Common Position (EC) No 34/2003 of 20 March 2003 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors
Date: 2003-03-20
Institutions: Council of the European Union
Subjects: EC Directive, approximation of laws, domestic market, energy distribution, energy production, postal service, transport market, water

24.6.2003

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Official Journal of the European Union

C 147 E/137

COMMON POSITION (EC) No 34/2003

adopted by the Council on 20 March 2003

with a view to adopting Directive 2003/. . ./EC of the European Parliament and of the Council of
. . . coordinating the procurement procedures of entities operating in the water, energy, transport
and postal services sectors

(2003/C 147 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL
OF THE EUROPEAN UNION,

can influence the behaviour of these entities,
including
participation in their capital and representation in the
entities' administrative, managerial or supervisory bodies.

Having regard to the Treaty establishing the European
Community, and in particular Article 47(2) and Article 55
and Article 95 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the Opinion of the European Economic and
Social Committee (2),

Having regard to the Opinion of
Regions (3),

the Committee of

the

Acting in accordance with the procedure set out in Article 251
of the Treaty (4),

Whereas:

(3) Another main reason why it is necessary to coordinate
procurement procedures applied by the entities operating
in these sectors is the closed nature of the markets in
which they operate, due to the existence of special or
exclusive rights granted by the Member States concerning
the supply to, provision or operation of networks for
providing the service concerned.

(4) Community legislation, and in particular Council Regu-
lation (EEC) No 3975/87 of 14 December 1987 laying
down the procedure for the application of the rules on
competition to undertakings in the air transport sector (6)
and Regulation (EEC) No 3976/87 of 14 December 1987
on the application of Article 85(3) of the Treaty to certain
categories of agreements and concerted practices in the air
transport
is designed to introduce more
competition between carriers providing air
transport
services to the public. It is therefore not appropriate to
include such entities in the scope of this Directive. In view
it
of the competitive position of Community shipping,
would also be inappropriate to make the contracts
awarded in this sector subject to the rules of this Directive.

sector (7),

the

procedures

procurement

(1) On the occasion of new amendments being made to
Council Directive 93/38/EEC of 14 June 1993 coor-
entities
dinating
of
operating in the water, energy,
transport and telecom-
sectors (5), which are necessary to meet
munications
requests for simplification and modernisation made by
contracting entities and economic operators alike in their
responses to the Green Paper adopted by the Commission
on 27 November 1996,
in the
interests of clarity, be recast.

the Directive should,

(2) One major reason for the introduction of rules coor-
dinating procedures for the award of contracts in these
sectors is the variety of ways in which national authorities

(1) OJ C 29 E, 30.1.2001, p. 112 and OJ C 203 E, 27.8.2002, p. 183.
(2) OJ C 193, 10.7.2001, p. 1.
(3) OJ C 144, 16.5.2001, p. 23.
(4) Opinion of

the European Parliament of 17 January 2002 (OJ
C 271 E, 7.11.2002, p. 29), Council Common Position of 20
March 2003 and Decision of the European Parliament of . . . (not
yet published in the Official Journal).

(5) OJ L 199, 9.8.1993, p. 84. Directive as last amended by Directive
98/4/EC of the European Parliament and of the Council (OJ L 101,
1.4.1998, p. 1).

by

awarded

contracts

contracting

(5) The scope of Directive 98/38/EEC covers, at present,
certain
entities
operating in the telecommunications sector. A legislative
framework, as mentioned in the Fourth report on the
implementation of the telecommunications regulations of
25 November 1998, has been adopted to open this sector.
its consequences has been the introduction of
One of
effective competition, both de jure and de facto,
in this
sector. For information purposes, and in the light of this
situation, the Commission has published a list of telecom-
munications services (8) which may already be excluded
from the scope of that Directive by virtue of Article 8
thereof. Further progress has been confirmed in the
Seventh report on the implementation of telecommuni-
cations regulations of 26 November 2001. It is therefore
no longer necessary to regulate purchases by entities
operating in this sector.

(6) OJ L 374, 31.12.1987, p. 1. Regulation as last amended by Regu-

lation (EEC) No 2410/92 (OJ L 240, 28.4.1992, p. 18).

