Amended proposal for a European Parliament and Council Directive coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (submitted by the Commission pursuant to Article 250(2) of the EC Treaty)
Date: 2002-05-06
Institutions: European Commission
Subjects: energy production, liberalisation of the market, market access, postal service, public contract, transport market, water management

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Amended proposal for a European Parliament and Council Directive coordinating the procurement
procedures of entities operating in the water, energy, transport and postal services sectors (1)

(2002/C 203 E/30)

(Text with EEA relevance)

COM(2002) 235 final — 2000/0117(COD)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 6 May 2002)

1. Background

Proposal submitted to the Council and the European Parliament
to
(COM(2000) 276 final — 2000/0117(COD)) pursuant
Article 175(1) of the Treaty: 11 July 2000

Economic and Social Committee Opinion: 26 April 2001

Committee of the Regions Opinion: 13 December 2000

Opinion of the European Parliament at first reading: 17 January
2002

2. Objective of the Commission proposal

The Directive coordinating the procurement procedures of
entities operating in the water, energy and transport sectors
pursues a threefold objective of modernising, simplifying and
rendering more flexible the existing legal framework. Modern-
isation is required in order to take account of new technologies
and changes in the economic environment,
including the
liberalisations under way or set to take place in some of the
activities covered. The purpose of simplification is to make the
current texts more easily comprehensible for users, so that
contracts are awarded in complete conformity with the
standards and principles governing this area, and the entities
involved (whether purchasers or suppliers) are in a better
position to know their rights. Procedures need to be flexible
in order to meet
the needs of purchasers and economic
operators.

3.1. Amendments accepted by the Commission in their entirety or
reformulated for purely formal reasons (Amendments 111, 7, 8,
67, 68 and 69)

Amendment 111 introduces a new recital stating that nothing
in this Directive shall prevent any contracting entity from
imposing or enforcing measures necessary to protect public
morality, public policy, public security or human, animal or
plant life or health. The Commission accepts this amendment,
stressing that it is drafted in such a way as to reflect the
provisions of the Treaty (Article 30):

‘(2c)

Recital:
Nothing in this Directive shall prevent any
contracting entity from imposing or enforcing measures
necessary to protect public morality, public policy, public
security or human, animal or plant life or health, in particular
with a view to sustainable development, provided that these
measures are not discriminatory and do not conflict either with
the objective of opening up markets in the sector of public
contracts or with the Treaty.’

Amendment 7 modifies recital 34 in order to specify that
tenders based on solutions other than those envisaged by the
contracting entity must be taken into account
they are
equivalent, and that contracting entities must give reasons for
any decision concluding that there is no equivalence.

if

is necessary to combine Amendment 7 with other
It
amendments
problems — see
the
comments on Amendments 35, 36, 38, 40, 95 and 99/118.

concerning

same

Amendment 8 modifies recital 42. It adds engineers' services to
the examples of services whose remuneration is governed by
national laws and which must not be affected.

3. Commission opinion on Parliament's amendments

The Commission has accepted, either in their entirety or in
part, and with reformulations where appropriate, 47 of the
83 amendments adopted by the European Parliament.

(1) OJ C 29 E, 30.1.2001, p. 112.

Amendments 67, 68 and 69 remove the very detailed
provisions concerning the arrangements for indicating the
weighting given to each of the criteria applied in determining
the most economically advantageous tender. The deletion of
the three paragraphs is acceptable in order to simplify the
arrangements for indicating weighting.

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3.2. Amendments accepted by the Commission with reformulation,
in part or in substance (Amendments 89-96, 4, 33, 9, 70,
35, 36, 38, 40, 95, 99-118, 64, 18, 57, 109, 60, 43, 47,
13, 16, 21, 22, 26, 27, 29, 30, 117, 51, 53, 56, 66, 75,
76, 78, 79, 80, 81, 82, 83, 85 and 86)

Amendments 89-96 introduce a new recital designed to
emphasise the integration of environmental policy into public
procurement policy. Article 6 of
the Treaty stipulates that
environmental protection requirements must be integrated
into other policies: this means that the respective policies on
the environment and public contracts must be reconciled. The
Commission therefore considers that contracting entities must
be enabled to procure ‘green’ products/services at the best value
for money. It therefore takes up the amendment and refor-
mulates it as follows:

Recital: ‘(2b)
Under Article 6 of the Treaty establishing the
European Community, environmental protection requirements
must be integrated into the definition and implementation of
the Community policies and activities referred to in Article 3 of
that Treaty, in particular with a view to promoting sustainable
development.

The Commission therefore incorporates Amendments 4 and 33
by means of the following texts:

Contract performance conditions are compatible
Recital: ‘(32)
with the Directive provided that
they are not directly or
indirectly discriminatory and are indicated in the contract
notice used to call for competition, or in the specifications.
They may be aimed at promoting on-the-job training and the
employment of people who are facing particular difficulties in
finding work, at combating unemployment or protecting the
environment and give rise to obligations — applicable to
in particular to recruit the
contract performance — such as,
long-term unemployed or implement training schemes for the
unemployed and young persons, to comply with the substance
of the provisions of the ILO core conventions in the event that
these have not been implemented in national law, and to recruit
a number of handicapped persons above that required under
national legislation.’

‘Article 37a

Contract performance conditions

This Directive therefore clarifies how the contracting entities
may contribute to the protection of the environment and the
promotion of sustainable development, whilst ensuring that the
contracting entities are in a position to obtain the best value
for money for their contracts.’

Contracting entities may lay down special conditions relating
to the performance of a contract, provided such conditions are
compatible with Community law and indicated in the contract
notice used as a means of calling for competition or in the
contract documents. Contract performance conditions may
relate in particular to social and environmental considerations.’

require

particular

entities may

specifying that
Amendment 4 introduces a new recital
contracting
conditions
concerning the performance of contracts, especially concerning
the promotion of social objectives, provided that these clauses
are compatible with Community law.
to ensure
consistency between the two public procurement Directives,
it
is appropriate to extend this possibility to conditions
relating to environmental protection (1).

In order

authorities may

Amendment 9 introduces a new recital 42a specifying that
are
contracting
tenders which
abnormally low owing to non-compliance with social
legis-
lation. As this possibility already exists under existing law, it
suffices to clarify it in an appropriate way.

reject

that

conditions concerning performance of

third subparagraph,
Amendment 33, modifying Article 33,
specifies
the
contract may include conditions linked to the promotion of
social policy objectives;
also intended to further
is
reinforce compliance with the principles of equal treatment,
contracting
non-discrimination
entities require particular conditions concerning performance
of contracts. This amendment actually clarifies in a specific
provision what
is already contained in the generally valid
provision set out in Article 9.

transparency, where

and

it

(1) Refer to European Parliament Amendment 10 to the Proposal for a
Directive of the European Parliament and of the Council on the
coordination of procedures
the award of public supply
for
contracts, public service contracts and public works contracts.

Amendment 70 modifies Article 55 concerning abnormally
low tenders by changing the words ‘in relation to the service
to be provided’ into ‘in relation to the supply, service or works
to be provided’. The underlying intention (that this provision
should also apply to supplies and works, and not
to
services) clearly shows that this amendment is based on a
misunderstanding
problem. The
a
provision is in fact applicable to the three types of contract.
With a view to consistency with the ‘classic’ Directive and in
order
it
would be inappropriate to amend the existing legislation in
the French version, which makes it sufficiently clear that the
provision is applicable to the three types of contract. What is
more, care should be taken to ensure that this is also the case
in all language versions (2).

to avoid subsequent differences of

interpretation,

translation

due

just

to

(2) The English version should therefore refer to ‘goods, works or

services’.

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The Commission incorporates Amendments 9 and 70 as
follows:

Amendment 35 provides that technical specifications may be
formulated in terms of
requirements with regard to the
environmental impact of the product throughout its lifetime.
The Commission shares this approach.

‘Article 55

Abnormally low tenders

If, for a given contract, tenders appear to be abnormally
1.
low in relation to the goods, works or services, the contracting
entity shall, before it may reject
in
writing details of
the tender
which it considers relevant.

the constituent elements of

those tenders, request

Those details may relate in particular to:

the amendment

Amendment 36 introduces a new definition, namely the
‘equivalent standard’, at a place where, on the contrary, a
tender ensuring an equivalent solution is what is meant. Even
is understood to be concerned with
if
equivalent solutions, the inclusion of costs in the definition
of equivalent solutions is not acceptable, as the price element
must come into play at the stage where tenders are evaluated
on the basis of the award criteria, and not in order to enable
excluded for
tenders based on other
non-compliance with the
the
contracting entity.

to be
specifications of

solutions
technical

(a)

the economics of
services provided and of the construction method;

the manufacturing process, of

the

Amendments 99-118 modify Article 34 to clarify that a
contracting entity cannot reject a tender if the tenderer has
proven to it that the tender satisfies contract requirements in
an equivalent manner.

(b)

the technical solutions chosen and/or the exceptionally
favourable conditions available to the tenderer for the
supply of the goods or services or for the execution of
the work;

(c)

the originality of the supplies, services or works proposed
by the tenderer;

(ca) compliance with provisions on health and safety at work
the place of

in force

at

and working conditions
performance;

Amendment 38 specifies, on the one hand, that a test report
from a recognised body may constitute an appropriate means
of proof and, on the other, that a contracting entity that rejects
a solution on grounds of non-equivalence must state the
reasons for
that decision and inform economic operators
thereof on request. The obligation to communicate the
reasons is taken into account in general terms in Article 48(2).

Amendment 40 permits reference to be made to particular
production processes or to specific producers or suppliers in
exceptional cases.

(d)

the possibility of the tenderer obtaining State aid.

The possibility of referring to a particular production process
may be acceptable provided that it does not have the effect of
reserving the contract for a particular supplier.

The contracting entity shall verify those constituent
2.
elements by consulting the tenderer, taking account of the
evidence supplied.

Amendment 95, modifying Annex XX, alters the definition of
technical specifications by adding the taking into account of
environmental
production
processes or methods.

user-instructions

impact,

and

the

that

3. Where a contracting entity establishes that a tender is
abnormally low on the grounds
tenderer has
obtained a State aid,
the tender can be rejected on such
grounds alone only after consultation with the tenderer,
is unable to prove, within an adequate
where the latter
timeframe fixed by the contracting entity,
the aid in
question was lawfully granted. Where the contracting entity
rejects a tender in these circumstances,
inform the
Commission of that fact.’

it shall

that

Amendments 35, 36, 38, 40, 95 and 99/118 relate to Article
34 concerning technical specifications.

This part of the amendment clarifies the text in line with the
Commission Communication of 4 July 2001 on public
procurement and the environment (1) and is thus acceptable
with reformulation.

It also brings in design for all requirements, including accessi-
bility for disabled people.

(1) ‘Interpretative

communication of

the Commission on the
Community law applicable to public procurement and the possi-
bilities for integrating environmental considerations into public
procurement’, COM(2001) 274 final (OJ C 333, 29.11.2001, p. 13).

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Also taking into account Amendment 7, dealt with in point 3.1
above, the Commission incorporates Amendments 35, 36, 38,
40, 95 and 99/118 in recital 32, Article 34, Article 48(2) and
Annex XX, reformulated as follows:

‘(34)

The technical

specifications drawn up by
Recital:
to be
public procurers must allow public procurement
opened up to competition. To this end,
it must be possible
to submit bids which reflect the diversity of possible technical
it must be possible to draw up the
solutions. Accordingly,
technical specifications in terms of
functional performance
and requirements; and, where reference is made to the
European standard or, in the absence thereof, to the national
tenders based on other equivalent arrangements
standard,
meeting the requirements of
the contracting entities and
equivalent in terms of security must be taken into account
by contracting entities. To demonstrate equivalence, tenderers
should be permitted to use any form of evidence. Contracting
entities must be able to provide a reason for any decision that
equivalence does not exist in a given case.

for

the

technical

Contracting entities that wish to lay down environmental
requirements
specifications of a given
contract may specify the environmental characteristics and/or
specific environmental effects of product groups or services.
They can, but are not obliged to, use appropriate specifications
to specify the supplies or services sought, as defined by
eco-labels such as the European eco-label, the (pluri)national
eco-label or any other eco-label or parts of those specifications.
the
However,
requirements for the label are drawn up on the basis of
scientific information and adopted using a procedure in
which all stakeholders, such as government bodies, consumers,
manufacturers,
retail and environmental organisations can
participate, and providing the label is accessible to all interested
parties.’

this possibility must be admissible only if

‘Article 34

Technical specifications

1.
The technical specifications as defined in point 1 of
Annex XX shall be set out in the contract documentation,
such as contract notices, contract documents or additional
documents.

