles
the European Union, open to organisations
throughout
operating
European
Economic Area, in all sectors of economic activities.

European Union and

voluntary

in the

the

to

promote

The aim of the European environmental management scheme
performance
is
by
services
improvements
committing organisations
their
significant environmental impacts.

environmental
and
products
and manage
to evaluate

continuous
activities,

of

The implementation of EMAS requires following several steps.
The environmental review is the initial step which allows
organisations to evaluate their environmental situation and
therefore to build up the appropriate management system to
through clear
environmental performance
lead to better
environmental
audits
objectives. Regular
provide for
the environmental
management system works and to follow the progress of the
organisation towards better environmental performance.

to check that

environmental

the means

Amongst these steps, registration in the scheme requires that
the organisation adopts an environmental policy containing, in
particular, the following key commitments:

(cid:151) compliance with all relevant environmental legislation,

(cid:151) prevention of pollution, and

(cid:151) achieving continuous

improvements

in environmental

performance.

As part of EMAS all participating countries have created verifi-
cation mechanisms, by which compliance to EMAS is verified
and information validated by independent verifiers who are
accredited by accreditation bodies. This validation leads to
request for registration which is granted by the competent
bodies, designated by the Member State.

management and audit scheme can be qualified as one of
these references depends on the contents of the specific system.

is however important

to underline that common to all
It
environmental management and audit schemes is that
the
company or organisation fulfils a number of minimum
criteria and that all such systems represent a high level of
environmental performance and management.

In order to be relevant as a means of proof of technical
capacity, the system should have an impact on the
quality of the supply or the capacity of a company
to
(for example the equipment
execute a contract with environmental requirements
(for
for which the
contractor has to deal with waste on the construction
site).

and technicians)

a works

example,

contract

environmental

Therefore, whenever elements of a company’s or
organisation’s
and
management scheme could be regarded as one or
more of the references that could be required for
establishing a company’s technical capacity (40)
the
EMAS registration could serve as a means of proof.

programme

for

In such cases, Article 11(2) of the EMAS Regulation states that
(cid:145)In order to encourage the organisation’s participation in EMAS the
Commission and other institutions of the Community as well as other
public authorities at national level should consider, without prejudice
to Community law, how registration under EMAS may be taken into
account when setting criteria
procurement policies.(cid:146)
Contracting authorities could explicitly mention in their
contract documents or
the tender notice that whenever
companies have an environmental management and audit
system which covers the requirements as to the technical
capacity, this system will be accepted as a sufficient means of
proof. At
the same time, contracting authorities may not
exclude other means by accepting only an EMAS registration
as means of proof: any other certificate (e.g. ISO 14001) or any
other means of proof should also be accepted.

their

The lists of registered organisations from the EU Member States
plus the EEA countries is regularly communicated to the
Commission and a complete list is available from Commission
services (39).

3. AWARD OF THE CONTRACT

The contents of the environmental programmes and environ-
mental management schemes may differ from company to
company and organisation to organisation because they are
(cid:145)tailor-made(cid:146). This is the reason that it is not possible to give
a general answer to the question whether or not EMAS as such
can be qualified as one of the possible references relative to the
technical capacity of a company or organisation which are
listed exhaustively in the public procurement directives. The
environmental
question of whether or not

specific

a

Once the candidates have been selected, the contracting auth-
orities enter
the tenders,
resulting in the award of the contract.

the evaluation of

the phase of

The public procurement directives contain two options for the
award of contracts: either the lowest price or the (cid:145)most econ-
omically advantageous tender(cid:146). The aim of this second option is to
help the contracting authorities get the best value for money.

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In order to define which tender should be considered the most
economically advantageous, the contracting authority has to
indicate beforehand which criteria will be decisive and will
be applied. These different criteria should be mentioned
either in the contract notice or in the contract documents,
where possible in descending order of importance.