(7) OJ L 374, 31.12.1987, p. 9. Regulation as last amended by the

1994 Act of Accession.
(8) OJ C 156, 3.6.1999, p. 3.

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(6)

is therefore no longer appropriate to maintain the
It
Advisory Committee on Telecommunications Procurement
set up by Council Directive 90/531/EEC of 17 September
1990 on the procurement procedures of entities operating
in the water, energy, transport and telecommunications
sectors (1).

(7) Nevertheless,

it

is appropriate to continue to monitor
developments in the telecommunications sector and to
reconsider the situation if it is established that there is
no longer effective competition in that sector.

the fact

(8) Directive 93/38/EEC excludes from its scope purchases of
voice telephony,
telex, mobile telephone, paging and
satellite services. Those exclusions were introduced to
the services in question
take account of
that
service
could frequently be provided only by one
provider in a given geographical area because of
the
absence of effective competition and the existence of
special or exclusive rights. The introduction of effective
competition in the telecommunications sector removes
therefore
the justification for
necessary to include the procurement of such telecom-
munications services in the scope of this Directive.

these exclusions.

is

It

(9) 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 Treaty and from Article 97 of the Euratom
Treaty, namely the principles of equal treatment, of which
the principle of non-discrimination is no more than a
specific expression, the principle of mutual recognition,
the principle of proportionality, the principle of trans-
parency, and the opening up of public procurement to
competition. While safeguarding the application of those
principles, this coordination should establish a framework
for
sound commercial practice and should allow a
maximum of flexibility.

(10) 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 it is
necessary for the entities covered to be identified on a
basis other than their legal status. It should be ensured,
therefore, that the equal treatment of contracting entities
operating in the public sector and those operating in the
private sector is not prejudiced.
It is also necessary to
ensure,
in keeping with Article 295 of the Treaty, that
the rules governing the system of property ownership in
Member States are not prejudiced.

(11) Member States should ensure that the participation of a
body governed by public law as a tenderer in a procedure
for the award of a contract does not cause any distortion
of competition in relation to private tenderers.

(1) OJ L 297, 29.10.1990, p. 1. Directive as last amended by Directive
94/22/EC of the European Parliament and of the Council (OJ L 164,
30.6.1994, p. 3).

(12) Under Article 6 of the Treaty, environmental protection
requirements are to 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. This Directive
therefore
contracting entities may
contribute to the protection of the environment and the
promotion of sustainable development, whilst ensuring the
possibility of obtaining the best value for money for their
contracts.

clarifies how the

(13) Nothing in this Directive should prevent the imposition or
enforcement of measures necessary to protect public
morality, public policy, public security, health, human
and animal
in
particular with a view to sustainable development,
provided that these measures are in conformity with the
Treaty.

the preservation of plant

life or

life,

result of

the WTO Agreement

(14) Council Decision 94/800/EC of 22 December 1994
concerning the conclusion on behalf of
the European
Community, as regards matters within its competence, of
the Agreements reached in the Uruguay Round multi-
(1986 to 1994) (2), approved in
lateral negotiations
particular
on Government
Procurement (hereinafter referred to as the ‘Agreement’),
the aim of which is to establish a multilateral framework
of balanced rights and obligations relating to public
contracts with the aim of achieving the liberalisation and
expansion of world trade.
In view of the international
rights and commitments devolving on the Community as
the
a
arrangements to be applied to tenderers and products
from signatory third countries are those defined by the
Agreement. The Agreement does not have direct effect.
covered by the Agreement
The
which comply with this Directive and which apply the
latter to economic operators of third countries which are
should therefore be in
signatories
conformity with the Agreement.
is also appropriate
this Directive should guarantee for Community
that
economic operators conditions for participation in public
procurement which are just as
those
reserved for economic operators of third countries which
are signatories to the Agreement.

contracting entities

to the Agreement

the Agreement,

acceptance of

favourable as

the

It

(15) Before launching a procurement procedure, contracting
entities may, using a technical dialogue, seek or accept
advice which may be used in the preparation of the spec-
ifications, provided, however, that such advice does not
have the effect of precluding competition.