Technical

specifications

2.
for
tenderers and not have the effect of creating unjustified
obstacles
to
competition.

to the opening-up of public procurement

shall afford equal access

3. Without prejudice to legally binding technical
rules,
insofar as they are compatible with Community legislation,
the technical specifications must be formulated:

(a) by referring to specifications defined in Annex XX and, by
to national standards implementing

order of preference,

technical

approvals,
European
standards,
European
common technical specifications,
international standards,
other technical reference material produced by European
standardisation bodies or, where these do not exist,
or
national
national technical specifications relating to design and the
method of calculation and execution of works and use of
material. Each reference shall be accompanied by the words
“or equivalent”;

standards,

approvals

technical

national

(b) or in terms of performance or of functional requirements;
these may include environmental characteristics. However,
they must be sufficiently precise to allow tenderers to
determine the subject matter of the contract and to allow
contracting entities to award the contract;

(c) or in terms of performance or functional requirements as
referred to in point
a means of
(b),
presumption of conformity with these requirements or
performance capabilities
to the specifications cited in
point (a);

referring as

(d) or by referring to the specifications in point (a) for certain
characteristics, and to the performance capabilities or func-
tional requirements in point (b) for other characteristics.

4. Where contracting entities avail themselves of the possi-
bility of referring to the specifications referred to in paragraph
3, point (a), they may not reject a bid on the grounds that the
products and services offered are not in conformity with the
specifications to which they have made reference, provided that
the tenderer proves in its tender to the satisfaction of the
contracting entity, by any appropriate means,
the
solutions it proposes meet the requirements defined by the
technical specifications in an equivalent fashion.

that

An appropriate means may be constituted by a technical
dossier of the manufacturer or a test report from a recognised
body.

5. Where a contracting entity uses the option provided
under paragraph 3 to formulate specifications in terms of
performance or functional requirements,
it may not reject a
tender for products, services or works which comply with a
national standard transposing a European standard, with a
European technical approval, a common technical specification,
an international standard or a technical reference produced by
a European standardisation body if these specifications address
the same functional and performance requirements.

In its tender, the tenderer must prove to the satisfaction of the
contracting entity, by any appropriate means,
the
products, services and works in compliance with the standard
meet
the
the functional or performance requirements of
contracting entity.

that

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An appropriate means may be constituted by a technical
dossier of the manufacturer or a test report from a recognised
body.

or

of performance

5a. Where a contracting entity specifies environmental
characteristics
functional
in terms
it may use detailed specifications, or parts
requirements,
thereof, defined by European,
(pluri)national or any other
eco-labels, provided they are suitable for defining the charac-
teristics of the supplies or services forming the object of the
contract, and that the requirements for the label are drawn up
on the basis of scientific information and that the label
is
adopted using a procedure in which all stakeholders, such as
retail and
government bodies, consumers, manufacturers,
environmental organisations can participate, and providing
the label is accessible to all interested parties.

technical

The contracting entities may indicate that the products and
services bearing the eco-label are presumed to comply with
the
contract
documents; they must accept any other appropriate means of
proof, such as a technical dossier of the manufacturer or a test
report from a recognised body.

laid down in the

specifications

6.
“Recognised bodies” within the meaning of the present
article shall be understood to mean test and calibration labo-
ratories, and inspection and certification bodies which are in
compliance with the applicable European standards.

Contracting entities shall accept certificates from recognised
bodies established in other Member States.

Unless justified by the object of the contract, the technical
7.
specifications shall not refer to a specific make or source, or to
a particular process, or to a trade mark, patent, type or specific
origin or production which would have the effect of favouring
or eliminating certain enterprises or certain products. Such
reference shall be permitted on an exceptional basis, where a
sufficiently precise and intelligible description of the subject
matter of the contract is not possible in terms of paragraphs
3 and 4; such reference shall be accompanied by the words “or
equivalent”.’

‘Article 48

Information to applicants for qualification, candidates and
tenderers

1.

. . .

The contracting entity shall, upon request,

inform any
2.
unsuccessful candidate or tenderer as soon as possible of the
reasons for the rejection of his application or his tender, and
shall inform any tenderer who has made an admissible tender
of the characteristics and relative advantages of the tender
selected, as well as of the name of the successful tenderer or
the parties to the framework agreement. Under no circum-
stances may the time taken to provide such information
exceed fifteen days, counting from receipt of
the written
request.

that

decide

contracting

certain
entities may
However,
information on the contract award or the conclusion of the
framework agreement, referred to in the first subparagraph, is
to be withheld where release of such information would
impede law enforcement or otherwise be contrary to the
public interest or would prejudice the legitimate commercial
interests of public or private economic operators,
including
those of the economic operator to whom the contract has
been awarded, or might prejudice fair competition between
economic operators.

3.

. . .

4.

. . .

5.

. . .’

‘ANNEX XX

DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS

For the purposes of this Directive:

1. (a) “technical specification”, in the case of public service or
supply contracts, means a specification in a document
defining the required characteristics of a product or
service, such as quality and environmental performance
levels, design for all requirements (including accessibility
for disabled people) and use of the product, its safety or
dimensions,
to the
product as regards the name under which the product
is sold, terminology, symbols, testing and test methods,
instructions,
packaging, marking and labelling, user
production methods
as
as well
and procedures,
conformity assessment procedures;

including requirements

relevant

(b) “technical specifications”,
the

entity.

(including

design for

characteristics
levels,
accessibility

in the case of public works
the
technical
totality
contracts, means
of
prescriptions contained in particular
in the tender
documents, defining the characteristics required of a
material, product or supply, which permits 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
includes
contracting
These
all
environmental performance
requirements
disabled
people) and conformity assessment levels, use of the
including procedures
product, safety or dimensions,
relating to quality assurance,
symbols,
terminology,
testing and test methods, packaging, marking and
labelling, user instructions and production procedures
and methods. 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;

for

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2. “standard” means a technical specification approved by a
recognised standardisation body for repeated or continuous
application, compliance with which is not compulsory and
which falls into one of the following categories:

these two provisions. The Commission therefore takes over
Amendment 64 as follows:

— international standard: a standard adopted by an inter-
national standards organisation and made available to
the general public;

— European standard: a standard adopted by a European
standards organisation and made available to the general
public;

required.

Recital: ‘(39a)
In appropriate cases, where the nature of the
works and/or services justifies the application of environmental
management measures or systems for the performance of the
public contract, the application of such measures or systems
registration in
Independently of
may be
accordance with the Community instruments (EMAS), environ-
mental management systems may demonstrate the technical
capacity of the economic operator to perform the contract.
Moreover, a description of
taken by the
economic operator to ensure the same level of environmental
protection must be accepted as an alternative means of proof
to the registered environmental management systems.’

the measures

their

— national standard: a standard adopted by a national
to the

standards organisation and made available
general public;

‘Article 51

3. “European technical approval” means 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 application and use. European
approval shall be issued by an approval body designated
for this purpose by the Member State;

4. “common technical specifications” means a technical spec-
ification drawn up in accordance with a procedure
recognised by the Member States and published in the
Official Journal of the European Communities;

5. “technical

reference” means any product produced by
European standardisation bodies,
than official
standards, according to procedures adapted in line with
market developments.’

other

EMAS

accept

attesting

certificates

certificates,

Amendment 64 introduces a new Article 53a which provides
that, should a contracting entity require the production of a
certificate relating to an environmental management system, it
must
to
compliance with international standards, as well as any other
equivalent means of proof. In some appropriate cases — e.g.
where the ability to comply with an eco-management scheme
during the realisation of a public work is concerned (1) — an
environmental management system may attest
to technical
capacity. For such cases, it is appropriate to make provision
for the possible means of proof and for the recognition of
equivalence, so as to ensure that contracts are not reserved
for holders of certain certificates only. This amendment
broadly takes over the provisions of Article 51(2) concerning
this
certificates. Given
quality
amendment may be inserted into Article 51 and be refor-
mulated as follows in order to guarantee parallelism between

assurance

affinity,

this

(1) Cf. the Interpretative Communication referred to above.

Mutual recognition concerning administrative, technical or
financial conditions, and certificates, tests and evidence

1.

. . .

2. Where they request production of certificates produced
by independent bodies, certifying that the economic operator
satisfies certain quality guarantee standards, contracting entities
shall refer to quality assurance systems based on the series of
European standards on the subject and certified by bodies
meeting European standards of certification.

They shall recognise equivalent certificates from bodies estab-
lished in other Member States. They shall also accept other
evidence of
guarantees produced by
economic operators.

equivalent quality

the

For public works and service contracts, and in appro-
3.
priate cases only, contracting entities may require an indication
of
environmental management measures which the
economic operator will be able to take during performance
of the contract. If, in these cases, contracting entities require
the production of certificates drawn up by independent bodies
attesting to the compliance of the economic operator with
certain environmental management standards, they shall refer
to the Community Eco-Management and Audit Scheme (EMAS)
to environmental management standards based on the
or
standards certified by
relevant European or
bodies
relevant
the
European or international standards concerning certification.

conforming to Community law or

international

They shall recognise equivalent certificates from bodies estab-
lished in other Member States. They shall also accept other
evidence of equivalent environmental management measures
produced by economic operators.’

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Amendment 18 is designed to enable economic operators
tendering as a group to bring their collective capacities to
bear for selection purposes, as regards: suitability to pursue
the professional activity concerned, economic and financial
capability.
and/or
capacity
However, the length of any professional experience required
may not be cumulated. Moreover, the amendment provides
that there may be a requirement for minimum criteria to be
met by the head of the group.

professional

technical

and

in a

activity’

to each participant

The amendment is line with case law. However,
it must be
possible to apply the requirement ‘suitability to pursue the
group,
professional
depending on the activity which the participant concerned
will be called upon to carry out in the performance of the
contract. As
the minimum criteria which the
contracting authority may require the head of the group to
meet, it has to be ensured that the word ‘minimum’ is inter-
preted in such a way as to guarantee to the contracting
authority that at least one participant in the group has the
skills required for the performance of the contract.

regards

This problem may arise in various contexts (both in the
management of a qualification system and in open, restricted
or negotiated procedures with a prior call for competition, and
for each of these situations both for groupings of economic
operators in the true sense and for economic operators acting
alone but intending to draw on the capacity of other entities
such as controlled enterprises, subcontractors, etc.). It must,
therefore, be taken into account
in the reformulation of
Articles 52 and 53.

This reformulation must also take account of Amendments 57
and 109 which, without making any distinction between
the
compulsory and optional exclusion criteria, make all
exclusion criteria provided for under Article 46 of
the
proposal for a classic Directive compulsory in the management
of qualification systems and in the selection of participants in
open, restricted or negotiated procedures with a prior call for
competition.

Concerning the application of the optional criteria provided for
under Article 46(2) of the classic Directive (bankruptcy, grave
professional misconduct, etc.), these amendments need to be
reformulated in order to retain the optional nature of these
exclusion criteria.

As far as the compulsory exclusion criteria provided for under
Article 46(1) of the classic Directive are concerned (convictions
by final judgment, e.g. for participation in a criminal organi-
sation),
it is acceptable to make these provisions applicable
where contracting authorities award contracts which are
subject to the Utilities Directive, all the more so as it is often
the case that one and the same contracting authority operates
in both the utilities and the ‘classic’ sectors.

As regards contracting entities other than public authorities
(e.g. public and private undertakings operating on the basis

of special or exclusive rights), by contrast, such an obligation
to apply these criteria is not acceptable, as compliance with
these obligations by entities other than contracting authorities
would necessarily presuppose that
these entities can have
access to information in the judicial record, which could give
rise to serious problems in terms of data protection. What is
more, account has to be taken of the fact that such information
may relate to competing companies.

Amendment 60 would introduce a list of exclusion criteria in
Article 53 concerning the selection of participants in open,
restricted or negotiated procedures with a prior call
for
competition. The amendment cannot be taken over as it
stands, as some of the cases would create unjustified differences
to those referred to in the ‘classic’ Directive (e.g.
the list
includes the possibility of exclusion because of convictions
for
this case does not
feature explicitly in Article 46(2) of the classic Directive). In
order
to ensure consistency between the two Directives,
therefore, the substance of this amendment needs to be incor-
porated by way of a referral to Article 46(2).

