WRITTEN QUESTION E-1252/02 by Charles Tannock (PPE-DE) to the Commission. Rules of tendering with specific reference to the PowderJect vaccine contract in the UK.
Date: 2002-05-07
Institutions: European Parliament, Provisional data
Subjects: EU Member State, United Kingdom, award of contract, discretionary power, infectious disease, invitation to tender, public safety, terrorism, vaccine

C 229 E/198

Official Journal of the European Communities

EN

26.9.2002

Answer given by Mr Prodi on behalf of the Commission

(28 May 2002)

The Commission’s investigations into the Honourable Member’s question have revealed the complexity of
this subject, calling for several departments to become involved. The Honourable Member will be informed
of the results of the investigations when they have been concluded.

(2002/C 229 E/229)

WRITTEN QUESTION E-1252/02

by Charles Tannock (PPE-DE) to the Commission

(7 May 2002)

Subject: Rules of tendering with specific reference to the PowderJect vaccine contract in the UK

It has been widely reported in the UK that PowderJect Pharmaceuticals and a Danish partner have just been
awarded a £ 32 million contract to supply a smallpox vaccine contract.

Rival companies,
including Acambis, protested that they were not given a fair chance to bid for the
contract. The UK Health Minister has said that the contract was awarded to PowderJect because it was the
only company that was able to provide the Lister strain of the vaccine. Scientists, however, have cast doubt
on the need to base the vaccine on a particular strain, with Professor John Oxford of St. Bartholomew’s
and the Royal London School of Medicine quoted in the Sunday Telegraph (14.04.2002) as saying:
‘I
would have thought there is no medical reason for this. The Lister strain is the classic strain that has
always been used in this country (the UK) but it is only one of a number that were used in the global
eradication programmes in the 1970’s.’

Acambis itself has won a contract to supply the US Government with a different strain.

Can the Commission clarify the regulations governing the provision of tenders for large commercial
contracts, and indicate whether it believes that all Member States broadly comply with those regulations
and whether the British Government has complied with its obligations in this case?

Answer given by Mr Bolkestein on behalf of the Commission

(12 June 2002)

The Commission is not fully aware of all the steps which the United Kingdom authorities may have taken
in the award of the contract referred to by the Honourable Member. In the absence of such information, it
is not possible to conclude with any certainty whether this particular contract falls within the scope of
Council Directive 93/36/EEC of 14 June 1993, coordinating procedures for the award of public supply
contracts (1) and whether the award of the contract should have been subject to open competition. The
Commission will examine any supplementary information that the Honourable Member may provide in
this context.

It is understood that the smallpox vaccines were procured by the United Kingdom authorities to address
possible terrorist attacks in the light of 11 September atrocities and in particular the ensuing concerns
about bio-chemical terrorist attacks.

26.9.2002

EN

Official Journal of the European Communities

C 229 E/199

In this context, the Honourable Member is referred to Article 2 of the above-mentioned Directive which
provides that certain contracts are outside its scope. This includes ‘supply contracts which are declared
secret or the execution of which must be accompanied by special security measures in accordance with the
laws, regulations or administrative provisions in force in the Member States concerned or when the
protection of the basic interests of the Member State’s security so requires’.

As a derogation from the general rule that public contracts must be awarded by public tender on the basis
of criteria designed to ensure best value for money, Article 2 has to be restrictively construed on a case by
case basis. Relevant factors could, however, include a perceived need at the time of the contract not to
announce the existence or nature of the contract for public security reasons. Statements made by the
European Court of Justice in Case C-273/97 of 26 October 1999 to the effect that Member States have a
degree of discretion when adopting measures which they consider to be necesssary in order to guarantee
public security, may also be a relevant factor in this type of case.

It is understood that other Member States which have recently procured smallpox vaccines have adopted a
similar approach to that taken by the United Kingdom authorities in this case on grounds of the security
concerns surrounding such contracts.

(1) OJ L 199, 9.8.1993.

(2002/C 229 E/230)

WRITTEN QUESTION E-1275/02

by Christopher Huhne (ELDR) to the Commission

(7 May 2002)

Subject: Mobile phone masts

Can the Commission make available information on the relative legislation in force in the Member States
with respect to the siting of mobile phone masts?

Does the Commission see any need for or intend to bring forward any proposals itself on this matter?

Answer given by Mr Liikanen on behalf of the Commission

(10 June 2002)

In its answer to Written Question E-1975/01 of Mr Naranjo Escobar (1), the Commission indicated that
there is currently no Community legislation harmonising the siting rules for mobile telephone masts. This
matter however raises at least two sets of issues, i.e. the protection of the visual environment and the
protection of health.

The protection of the visual environment has been very much a matter for local, regional and Member
State authorities. The procedures in use and criteria applied vary largely across and even within Member
States and reflect the diversity of planning rules and traditions in the Community. The Authorisation
Directive (Directive 97/33/EC (2)) allows the imposition by Member States of public interest conditions on
the establishment and/or operation of telecommunications networks or the provision of telecommuni-
cations services for the protection of the environment and town and country planning objectives.

The recently adopted Framework Directive (3) and Authorisation Directive (4) continue to encourage
Member States to impose environmental and town and country planning and public health protection
requirements including co-location and facility sharing.

Where it concerns the protection of safety and health of the citizen, measures and recommendations have
been adopted at Community level
the public is not unduly exposed to
electromagnetic waves.

in order to ensure that