(16) In view of the diversity of works contracts, contracting
entities should be able to make provision for contracts
for the design and execution of work to be awarded
either separately or jointly. It is not the intention of this
Directive to prescribe either joint or separate contract
awards. The decision to award contracts separately or
jointly
and
determined
economic criteria, which may be defined by national law.

qualitative

should

by

be

(2) OJ L 336, 23.12.1994, p. 1.

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A contract may be considered to be a works contract only
if its subject-matter specifically covers the execution of
activities listed in Annex XII, even if the contract covers
the provision of other services necessary for the execution
in particular in the
of such activities. Service contracts,
sphere of property management services, may in certain
circumstances include works. However,
insofar as such
works are incidental
to the principal subject-matter of
the contract, and are a possible consequence thereof or
that such works are
the fact
a complement
included in the contract does not justify the qualification
of the contract as a works contract.

thereto,

For the purpose of calculating the estimated value of a
works contract it is appropriate to take as a basis the
value of the works themselves as well as the estimated
value of supplies and services, if any, that the contracting
entities place at the disposal of contractors,
insofar as
these services or supplies are necessary for the execution
of the works in question. It should be understood that, for
the purposes of this paragraph, the services concerned are
those rendered by the contracting entities through their
own personnel. On the other hand, calculation of the
value of services contracts, whether or not to be placed
at
the subsequent
the rules applicable to
execution of works,
service contracts.

the disposal of a contractor

follows

for

(17) The field of services is best delineated, for the purpose of
applying the procedural rules of this Directive and for
monitoring purposes, by subdividing it
into categories
corresponding to particular headings of a common classi-
fication and by bringing them together in two Annexes,
XVII A and XVII B, according to the regime to which they
are subject. As regards services in Annex XVII B,
the
relevant provisions of this Directive should be without
prejudice to the application of Community rules specific
to the services in question.

(18) As

regards

service contracts,

full application of

this
Directive should be limited, for a transitional period, to
contracts where its provisions will permit the full potential
for increased cross-frontier trade to be realised. Contracts
for other services need to be monitored during this tran-
sitional period before a decision is taken on the full
application of
the
mechanism for such monitoring needs to be defined.
enable
This mechanism should,
at
relevant
to have
interested parties
information.

this Directive.

the
access

In this

to the

respect,

same

time,

(19) Obstacles to the free provision of services should be
service providers may be
either
avoided. Therefore,
legal persons. This Directive should not,
natural or
however, prejudice the application, at national
level, of
rules concerning the conditions for the pursuit of an

activity or a profession, provided that they are compatible
with Community law.

(20) Certain

techniques

purchasing

new electronic

are
continuously being developed. Such techniques help to
increase competition and streamline public purchasing,
particularly in terms of the savings in time and money
which their use will allow. Contracting entities may
make use of electronic purchasing techniques, provided
that such use complies with the rules of this Directive
and the principles of equal treatment, non-discrimination
and transparency. To that extent, a tender submitted by a
tenderer,
in particular under a framework agreement or
where a dynamic purchasing system is being used, may
take the form of that tenderer's electronic catalogue if the
latter uses the means of communication chosen by the
contracting entity in accordance with Article 48.

(21) In view of the rapid expansion of electronic purchasing
systems, appropriate rules should now be introduced to
enable contracting entities to take full advantage of the
possibilities afforded by these systems. Against this back-
ground, it is necessary to define a completely electronic
dynamic purchasing system for commonly used purchases
and to lay down specific rules for setting up and operating
such a system in order to ensure the fair treatment of any
economic operator who wishes to join. Any economic
operator which submits an indicative tender in accordance
with the specification and meets the selection criteria
should be allowed to join such a system. This purchasing
technique allows the contracting entity, through the estab-
lishment of a list of tenderers already selected and the
opportunity given to new tenderers to join, to have a
particularly broad range of tenders, as a result of the elec-
tronic facilities available, and hence to ensure optimum
use of funds through broad competition.