‘environmental’ offences, whereas

To the extent indicated above, therefore, the Commission can
take over Amendments 18, 57, 109 and 60 in Articles 52
(redrafted) and 53, formulated as follows:

‘Article 52

Qualification systems

Contracting entities which so wish may establish and

1.
operate a system of qualification of economic operators.

Entities which establish or operate a system of qualification
shall ensure that economic operators are at all times able to
request qualification.

The system under paragraph 1 may involve different

2.
qualification stages.

It shall be operated on the basis of objective criteria and rules
to be established by the contracting entity.

Where those criteria and rules include technical specifications,
the provisions of Article 34 shall apply. The criteria and rules
may be updated as required.

2a.
The rules and criteria referred to in paragraph 2 may
include the exclusion criteria listed in Article 46 of Directive
. . ./. . ./EC (concerning the coordination of procedures for the
award of public works contracts, public supply contracts and
public service contracts).

Where a contracting entity is a public authority within the
meaning of Article 2(1)(a),
shall
include the compulsory exclusion criteria listed in Article 46
of Directive . . ./. . ./EC.

these criteria and rules

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2b. Where the criteria and rules of qualification referred to
in paragraph 2 include requirements relating to the economic
and financial standing of an economic operator, the economic
operator may, where appropriate, bring to bear the resources
of other entities, regardless of the legal links which it has with
them. It must in that case prove to the contracting entity that it
its disposal during the entire
will have those resources at
period of validity of
e.g. by
producing an undertaking given by those entities to that effect.

the qualification system,

Under the same conditions, a grouping of economic operators,
such as referred to in Article 10, may bring to bear the
resources of the group participants or of other entities.

2c. Where the criteria and rules of qualification referred to
in paragraph 2 include requirements relating to the technical
the
and professional capabilities of an economic operator,
economic operator may, where appropriate, bring to bear the
resources of other entities, regardless of the legal links which it
has with them. It must in that case prove to the contracting
entity that it will have those resources at its disposal during the
entire period of validity of the qualification system, e.g. by
producing an undertaking given by those entities to place the
necessary resources at the disposal of the economic operator.

Under the same conditions, a grouping of economic operators,
such as referred to in Article 10, may bring to bear the
resources of the group participants or of other entities.

The criteria and rules for qualification referred to in
3.
paragraph 2 shall be made available, on request,
to the
economic operators concerned. The updating of these criteria
and rules shall be communicated to the economic operators
concerned.

the qualification
Where a contracting entity considers that
its
system of
requirements,
economic
operators concerned the names of such other entities or bodies.

entities or bodies meets
to

certain other

communicate

shall

the

it

4.
A written record of qualified economic operators shall be
kept; it may be divided into categories according to the type of
contract for which the qualification is valid.

5. When a call for competition is made by means of a
notice on the existence of a qualification system, tenderers in
a restricted procedure or participants in a negotiated procedure
shall be selected from the qualified candidates in accordance
with such a system.’

‘Article 53

Criteria for qualitative selection

Contracting entities which select candidates for restricted
2.
or negotiated procedures shall do so according to objective
criteria and rules which they have laid down and which are
available to interested economic operators.

3.
In restricted or negotiated procedures, the criteria may be
based on the objective need of the contracting entity to reduce
the number of candidates to a level which is justified by the
of
need
the
the particular
procurement procedure with the
required to
conduct it. The number of candidates selected shall, however,
take account of the need to ensure adequate competition.

characteristics
resources

to balance

4.
The criteria set out in paragraphs 1 and 2 may include
the exclusion criteria listed in Article 46 of Directive . . ./. . ./EC
[on the coordination of procedures for the award of public
works contracts, public supply contracts and public service
contracts].

Where a contracting entity is a public authority within the
meaning of Article 2(1)(a), the criteria referred to in paragraphs
1 and 2 of this Article shall include the compulsory exclusion
criteria listed in Article 46(1) of Directive . . ./. . ./EC.

5. Where the criteria referred to in paragraphs 1 and 2
include requirements relating to the economic and financial
standing of an economic operator,
the economic operator
may, where appropriate, and for a particular contract, bring
to bear the resources of other entities, regardless of the legal
links which it has with them. It must in that case prove to the
contracting entity that it will have at its disposal the resources
necessary, e.g. by producing an undertaking given by those
entities to that effect.

Under the same conditions, a grouping of economic operators,
such as referred to in Article 10, may bring to bear the
resources of the group participants or of other entities.

6. Where the criteria referred to in paragraphs 1 and 2
include requirements relating to the technical and professional
capabilities of an economic operator, the economic operator
may, where appropriate, and for a particular contract, bring to
bear the capabilities of other entities, regardless of the legal
links which it has with them. It must in that case prove to
the
the contracting entity that
resources necessary for the execution of
for
example, by producing an undertaking given by those entities
to place the necessary resources at
the
economic operator.

its disposal
the contract,

the disposal of

it will have at

1.
Contracting entities which establish selection criteria in
an open procedure shall do so in accordance with objective
rules and criteria which are available to economic operators.

Under the same conditions, a grouping of economic operators,
such as referred to in Article 10, may bring to bear the
resources of the group participants or of other entities.’

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Amendment 43 modifies the title of Article 38, adding a
reference to obligations relating to environmental protection.
The implication is that entities may state the authorities from
which operators
can obtain information concerning the
relevant obligations in force at the place where the works or
services are to be executed.

conditions which are in force in the Member State, region or
locality in which works are to be carried out or services
provided and which shall be applicable to works carried out
or services provided on site during the performance of the
contract.’

Although the modification of the title provided for in this
amendment does not correspond to the content of
the
provision on account of
the amendments modifying the
content of this article having been rejected, its substance can
nevertheless be accepted, given that the content of Article 38
to avoid unjustified
will have
discrepancies between this provision and those of the classic
Directive (Article 27), as amended (see Amendment 50 to the
‘classic’ Directive).

altered in order

to be

legislation,

the (rejected) amendments to Article 38,

Amendment 47 introduces a new subparagraph in Article
41(1) with the aim of increasing transparency regarding the
information to be provided to economic operators on obli-
in accordance with Article
gations under social
38. Although the amendment would have required the
adoption of
the
principle that economic operators must be aware of the legis-
lation to be complied with during execution of the contract in
order to take it into account during the tender preparation
phase is acceptable. However, such information cannot be
limited solely to obligations deriving from social
legislation,
as other (environmental or tax)
legislation — covered by
Article 38 — must also be taken into account. There is,
however, a risk of this information becoming so extensive
that it could not be included in the notice where the call for
competition is made by means of a periodic indicative notice
or a notice on the existence of a qualification system, which
may not only relate to a large number of individual contracts,
but may also be published so far in advance of the launch of a
particular contract
the
information is at risk of becoming obsolete. It is preferable,
therefore, to limit the obligation to provide this information to
contracts for which the call for competition is made by means
of a contract notice. Where this is not the case, the necessary
transparency will nevertheless be assured, as the contract
documents relating to individual contracts must contain the
particulars needed to enable economic operators to obtain
relevant and up-to-date information.

(sometimes one or two years)

that

The Commission can incorporate Amendment 43 and
Amendment 47 into Article 38(1) and Annex XII as refor-
mulated below:

‘Article 38

Obligations relating to taxes, environmental protection,
health and safety at work and working conditions

The contracting entity shall state in the contract documents the
body or bodies from which a candidate or tenderer may obtain
the appropriate information on obligations relating to the
provisions on health and safety at work and the working

‘ANNEX XII

INFORMATION TO BE INCLUDED IN CONTRACT NOTICES

A. OPEN PROCEDURES

1. Name, address,

telephone number,
contracting entity.

telegraphic address, electronic address,
the

and fax numbers of

telex

1a. Where public works and supply contracts involve siting
and installation operations: name, address, telephone and
fax numbers, and electronic address of the departments
from which information can be obtained concerning the
provisions on taxes, environmental protection, health and
safety at work and working conditions applicable in the
place where the contract is to be performed.

. . .

B. RESTRICTED PROCEDURES

1. Name, address,

telephone number,
contracting entity.

telegraphic address, electronic address,
the

and fax numbers of

telex

1a. Where public works and supply contracts involve siting
and installation operations: name, address, telephone and
fax numbers, electronic address of the departments from
which information can be obtained concerning the
provisions on taxes, environmental protection, health and
safety at work and working conditions applicable in the
place where the contract is to be performed.

. . .

1.

C. NEGOTIATED PROCEDURES

Name, address, telegraphic address, electronic address,
telephone number,
the
contracting entity.

telex and fax numbers of

1a. Where public works and supply contracts involve siting
and installation operations: name, address, telephone and
fax numbers, electronic address of the departments from
which information can be obtained concerning the
provisions on taxes, environmental protection, health
and safety at work and working conditions applicable
in the place where the contract is to be performed.

. . .’

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Amendment 13 is linked to Amendment 16. They are intended
to ensure that contracting authorities in the postal sector
currently subject to the classic Directive are subject to the
more flexible rules of the ‘Utilities Directive’ in order to take
account of the liberalisation under way in that sector.

Amendment 13 would thus add a reference to postal activities
in the definition of
this Directive, both for
contracting authorities and for public and private undertakings
engaged in a postal activity on the basis of exclusive or special
rights.

the scope of

Amendment 16, paragraph 2, provides moreover that
the
Directive is not applicable to postal services which can be
supplied by other agencies on an unrestricted basis or are
simply subject
to a licensing procedure. Paragraph 3 is
difficult
to summarise, as there are substantial differences
between the various language versions. On the basis of what
appears to be the common denominator of the majority of
versions, paragraph 3 would add to the amendment by
providing that
the Directive would not apply to contracts
awarded by entities engaged in a postal activity (not excluded
under paragraph 2) for their own undertaking, where the possi-
bility exists that other undertakings could offer, on broadly the
same terms and in the same geographic zone, all postal
services whose economic importance is not secondary or
negligible.

The principle of treating the postal sector in the same way as
other forms of activity covered by this Directive is acceptable
to the Commission. This is, in effect, a sector which is char-
acterised by an activity carried out by both public and private
entities operating across a network, often in monopolistic or
oligopolistic situation, and for which the opening-up of postal
services in the Community to competition is ongoing. When
making the transfer, it has to be ensured that the definition of
the activities referred to guarantees, on the one hand, that all
activities linked directly or indirectly to the postal activity are
included and, on the other, that the definition does not give a
carte blanche for a transfer of activities linked neither directly
nor indirectly to traditional postal services. To this end, the
definitions contained in Directive 97/67/EC of the European
Parliament and of
the Council of 15 December 1997 on
common rules for the development of the internal market of
Community postal services and the improvement of quality of
service (1) are a good starting point. It should be noted that the
partial acceptance of Amendment 16 in Article 6a renders
superfluous the modifications proposed by Amendment 13 to
Article 2(2), without any change being made to the substance.

(1) OJ L 15, 21.1.1998, p. 14.

