WRITTEN QUESTION P-3183/02 by Astrid Thors (ELDR) to the Commission. Distortion of open and fair competition in public procurement, access to documents.
Date: 2002-10-31
Institutions: European Parliament, Provisional data
Subjects: Austria, access to information, award of contract, infringement procedure (EU), public contract, restriction on competition, services contract

8.5.2003

EN

Official Journal of the European Union

C 110 E/179

(2003/C 110 E/198)

WRITTEN QUESTION E-3174/02

by Dorette Corbey (PSE) to the Commission

(7 November 2002)

Subject: Reform of the Common Agricultural Policy

Sustainable development is a priority of the European Union. The protection of biodiversity is a global
necessity. Birds have been affected by intensive agriculture. Within the framework of the Commission’s
proposals for a mid-term review of the CAP, the Commission has increased the importance of biodiversity
protection and the maintenance of natural habitat.

1.
Does the Commission agree that there is a need to give priority to Pillar II funding to farmers who
arrange their agricultural practices in such a way that they benefit species and areas under the Wild Birds
and Habitat directives?

2.
How will the Commission encourage Member States to give priority in Pillar II activities of farmers
who arrange their agricultural practices in such a way that they benefit Special Protection Areas under the
Wild Birds and Habitat Directives?

Answer given by Mr Fischler on behalf of the Commission

(17 December 2002)

The Commission is of the opinion that it is necessary to further increase the scope for Member States to
encourage the provision of environmental services through agri-environmental schemes under rural
development, the second pillar of the Common Agricultural Policy (CAP). Biodiversity protection and the
maintenance of natural habitats are a key element of the services that farmers can provide to wider society.

For this reason, the Commission proposed a number of elements to further facilitate the support of these
activities under the CAP in its Communication on the Mid-Term Review (1). This included proposing the
reinforcement of rural development funding, a higher intervention rate for agri-environmental measures as
well as long-term environmental set-aside.

It is up to Member States to decide the focus for increased support within the context of their priorities
and needs. With respect to Natura 2000 sites responsibility for ensuring their favourable conservation
management lies with the Member States who will need to consider how best to use currently available
Community funds to contribute to this objective. As in the past, the Commission will examine any
proposed changes to rural development programs within the framework of each Member State’s legal
commitments.

The financial requirements for the management of the Natura 2000 network is currently subject to
consideration by an expert group convened by the Commission. The Commission is committed in its 2003
work programme to submit a Communication on this issue to the Parliament and Council. This will
provide the basis for further debate on the long term structure of Community co-financing.

(1) COM(2002) 394 final.

(2003/C 110 E/199)

WRITTEN QUESTION P-3183/02

by Astrid Thors (ELDR) to the Commission

(31 October 2002)

Subject: Distortion of open and fair competition in public procurement, access to documents

On the initiative of local council member Ira Shanker (Linz, Austria), the European Commission has
required the Government of Austria to amend its law on public procurement (case 2000/4546 Schulungs-

C 110 E/180

Official Journal of the European Union

EN

8.5.2003

und Weiterbildungsmaßnahmen (AMS) und Arbeitsmarktservice (WIFI, BFI) CP 173/2001). However, the
Commission and the Austrian Government have denied access to the relevant documents of this case to
the initiator. At the same time, evidence is mounting that the amendments are not being implemented, e.g.
public call for tender and also the role of the Chambers has not been altered, e.g. parallel involvement in
programme management and project implementation.

Can the Commission specify which amendments the Austrian Government has agreed to implement in
response to the Commission’s requirements for public procurement and which monitoring mechanisms
the required
have been installed by the Commission to guarantee the adequate implementation of
amendments and to avoid further distortion of open and fair competition?

Particularly concerning the role of the Chambers, what measures has the Commission taken to ensure, in
that a clear split of competencies is pursued between programme-managing bodies and
general,
organisations and companies involved in project implementation in Austria and in the other Member
States?

Can the Commission agree that for the proper functioning of the infringement procedure it would be
useful and appropriate to give the initiator access to the documents involved in this case?

Answer given by Mr Bolkestein on behalf of the Commission

(4 December 2002)

The Commission received a complaint in which allegations were raised against Austria for infringement of
rules in relation to the award of service contracts. The Arbeitsmarktservice
public procurement
Oberösterreich is said to have attributed service contracts for (a) educational training courses for potential
employees and for (b) training of apprentices under the National Action Plan for Employment (NAP)
without prior publication. Only an informal selection procedure took place.

Like in all cases where the Commission receives a complaint, the Commission asked the authorities of the
Member State concerned to comment on the factual and legal elements. The Austrian authorities submitted
their comments which are undergoing thorough analysis of the Commission at the moment. In this
context, the Commission takes note of the additional allegations made public in this written question and
will investigate in depth further.

The investigations are directed against a Member State and therefore call for genuine co-operation and an
atmosphere of mutual trust between the Commission and the competent administrative body of the
concerned Member State. Only in such a climate both sides can aspire a rapid solution of legal disputes
and also reach such a solution. The Commission can therefore not provide any detailed information of
discussions currently carried out with the concerned Member State.

At the beginning of 2002 the complainant requested access to all the documents of the present file. The
Commission denied access to the documents of the case on the basis of Article 4 paragraph 2 of Regulation
(EC) No 1049/2001 (1). In effect, releasing those documents would undermine the ongoing investigation
while there is no overriding public interest in disclosing them. This is fully supported by existing case law,
judgements, recognised the need to protect ongoing
in several
since the Court of first instance has,
investigations into a possible failure by a Member State to comply with Community law.

However, the complainant has been informed regularly on the state of play in this investigation by the
competent service.

(1) Regulation (EC) No 1049/2001 of the Parliament and of the Council of 30 May 2001 regarding public access to

Parliament, Council and Commission documents, OJ L 145, 31.5.2001.