(22) Since use of the technique of electronic auctions is likely
to increase, such auctions should be given a Community
definition and governed by specific rules in order to
ensure that they operate fully in accordance with the prin-
ciples of equal treatment, non-discrimination and trans-
parency. To that end, provision should be made for such
electronic auctions to deal only with contracts for works,
supplies or services for which the specifications can be
it
determined with precision. With the same objective,
should also be possible
respective
ranking of the tenderers at any stage of the electronic
auction.
enables
Recourse
to submit new
contracting entities
prices, revised downwards, and, when the contract
is
awarded to the most economically advantageous tender,
also to improve elements of
than
in order to guarantee compliance with
prices. However,
the principle of transparency, only the elements suitable
for automatic evaluation by electronic means, without any
intervention by the contracting entity, may be improved.
To this end, such elements should be quantifiable so that
they can be expressed in figures or percentages.

to
to ask tenderers

the tenders other

to establish the

electronic

auctions

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are

responsible

for making

(23) Certain centralised purchasing techniques have been
developed in Member States. Several contracting auth-
orities
acquisitions or
awarding contracts/framework agreements for contracting
In view of the large volumes purchased, those
entities.
techniques help increase
competition and streamline
public purchasing. Provision should therefore be made
for a Community definition of central purchasing bodies
used by contracting entities. A definition should also be
given of the conditions under which, in accordance with
the principles of non-discrimination and equal treatment,
contracting entities purchasing works, supplies and/or
services
through a central purchasing body may be
deemed to have complied with this Directive.

(24) In order to take account of the different circumstances
obtaining in Member States, Member States should be
allowed to choose whether contracting entities may use
central purchasing bodies, dynamic purchasing systems
or electronic auctions, as defined and regulated by this
Directive.

the public highway will not

(25) There has to be an appropriate definition of the concept of
special or exclusive rights. The consequence of the defi-
nition is that the fact that, for the purpose of constructing
networks or port or airport facilities, an entity may take
advantage of a procedure for the expropriation or use of
property or may place network equipment on, under or
in itself constitute
over
exclusive or special rights within the meaning of
this
that an entity supplies
Directive. Nor does
the fact
drinking water, electricity, gas or heat
to a network
which is itself operated by an entity enjoying special or
exclusive rights granted by a competent authority of the
Member State concerned in itself constitute an exclusive or
special right within the meaning of this Directive. Nor
may rights granted by a Member State to a limited
number of undertakings on the basis of objective,
proportionate and non-discriminatory criteria that allow
any interested party fulfilling those criteria to enjoy
those rights be considered special or exclusive rights.

(26) It

in respect of

this Directive award contracts in respect of

is appropriate for the contracting entities to apply
common procurement procedures
their
activities relating to water and for such rules also to
apply where contracting authorities within the meaning
their
of
projects in the field of hydraulic engineering,
irrigation,
land drainage or the disposal and treatment of sewage.
However, procurement rules of
the type proposed for
supplies of goods are inappropriate for purchases of
water, given the need to procure water from sources
near the area in which it will be used.

of a multitude of specific arrangements applying to certain
sectors only, the general procedure that permits the effects
of opening up to competition to be taken into account
should also apply to all entities providing bus transport
services that are not excluded from the scope of Directive
93/38/EEC pursuant to Article 2(4) thereof.

to the rules of

(28) Taking into account the further opening of Community
postal services to competition and the fact
that such
services are provided through a network by contracting
authorities, public undertakings and other undertakings,
contracting entities providing
awarded by
contracts
postal services should be subject
this
Directive,
including those in Article 30 thereof, which,
safeguarding the application of the principles referred to
in recital 9, create a framework for sound commercial
practice and allow greater flexibility than is offered by
Directive 2002/000/EC of the European Parliament and
of the Council of . . . on the coordination of procedures
for the award of public works contracts, public supply
contracts and public service contracts (1). For a definition
of the activities in question, it is necessary to take into
account
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 (2).

the definitions of Directive 97/67/EC of

legal

their

Whatever
status, entities providing postal
services are not currently subject to the rules set out in
Directive 93/38/EEC. The adjustment of contract award
procedures to this Directive could therefore take longer
to implement for such entities than for entities already
subject to those rules which will merely have to adapt
their procedures
to the amendments made by this
Directive.
It should therefore be permissible to defer
the
application of
additional time required for this adjustment. Given the
varying situations of such entities, Member States should
have the option of providing for a transitional period for
the application of this Directive to contracting entities
operating in the postal services sector.