The Commission cannot accept the exceptions proposed in
Amendment 16, given that paragraph 2 contrasts starkly
the proposal by seeking to
with the overall approach of
ensure that there is a single mechanism for removal
from
the field of application, applicable under identical conditions
to all activities covered by this Directive. However, the idea
that operators might — whatever their legal status — be
excluded from the field of application once the liberalisation
process currently under way has produced adequate results can
be accepted. Concerning the proposed changes to Article 29
aimed at making it applicable to public authorities engaged in
a liberalised activity, see the comments on Amendment 117.
Recital 14 is therefore deleted. It should also be pointed out
that the general scheme of the text ensures that private entities
operating in the postal sector will be subject to these rules only
to the extent that they have exclusive or special rights for the
exercise of
referred to. Paragraph 3 is not
acceptable in the form proposed, as its application would
appear to be linked solely to the possibility of other entities
being able to offer postal services with a certain level of
economic importance. It should be emphasised, however, that
the existing exceptions,
including in particular that provided
for in Article 20 concerning contracts awarded for purposes of
resale or hire to third parties, will also apply to the postal
sector.

the activities

The Commission can,
Amendments 13 and 16 as follows:

therefore, accept

the substance of

Title:

‘EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE

coordinating the procurement procedures of entities operating
in the water, energy, transport and postal services sectors’

Recital: ‘(2)
The procedures for the award of contracts which
are applied by entities operating in the water, energy, transport
and postal services sectors call for coordination based on the
requirements inferable from Articles 14, 28 and 49 of the EC
Treaty and from Article 97 of the Euratom Treaty, namely the
principles of equality of treatment, of which the principle of
non-discrimination is no more than a specific expression,
transparency and the opening-up of
mutual
recognition,
to competition. Whilst ensuring the
public procurement
application of
this coordination should
establish a framework for sound commercial practice and
should allow a maximum of flexibility.’

those principles,

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‘(2a)

than offered by

In view of the further opening-up of postal
Recital:
services to competition, and given that such services are
provided across a network by public authorities, public under-
takings and other undertakings, it is necessary to provide that
contracts awarded by contracting entities offering postal
services are subject
to rules which, whilst ensuring the
application of the principles referred to in recital 2, establish
a framework for sound commercial practice and allow greater
flexibility
the provisions of Directive
2002/00/EC of the European Parliament and of the Council
of . . . [title of the works Directive etc.], while waiting for
the liberalisation process to reach such a level as to make
exclusion under the general mechanism envisaged to that
effect possible. For the definition of the activities referred to,
account has to be taken, when adapting them in line with the
objectives of
the provisions of Directive
97/67/EC of the European Parliament and of the Council of
15 December 1997 on common rules for the development of
the internal market of Community postal services and the
amended by
improvement of quality of
Directive . . ./. . ./EC of the European Parliament and of the
Council amending Directive 97/67/EC insofar as concerns the
further opening to competition of Community postal services.’

this Directive, of

service (1),

as

‘(8)

Recital:
The need to ensure a real opening-up of the
market and a fair balance in the application of procurement
rules in the water, energy, transport and postal services sectors
requires that the entities to be covered must be identified on a
basis other than by reference to their legal status. It has to be
ensured,
treatment of contracting
the equal
entities operating in the public sector and those operating in
It is also necessary to
the private sector is not prejudiced.
ensure,
in keeping with Article 295 of the Treaty, that the
rules governing the system of property ownership in Member
States are not prejudiced.’

therefore,

that

instance books, catalogues, newspapers, periodicals and
postal packages containing merchandise with or without
commercial value,
irrespective of weight. Also included
are other forms of mail such as unaddressed direct mail;

(b) “Basic postal services”:

services which are or may be
reserved on the basis of Article 7 of Directive 97/67/EC,
comprising the clearance, sorting, transport and delivery of
postal items;

(c) “Other postal services”: services other than those referred to
in point (b) comprising the clearance, sorting, transport and
delivery of postal items; and

(d) “auxiliary postal services”: service provided in the following

areas:

— mail management services (both upstream and down-
stream of posting such as mailroom management
services); and

— value-added services associated with e-mail

(including

secure transmission of encrypted documents);

— financial services; and

— logistical services,

where these services are provided by an entity also
providing postal services within the meaning of points (b)
or (c).’

Recital (14): deleted.

‘Article 5a

Provisions relating to postal services

‘ANNEX Va

CONTRACTING ENTITIES IN THE POSTAL SERVICES SECTOR

1.
This Directive shall apply to activities concerned with the
provision of basic postal services, other postal services and
auxiliary postal services.

BELGIUM

2.
For the purposes of this Article, and without prejudice to
Directive 97/67/EC of the European Parliament and of the
Council of 15 December 1997 on common rules for the devel-
opment of the internal market of Community postal services
and the improvement of quality of service (1), as amended by
Directive . . ./. . ./EC of the European Parliament and of the
. . . amending Directive insofar as concerns the
Council of
further opening to competition of Community postal services
the following definitions shall apply:

(a) “postal item”: an item addressed in the final form in which
irrespective of weight. In addition to
such items also include for

it is to be carried,
items of correspondence,

(1) OJ L 15, 21.1.1998, p. 14.

De Post/La Poste

DENMARK

Post Danmark

GERMANY

Deutsche Post AG

GREECE

ELTA

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SPAIN

Correos y Telégrafos, SA

FRANCE

La Poste

IRELAND

An Post

ITALY

Poste Italiane SpA

LUXEMBOURG

Entreprise des Postes et Télécommunications Luxembourg

NETHERLANDS

TNT Post Groep (TPG)

AUSTRIA

Österreichische Post AG

PORTUGAL

CTT — Correios de Portugal

FINLAND

Suomen Posti OYJ

SWEDEN

Posten Sverige AB

Posten Logistik AB

UNITED KINGDOM

Consignia plc’

List to be completed

‘ANNEX X

LIST OF LEGISLATION REFERRED TO IN ARTICLE 29(3)

Ga CONTRACTING ENTITIES IN THE POSTAL SERVICES SECTOR

Directive 97/67/EC of the European Parliament and of the
Council of 15 December 1997 on common rules for the
development of the internal market of Community postal
services and the improvement of quality of service (1).’

Amendments 21 and 22 modify Article 19 regarding the
methods for estimating the value of service contracts.

Amendment 21, which concerns the calculation of the value of
insurance service contracts,
is designed to take into account
remuneration comparable with insurance
other
premiums.

forms of

This amendment is justified by the type of services concerned
and their mode of remuneration.

Amendment 22 specifically regulates the calculation of the
value of contracts of indefinite duration with a tacit renewal
clause.

The amendment is aimed at avoiding improper fragmentation
designed to evade the obligations imposed by the Directive —
it
to
competition-reducing renewal clauses should be avoided.

aim. However,

thus pursues

recourse

laudable

a

co-legislators,

agreement between the

To facilitate
the
Commission takes the view that the four articles concerning
calculation methods should be merged — Article 16 containing
general rules, Article 17 for works contracts, Article 18 for
supply contracts and Article 19 for service contracts. The
Commission therefore incorporates Amendments 21 and 22
as follows:

‘Article 16

Methods of calculating the estimated value of contracts
and framework agreements

The calculation of the estimated value of a contract shall
1.
be based on the total amount payable, net of VAT, as estimated
by the contracting entity. This calculation shall take account of
the estimated total amount, including any form of option and
any tacit contract renewal clauses.

(1) OJ L 15, 21.1.1998, p. 14. Directive last amended by Directive
. . ./. . ./EC of . . . of the European Parliament and of the Council
of . . . amending Directive 97/67/EC insofar as concerns the further
opening to competition of Community postal services (OJ L . . .).

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Where the contracting entity provides for prizes or payments
to candidates or tenderers,
it shall take them into account
when calculating the estimated value of the contract.

The basis for calculating the estimated value of a contract
8.
including both supplies and services shall be the total value of
the supplies and services, regardless of their respective shares.
The calculation shall include the value of the siting and instal-
lation operations.

2.
Contracting entities may not circumvent this Directive by
splitting works projects or proposed purchases of a certain
quantity of
services or by using special
methods for calculating the value of contracts.

supplies and/or

3.
The basis for calculating the value of a framework
agreement shall be the estimated maximum value, net of
VAT, of all the contracts envisaged for the period in question.

4.
For the purposes of Article 15, contracting entities shall
include in the estimated value of a works contract both the
cost of the works and the value of any supplies or services
necessary for the execution of the works which they make
available to the contractor.

9.
In the case of supply contracts for lease, rental or hire-
purchase, the value to be used as the basis for calculating the
contract value shall be:

(a)

in the case of fixed-term contracts, where their term is 12
months or less, the estimated total value for the contract's
duration, or, where their term exceeds 12 months, the
contract's total value including the estimated residual value;

(b) in the case of contracts for an indefinite period, or in cases
where there is doubt as to the duration of the contracts, the
anticipated total
instalments to be paid in the first four
years.

5.
The value of supplies or services which are not necessary
for the execution of a particular works contract may not be
added to that of the works contract, when doing so would
result
those supplies or
in removing the procurement of
services from the scope of this Directive.

10.
For the purposes of calculating the estimated contract
amount of financial services, the following amounts shall be
taken into account:

6. Where a supply, service or work is the subject of several
lots, the total estimated value of all those lots shall be taken
into account. Where the aggregate value of the lots equals or
exceeds the threshold laid down in Article 15, the provisions of
that Article shall apply to all the lots.

However, in the case of works contracts, contracting entities
lots whose
may derogate from Article 15 in respect of
estimated value net of VAT is less than one million euro,
provided that
those lots does not
exceed 20 % of the overall value of the lots.

the aggregate value of

7.
In the case of procurement of supplies or services over a
given period by means of a series of contracts to be awarded to
one or more suppliers or service providers, or of contracts
which are to be renewed, the contract value shall be calculated
on the basis of:

(a)

in the case of insurance services, the premium payable and
other forms of remuneration;

(b) in the case of banking and other financial services, the fees,
commissions and interest and other forms of remuneration;

(c)

in the case of contracts involving design tasks, the fees, or
commissions and other forms of remuneration.

In the case of service contracts which do not indicate a
11.
total cost, the value to be used as the basis for calculating the
estimated contract value shall be:

(a)

in the case of fixed-term contracts, where their term is 48
months or less, the total contract value for their duration;

(a) the total value of contracts with similar characteristics
which were awarded over the previous financial year or
12 months, adjusted where possible to reflect anticipated
changes in quantity or value over the subsequent 12
months; or

(b) in the case of contracts of indefinite duration, or with a
term of more than 48 months, the anticipated total of the
instalments to be paid in the first four years.’

(b) the aggregate value of contracts to be awarded during the
12 months following the first award or during the whole
term of the contract, where this is longer than 12 months.

Amendments 26 and 27 modify, respectively, the title and first
paragraph of Article 26 concerning the possibility of awarding
service contracts to an affiliated undertaking or to a contracting
entity forming part of a joint venture.

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Overall, these amendments are aimed firstly at extending the
provision to include supply or works contracts.

already provided for under existing legislation and thus do
not pose any problems in terms of substance.

They then provide for the following exclusions for contracts
awarded to:

The Commission therefore incorporates Amendments 26 and
27 as follows:

1. an undertaking affiliated to the contracting authority, or

2. a joint venture formed by several contracting authorities for
the purpose of engaging in one of the activities covered by
this Directive.

In these two cases,
the amendment reduces the turnover
requirement to 50 %. It is also envisaged that this condition
can be met where the undertaking to which the contract is
awarded has been in existence for less than three years, if the
turnover required is likely to be attained at the end of the first
three years of its existence.

The amendment also provides for exceptions for contracts
awarded by a joint venture.

3. to one of the contracting entities which set it up, or

4. to an undertaking which is affiliated to one of

those

contracting entities.

In these last two cases, no other condition is laid down.

is more,

This extension to include works and supply contracts is unac-
ceptable,
in that it would question the acquis communautaire,
without valid justification, by excluding from the scope of
the Directive contracts which are currently covered by it.
this extension
the possible acceptance of
What
could distort competition by reserving for certain undertakings
the opportunity to gain income or experience which these
same undertakings
in calls — by other
contracting entities — for competition in connection with
comparable contracts, to the disadvantage of competing under-
takings which had not had the opportunity to gain the same
income and experience.

could invoke

For the same reasons, the reduction of the turnover required
for the exclusion to be applicable from 80 % to 50 % is also
unacceptable, as is the removal of all conditions in the case of
a contract awarded by a joint venture to an undertaking
affiliated to one of the contracting entities which set up the
joint venture (case No 4).

By contrast, the principle of providing for the possibility of
awarding contracts to affiliated undertakings during the first
three years of their existence is acceptable,
if reformulated.
The possibility of a contracting entity awarding contracts to
a joint venture is consistent with the broad thrust of
the
provision and is therefore acceptable. Cases 1 and 3 are

It

‘(28)

Recital:
is appropriate to exclude certain service
contracts awarded to an affiliated undertaking having as its
principal activity, with respect to services, the provision of
such services to the group of which it is part, rather than
the offering of its services on the market. It is also appropriate
to exclude certain service contracts awarded by a contracting
entity to a joint venture set up by several contracting entities
for the purpose of engaging in activities covered by this
Directive and of which it itself forms part.’