3.1. The most economically advantageous tender

The directives give examples of the criteria that may be applied
in order
to define the most economically advantageous
tender (41). Other criteria are possible.

services

quality or performance of the product or the execution of
works or
as
(i.e. quality or
mentioned amongst the award criteria). Hence, environmental
aspects relating to a product or service would be considered on
an equal footing as the functional and aesthetic characteristics
of goods or services, criteria that are explicitly listed in the
public procurement directives, in terms of assessment of what
is economically measurable.

technical merit

Environmental elements can serve to identify the most
economically advantageous
in cases where
these elements imply an economic advantage for the
purchasing entity, attributable to the product or service
which is the object of the procurement.

tender,

for

advantage

contracting

As a general rule, the public procurement directives impose
two conditions with regard to the criteria which will be
applied for determining the most economically advantageous
tender. First,
the principle of non-discrimination has to be
observed and second, the criteria applied shall generate an
economic
authority. As
the
confirmed by the European Court of Justice, the aim of the
public procurement directives is to avoid both the risk of
preference being given to national
tenderers or applicants
whenever a contract is awarded by the contracting authorities
and the possibility that a body financed or controlled by the
State, regional or local authorities or other bodies governed by
public law may choose to be guided by considerations that are
not economic (42). Economic considerations can include aspects
of environmental protection,
instance the energy
consumption of a product.

like,

for

shared by all criteria used for

the
The common factor
evaluation of tenders is that they must,
like those expressly
cited, concern the nature of the work to be carried out or
is done (43). The criteria applied
the manner
should give the contracting authority discretion to compare
objectively the different tenders and to accept the most advan-
tageous on the basis of objective criteria such as those listed by
way of example in the directives (44).

in which it

The objective of this assessment is to establish which tender
best fulfils the needs of the contracting authority. Therefore the
function of the award criteria is to assess the intrinsic quality
of the tenders. This implies that the award criteria have to be
linked to the subject matter of the contract (45).

further

Environmental considerations are not explicitly mentioned in
the current public procurement legislation (46); nevertheless the
article on award criteria has to be interpreted in such a way
that environmental considerations can result in the definition
of specific award criteria. The (cid:145)environmental soundness(cid:146) of a
product, without
such, not
measurable and does not necessarily have an economic
advantage for the contracting authority. However, contracting
(cid:145)environmental
authorities
soundness(cid:146) of products or
the
example,
consumption of natural resources, by (cid:145)translating(cid:146) this environ-
mental objective into specific, product-related and economically
measurable
energy
a
consumption (47)).
In most cases, such criteria relate to the

into account
services,

specification,

could take

requiring

the
for

criteria

rate

by

is,

of

as

that

tender(cid:146)

implies

The question rises whether the concept of (cid:145)economically most
advantageous
each individual award
criterion has to have an economic advantage which directly
benefits the contracting authority, or
that each individual
award criterion has to be measurable in economic terms,
without
the requirement of directly bringing an economic
advantage for the contracting authority in the contract at
stake. This question has been put to the European Court of
Justice in case C-513/99 (48). The judgment is expected by the
end of 2001.

Both in the Green Paper (49) and in the communication (50) on
public procurement
the Commission has clearly taken a
position in favour of the first interpretation.

The Commission notes in this respect that contracting auth-
orities retain the possibility to define the subject matter of a
contract and to integrate at this stage of the tender procedure
indirect
their environmental preferences linked to eventual
economic advantages,
including through the use of variants
(see II.1.4).

3.2. The possibility to take into consideration all costs
incurred during the whole life cycle of a product

Life cycle costing is the taking into account of all costs incurred
during the production, consumption/use and disposal of a
product or service (cradle to grave approach) (51).

The price paid by a contracting authority to purchase a
product, reflects and takes account of those costs incurred in
the phases which are already completed (normally: design,
materials, production; sometimes also testing and transport)
and should therefore not be taken into consideration a
second time in the award process (52). On the contrary, all
costs occurring after the purchase of the product, which will
be borne by the contracting authority and thus will affect
directly the economic aspects of the product, may be taken
into account.

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Costs incurred during the life cycle of a product and
will be borne by the contracting authority may be
taken into account for the assessment of the most
economically advantageous tender.

3.4. Additional criteria

This concept has been developed by the case law of
European Court of Justice (54).

the

and cost
running costs

The Directives explicitly mention as possible award criteria
effectiveness. Such costs might
running costs
include direct
and other
resources used during the lifetime of the product); spending
to save (for example, investing in higher levels of insulation to
save energy and thus money in the future); as well as the costs
of maintenance or recycling of
In evaluating
tenders, a purchasing organisation can also take account of
costs of treatment of waste or re-cycling.

(energy, water

the product.

3.3. The possibilities to take into account externalities

Externalities are damages or benefits, which are not paid for by
the polluter or beneficiary under normal market conditions.
They are defined as: (cid:145)the costs and benefits which arise when
the social or economic activities of one group of people have
an impact on another, and when the first group fail to fully
account for their impact(cid:146) (53).