to accommodate

this Directive

legal regimes.

several activities, possibly subject
It should be clarified that

(29) Contracts may be awarded for the purpose of meeting the
to
requirements of
different
the
legal regime applicable to a single contract intended to
to the rules
cover several activities should be subject
applicable to the activity for which it
is principally
intended. Determination of
the activity for which the
contract
is principally intended may be based on an
analysis of the requirements which the specific contract
must meet, carried out by the contracting entity for the

(27) Certain entities providing bus transport services to the
public were already excluded from the scope of Directive
93/38/EEC; such entities should also be excluded from the
scope of this Directive. In order to forestall the existence

(1) See page 1 of this Official Journal.
(2) OJ L 15, 21.1.1998, p. 14. Directive as last amended by Directive

2002/39/EC (OJ L 176, 5.7.2002, p. 21).

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In certain cases,

purposes of estimating the contract value and drawing up
the tender documents.
the
purchase of a single piece of equipment for the pursuit
of activities for which information allowing an estimation
it
of the respective rates of use would be unavailable,
might be objectively impossible to determine for which
activity the contract
is principally intended. The rules
applicable to such cases should be indicated.

such as

award procedures

(30) Without prejudice to the international commitments of
the Community, it is necessary to simplify the implemen-
this Directive, particularly by simplifying the
tation of
thresholds and by rendering applicable to all contracting
entities, regardless of the sector in which they operate, the
provisions
regarding the information to be given to
participants concerning decisions taken in relation to
thereof.
contract
and the
Furthermore,
in the context of Monetary Union such
thresholds should be established in euro in such a way
as to simplify the application of these provisions while
at the same time ensuring compliance with the thresholds
laid down in the Agreement, which are expressed in
special drawing rights (SDR).
In this context, provision
should also be made for periodic reviews of the thresholds
expressed in euro so as to adjust them, where necessary, in
line with possible variations in the value of the euro in
relation to the SDR. In addition, the thresholds applicable
to design contests should be identical to those applicable
to service contracts.

results

(31) Provision should be made for cases

to apply the measures

is
in which it
coordinating
for
impossible
relating to State security or
procedures on grounds
secrecy, or because specific rules on the awarding of
contracts which derive from international agreements,
relating to the stationing of troops, or which are specific
to international organisations are applicable.

(32) It is appropriate to exclude certain service, supply and
works contracts awarded to an affiliated undertaking
having as its principal activity the provision of such
services, supply or works to the group of which it is
part, rather than offering them on the market. It is also
appropriate to exclude certain service, supply and works
contracts awarded by a contracting entity to a joint
venture which is formed by a number of contracting
entities for the purpose of carrying out activities covered
by this Directive and of which that entity is part. However,
it is appropriate to ensure that this exclusion does not give
rise to distortions of competition to the benefit of the
undertakings or joint ventures that are affiliated with the
contracting entities; it is appropriate to provide a suitable
set of rules, in particular as regards the maximum limits
within which the undertakings may obtain a part of their
turnover from the market and above which they would
lose the possibility of being awarded contracts without
calls for competition, the composition of joint ventures
and the stability of
links between these joint ventures
and the contracting entities of which they are composed.

(33) In the context of services, contracts for the acquisition or
rental of immovable property or rights to such property
have particular characteristics which make the application
of procurement rules inappropriate.

(34) Arbitration and conciliation services are usually provided
by bodies or
individuals designated or selected in a
manner which cannot be governed by procurement rules.

(35) In accordance with the Agreement, the financial services
covered by this Directive do not include contracts relating
to the issue, purchase, sale or transfer of securities or other
financial
transactions by the
in particular,
contracting entities to raise money or capital are not
covered.

instruments;

(36) This Directive should cover the provision of services only

where based on contracts.

(37) Pursuant to Article 163 of the Treaty, the encouragement
of research and technological development is a means of
strengthening the scientific and technological basis of
Community industry, and the opening up of service
contracts contributes to this end. This Directive should
not cover the cofinancing of research and development
programmes: research and development contracts other
than those where the benefits accrue exclusively to the
contracting entity for its use in the conduct of its own
affairs, on condition that the service provided is wholly
remunerated by the contracting entity, are therefore not
covered by this Directive.