‘Article 26

Service contracts awarded to an affiliated undertaking, a
joint venture or a contracting entity forming part of a
joint venture

any

annual

accounts

undertaking whose

For the purposes of this Article, “affiliated undertaking”
1.
means
are
consolidated with those of the contracting entity in accordance
with the requirements of
the Seventh Council Directive
83/349/EEC (1), or, in the case of entities not subject to that
Directive, any undertaking over which the contracting entity
may exercise, directly or
influence
within the meaning of point (b) of Article 2(1), or which
the contracting
may exercise a dominant
entity or which,
is
subject to the dominant influence of another undertaking by
virtue of ownership, financial participation, or the rules which
govern it.

in common with the contracting entity,

indirectly, a dominant

influence over

2.

This Directive shall not apply to service contracts:

(a) which a contracting entity awards to an affiliated under-

taking;

(b) awarded by a joint venture formed by a number of
contracting entities for the purpose of carrying on activities
within the meaning of Articles 3 to 6 to an undertaking
which is affiliated with one of these contracting entities;

provided that at least 80 % of the average turnover of that
undertaking with respect to services for the preceding three
years derives from the provision of such services to under-
takings with which it is affiliated.

Where, because of the date on which the affiliated undertaking
was set up or commenced its activities, the turnover for the
preceding three years is not available, it shall suffice for that
undertaking to demonstrate that the turnover referred to in the
first subparagraph will probably be achieved, particularly on
the basis of activity forecasts.

(1) OJ L 193, 18.7.1983, p. 1. Directive last amended by Directive

90/605/EEC (OJ L 317, 16.11.1990, p. 60).

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Where more
contracting entity provides
services,
the total
services by those undertakings shall be taken into account.

than one undertaking affiliated with the
similar
same
turnover deriving from the provision of

service or

the

‘Article 27

Contracts awarded by certain contracting entities for the
purchase of water and for the supply of energy or fuels
for the production of energy

3.

This Directive shall not apply to service contracts:

This Directive shall not apply to:

(a) awarded by a joint venture formed by a number of
contracting entities
the purpose of carrying out
activities within the meaning of Articles 3 to 6 to one of
those contracting entities;

for

(a) contracts for the purchase of water,

insofar as they are
awarded by contracting entities engaged in the activity
referred to in Article 4,

(b) awarded by a contracting entity to such a joint venture of

which it forms part.

(b) contracts for the supply of energy or fuel

intended for
production of energy by contracting entities engaged in
an activity referred to in Article 3(1), Article 3(3) or
Article 6, point (a).’.

The contracting entities shall notify to the Commission,
following information regarding the

4.
at
application of the provisions of paragraphs 2 and 3:

request,

the

its

(a) the names of the undertakings or joint ventures concerned;

(b) the nature and value of the service contracts involved;

(c) such proof

as may be deemed necessary by

the
Commission that the relationship between the contracting
entity and the undertaking or joint venture to which the
contracts are awarded complies with the requirements of
this Article.’

for

fuels

Amendment 29, modifying Article 27(1)
reintroduces an
exclusion, existing in the current Directive, for purchases of
energy or
the production of energy made by
contracting entities operating in the energy sector in the
broad sense of the term (production, transport and distribution
of electricity, gas or heat, as well as the exploration for and
extraction of oil, gas, coal or other solid fuels). However, a
reformulation of
required,
replacing the references to annexes, which imply a reference
to the contracting entities, with a reference to the articles
defining the relevant activities.

a purely technical nature

is

Amendment 30 is designed to ensure that any modification to
the exclusion provided for in paragraph 1 is carried out in
agreement with the European Parliament. Given than any
and every proposal
to amend this provision will have to
follow the co-decision procedure provided for by the Treaty,
and that the Commission will always have the possibility of
the provision by the two
securing a re-examination of
co-legislators
reasoned
appropriate
submitting
by
proposals,
the amendment, while not being taken over
explicitly, can be accepted in substance by deleting paragraph
2 of Article 27.

and

The Commission incorporates Amendments 29 and 30 in
Article 27 as follows:

of

the

themselves

Amendment 117 introduces the possibility for contracting
entities
an
requesting
exemption procedure under Article 29. Such a possibility is
acceptable to the Commission. By incorporating Amendment
117, it is also possible to take into account the fear underlying
Amendment 31 that
the decision-making procedure under
Article 31 is too complicated and long. Amendment 117 can
therefore be incorporated as follows:

opening

of

Recital (14): deleted.

‘Article 29

General mechanism for the exclusion of activities directly
exposed to competition

Contracts intended to permit the performance of a service
1.
mentioned in Articles 3 to 6 shall not be subject
to this
Directive if, in the Member State in which the activity is to
be performed, it is directly exposed to competition on markets
to which access is not restricted.

2.
For the purposes of paragraph 1, the question of whether
an activity is directly exposed to competition shall be decided
on the basis of criteria such as the characteristics of the goods
or services concerned, the existence of alternative goods or
services, prices and the actual or potential presence of more
than one supplier of the goods or services in question.

For the purposes of paragraph 1, access to a market shall
3.
be deemed not to be restricted if the Member State has imple-
mented and applied the provisions of Community legislation
referred to in Annex X.

If free access to a given market cannot be presumed on the
basis of
the
contracting entity seeking exemption must demonstrate that
access to the market in question is free de facto and de jure.

subparagraph, a Member State or

the first

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In order to benefit from an exemption under paragraph
4.
1, a Member State or a contracting entity shall ask the
Commission to grant an exemption.
the request comes
from a contracting entity, the Commission shall immediately
inform the Member State concerned.

If

That Member State shall, taking account of paragraphs 2 and 3,
inform the Commission of all
facts, and in
particular of any law, regulation, administrative provision or
agreement concerning compliance with the conditions set out
in paragraph 1.

the relevant

The Commission may also initiate the procedure for adoption
of an exemption decision at its own initiative.

in Article 65(2),

For the adoption of a decision under this Article, in accordance
with the procedure provided for
the
Commission shall be allowed a period of
three months,
commencing on the first working day following the date on
which it receives the exemption request. This period may be
extended once by one, two or three months in duly justified
cases where the information contained in the request or in the
documents attached is incomplete or inaccurate, or where the
facts reported in the request subsequently change substantially.

combination of those means, according to the choice of the
contracting entity.

The means of communication chosen must be generally
2.
available and thus not restrict economic operators' access to
the tendering procedure.

exchange

Communication and the

3.
and storage of
information shall be carried out in such a way as to ensure
that the integrity of data and the confidentiality of tenders and
requests to participate are preserved, and that the contracting
to
entities examine the content of
participate only after the time limit set for submitting them
has expired.

tenders and requests

The tools to be used for communicating by electronic
4.
technical characteristics, must be
means, as well as their
non-discriminatory,
reasonable available to the public and
interoperable with the information and communication tech-
nology products in general use.

The following rules are applicable to devices for the elec-

5.
tronic receipt of offers and requests to participate:

If, at the end of this period, the Commission has not adopted a
decision as to exemption, paragraph 1 shall be deemed to be
applicable.

(a)

The Commission shall adopt the arrangements for application
of this paragraph in accordance with the procedure provided
for under Article 65(2).’

Amendment 51 specifies that the obligation on the part of the
purchaser to preserve the confidentiality and integrity of the
data submitted to it covers the entire operational cycle of the
procedure: storage, processing and holding.

The clarifications proposed will be taken over in the relevant
provisions of the text, but reformulated to take into account
the requirements of the various types of electronic submission.

information regarding the specifications necessary for the
electronic submission of tenders and requests to participate,
including encryption, must be available to interested
parties.
the electronic
the equipment
receipt of tenders and requests to participate shall comply
with the requirements of Annex XXII;

In addition,

for

(b) the Member States may introduce or maintain voluntary
accreditation schemes aiming at enhanced levels of certifi-
cation service provision for these devices;

(c)

the time limit
requests

tenderers or candidates shall undertake to submit, before
laid down for submission of
expiry of
tenders or
documents,
the
certificates, attestations and declarations referred to in
Article 51(2) and Articles 52 and 53 if they do not exist
in electronic format.

to participate,

The Commission incorporates Amendment 51 by modifying
Article 47 as follows:

Rules applicable to the transmission of

6.
participate:

requests

to

‘Article 47

Rules applicable to communication

1.
All communication and information exchange referred to
in this Title may be performed by letter, by fax, by electronic
means in accordance with paragraphs 4 and 5, by telephone in
the cases and circumstances referred to in paragraph 6, or by a

(a) requests to participate in procedures for the award of
public contracts may be made in writing or by telephone;

(b) where requests to participate are made by telephone, a
written confirmation must be sent before expiry of the
time limit set for their receipt;

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Official Journal of the European Communities

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(c) contracting entities may require that requests for partici-
pation made by fax must be confirmed by post or by
electronic means, where this is necessary for the purposes
of legal proof. Any such requirement, together with the
time limit by which it must be met, must be stated by
the contracting entity in the notice used as a means of
calling for competition or in the invitation referred to in
Article 46(3).’

introducing

a
Amendment 53 modifies Article 48(4),
maximum period of
two months within which economic
operators whose application for qualification under a qualifi-
the
cation system has been refused must be informed of
reasons for the refusal. The current provision does not set a
time limit. The principle of including a time limit may be
useful. However, a maximum period of two months could be
too long in view of national time limits for appeals. Moreover,
given that the same problems arise as those associated with the
absence of a time limit for informing economic operators in
respect of which a negative decision has been taken,
the
Commission can incorporate this amendment as follows:

‘Article 48

Information to applicants for qualification, candidates and
tenderers

Contracting entities shall, as soon as possible and at all
1.
events within a maximum period of fifteen days, inform the
economic operators involved of decisions reached concerning
the conclusion of a framework agreement or the award of a
to
contract,
for any decision not
for
conclude a framework agreement or award a contract
which there has been a call for competition, or to recommence
the procedure, and shall do so in writing if requested.

including the grounds

The contracting entity shall, upon request,

2.
inform any
unsuccessful candidate or tenderer as soon as possible of the
reasons for the rejection of his application or his tender, and
shall inform any tenderer who has made an admissible tender
of the characteristics and relative advantages of the tender
selected, as well as the name of the successful tenderer or
the parties to the framework agreement. Under no circum-
stances may the time taken to provide such information
the written
exceed fifteen days, counting from receipt of
request.

that

decide

contracting

certain
entities may
However,
information on the contract award or the conclusion of the
framework agreement, referred to in the first subparagraph, is
to be withheld where the release of such information would
impede law enforcement or otherwise be contrary to the public
interest or would prejudice the legitimate commercial interests
of a particular public or private economic operator, including
those of the economic operator to whom the contract has been
awarded, or might prejudice
competition between
economic operators.

fair

Contracting entities who establish and operate a system
3.
of qualification shall inform applicants of their decision as to
qualification within a reasonable period.

If the decision will take longer than six months from the
presentation of an application,
the contracting entity shall
inform the applicant, within two months of the application,
of the reasons justifying an extension of the time limit and of
the date by which his application will be accepted or refused.

Applicants whose qualification is

refused shall be
4.
informed of this decision and the reasons for refusal as soon
as possible, and at all events within a maximum period of
fifteen days. The reasons must be based on the criteria for
qualification referred to in Article 52(2).

5.
Contracting entities who establish and operate a system
of qualification may terminate the qualification of an economic
operator only for reasons based on the criteria referred to in
Article 52(2). The intention to terminate qualification must be
notified in writing to the economic operator, together with the
reason or reasons justifying the proposed action. This notifi-
cation must be given as soon as possible, and at all events
within a maximum period of fifteen days, commencing on
the date envisaged for terminating qualification.’

Amendment 56 modifies Article 50, describing the procedure,
so as
to introduce an obligation to check tenderers' or
candidates' compliance with obligations under environmental,
social and tax legislation, defined by reference to Article 38. It
is clear from the link-up with amendments rejected during the
targeted at
voting
that
non-compliance with
the
amendment would, per se, have required the adoption of the
(rejected) amendments to Article 38.

amendment
social

is
legislation.