External costs and benefits are opposed to (cid:145)traditional(cid:146) costs
and benefits such as operating costs or income from sales.
The characteristic of the latter costs is that they are paid for
with a price determined by the market.

As a general rule, externalities are not borne by the purchaser
of a product or service, but by society as a whole and therefore
do not qualify as award criteria as defined above (see 3.1). The
Commission notes in this respect that contracting authorities
retain the possibility to define the subject matter of a contract
or impose conditions relating to the execution of the contract
and to integrate at these stages of the tender procedure their
environmental preferences linked to eventual occurrence of
external costs.

Only in specific cases, for instance where external costs are due
to the execution of the contract and at the same time are borne
directly by the purchaser of the product or service in question,
these costs could be taken into account.

that

systems

In such cases, contracting authorities should be careful not to
introduce
lead to preferences or disguised
discrimination. Up till now, there does not exist a harmonised
system for the qualification and economic evaluation of exter-
nalities. However, there is work being undertaken in the EU
which aims at
the methodologies of
economic evaluation of external costs in the field of transport,
which could, in time remove risks of discrimination involved in
adopting this approach.

the coordination of

economic

The concept was first set out in case 31/87, where the Court
held that such criteria (the employment of long-term unem-
ployed persons) have neither a relationship to the checking of a
the
candidate’s
candidate’s technical knowledge and ability nor a connection
with the award criteria as listed in Article 9 of the Directive.
The Court held further that
these criteria are nevertheless
compatible with the directives on public procurement if they
comply with all relevant principles of Community law.

suitability

financial

and

and

In case C-225/98 the ECJ held that (55) the awarding authorities
could apply a condition relating to the campaign against unem-
ployment, provided that this condition was in line with all the
fundamental principles of Community law, but only where the
said authorities had to consider two or more economically
equivalent bids. Such a condition could be applied as an
accessory criterion once the bids had been compared from a
purely economic point of view. As regards the criterion relating
to the campaign against unemployment the Court made it clear
that it must not have any direct or indirect impact on those
submitting bids from other Member States of the Community
and must be explicitly mentioned in the contract notice so that
potential contractors were able to ascertain that
such a
condition existed.

This could be equally applicable to conditions relating to
environmental protection or performance.

4. EXECUTION OF THE CONTRACT

Contracting authorities have the possibility to define the
(detailed) contract clauses, relating to the mode of execution
the contract. Contract clauses may not be (disguised)
of
technical specifications, selection criteria or award criteria.
They relate merely to the execution of
itself.
This means that all applicants, should they eventually be
awarded the contract, must be in a position to execute these
clauses. As a matter of transparency, they should be announced
in advance to all applicants.

the contract

The public procurement directives do not cover contract
clauses. As such, contract clauses must observe the general
Treaty
the principle of
non-discrimination.

and principles, notably

rules

Contracting authorities have a broad range of possibilities for
defining contract clauses having as their object the protection
of the environment.

The following are examples of specific additional conditions,
which have a bearing on the performance or execution of the
contract and which ultimately meet general environmental
objectives, which are sufficiently specific, observe Community
law principles and are in conformity with the directives (56):

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(cid:151) delivery/packaging of goods in bulk rather than by single

unit,

(cid:151) recuperation or reuse of packaging material and the used

products by the supplier,

(cid:151) delivery of goods in reusable containers,

(cid:151) collection, take-back recycling or reuse of waste produced
during or after use or consumption of a product by the
supplier,

(cid:151) transport and delivery of chemicals (like cleaning products)

in concentrate and dilution at the place of use.

As to the question whether it may be required that a certain
mode of environmentally sound transport
is used for the
delivery of goods, one should note that such a requirement
should be defined in such a way that it has a bearing on the
performance or execution of the contract and it should comply
with Community law principles. A contracting authority may
therefore require that the transport of products to be delivered
be effected by a certain type of transport, as long as, in the
specific circumstances of the contract, this requirement does
not lead to discrimination.

III. CONTRACTS

NOT

COVERED

BY

THE

PUBLIC

PROCUREMENT DIRECTIVES

For contracts not covered by the public procurement directives,
the detailed rules stemming from the public procurement
directives and set out in the previous chapters do not apply.

Indeed Community law leaves it to the Member States to decide
whether or not public procurement not covered by the
national
Community
procurement rules.

directives

subject

should

be

to

will therefore depend on the national legislation whether public
procurement may, or even shall be used to fulfil other
objectives than the (cid:145)best value for money(cid:146) objective of
the
public procurement directives.