3

(38) (*) To forestall the proliferation of specific arrangements
the current special
applicable to certain sectors only,
arrangements
of Directive
by Article
created
93/38/EEC and Article 12 of Directive 94/22/EC of the
European Parliament and of the Council of 30 May 1994
on the conditions for granting and using authorisations for
the prospection, exploration and production of hydro-
carbons (1) governing entities exploiting a geographical
area for the purpose of exploring for or extracting oil,
gas, coal or other solid fuels should be replaced by the
general procedure allowing for exemption of
sectors
It has to be ensured,
directly exposed to competition.
however,
to
Commission Decision 93/676/EC of 10 December 1993
establishing that the exploitation of geographical areas for
the purpose of exploring for or extracting oil or gas does
not constitute in the Netherlands an activity defined by
Article 2(2)(b)(i) of Council Directive 90/531/EEC and
that entities carrying on such an activity are not to be

be without prejudice

this will

that

(*) To be updated should other decisions pursuant to Article 3 be

adopted before this Directive is adopted.

(1) OJ L 164, 30.6.1994, p. 3.

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the

considered in the Netherlands as operating under special
or exclusive rights within the meaning of Article 2(3)(b) of
the Directive (1), Commission Decision 97/367/EC of
30 May 1997 establishing that
exploitation of
geographical areas for the purpose of exploring for or
extracting oil or gas does not constitute in the United
Kingdom an activity defined by Article 2(2)(b)(i) of
Council Directive 93/38/EEC and that entities carrying
on such an activity are not
to be considered in the
United Kingdom as operating under special or exclusive
rights within the meaning of Article 2(3)(b) of
the
Directive (2) and Commission Decision 2002/205/EC of
4 March 2002 following a request by Austria applying
for
in Article 3 of
regime provided for
Directive 93/38/EEC (3).

the special

(39) This Directive should apply neither to contracts intended
to permit the performance of an activity referred to by
Articles 3 to 7 nor to design contests organised for the
in the Member State in
pursuit of such an activity if,
it is directly exposed
which this activity is carried out,
is not
to competition on markets
a
is
limited.
procedure, applicable to all
sectors covered by this
Directive, that will enable the effects of current or future
opening to competition to be taken into account. Such a
procedure should provide legal certainty for the entities
concerned, as well as an appropriate decision-making
process,
time-limits, uniform
ensuring, within short
application of Community law in this area.

to which access

to introduce

appropriate

therefore

It

(40) Direct exposure to competition should be assessed on the
basis of objective criteria, taking account of the specific
characteristics of
the sector concerned. The implemen-
tation and application of appropriate Community legis-
lation opening a given sector, or a part of it, will be
considered to provide sufficient grounds for assuming
there is free access to the market in question. Such appro-
priate legislation should be identified in an annex which
can be updated by the Commission. Where free access to a
given market does not result from the implementation of
appropriate Community legislation, it should be demon-
strated that, de jure and de facto, such access is free. For
this purpose, application by a Member State of a Directive,
such as Directive 94/22/EC opening a given sector to
competition, to another sector, such as the coal sector,
is a circumstance to be taken into account
the
purposes of Article 30.

for

(41) The technical

specifications drawn up by purchasers
should allow public procurement
to be opened up to
competition. To this end, it should be possible to submit
tenders which reflect the diversity of technical solutions.
Accordingly, it should be possible to draw up the technical
functional performance and
specifications in terms of
to the
requirements
is made
reference
and, where
European standard or,
to the
in the absence thereof,
tenders based on other equivalent
national
standard,
the
arrangements which meet

requirements of

the

(1) OJ L 316, 17.12.1993, p. 41.
(2) OJ L 156, 13.6.1997, p. 55.
(3) OJ L 68, 12.3.2002, p. 31.

contracting entities and are equivalent in terms of safety
should be considered by the contracting entities. To
demonstrate equivalence,
tenderers should be permitted
to use any form of evidence. Contracting entities should
be able to provide a reason for any decision that equiv-
alence does not exist in a given case.