Therefore,

essentially

this

It is nevertheless true that non-compliance with labour law
may constitute grounds for exclusion of a tenderer under the
provisions proposed by the Commission, without
it being
necessary to refer explicitly to this case in the substantive
it may also constitute grounds for exclusion on
provisions;
account of
‘grave professional misconduct’ within the
meaning of Article 46(2) of the classic Directive, to which
contracting entities may explicitly refer (see comments on
Amendments 57, 109 and 60 above). In its Communication
of 15 October 2001 concerning the integration of social
considerations into public procurement (1),
the Commission
to which these cases were already
explained the extent
covered by existing legislation. This also applies
to this
proposal;
to clarify this. The
Commission can therefore incorporate Amendment 56 as
follows:

therefore acceptable

is

it

(1) ‘Interpretative

communication of

the Commission on the
Community law applicable to public procurement and the possi-
bilities
public
procurement’, COM(2001) 566 final (OJ C 333, 29.11.2001, p. 13).

considerations

integrating

social

into

for

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‘(32a)

in another Member State

National and Community laws, regulations
Recital:
and collective agreements in force on social protection and
social security apply throughout the performance of a public
contract, provided that
the rules concerned, and also their
implementation, comply with Community law. In cross-border
situations, where workers from one Member State provide
the purpose of
services
performing a public contract, Directive 96/71/EC of
the
European Parliament and of
the Council of 16 December
1996 concerning the posting of workers in the framework of
the provision of services (1) lays down the minimum conditions
which must be observed by the host country in respect of such
posted workers. Non-observance of these obligations may be
considered by contracting entities, depending on the national
to be grave misconduct or an offence
law applicable,
concerning
economic
conduct of
operator concerned.’

the professional

the

for

Amendment 66 is aimed firstly at deleting the obligation for
contracting entities to state the weighting given to each of the
award criteria which they will apply to determine the most
economically advantageous tender. The amendment replaces
this with a requirement merely to state the order of importance
of the criteria.

The introduction of a provision imposing weighting is a major
element of the proposal designed to prevent manipulations,
encountered in practice,
favouring certain operators, and
allows any tenderer to be reasonably informed in accordance
with the principles laid down by the Court
in the ‘SIAC’
judgment (2). It is essential that the weighting of the criteria
be indicated in advance.

Amendment 66 also aims to simplify the arrangements for
informing economic operators about each of the criteria.

The Commission can incorporate part of Amendment 66 as
follows in Recitals 40 and 41, combined, as well as in Article
54(2).

‘(40)

Recital:
The contract must also be awarded on the
basis of objective criteria which ensure compliance with the
principles of transparency, non-discrimination and equality of
treatment, and which guarantee that tenders are assessed in
it is appro-
conditions of effective competition. As a result,
priate to allow the application of two award criteria only:
“the lowest price” and “the most economically advantageous
tender”.

Moreover, in order to ensure compliance with the principle of
equality of treatment in the awarding of contracts, the obli-
gation to ensure the necessary transparency should be codified
to allow any tenderer to be reasonably informed as to the

(1) OJ L 18, 21.1.1997, p. 1.
(2) Judgment of 18 October 2001 in case C-19/2000, ECR 2001,

p. I-7725.

tender. Therefore,

contracting entities

criteria chosen to determine the most economically advan-
tageous
should be
obliged to indicate the relative weighting given to each of
these criteria in time for economic operators to be aware of
it when they draw up their tenders. The contracting entity
should be allowed to confine itself to setting out a simple
importance attaching to the criteria.
descending order of
However,
such an order of
it
importance if,
in exceptional circumstances, a weighting is
not possible, in particular owing to the subject-matter of the
contract.’

to indicate

sufficient

is

‘Article 54

Contract award criteria

1.

. . .

2.
In the case referred to in point (b) of paragraph 1, the
contracting authority shall specify the relative weighting which
it gives to each of the criteria chosen to determine the most
economically advantageous tender.

This weighting can be expressed by providing for a range with
an appropriate maximum spread.

If a weighting is not possible in exceptional cases, in particular
owing to the subject-matter of the contract, the contracting
entity shall indicate the order of importance of the application
of the criteria.

relative weighting or order of

This
importance shall be
specified in the notice used as a means of calling for
competition, the invitation to confirm the interest referred to
the invitation to submit a tender or to
in Article 46(3),
negotiate or in the specifications.’

Amendment 75 specifies that the obligation on the part of the
purchaser to preserve the confidentiality and integrity of the
data submitted to it covers the entire operational cycle of the
procedure: storage, processing and holding.

The clarifications proposed will be taken over in the relevant
provisions of the text, but reformulated to take into account
the requirements of the various types of electronic submission.
The Commission incorporates the Amendment as follows:

‘Article 62

Means of communication

Article 47(1),

1.
cations relating to the design contest.

(2) and (4) shall apply to all communi-

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and

Communications,

of
exchanges
2.
information shall be such as to ensure that the integrity and
information communicated by the
the confidentiality of all
participants in a contest are preserved, and that
the jury
ascertains the contents of plans and projects only after the
expiry of the time limit for their submission.

storage

the

Amendments 78, 79 and 80, respectively, impose in the case
of open, restricted and negotiated procedures for which the
prior call
for competition is issued by way of a contract
notice an obligation on the part of contracting entities to
the
state in the contract notice the name and address of
body responsible for appeals in relation to the award of
public contracts.

The following rules shall apply to the devices for the

3.
electronic receipt of plans and projects:

Increased transparency in this domain is desirable.

(a) the information relating to the specifications which is
necessary for the presentation of plans and projects by
electronic means,
including encryption, shall be available
to the parties concerned. In addition, the equipment for
the electronic receipt of plans and projects shall comply
with the requirements of Annex XXII;

(b) the Member States may introduce or maintain voluntary
accreditation schemes aiming at enhanced levels of certifi-
cation service provision for these devices.’

a

Amendment 76, which addresses
specifically German
situation, would introduce a legal presumption of freedom of
access to activities comprising exploration for and extraction of
coal or other solid fuels in the event of a Member State
voluntarily making a Directive (94/22/EC) relating to hydro-
sector. This
carbons
amendment links up with the general exclusion mechanism
provided for in Article 29.

licences (1)

applicable

to the

coal

The Commission therefore incorporates Amendments 78, 79
and 80 as follows:

‘ANNEX XII

INFORMATION TO BE INCLUDED IN CONTRACT NOTICES

A. OPEN PROCEDURES

. . .

19a. Name and address of the body responsible for appeal
and, where appropriate, mediation procedures. Precise
information concerning deadlines for lodging appeals.

The introduction of a legal presumption linked to the voluntary
application of a Community Directive beyond its actual scope
poses major problems in terms of legal certainty and does not
take into account the differences between the hydrocarbons
sector and that of coal and other
solid fuels. Such a
ignored, however. The
voluntary application cannot be
Commission therefore
incorporates Amendment 76 into
recital 13, modified as follows:

. . .

. . .

B. RESTRICTED PROCEDURES

‘(13)

Recital:
Direct exposure to competition must be
assessed on the basis of objective criteria, taking account of
the specific characteristics of
the sector concerned. The
implementation and application of appropriate Community
legislation liberalising a given sector, or a part of it, will be
considered to provide sufficient grounds for assuming that
there is free access to the market in question. Such appropriate
legislation should be identified in an annex which can be
updated by the Commission. Where access to a given market
is not liberalised by Community legislation, the Member States
must demonstrate that, de jure and de facto, such access is free.
The voluntary application in national law of a Directive libera-
lising a given sector to another sector constitutes a fact which
has to be taken into account for the purposes of Article 29.’

17a. Name and address of the body responsible for appeal
and, where appropriate, mediation procedures. Precise
information concerning deadlines for lodging appeals.

. . .

. . .

C. NEGOTIATED PROCEDURES

18a. Name and address of the body responsible for appeal
and, where appropriate, mediation procedures. Precise
information concerning deadlines for lodging appeals.

(1) Directive 94/22/EC of the European Parliament and of the Council
of 30 May 1994 on the conditions for granting and using author-
isations for the prospection, exploration and production of hydro-
carbons (OJ L 164, 30.6.1994, p. 3).

. . .’.

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Amendments 81 and 82 relate to contracts for which the call
for competition is made by means of a notice on the existence
of a qualification system, or a periodic indicative notice, and
impose an obligation on the part of contracting entities to state
in these notices the name and address of the body responsible
for appeals in relation to the award of public contracts. As
regards periodic indicative notices, however,
this new obli-
gation of transparency should be limited to cases where the
periodic indicative notice is used as the means of calling for
competition, or where it enables the time limits for the receipt
of applications or tenders to be reduced. Where the notice does
not fulfil these functions, the added value of an obligation to
provide information regarding appeals has not been demon-
strated.

Amendment 83 introduces the same obligation in the case of
contract award notices.

Increased transparency in this domain is desirable.

The Commission therefore incorporates Amendments 81, 82
and 83 as follows:

14a. Name and address of the body responsible for appeal and,
Precise

where
information concerning deadlines for lodging appeals.

appropriate, mediation

procedures.

. . .’

‘ANNEX XV

INFORMATION TO BE INCLUDED IN THE CONTRACT
AWARD NOTICE

I. Information for publication in the Official

Journal of

the

European Communities (1)

. . .

11a. Name and address of the body responsible for appeal and,
Precise

where
information concerning deadlines for lodging appeals.

appropriate, mediation

procedures.

12. Optional information:

. . .’

‘ANNEX XIII

INFORMATION TO BE INCLUDED IN THE NOTICE ON THE
EXISTENCE OF A SYSTEM OF QUALIFICATION

. . .

Amendments 85 and 86, respectively, impose, in the case of
notices of design contests and notices concerning the results of
contests, an obligation on the part of contracting entities to
state in those notices the name and address of
the body
responsible for appeals in relation to the award of public
contracts.

6a. Name and address of the body responsible for appeal and,
Precise

where
information concerning deadlines for lodging appeals.

appropriate, mediation

procedures.

Increased transparency in this domain is desirable.

The Commission therefore incorporates Amendments 85 and
86 as follows:

. . .’

‘ANNEX XIV

INFORMATION TO BE INCLUDED IN THE CONTEST
NOTICE

INFORMATION TO BE INCLUDED IN THE PERIODIC
NOTICE

. . .

‘ANNEX XVII

I. HEADINGS TO BE COMPLETED IN ALL CASES

. . .

13a. Name and address of the body responsible for appeal and,
Precise

where
information concerning deadlines for lodging appeals.

appropriate, mediation

procedures.

II. INFORMATION WHICH MUST BE SUPPLIED WHERE THE NOTICE
IS USED AS A MEANS OF CALLING FOR COMPETITION OR
PERMITS A REDUCTION OF THE TIME LIMITS FOR THE
RECEIPT OF APPLICATIONS OR TENDERS

. . .

. . .’

(1) Information under headings 6, 9 and 11 is regarded as information
that is not to be published if a contracting entity takes the view that
its publication would prejudice a sensitive commercial interest.

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‘ANNEX XVIII

INFORMATION TO BE INCLUDED IN THE RESULTS OF
CONTEST NOTICES

. . .

8a. Name and address of the body responsible for appeal and,
Precise

where
information concerning deadlines for lodging appeals.

appropriate, mediation

procedures.

Amendments 123 and 124 seek to change the concept of
‘framework agreement’, which is part of established law, into
that of ‘framework contract’ (1), in the definitions in Article 1,
and in Article 13 governing its use. These amendments are
unacceptable: for one thing, they would create without any
justification whatsoever a major difference between the two
framework
public procurement Directives
sectors
agreements closely based on that
Directive will be introduced in the classic Directive);
for
another, they would deprive contracting entities of a flexible
and useful instrument.

(a definition of

in the current

. . .’

Amendment 10 is specifically designed to regulate framework
contracts (2) in the field of translation and interpretation.

3.3. Amendments not accepted by the Commission (Amendments 1,
5, 6, 123, 124, 10, 11, 106, 14, 19, 23, 25, 28, 31, 32,
91-98, 100, 120, 45, 48, 49, 50, 103, 52, 54, 55, 58,
61, 62, 125, 71, 73, 74, 77, 84 and 88)

Amendment 1 is aimed at including among the objectives
pursued by the Directive a guarantee of ‘a high standard of
reliable services of general
interest at affordable prices’. This
amendment
is unacceptable because the Directive is aimed
merely at coordinating procedures for the award of contracts,
and does not address the standard of services of a general
interest offered in the various Member States.

Amendment 5 modifies recital 8 by adding:
‘The reason for
regulating the water, energy and transport sectors by means of
this Directive is that the entities which provide services in
in other
those areas are in certain cases public ones and,
cases, private ones.’