When defining the subject matter of such a contract, a broad
range of requirements and conditions may be imposed, even if
these conditions and requirements may probably not have a
direct link to the subject matter of the contract. Of course
these requirements and conditions must observe the rules of
the Treaty and principles flowing from the Treaty. Thus, the
Court of Justice has held that inclusion of clauses referring to
national standards or a specific origin in an invitation to tender
economic operators who produce products
may cause
complying with the
equivalent
national standard to refrain from tendering (57).
If measures
impose on the national of one Member State more rigorous
rules, or put him in law or in fact in an unfavourable position
compared with the national of the Member State imposing the
measure, these measures could infringe the Treaty rules on free
movement of goods and services.

to products

certified as

As regards the qualification of candidates, purchasing auth-
orities are free to impose requirements and define conditions
that go beyond what is possible under the public procurement
directives. The criteria need not to be limited to the financial
and economic situation of a candidate, or to his technical
capacity. Of course, the requirements for qualification have to
be compatible with Community law and Community law prin-
ciples, notably the rules and principles relating to the free
provision of services, such as non-discrimination and mutual
recognition.

As regards the evaluation of tenders, award criteria may be
defined freely by a purchasing authority, as long as the
Treaty rules and Community law principles are observed, and
the criteria remain objective,
transparent and non-discrimi-
natory.

Within the limits set by the Treaty and Community law,
legislation. It
Member States are free to adopt their national

The question of whether the Treaty rules or the principles of
Community law are observed, depends on a case-by-case
assessment.

(1) Council Directive 71/305/EEC concerning the coordination of procedures for the award of public works contracts, replaced by Council Directive

93/37/EEC, amended by European Parliament and Council Directive 97/52/EC;
Council Directive 77/62/EEC coordinating procedures for the award of public supply contracts, replaced by Council Directive 93/36/EEC,
amended by European Parliament and Council Directive 97/52/EC;
Council Directive 92/50/EEC relating to the coordination of procedures for the award of public service contracts, amended by European
Parliament and Council Directive 97/52/EC;
Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement of entities operating in the water, energy, transport and tele-
communications sectors, amended by European Parliament and Council Directive 98/4/EC.

(2) Article 6 of the consolidated version of the Treaty establishing the European Community states that (cid:145)environmental protection requirements must
be integrated into the definition and implementation of the Community policies and activities referred to in Article 3, in particular with a view to
promoting sustainable development(cid:146).

(3) Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the
Regions on the sixth environment action programme of the European Community: (cid:145)Environment 2010: our future, our choice(cid:146) (cid:151) adopted by the
Commission on 24 January 2001 (cid:151) COM(2001) 31 final.

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(4) Communication from the Commission:

(cid:145)A sustainable Europe for a better world: a European Union strategy for sustainable development(cid:146).

Commission’s proposal to the Gothenburg European Council; COM(2001) 264 final, adopted on 15 May 2001.

(5) Adopted by the Commission on 8 June 1999; COM(1999) 263 final, p. 4.

(6) Commission communication (cid:145)Public procurement in the European Communities(cid:146), adopted by the Commission on 11 March 1998; COM(1998)

143 final.

(7) Commission communication in integrated product policy, adopted by the Commission on 7 February 2001 (cid:151) COM(2001) 68 final.

(8) Article 53 of 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 (COM(2000) 275 final of 10 May 2000) and Article 54 of the
Proposal for a Directive of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the
water, energy and transport sectors (COM(2000) 276 final of 10 May 2000).

(9) Like, for instance, the obligation, for certain categories of works, to carry out an environmental impact assessment. See footnote 11.

(10) Different national administrations have already issued guidelines to their contracting authorities on (cid:145)sustainable construction(cid:146).

(11) Example of the Oresund bridge construction or the Vasco de Gama bridge in Lisbon.

(12) Projects covered by Directive 85/337/EEC (OJ L 175, 5.7.1985, p. 40), as amended by Directive 97/11/EC (OJ L 73, 14.3.1997, p. 5).

(13) Contracting authorities have the possibility to either prescribe the solution chosen, or avoid prescribing requirements which would lead the
tenderers to offer products whose production processes would damage the environment more. They could, for example, require recycled paper
which is not bleached.

(14) COM(1999) 263 final of 8 June 1999, p. 8.

