WRITTEN QUESTION P-2805/02 by Christos Folias (PPE-DE) to the Commission. Directive 2000/35/EC on combating late payment in commercial transactions.
Date: 2002-09-30
Institutions: European Parliament, Provisional data
Subjects: EU Member State, deadline for payment, infringement procedure (EU), national implementing measure, regulation of transactions, small and medium-sized enterprises, trading operation

6.3.2003

EN

Official Journal of the European Union

C 52 E/217

for competition,

this principle of

substantially
When using a negotiated procedure with a call
unchangeable tenders does not apply, precisely because the procedure allows for substantial changes to
tenders during the negotiations. As the Directive does not lay down any detailed provisions regarding the
conduct of a negotiated procedure, the determination of what is or is not possible must be based on an
evaluation of whether the underlying principles of equal treatment, non-discrimination and transparency
have been observed. This implies for instance that any modification or new element should respect the
parameters of the tender notice and the contract documents, as these have been defined by the contracting
authority.
In addition, tenderers should be treated equally; the contracting authority should not, for
example, discriminate by providing information which may give some tenderers an advantage over others
or to allow some tenderers more latitude when proposing modifications over others. Finally, the contract
to be signed should not present characteristics which are fundamentally different from those initially
published. To assess whether these principles were adhered to is therefore a matter to be evaluated taking
into account the specifics of each individual case. It is therefore not possible to determine in the abstract
whether each and any change to prices or other elements that are agreed with the preferred bidder in a
negotiated procedure constitute a violation of these principles.

(1) OJ L 297, 29.10.1990 subsequently replaced by the current Utilities Directive, Council Directive 93/38/EEC of

14 June 1993, OJ L 199, 9.8.1993, which is unchanged on this issue.

(2003/C 52 E/240)

WRITTEN QUESTION E-2799/02

by Caroline Lucas (Verts/ALE) to the Commission

(7 October 2002)

Subject: Public procurement: tender evaluation

Could the Commission confirm that a utility, subject to the procurements rules set forth in Directive 93/
38/EEC (1), and employing the negotiated procedure, is bound to evaluate tenders on an objective, non-
discriminatory basis and to select the lowest or most economically advantageous offer?

(1) OJ L 199, 9.8.1993, p. 84.

Answer given by Mr Bolkestein on behalf of the Commission

(4 November 2002)

Pursuant to Article 34 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement
procedures of entities operating in the water, energy, transport and telecommunications sectors, and
whichever award procedure has been chosen, the criteria on which the contracting entities shall base the
award of contracts shall be either the most economically advantageous tender or the lowest price only.
As with all other provisions of the Directive, application of this rule must be guided by the principles on
which the Directive is based: the principles of equality of treatment, of which the principle of non-
discrimination is no more than a specific expression, mutual recognition, proportionality, transparency and
the opening-up of public procurement to competition.

(2003/C 52 E/241)

WRITTEN QUESTION P-2805/02

by Christos Folias (PPE-DE) to the Commission

(30 September 2002)

Subject: Directive 2000/35/EC on combating late payment in commercial transactions

Article 6 of Directive 2000/35/EC (1) on combating late payment in commercial transactions states that
‘Member States shall bring into force the laws, regulations and administrative provisions necessary to
comply with this Directive before 8 August 2002.’

C 52 E/218

Official Journal of the European Union

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6.3.2003

Has Directive 2000/35/EC already been transposed into law in all the Member States? If not, in which
Member States has it not been transposed and what does the Commission intend to do?

(1) OJ L 200, 8.8.2000, p. 35.

Answer given by Mr Liikanen on behalf of the Commission

(21 October 2002)

More than half the Member States have already transposed Directive 2000/35/EC of the Parliament and of
the Council of 29 June 2000 on combating late payment in commercial transactions. However, as of
30 September 2002, the Commission had still received no notification from the following: Greece, Spain,
Italy, Luxembourg, The Netherlands, Austria and Portugal.

Since this subject is of great interest to the public in general, and small and medium-sized enterprises
(SMEs) in particular, the Commission has developed an internet web site accessible to the public. Among
other information is a list of national transposing legislation which is updated as the Commission receives
this information from the Member States. The website can be found at the following address: http://
europa.eu.int/comm/enterprise/regulation/late_payments/index.htm

In the case of those Member States that have not yet transposed, the Commission opened infringement
procedures under Article 226 of the EC Treaty on 30 September 2002.

(2003/C 52 E/242)

WRITTEN QUESTION E-2809/02

by Graham Watson (ELDR) to the Commission

(7 October 2002)

Subject: Food allergies and restaurant ingredients

Would the Commission consider taking steps to ensure that, in an attempt to alleviate the problems faced
by food allergy sufferers, restaurants and other eating places are bound by a legal responsibility to declare
ingredients used in their dishes?

Answer given by Mr Byrne on behalf of the Commission

(12 November 2002)

Directive 2000/13/EC of the Parliament and of the Council of 20 March 2000 (1) names the particulars
which must be indicated on the labelling of pre-packaged foodstuffs and provides,
inter alia, for the
indication of a list of ingredients.

A proposal amending Directive 2000/13/EC (2) is currently under discussion within the Parliament and the
Council. The Parliament completed its first reading in June 2002. This proposal aims to establish more
detailed labelling requirements in terms of ingredients, in order to take account of the problem of food
allergies and intolerances.

As set out in Article 1, Directive 2000/13/CE concerns the labelling of foodstuffs to be delivered as such to
the ultimate consumer; however, it does not apply to meals served in restaurants, which are not foodstuffs
‘delivered as such to the ultimate consumer’.

Nevertheless, to the extent that the Directive also applies to foodstuffs which are delivered to restaurants
and used in the preparation of meals, restaurateurs are already in a position to provide the information
requested of them with regard to the ingredients of these foodstuffs.

(1) Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of
the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs, OJ L 109,
6.5.2000.

(2) COM(2001) 433 final.