It is indisputable that the activities addressed by the Directive
are carried out by both public and private entities. However, to
reduce the raison d'être of legislation coordinating procedures
for the award of contracts to its application to all entities,
whatever their legal status,
is nevertheless unacceptable. The
reasons for regulating contract award procedures in these
sectors are in fact linked to the completion of the internal
market
in these sectors, which are characterised by an
activity carried out by both public and private entities
operating across a network, often in monopolistic or oligop-
olistic situations, where barriers to the smooth operation of the
single market may persist. The fact that the entities operating
in these sectors are in some cases public ones and in other
cases private ones does not, per se, justify the introduction of
regulatory measures, but has the effect that the scope of the
Directive has to be defined otherwise than by a simple
reference to the legal status of entities.

Amendment 6 aims to justify the extension, to supply and
works contracts, of the exemption provided for in Article 26
(affiliated undertakings), as amended. Such an extension is not
acceptable,
for the reasons set out above with regard to
Amendments 26 and 27.

is

for one

amendment

also unacceptable:

This
thing,
contracting entities which have to procure translation and
interpreting services may need the same flexibility as other
contracting entities; for another, there is no justification what-
soever
framework contracts or
agreements concerning this category of services covered by
Annex XVIB subject to detailed rules of procedure different
from those applicable to other services covered by the same
Annex.

for making the award of

Amendment 11 sets out to make the awarding of prizes to
participants in design contests compulsory and accordingly
modifies the definition of ‘design contests’ by limiting them
exclusively to contests in which prizes are awarded

The principle of making the awarding of prizes to participants
compulsory may be justified where a design contest relates to
projects incurring real costs, such as design contests organised
with a view to the execution of a structure or an urban or
landscaping project. However,
it should be pointed out that
design contests may be organised in other fields where the
compulsory awarding of prizes would not be justified. What
is more, the definition proposed by the amendment, according
to which only design contests with prizes could be held, would
not appear
to be an appropriate way of achieving this
objective. Indeed, such a definition would not prevent design
contests without prizes being organised, but it would remove
such contests from the scope of the Directive.

Amendment 106 includes ‘purchasing groups’ among public
authorities in order to enhance legal certainty vis-à-vis such
the amendment
joint procurement bodies. To this end,
inserts, on the one hand, an explicit
reference to such
purchasing groups, while on the other hand modifying the
second subparagraph,
the first cumulative
indent,
criterion defining the concept of a body governed by public
law, by deleting the words ‘not having an industrial or
commercial character’.

first

i.e.

(1) According to the original (DE) version and eight other language
versions. The IT version, by contrast, has remained unchanged.
The Finnish language apparently does not admit of a distinction
between the two concepts.

(2) It should be noted, however, that the original version (IT) refers to
framework agreements, nine other language versions to framework
contracts. The Finnish language apparently does not admit of a
distinction between the two concepts.

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The amendment is inappropriate for several reasons:

enforcing measures necessary to protect public morality, public
policy, public security or human, animal or plant life or health.

— the modification of the definition of a ‘body governed by
public law’ would create an unjustified difference between
the two Directives, as the split vote on Amendments 126
and 172 to the classic Directive resulted in this change to
the concept of a body governed by public law being
rejected. This part of the amendment would also create a
great deal of legal uncertainty in the demarcation of ‘public
authorities’,
including in particular bodies governed by
public law and ‘public undertakings’. This legal uncertainty
would be all the greater as some rules would apply to
‘public authorities’ and not to ‘public undertakings’, and
vice versa;

— the inclusion of purchasing groups among contracting
entities would not entail any legal effect, as there are no
to set up a suitable framework to govern
proposals
relations between contracting entities
and purchasing
groups;

— the purchasing groups of which the Commission is
the activities
currently aware do not carry out any of
referred to by this Directive and are thus not subject to
its rules;

— apart

from this amendment,

the justification for which
shows that it is geared more to situations governed by
the classic Directive, neither the debates in the European
Parliament nor those in the Council have demonstrated a
real need for specific rules on the subject in the framework
of this Directive.

Amendment 14 rejects the modifications to the definition of
exclusive and special rights proposed by the Commission, and
thus has the effect of reverting to existing law.

the definition of exclusive rights

The modification of
is
desirable, firstly in order to bring it more closely into line
with other definitions of the same concept in other areas of
Community legislation (especially in some telecommunications
Directives and in the ‘transparency’ Directive (1)), and secondly
because practical experience has shown that the current defi-
nition is too broad. Reverting to existing law on this point is
therefore inappropriate as far as the Commission is concerned.

Amendment 19 would introduce
substantive
provisions a new recital stating that nothing in this Directive
any contracting entity from imposing or
shall prevent

into the

(1) Commission Directive 2000/52/EC of 26 July 2000 amending
Directive 80/723/EEC on the transparency of financial relations
between Member States and public undertakings
(OJ L 193,
29.7.2000, p. 75).

This amendment, the content of which is essentially identical to
that of Amendment 111,
is superfluous, as the Commission
has accepted the latter.

Amendment 23 would enable the Commission to request
Member States to provide information on which to base a
decision on the applicability of the exclusion provided for by
Article 22 in the case of contracts declared to be secret. The
amendment is superfluous and would, moreover, lend itself to
contradictory conclusions concerning all provisions in which
such a possibility was not referred to, and could thus militate
against the Commission addressing questions to Member States
under Article 10 or Article 226 of the Treaty.

Amendment 25 extends to supply and works contracts an
exclusion which relates
contracts only. This
extension to the exception provided for in Article 25 is unac-
ceptable, as it would call into question the acquis communautaire
without valid justification by excluding from the scope of the
Directive contracts which are currently covered by it.

to service

Amendment 28, modifying Article 26(3)(b), is a direct conse-
quence of the extension, proposed in Amendments 26 and 27,
of the exception provided for in Article 26(1), in respect of
services only, to supply and works contracts. Given that this
part of Amendments 26 and 27 is unacceptable to the
Commission, the same applies to Amendment 28.

Amendment 31 modifies the general exclusion mechanism
in Article 29 by reducing the substantive
provided for
conditions for exclusion to the sole condition that access to
the activity concerned is not restricted, and adds that access to
an activity shall
to be restricted if
legally be deemed not
Community legislation liberalising that activity has been
transposed. What is more, the amendment would eliminate
the procedure for the Commission to decide whether an
activity had been liberalised to such an extent as to render
application of the public procurement rules superfluous.

The amendment is unacceptable to the Commission; firstly,
because of the complete absence of legal certainty, both for
the contracting entities concerned — they could find them-
selves facing a plethora of disputes following a decision not,
or above all no longer, to apply the public procurement rules
— and for economic operators, who would no longer know
the legal framework governing their relations with contracting
entities. Moreover, competitive distortions could arise where
divergent assessments were made — for example depending
on whether this is done by long-established operators or by
recent entrants to the sector — of the state of liberalisation in a
given sector, especially in the case of an activity which was not
the subject of Community liberalisation legislation.

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Secondly, this amendment is unacceptable also because it elim-
inates the condition under which unrestricted access must have
had the effect of fully exposing the activity in question to
competition. It is not unusual, especially where services are
provided across networks, for there to be a time-lag between
the adoption of liberalisation legislation and the point at which
this begins actually to have an impact. It is also possible to
imagine
established operators had enjoyed
advantages over a long period, such that the entry into the
market of other operators could remain purely theoretical for
a long time.

cases where

Amendment 32 turns into an obligation the option, provided
for in Article 33 of the Commission's initial proposal and taken
over from existing law,
for contracting entities to require
information on the subject of any subcontracting envisaged.

It also makes it obligatory to stipulate conditions concerning
provisions on health and safety at work and working
conditions. The amendment also adds conditions relating to
environmental protection.

As regards the first aspect, see the comments concerning the
second aspect of Amendment 120 above.

stipulating conditions

The second part of the amendment is superfluous, as the possi-
bility of
relating to environmental
protection has been explicitly provided for elsewhere in the
proposal
(see comments on Amendments 3 and 33), while
the new recital 32a — cited in the comments to amendment
56 — provides a reminder of the obligation to comply with
social
legislation. Under these conditions, an obligation to
impose conditions going beyond the obligations deriving
from legislation or from the applicable collective agreements
is not appropriate.

Amendments 91-98 include,
in particular, eco-labels and
environmental management systems among the instruments
which may be used as technical references for drawing up
technical specifications. Moreover, they introduce a preference
for European eco-labels.

Amendment 100 relates to the means by which economic
operators may prove to the satisfaction of
the contracting
entity the equivalence of the technical solutions proposed. It
deletes any explicit reference to any means of proof other than
test reports from impartial outside bodies — which can be very
expensive.

Although the amendment is ambiguous in that it states that
such a report ‘may constitute’ an appropriate means, it leaves
open to serious doubt the question as to whether other means,
such as a manufacturer's technical dossier, would be acceptable.
The amendment, if actually intended to exclude other means of
proof, runs counter to the objective of clarification underlying
the Commission's proposal.

Amendment 120 is intended to:

1. ensure that contracting entities do not impose any ‘quanti-
tative restrictions on the exercise, by the undertakings, of
freedom of organisation of their own inputs’;

2. oblige contracting entities to ask the tenderer to indicate in
the contract he may intend to

his tender the share of
subcontract, and the names of the subcontractors;

3. oblige contracting entities to prohibit any subcontracting to
undertakings which are in the situation referred to in Article
46 of the classic Directive ‘and/or undertakings which do
not meet the requirements laid down in Articles 47, 48 and
49’;

4. prohibit the contracting out of ‘intellectual services, with the
translation and interpretation services and

exception of
management and related services’.

The Commission cannot accept this amendment, the reasons
being as follows:

The preference given to European eco-labels is inappropriate,
given that these labels do not replace national or plurinational
labels. The reference to environmental management systems is
inappropriate, as this does not concern a technical specification
characterising a product or a service. By contrast, where a
contracting
environmental
performance level,
it may use the criteria of European or
national eco-labels or any other eco-label, provided it has
been drawn up by all the parties concerned and is accessible.

entity prescribes

a particular

1. If an economic operator can demonstrate that he can
effectively draw on the capacity of other entities,
for
example through subcontracting, he is entitled, according
to case law, to avail himself thereof for the purposes of
selection. By contrast, there is nothing under current law
entity
to
from prohibiting
a
(subsequent) subcontracting at
the contract performance
stage.

contracting

prevent

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subcontracted and the

2. By dint of this obligation, tenderers would be required to
single out in the tender both the portion of the contract to
be
subcontractors.
Imposing such an obligation at Community level would
appear to be excessive, given the fact that it is always the
successful tenderer who is responsible for the execution of
the contract.
it
would be up to Member States to provide, where necessary,
for an obligation to identify subcontractors.

In view of the principle of subsidiarity,

choice of

3. As regards contracts awarded by contracting entities which
are public authorities, the possibility of excluding subcon-
tractors would appear
to be legitimate in respect of
companies/persons convicted of certain offences (organised
crime/corruption/fraud against the financial interest of the
Community, cf. Article 46(1)) of the classic Directive or in
other cases (non-compliance with labour law, cf. Article
46(2));
in terms of
application. It presupposes knowledge of (see point 2) and
subcontractors, which would
a
excessively lengthen award procedures.

it nevertheless poses difficulties

control

priori

over

However, it could be taken into account in accordance with
the principle of subsidiarity (obligation imposed, where
appropriate, by Member States).

As regards contracts awarded by contracting entities other
imposing such an obligation on
than public authorities,
subcontractors would be impracticable, quite apart
from
the problems cited in the comments on Amendments 57
and 109 above concerning the obligatory application of the
compulsory exclusion criteria listed in 46(1) of the classic
Directive.

A possible obligation to exclude subcontractors in other
cases (non-compliance with labour law, cf. paragraph 2 of
the same Article) could be envisaged in accordance with the
principle of subsidiarity (with the obligation being imposed
by Member States where appropriate) but would pose the
same problems as in cases where the contracting entity is a
public authority.

As far as Article 47 of the classic Directive is concerned, the
amendment proposes to apply in respect of subcontractors
a stricter regime than that envisaged for candidates and
tenderers (in the latter case, contracting entities would not
be obliged to include such requirements among the rules
and criteria applicable to the selection of candidates and
tenderers or in the management of qualification systems,
nor to request information, whereas in the case of subcon-
tractors they would have to do so systematically). However,
where provided for in the rules and criteria relating to the
selection of participants or to the management of a qualifi-
cation system, it is already possible to apply Article 47 of
the classic Directive to subcontractors for selection purposes
where a tenderer relies on means made available to him by
subcontractors (‘Holst Italia’ judgment (1)).