(15) With the exception of those contracting entities which are covered by the Utilities Directive (Directive 93/38/EEC), but which are nevertheless

private bodies.

(16) These are technical specifications the observance of which is mandatory by law or regulation in order to place a product on the market or to

use it.

(17) See the annexes to this communication.

(18) The Commission supports European standardisation organisations in integrating environmental aspects into the standardisation process.

(19) It should be observed that the Government Procurement Agreement explicitly lists production process in the definition of technical specification.

(20) See for example Article 8 paragraph 6 of Directive 93/36/EEC.

(21) Contracting authorities may, for instance, for the description of what they consider organically grown foodstuffs, use the technical specifications
laid down in Council Regulation (EEC) No 2092/91 of 24 June on organic production of agricultural products and indications referring thereto on
agricultural products and foodstuffs (OJ L 198, 22.7.1991, p. 1).

(22) They may not prescribe that green electricity is generated by wind-energy only; indeed, water energy and solar energy can also be used for the
production of green electricity and the technical prescription should therefore be that the green electricity is produced by using renewable energy
sources.

(23) For example, the use of recycled paper in offices, the application of specific waste disposal methods on the contractors premises, the engagement

of specific groups of workers (ethnic, handicapped, women).

(24) The European eco-label system was first laid down in Council Regulation (EEC) No 880/92 of 23 March 1992 on a Community eco-label award
scheme (OJ L 99, 11.4.1992, p. 1). This regulation has been repealed and replaced by European Parliament and Council Regulation (EC) No
1980/2000 of 17 July 2000 on a revised Community eco-label award scheme (OJ L 237, 21.9.2000, p. 1).
The Internet site: http://europa.eu.int/comm/environment/ecolabel/prodgr.htm contains a list of all product groups for which a European eco-label
exists or is under development or revision.

(25) An important group of private eco-labels are the labels identifying timber as being the product of sustainable forestry.

(26) So, for instance, criteria for the European eco-label for personal computers are specified in the Commission Decision of 26 February 1999

establishing ecological criteria for the award of the Community eco-label to personal computers (OJ L 70, 17.3.1999, p. 46).

(27) European eco-label decisions are taken in accordance with the procedure defined in European Parliament and Council Regulation (EC) No
1980/2000 and (pluri-)national eco-label decisions are taken on the basis of the procedures defined in the national rules. Article 10 of the
European eco-label Regulation states that (cid:145)in order to encourage the use of eco-labelled products the Commission and other institutions of the
Community, as well as other public authorities at national level should, without prejudice to Community law, set an example when specifying
their requirements for products(cid:146).

(28) Like for instance a European, international or national standard covering also environmental aspects of a product (cid:151) see II.1.

(29) Eco-labelled products often represent a limited part of a certain product market: European eco-labelled products represent normally less than 20 %

and in some cases even less than 5 % of the product markets.

(30) All public procurement directives provide for the possibility that where the criterion for the award of the contract is that of the most
economically advantageous tender, contracting authorities may take account of variants which are submitted by a tenderer and meet the
minimum specifications required by the contracting entities. Contracting authorities shall state in the contract documents the minimum spec-
ifications to be respected by the variants and specific requirements for their presentation. Where variants are not permitted, they shall so indicate
in the tender notice. Article 24 of Directive 92/50/EEC; Article 16 of Directive 93/36/EEC; Article 19 of Directive 93/37/EEC and Article 34(3) of
Directive 93/38/EEC.

(31) See, for example, Article 23(3) of Directive 93/36/EEC.

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(32) Some countries have framed what are called (cid:145)ecological offences(cid:146) in their criminal code. For instance, Article 325 of the current Spanish Criminal
Code (Organic Law No 10/1995 of 23 November 1995) provides that (cid:145)anyone who, in breach of the laws or other general provisions to protect
the environment, causes or whose actions directly or indirectly give rise to emissions, discharges, radiation, extraction or excavation, silting, noise,
vibrations, injections or deposits in the atmosphere, soil, subsoil, or inland, marine or ground waters, including any influencing transboundary
areas, or who undertakes water abstraction which may seriously upset the balance of natural systems, shall be liable to a term of imprisonment of
between six months and four years, penalties payable over periods of between eight and twenty-four months and disqualification from pursuing
an occupation or holding office for a period ranging from one to three years. If there is a risk of serious damage to human health, the term of
imprisonment shall be in the upper half of the range(cid:146).

