WRITTEN QUESTION E-0148/02 by Erik Meijer (GUE/NGL) to the Commission. Restrictions on the application of European public procurement regulations as a result of public-private partnerships.
Date: 2002-02-01
Institutions: European Parliament, Provisional data
Subjects: EU law, Netherlands, award of contract, cooperation agreement, joint venture, private sector, public contract, public sector

4.7.2002

EN

Official Journal of the European Communities

C 160 E/189

(2002/C 160 E/235)

WRITTEN QUESTION E-0148/02

by Erik Meijer (GUE/NGL) to the Commission

(1 February 2002)

Subject: Restrictions on the application of European public procurement regulations as a result of public-

private partnerships

1.
Is the Commission aware of the cooperation agreement concluded on 18 January 2002 by the
elected council of the Dutch province of Noord-Brabant with the Noord-Brabant Christelijke Boerenbond
(NBC) (Christian Farmers’ Union) to jointly set up a horticultural development company (TOM) in the form
of a public-private partnership?

2.
In the Commission’s opinion, do the current European regulations on public procurement 4 which
aim to ensure equal opportunities for competing firms when awarding contracts 4 also apply if the
authority is not acting independently but in the form of a joint legal entity in which one or more
permanent private partners participate alongside the public authorities?

3. What scope does the public-private partnership referred to in paragraph 2 above allow for awarding
contracts directly to one of the undertakings paraticipating in the cooperative venture, without any public
thereby increasing the attractiveness of public-private
invitation to tender
partnerships as a way of circumventing European regulations? Does it make a difference whether or
more or less than 50 % of the public-private partnership is in public hands?

involving third parties,

Is the public-private partnership structure also used by public authorities in Member States other
4.
than the Netherlands as a means of increasing their own freedom of choice? Are they used to a greater or
lesser extent than in the Netherlands?

5.
On the question of whether or not the notion of ‘public institution’ in the public-private partnership
is a decisive factor, a point that remained unanswered in a note drafted by external consultants regarding
the setting-up of the horticultural development company, can the Commission clarify which general rules
apply and to what extent they are relevant to this particular case?

6.
Does the Commission consider that the horticultural development company referred to in this
question should award contracts in compliance with European directives or is the organisation completely
free to determine its own operating methods?

Answer given by Mr Bolkestein on behalf of the Commission

(8 March 2002)

The Commission is not aware of the co-operation agreement concluded on 18 January 2002 by the
elected council of the Dutch Province of Noord-Brabant with the Noord-Brabant Christian Farmer’s Union
to jointly set up a horticultural development company in the form of a public-private partnership.

The European public procurement directives do not require such agreements to be notified to the
Commission.

The answers to the different questions formulated by the Honourable Member depend on the exact content
of this co-operation agreement.

The Commission will therefore ask the Dutch authorities to provide a copy of the agreement in order to
make an assessment of the legal situation in the light of the Community public procurement directives.