WRITTEN QUESTION E-3329/01 by Erik Meijer (GUE/NGL) to the Commission. Increase in the cost of goods and services purchased as a result of tasks previously carried out by the authorities being replaced by a system of calling for tenders.
Date: 2001-11-30
Institutions: European Parliament, Provisional data
Subjects: award of contract, fraud, goods and services, invitation to tender, price increase, public contract

18.7.2002

EN

Official Journal of the European Communities

C 172 E/39

Answer given by Mr Bolkestein on behalf of the Commission

(30 January 2002)

Council Directive 83/182/EEC (1) relates only to the means of transport itself. It does not contain any
provisions relating to the conditions for exempting fuel in the tanks of means of transport. As far as value
added tax is concerned, since 1 January 1993, this Directive has become redundant. Only the provisions
applicable to possible registration or circulation taxes on means of transport are extant.

Directive 83/182/EEC does not contain provisions concerning taxation of mineral oils, which are covered
by Council Directives 92/12/EEC (2), 92/81/EEC (3) and 92/82/EEC (4). These directives do not provide any
exemption for mineral oils supplied for use as fuel by private pleasure crafts, and therefore these mineral
oils are as a rule taxed with the normal excise duty rate applied by the Member State concerned.

Concerning the fuel taken on board recreational vessels outside the Community territory (in a non-
Community port, or from a tanker vessel outside Community territorial waters), no harmonised provisions
exist concerning duty exemption for this fuel upon entry of the vessel into the Community. In principle,
mineral oils will be subject to normal excise duties upon their entry into the territory of the Community
(Articles 5 of Directive 92/12/EEC), on the basis of the relevant national provisions in force. According to
Article 23 paragraph 5 of the same Directive, Member States may maintain their national provisions on
stores for boats and aircraft until the Council has adopted Community provisions on the subject. The
Member States are therefore entitled to levy excise duties on fuels imported in the tanks of recreational
vessels.

Concerning customs duties, Article 139 of Council Regulation (EEC) No 918/83 (5) clearly states that stores
of vessels are excluded from the Community system of reliefs. As a consequence,
it is for individual
Member States to determine whether or not such an exemption is granted, and to fix the conditions of its
application.

(1) Council Directive of 28 March 1983 on tax exemptions within the Community for certain means of transport

temporarily imported into one Member State from another (83/182/EEC), OJ L 105, 23.4.1983, p. 59-63.

(2) Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty

and on the holding, movement and monitoring of such products, OJ L 76, 23.3.1992, p. 1-7.

(3) Council Directive 92/81/EEC of 19 October 1992 on the harmonization of the structures of excise duties on

mineral oils, OJ L 316, 31.10.1992, p. 12-15.

(4) Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral

oils, OJ L 316, 31.10.1992, p. 19.

(5) Council Regulation (EEC) No 918/83 of 13 March 1983 setting up a Community system of reliefs from customs

duty, OJ L 105, 23.4.1983, p. 1.

(2002/C 172 E/043)

WRITTEN QUESTION E-3329/01

by Erik Meijer (GUE/NGL) to the Commission

(30 November 2001)

Subject: Increase in the cost of goods and services purchased as a result of tasks previously carried out by

the authorities being replaced by a system of calling for tenders

1.
Can the Commission confirm that more and more authorities at various levels in the Member States
of the European Union are making increasing use of the invitation to tender procedure for purchasing and
commissioning goods and services from companies, in other words that bids are invited from companies
offering similar products or services and the cheapest bid chosen?

2.
Can the Commission also confirm that not only the method of purchasing of goods and services
referred to above but also the contracting out of tasks previously carried out by the authorities themselves
are part of a policy being promoted by the Commission through relevant European legislation in a number
of areas?

C 172 E/40

Official Journal of the European Communities

EN

18.7.2002

Is the Commission aware that, following recent investigations in particular by an office of the
3.
Amsterdam authorities, it has again been found that such systems of inviting tenders may lead to deals
being agreed between companies concerning which of them is to tender the lowest price for a given
contract, as a result of which the cheapest bid is still substantially higher than the real cost price adjusted
by a normal profit and risk margin, with the over-payment by the authorities subsequently being divided
up between the companies concerned?

4.
Is the Commission also aware that part of the higher payments resulting in this way are used for the
purpose of bribing officials in order to enable companies to obtain advance information on the
calculations on the basis of which the invitation to tender is being issued by the authority concerned?

5.
How < apart from via existing penalties if it can be proved that cooperation of this kind has taken
place or insider knowledge has been obtained < does the Commission envisage ensuring that the system
of calling for tenders leads in the near future to lower prices with adequate quality being maintained?

6. What alternative solutions does the Commission see to the system of calling for tenders if the
objectives set out in question 5 cannot be achieved in a permanent way under such arrangements?

Answer given by Mr Bolkestein on behalf of the Commission

(21 January 2002)

The Commission confirms that more and more contracting authorities are applying the directives.

1.
This should be seen as the result of better compliance with the rules.

The Commission would also like to point out that application of the procurement directives does not
mean that contracting authorities are obliged to choose the cheapest tender. As the purpose of the
directives is to ensure an optimum price/quality ratio for the contracting authority, there is always the
possibility of choosing a tender which is considered the most economically advantageous one.

The Commission would point out that the decision whether or not to carry out specific tasks or to
2.
contract out these tasks,
is to be made by the contracting authority itself and is no policy of the
Commission. The public procurement directives do not apply to processes whereby divisions or
departments of contracting authorities are made autonomous or are being privatised. Policy on the
decentralisation or privatisation of a contracting authority’s departments is a matter for the contracting
authority itself. If such newly created or privatised entity is to be regarded as a contracting authority itself,
this authority has to, where appropriate, award its contracts in compliance with the procurement
directives.

3. to 6.
The Commission is aware of the fact that it has recently been established in the Netherlands that
agreements are being made between tenderers for public works contracts with the result that the tender
eventually selected offers a poorer price/quality ratio than would be the case under conditions of fair
competition. Such behaviour could be in conflict with the Community rules on competition and
proceedings could be initiated under these rules. The Commission has also heard that officials have been
bribed to give companies prior knowledge of information on a tender. Fraud is a phenomenon in itself and
is by no means the result of, nor is it assisted by, applying the directives on the award of public contracts.
The prosecution of these criminal offences should therefore be conducted using the appropriate means. In
this context, the Commission has heard that the national authorities have already opened (criminal)
investigations into the matter.

On the basis of the above, the Commission is of the opinion that the proper application of the rules on
procurement results in the achievement of an optimal price/quality ratio, which is one of the objectives of
these directives. In this respect, there are numerous examples of local authorities which have themselves
calculated the savings and higher quality of services they have achieved through open invitations to tender.
This being so, the Commission does, in this respect, not envisage any alternatives to the current system.