(33) An approximation of a minimum set of offences against the environment, as envisaged in the Commission proposal, would not prevent Member

States from providing for additional offences and/or additional sanctions as more stringent protective measures (Article 176 EC).

(34) Final report on the Falcone study on procurement and organised crime (1998) (cid:151) Volume I: 24.5.1999 (cid:151) Institute of Advanced Legal Studies (cid:151)

University of London.

(35) Case 76/81: Transporoute et travaux v MinistŁre des travaux public; judgment of 10 February 1982; ECR 417.

(36) The service directive (92/50/EEC) indicates expressly that these requirements must be defined according to the nature, quantity and purpose of the

services to be provided.

(37) Case 31/87: Gebroeders Beentjes bv v State of the Netherlands, judgment of 20 September 1988; conclusion, paragraph 35; ECR 4635.

(38) The ECO management and audit scheme was first developed in Council Regulation (EEC) No 1836/93 of 29 June 1993 (OJ L 168). The Regulation
has been revised and replaced by Regulation (EC) No 761/2001 of the European Parliament and of the Council allowing voluntary participation by
organisations in a Community eco-management and audit scheme (EMAS).

(39) A list of registered sites is also published on the Internet: http://europa.eu.int/comm/environment/emas. At the beginning of 2001, over 3 000

sites have been registered in the EU.

(40) See above, point 2(2): (a) a statement of the tools, plant and technical equipment available to the candidate for executing the contract; (b) a
description of the supplier’s technical facilities, its measures for ensuring quality and its study and research facilities; or (c) a statement of the
technicians or technical bodies which the candidate can call upon for executing the contract, whether or not they belong to the firm, especially
those responsible for quality control.

(41) Price, delivery date, delivery period, period for completion, running costs, cost-effectiveness, quality, aesthetic and functional characteristics of the

goods or services, after-sales service, technical assistance, profitability, technical merit.

(42) Case C-380/98: The Queen and HM Treasury, ex parte: University of Cambridge; judgment of 3 October 2000; Reference for a preliminary ruling.

(ECR I-8035, 2001) and Case C-237/99: Commission/France (HLM); judgment of 1 February 2001 (not yet published).

(43) Case 31/87: Gebroeders Beentjes (infra) (cid:151) Conclusion of the Advocate-General.

(44) Case 31/87: Gebroeders Beentjes (infra) (cid:151) paragraph 27.

(45) See for example Article 26(1)(b) Directive 93/36/EEC (cid:145)various criteria according to the contract in question(cid:146).

(46) One should note that in the proposals for modification of the public procurement directives, which are adopted by the Commission on 10 May
2000, environmental characteristics are listed explicitly amongst the criteria which may serve for identifying the most economically advantageous
tender (see footnote 8).

(47) Eco-label criteria can be used to define the most economically advantageous tender where they satisfy the conditions set out in this section.

(48) Case C-513/99: Stagecoach Finland Oy Ab, formerly Oy Swebus Finland Ab, of Espoo (request for a preliminary ruling) (OJ C 102, 8.4.2000, p.

10).

(49) Green Paper: public procurement in the European Union: exploring the way forward, adopted by the Commission on 27 November 1996,

COM(1996) 583 final.

(50) Commission communication (cid:145)Public procurement in the European Communities(cid:146), adopted by the Commission on 11 March 1998, COM(1998)

143 final.

(51) In general, these phases are, not necessarily in the following order: design of the product; purchase of the materials; production; transport; testing;

use; disposal; recycling.

(52) Transport costs or costs for testing the product, if borne by the supplier and reflected in the price, may not be taken into consideration a second

time by the contracting authority by adding them to the price to be paid to the supplier.

(53) European Commission, DG Environment: A study on the economic valuation of environmental externalities from landfill disposal and incineration

of waste. Final main report; October 2000, p. 9.

(54) Case 31/87: Gebroeders Beentjes (infra) and Case C-225/98: Commission of the European Communities v French Republic, judgment of 26 September
2000, construction and maintenance of school buildings by the Nord-Pas-de-Calais Region and the DØpartement du Nord. (ECR I-7445, 2000).

(55) See the General Report on the activities of the European Union in 2000, point 1119, p. 407.

(56) OECD document ENV/EPOC/PPC(98) 17REV1.

(57) Case 45/87: Commission/Ireland (Dundalk); judgment of 22 September 1988, ECR 4929, and Case C-243/89: Commission/Denmark (bridge over

the Storebaelt); judgment of 22.6.1993, ECR I-3353.