Contracting entities that wish to define environmental
requirements for the technical specifications of a given
contract may lay down the environmental characteristics
and/or specific environmental effects of product groups or
services. They may, but are not obliged to, use appropriate
specifications that are defined in eco-labels, such as the
(multi-) national eco-labels or any
European Eco-label,
other eco-label provided that
the requirements for the
label are drawn up and adopted on the basis of scientific
information using a procedure in which stakeholders, such
consumers, manufacturers,
as
distributors
can
organisations
environmental
participate, and provided that the label is accessible and
available to all interested parties.

government
and

bodies,

(42) In order to encourage the involvement of small and
medium-sized undertakings
contracts
procurement market, it is advisable to include provisions
on subcontracting.

in the public

training,

unemployment

(43) Contract performance conditions are compatible with the
Directive provided that they are not directly or indirectly
discriminatory and are indicated in the notice used to
make the call for competition, or in the specifications.
They may in particular be intended to encourage on-site
the employment of people experi-
vocational
fight
encing particular difficulty in integration,
against
the
or
environment. For example, mention may be made of the
requirements — applicable during the performance of the
contract — to recruit
to
implement training measures for the unemployed or for
young persons, to comply in substance with the provisions
of
the basic International Labour Organisation (ILO)
Conventions, assuming that such provisions have not
been implemented in national
law, and to recruit more
handicapped persons than are required under national
legislation.

long-term job-seekers or

protection

the
of

the

(44) The laws, regulations and collective agreements, at both
national and Community level, which are in force in the
areas of social protection and health and safety apply
during the performance of a contract, provided that such
rules, and their application, comply with Community law.
from one
In cross-border
Member State provide services in another Member State
for
the purpose of performing a 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 (4) lays down
the minimum conditions which must be observed by the
host country in respect of such posted workers.

situations where workers

(4) OJ L 18, 21.1.1997, p. 1.

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law contains provisions

effect,
If national
non-compliance with those obligations may be considered
to be grave misconduct or an offence concerning the
professional conduct of the economic operator concerned,
liable to lead to the exclusion of that economic operator
from the procedure for the award of a contract.

to this

(49) It

should be clarified that contracting entities which
establish selection criteria in an open procedure should
do so in accordance with objective rules and criteria,
just as the selection criteria in restricted and negotiated
procedures should be objective. These objective rules and
criteria,
just as the selection criteria, do not necessarily
imply weightings.

(45) In view of new developments in information and telecom-
munications technology, and the simplifications these can
bring in terms of publicising contracts and the efficiency
and transparency of procurement procedures, electronic
means should be put on a par with traditional means of
far as
communication and information exchange. As
possible,
the means and technology chosen should be
compatible with the technologies used in the other
Member States.

(46) The use of electronic means leads to savings in time. As a
result, provision should be made
reducing the
minimum periods where electronic means are used,
subject, however,
are
transmission
compatible with the
envisaged at Community level. However,
it is necessary
to ensure that the cumulative effect of reductions of time-
limits does not lead to excessively short time-limits.

specific mode of

condition that

to the

they

for

should,

in particular

in the internal market (2)

electronic
the European Parliament and of

(47) Directive 1999/93/EC of the European Parliament and of
the Council of 13 December 1999 on a Community
signatures (1) and Directive
framework for
2000/31/EC of
the
Council of 8 June 2000 on certain legal aspects of
electronic
information society services,
in the
commerce,
context of this Directive, apply to the transmission of
information by electronic means. The public procurement
procedures and the rules applicable to service contests
require a level of security and confidentiality higher than
that required by those Directives. Accordingly, the devices
for the electronic receipt of tenders, requests to participate,
applications for qualification as well as plans and projects,
requirements.
should comply with specific additional
Moreover,
accreditation
voluntary
existence
schemes
‘can’ constitute a favourable framework for
enhancing the level of certification service provision for
such devices.

the

of

(48) It

the participants

is appropriate that

in an award
to conclude a
procedure are informed of decisions
to
framework agreement or
are
abandon the procedure within time-limits
sufficiently short so as not
to render the lodging of
requests for review impossible; this information should
therefore be given as soon as possible and in general
within 15 days following the decision.