4. It would not appear justified to lay down such a general
prohibition: contracting entities, which are the parties
concerned, are already able,
if they so wish, to prohibit
subcontracting by imposing conditions for the execution
of the contract; this goes for all types of contracts and
not just for certain services. By the same token, they must
be free to allow subcontracting.

Amendment 45 aims to broaden the scope for awarding
contracts for the purpose of research, experiment, study or
development without a call for competition, by eliminating
the conditions provided for under existing law, according to
which such contracts cannot be awarded ‘for the purpose of
securing a profit or of recovering research and development
costs and in so far as the award of such contracts does not
prejudice the competitive award of subsequent contracts which
do seek, in particular, those ends.’

communautaire

into question. What

By eliminating these conditions, the amendment would have
the effect of excluding from the scope of
the Directive
contracts which are currently covered by it, thus calling the
the
acquis
amendment could create captive markets over very long
periods, as the application of this exception could easily be
followed by the use of another exception invoking technical
reasons as grounds for continuing to award contracts to the
research contract. The
the initial
successful
amendment is therefore unacceptable.

is more,

tenderer

for

As regards the aspects of point 3 relating to economic and
financial standing and technical and professional capa-
bilities, as referred to in Articles 48 and 49 of the classic
Directive, this would mean that subcontractors would have
to have the same capacity as the principal contractor, which
would unjustifiably exclude SMEs. These aspects cannot,
therefore, be
as
taken into consideration,
contracting entities are in no way obliged to include such
criteria among the rules and criteria applied for the selection
of principal contractors or in the management of a qualifi-
cation system.

especially

Amendment 48 adds a clarification that any ‘other specific
conditions for taking part’, which must be included in the
invitation to submit a tender or to negotiate in the restricted
‘unduly
and negotiated procedures
discriminate between tenderers’.

respectively, may not

(1) Judgment of the Court of 2 December 1999, Holst Italia SpA v
intervener: Ruhrwasser AG International

Commune di Cagliari,
Water Management, Case C-176/98, [1999] ECR I-8607.

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a directive. This

The goal pursued by this amendment
proposal
for
however, as
the matter
concerning the fundamental principles
general.

is in line with the
superfluous,
is already covered by Article 9
to be observed in

addition is

Amendment 49 is designed to prevent the contracting entity
from being able to choose the means by which communication
and the exchange of information must be performed in the
context of an award procedure or of the management of a
qualification system.

The effect of this amendment would be to oblige contracting
entities to receive tenders by whatever means, regardless of
whether they have the technical facilities to receive them by
those means. The amendment therefore has to be rejected.

Amendment 50 states that
tenders submitted by electronic
means are to be rejected unless an advanced electronic
signature within the meaning of Directive 1999/93/EC and a
reliable means of encrypting the contents are used.

This amendment reflects the current situation regarding elec-
tronic signatures. However, technical developments in this area
are proceeding apace. The amendment would make it necessary
to amend the Directive in line with each new development.
Guarantees concerning electronic signatures can be obtained by
way of referral to national provisions on the subject (avoiding
subsequent amendments to the text if and when Community
legislation changes). Also, encryption is not necessary, as other
means can be used to ensure the inviolability of tenders. What
is more, compulsory encryption would incur additional costs
for both the purchaser and the tenderers. Therefore,
this
amendment cannot be accepted.

Amendment 103 imposes
an
accredited third party in order to guarantee the confidentiality
of data transmitted by tenderers.

an obligation to involve

It should be stressed that Community policy has been geared
towards
ensuring that an accreditation system is never
compulsory, given the risks of distortion and increased
disparities between Member States.

that

the fact

Insofar as the goal of the amendment is to oblige contracting
entities to complete the evaluation of applications for qualifi-
cation within a maximum period of two months, this is unac-
ceptable, given that qualification systems were added to this
the
Directive inter alia to take account of
contracting entities need highly complex industrial equipment
(e.g. rolling stock for railways),
the technical evaluation of
which may require testing, analysis, etc. over a long period
of time. Moreover,
if the intention of the amendment is to
ensure that economic operators are provided with information
it is superfluous, as the second
by the two-month deadline,
take
subparagraph already states that
longer
an
than six months
application, the contracting entity shall inform the applicant,
within two months of the application, of the reasons justifying
the longer period and of the date by which his application will
be accepted or refused.’

the decision will
from the presentation of

‘if

Amendment 54 is intended to extend the period for which the
contracting entities must store information on the course of an
award procedure from 4 to 6 years.

The provision in question was added ‘so that the contracting
entity will be able, during that period, to provide the necessary
information to the Commission if the latter so requests’. In
view of the rules which govern the treatment of complaints
and the code of good behaviour, requiring such an extension
seems disproportionate, particularly given that the contracting
it
expense
considerable
entities would
applying
(particularly in terms of room for archives).
It should be
noted that Member States would be free to lay down a
longer period if this were to prove necessary to safeguard
the rights of economic operators (or to harmonise the length
of time with that laid down in the national provisions, for
example).

incur

Amendment 55 aims to introduce a system for appeals against
the decisions made by the contracting entities and to provide
for it to be open to workers and their representatives.

this

(for utilities,

There is already a separate and specific directive concerning
appeals concerning public contracts
is
Directive 92/13/EEC and not 89/665/EEC). Moreover, appeals
by workers and their representatives with regard to social legis-
lation in respect of public contracts are provided for. Specific
methods of appeal
in the
Directive on the posting of workers (96/71/EC). These two
systems of
combined. An identical
amendment (Article 41a) was rejected by the Committee on
Legal Affairs and was not put forward for the classic Directive.
Adopting the amendment for this Directive would thus result
in unjustified differences between the two Directives.

for posted workers are set out

cannot be

appeal

Amendment 52 specifies that contracting entities must inform
economic operators of their decisions regarding applications
for qualification within a maximum period of two months.

Amendment 58 introduces a rule according to which the
provisions which apply to a given sector overrule the rules
for public contracts if there is a conflict.

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According to its
particularly at
concerning passenger
waterway (1)).

the rail

justification,
sector

the amendment
(Proposal
transport by rail,

is aimed
for a Regulation
road and inland

The amendment should be rejected as it contradicts the
approach taken by the Commission, particularly in the
proposal for a Regulation,
i.e. that sectoral rules be without
rules which apply to all public
prejudice to the general
contracts, in the sense that they cannot introduce procedural
rules for contracts for which competition is obligatory under
the detailed rules of
the public procurement Directives.
Moreover, the amendment would create unjustified differences
between the two Directives, as no similar amendment was put
forward for the classic Directive, where the same problem may
arise.

Under Amendment 61, the system of official lists of approved
economic operators provided for in the classic Directive would
apply to the contracting entities.

First of all, it should be pointed out that nothing prevents a
contracting entity from accepting certificates of registration in
to
the list as proof of capacity. Secondly,
remember that, even under the classic Directive, other types
of proof must be accepted. The amendment also contradicts
the general approach taken by this Directive, which sets out
more flexible rules than the classic Directive, except where the
fundamental principles of Community law require the same
rules,
in order to take into account the fact that the scope
includes public and private undertakings.

is important

it

Amendment 62 is intended to establish that the criteria and
rules used to select participants do not prejudice
any
conditions of performance.

As their name indicates, performance conditions are conditions
which apply to the way the contract is performed. They are
thus neither selection criteria nor award criteria. This has been
confirmed in case law. Moreover, accepting this amendment
would create an unacceptable difference between the two
Directives, as no similar amendment was put forward for the
classic Directive.

Amendment 125 is intended, as far as the award criterion of
the ‘most economically advantageous tender’ is concerned, to:

1. remove the clarification that this means the most econ-
omically advantageous tender ‘for the contracting entities’;

2. specify that environmental characteristics may include

‘production methods’;

(1) OJ C 365, 19.12.2000, p. 169.

3. add the criterion of ‘equal treatment policy’.

in relation to a possible benefit

Re point 1: removal of the words ‘for the contracting entities’
would enable various, often non-measurable, elements to be
taken into account
to
‘society’ in the broad sense of the word. Such award criteria
would no longer fulfil their function, which is to permit an
tenders in order to
evaluation of
determine which one offers the purchaser the best value for
money. This would completely disrupt the objective of the
public procurement Directives and would amount to the insti-
tutionalisation of
this legislation to the benefit of sectoral
policies, while also introducing serious risks of inequality of
treatment.

the intrinsic qualities of

Re point 2: the contract award stage is not the appropriate
time at which to choose a less polluting method. Less polluting
production methods can be prescribed once the subject of the
contract has been defined in the technical specifications when
the purchaser chooses to purchase the solution causing the
least pollution.
If he wishes to compare different solutions
and evaluate the advantages/cost of lower- or higher-pollution
solutions, he may allow or insist on the presentation of
variants.

Re point 3: the concept of equality of treatment takes on a
particular meaning in the context of public contracts (=
treating all applicants/tenderers in the same way), whereas
the amendment seems to be concerned with non-discrimi-
nation within the meaning of Article 13 of the Treaty. To
the extent that this concerns a criterion relating to the policy
it
of the undertaking and not to the qualities of a tender,
cannot be an award criterion. The introduction of criteria
linked to the undertaking would lead to a situation where
certain undertakings were given preference on the basis of
non-measurable elements during the award phase, even if
their tenders did not give the purchaser the best value for
money.

Amendment 71 modifies Article 57. This provision, which
currently applies only to service contracts,
is aimed at
possible difficulties of access to service contracts in third
countries which may be encountered by economic operators.
It requires the Commission to strive to resolve problems
concerning access
in third countries. The
amendment would extend the current provisions to three
in addition to introducing a requirement
kinds of contracts,
to take action in the event of
the third countries not
complying with certain ILO conventions.

to contracts

There is no justification for extending the existing requirements
to take action to supply and works contracts. In fact, there are
other instruments for these types of contracts, both in this
Directive (e.g. Article 56), and as part of bi-, pluri- or multi-
lateral
the
amendment is therefore unacceptable.

agreements or negotiations. This

aspect of

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As for the new cases requiring action, a public procurement
Directive is not an appropriate instrument for introducing an
obligation on the Commission to monitor the compliance of
third countries with international labour law.

Amendment 73 removes,
in Article 62(1), the part of the
sentence which clearly states that the means of communication
to be used in a contest is to be that chosen by the contracting
entity.

this part of

Without
the text would give
the sentence,
participants the possibility of choosing the means of communi-
cation themselves, and the consequences would be those
described with regard to Amendment 49.

Amendment 74 introduces, in Article 62, a new paragraph 1a
making it compulsory, when transmitting drafts or plans by
electronic means in the context of design contests for services,
to use an advanced electronic signature and a reliable means of
encryption.

See the reasons given for rejecting Amendment 50 and the text
of Article 62 as amended (Amendment 75).

Amendment 77 introduces a legal presumption of freedom of
access to the rail sector in the event of the transposition and
correct application of Directive 91/440/EEC on the devel-
the Community's railways (1). The amendment
opment of
links up with the general exclusion mechanism described in
Article 29.

It is not acceptable, as Directive 91/440/EEC is not, strictly
speaking, a liberalisation directive.

Amendment 84 is intended to completely exclude banking
services from the scope of the Directive.

This amendment is unacceptable, insofar as it would call into
question the acquis communautaire by excluding contracts which
are currently covered by the Directive. In addition, the reasons
often given to justify such an exclusion (i.e. that it would be
impossible to apply the procedures due to the volatility of
rates) are not valid. The Directive provides means which can
meet
the needs expressed with regard to awarding these
contracts (use of qualification systems, framework agreements,
electronic means, etc.).

Amendment 88 introduces a new annex which lists the inter-
national conventions on working conditions for the purposes
of Amendment 71.

Given that this annex is only relevant to Amendment 71 to
Article 57, and that Amendment 71 is unacceptable for the
reasons given above, Amendment 88 is itself unacceptable for
the same reasons.

3.4. Amended proposal

Pursuant to Article 250(2) of the EC Treaty, the Commission
amends its proposal in the foregoing terms.

(1) OJ L 237, 24.8.1991, p. 25.