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ANNEX I

COMMON RULES IN THE TECHNICAL FIELD

The common rules in the technical field are laid down in Article 14 of Directive 92/50/EEC (services), Article 8 of
Directive 93/36/EEC (supplies) and Article 10 of Directive 93/37/EEC (works). Even though the wording of these articles
is not entirely identical the content of the rules articles is the same. Therefore, and by way of example, the text of Article
14 of Directive 92/50/EEC is reproduced below.

DIRECTIVE 92/50/EEC

TITLE IV

Common rules in the technical field

Article 14

1. The technical specifications defined in Annex II shall be given in the general documents or the contractual documents

relating to each contract.

2. Without prejudice to the legally binding national technical rules and insofar as these are compatible with Community
law, such technical specifications shall be defined by the contracting authorities by reference to national standards
implementing European standards or by reference to European technical approvals or by reference to common
technical specifications.

3. A contracting authority may depart from paragraph 2 if:

(a) the standards, European technical approvals or common technical specifications do not include any provisions for
establishing conformity, or technical means do not exist for establishing satisfactorily the conformity of a product
with these standards, European technical approvals or common technical specifications;

(b) the application of paragraph 2 would prejudice the application of Council Directive 86/361/EEC of 24 July 1986
on the initial stage of the mutual recognition of type approval for telecommunications terminal equipment.
Amended by Directive 91/263/EEC, or Council Decision 87/95/EEC of 22 December 1986 on standardisation in
the field of information technology and telecommunications or other Community instruments in specific service
or product areas;

(c)

these standards, European technical approvals or common technical specifications would oblige the contracting
authority to use products or materials incompatible with equipment already in use or would entail dispropor-
tionate costs or disproportionate technical difficulties, but only as part of a clearly defined and recorded strategy
with a view to the transition, with a given period, to European standards, European technical approvals or
common technical specifications;

(d) the project concerned is of a genuinely innovative nature for which use of existing European standards, European

technical approvals or common technical specifications would not be appropriate.

4. Contracting authorities invoking paragraph 3 shall record, wherever possible, the reasons for doing so in the contract
notice published in the Official Journal of the European Communities or in the contract documents and in all cases shall
record these reasons in their internal documentation and shall supply such information on request to Member States
and to the Commission.

5. In the absence of European standards or European technical approvals or common technical specifications, the

technical specifications:

(a) shall be defined by reference to the national technical specifications recognised as complying with the basic
requirements listed in the Community directives on technical harmonisation, in accordance with the procedures
laid down in those directives, and in particular in accordance with the procedures laid down in Directive
89/106/EEC;

(b) may be defined by reference to national technical specifications relating to design and method of calculation and

execution of works and use of materials;

(c) may be defined by reference to other documents.

In this case, it is appropriate to make reference in order of preference to:

(i) national standards implementing international standards accepted by the country of the contracting authority;

(ii) other national standards and national technical approvals of the country of the contracting authority;

(iii) any other standard.

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Official Journal of the European Communities

C 333/25

6. Unless it is justified by the subject of the contract, Member States shall prohibit the introduction into the contractual
clauses relating to a given contract of technical specifications which mention products of a specific make or source or
of a particular process and which therefore favour or eliminate certain service providers. In particular, the indication
of trade marks, patents, types, or of specific origin or production shall be prohibited. However, if such indication is
accompanied by the words (cid:145)or equivalent(cid:146), it shall be authorised in cases where the contracting authorities are unable
to give a description of the subject of the contract using specifications which are sufficiently precise and intelligible to
all parties concerned.

For the utilities sector, the common rules in the technical field are laid down in Article 18 of this Directive. These rules
differ from the ones in Directives 92/50/EEC, 93/36/EEC and Directive 93/37/EEC in that they are less detailed and
exhaustive. Article 18 of Directive 93/38/EEC is reproduced below.

DIRECTIVE 93/38/EEC

TITLE III

Technical specifications and standards

Article 18

1. Contracting entities shall include the technical specifications in the general documents or the contract documents

relating to each contract.

2. The technical specifications shall be defined by reference to European specifications, where these exist.

3. In the absence of European specifications, the technical specifications should as far as possible be defined by reference

to other standards having currency within the Community.

4. Contracting entities shall define such further requirements as are necessary to complete European specifications or
other standards. In so doing, they shall prefer specifications which indicate performance requirements rather than
design or description characteristics, unless the contracting entity has objective reasons for considering that such
specifications are inadequate for the purposes of the contract.

5. Technical specifications which mention goods of a specific make or source or of a particular process, and which have
the effect of favouring or eliminating certain undertakings, shall not be used unless such specifications are indis-
pensable for the subject of the contract. In particular, the indication of trade marks, patents, types, of specific origin
or production shall be prohibited; however, such an indication accompanied by the words (cid:145)or equivalent(cid:146) shall be
authorised where the subject of the contract cannot otherwise be described by specifications which are sufficiently
precise and fully intelligible to all concerned.

6. Contracting entities may derogate from paragraph 2 if:

(a)

it is technically impossible to establish satisfactorily that a product conforms to the European specifications;

(b) the application of paragraph 2 would prejudice the application of Council Directive 86/361/EEC of 24 July 1986
on the initial stage of the mutual recognition of type approval for telecommunications terminal equipment, or of
Council Decision 87/95/EEC of 22 December 1986 on standardisation in the field of information technology and
telecommunications;

(c)

in the context of adapting existing practice to take account of European specifications, use of those specifications
would oblige the contracting entity to acquire supplies incompatible with equipment already in use or would entail
disproportionate cost or disproportionate technical difficulty. Contracting entities which have recourse to this derogation shall
do so only as part of clearly-defined and recorded strategy with a view to a changeover to European specifications;

(d) the relevant European specification is inappropriate for the particular application or does not take account of
technical developments which have come about since its adoption. Contracting entities which have recourse to
this derogation shall inform the appropriate standardising organisation, or any other body empowered to review
the European specification, of the reasons why they consider the European specification to be inappropriate and
shall request its revision;

(e)

the project is of a genuinely innovative nature for which use of European specifications would not be appro-
priate.

7. Notices published pursuant to Article 21(1)(a) or Article 21(2)(a) shall

indicate any recourse to the derogations

referred to in paragraph 6.

8. This Article shall be without prejudice to compulsory technical rules insofar as these are compatible with Community

law.

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Official Journal of the European Communities

28.11.2001

ANNEX II

DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS

The contents of the definition of certain technical specifications of Annex II of Directive 92/50/EEC (services), Annex III
of Directive 93/36/EEC (supplies), Annex II of Directive 93/37/EEC (works), and Article 1, paragraphs 8 to 13 of
Directive 93/38/EEC (utilities) are the same, even though the wording of these definitions is not entirely identical.
Therefore, and by way of example, the text of Annex II of Directive 92/50/EEC is reproduced below.

ANNEX II

DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS

For the purpose of this Directive the following terms shall be defined as follows:

1. Technical specifications:

the totality of the technical prescriptions contained in particular in the tender documents,
defining the characteristics required of a work, material, product or supply, which permits a work, a material, a
product or a supply to be described in a manner such that it fulfils the use for which it is intended by the contracting
authority. These technical prescriptions shall include levels of quality, performance, safety or dimensions, including
the requirements applicable to the material, the product or to the supply as regards quality assurance, terminology,
symbols, testing and test methods, packaging, marking or labelling. They shall also include rules relating to design
and costing, the test, inspection and acceptance conditions for works and methods or techniques of construction and
all other technical conditions which the contracting authority is in a position to prescribe, under general or specific
regulations, in relation to the finished works and to the materials or parts which they involve.

2. Standard: a technical specification approved by a recognised standardising body for repeated and continuous

application, compliance with which is in principle not compulsory.

3. European standard: a standard approved by the European Committee for Standardisation (CEN) or by the European
Committee for Electrotechnical Standardisation (Cenelec) as (cid:145)European Standards (EN)(cid:146) or (cid:145)Harmonisation documents
(HD)(cid:146) according to the common rules of these organisations or by the European Telecommunications Standards
Institute (ETSI) as a (cid:145)European telecommunication standard(cid:146) (ETS).

4. European technical approval: a favourable technical assessment of the fitness for use of a product, based on fulfilment
of the essential requirements for building works, by means of the inherent characteristics of the product and the
defined conditions of applications and use. European approval shall be issued by an approval body designated for this
purpose by the Member State.

5. Common technical specification: a technical specification laid down in accordance with a procedure recognised by
the Member States to ensure uniform application in all Member States which has been published in the Official
Journal of the European Communities.

6. Essential requirements: requirements regarding safety, health and certain other aspects in the general interest, that the

construction works can meet.