to award a contract or

that

(50) It

financial or

is important

to take into account Court of

in the context of qualification systems,

Justice
case-law in cases where an economic operator claims the
economic,
technical capabilities of other
entities, whatever the legal nature of the link between
in order to meet the selection
itself and those entities,
criteria or,
in
support of its application for qualification. In the latter
case, it is for the economic operator to prove that those
resources will actually be available to it throughout the
period of validity of the qualification. For the purposes
of that qualification, a contracting entity may therefore
determine the level of requirements to be met and in
particular, for example where the operator lays claim to
the financial standing of another entity, it may require that
that entity be held liable, if necessary jointly and severally.

choice, may concern the

Qualification systems should be operated in accordance
with objective rules and criteria, which, at the contracting
the
entities'
economic operators and/or
the
works, supplies or services covered by the system. For
the purposes of qualification, contracting entities may
conduct their own tests in order to evaluate the charac-
teristics of the works, supplies or services concerned, in
particular in terms of compatibility and safety.

capacities of
the characteristics of

(51) The relevant Community rules on mutual recognition of
diplomas, certificates or other evidence of formal qualifi-
cations apply when evidence of a particular qualification is
required for participation in a procurement procedure or a
design contest.

(52) In appropriate cases,

justifies

services

applying

in which the nature of the works
and/or
environmental
management measures or schemes during the performance
of a contract, the application of such measures or schemes
may be required. Environmental management schemes,
they are registered under Community
whether or not
instruments
such as Regulation (EC) No 761/2001
(EMAS) (3), can demonstrate that the economic operator
has the technical capability to perform the contract.
Moreover, a description of the measures implemented by
the economic operator
to ensure the same level of
environmental protection should be accepted as an alter-
native to environmental management registration schemes
as a form of evidence.

(1) OJ L 13, 19.1.2000, p. 12.
(2) OJ L 178, 17.7.2000, p. 1.

(3) Regulation (EC) No 761/2001 of the European Parliament and of
the Council of 19 March 2001 allowing a voluntary participation
by organisations in a Community eco-management and audit
scheme (EMAS) (OJ L 114, 24.4.2001, p. 1).

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(53) The award of public contracts to economic operators who
have participated in a criminal organisation or who have
fraud to the
been found guilty of corruption or of
detriment of
the European
interests of
the financial
Communities or of money laundering should be avoided.
Given that contracting entities, which are not contracting
authorities, might not have access to indisputable proof on
the matter, it is appropriate to leave the choice whether or
not to apply the exclusion criteria listed in Article 45(1) of
Directive 2003/. . ./EC to these contracting entities. The
obligation to apply Article 45(1) should therefore be
limited only to contracting entities that are contracting
authorities.

they may

situation of

Where appropriate,
the contracting entities should ask
applicants for qualification, candidates or tenderers to
supply relevant documents and, where they have doubts
these economic
concerning the personal
operators,
the
competent authorities of
the Member State concerned.
The exclusion of such economic operators should take
place
has
knowledge of a judgment concerning such offences
rendered in accordance with national
law that has the
force of res judicata.

cooperation of

contracting

seek the

soon as

authority

the

as

to this

law contains provisions

effect,
If national
non-compliance with environmental
legislation or legis-
lation on unlawful agreements in contracts which has
been the subject of a definitive judgment or a decision
having equivalent effect may be considered an offence
concerning the professional conduct of
the economic
operator concerned or grave misconduct.

(54) The contract must be awarded on the basis of objective
criteria which ensure compliance with the principles of
transparency, non-discrimination and equal
treatment
and which guarantee
assessed in
conditions of effective competition. As a result, it is appro-
priate to allow the application of two award criteria only:
‘the lowest price’ and ‘the most economically advantageous
tender’.

tenders

that

are

compliance with the principle of

To ensure
equal
treatment in the award of contracts, it is appropriate to
lay down an obligation — established by case-law — to
ensure the necessary transparency to enable all tenderers
to be reasonably informed of the criteria and arrangements
which will be applied to identify the most economically
advantageous tender. It is therefore the responsibility of
contracting entities to indicate the criteria for the award of
the contract and the relative weighting given to each of
those criteria in sufficient time for tenderers to be aware of
them when preparing their tenders. Contracting entities
may derogate from indicating the weighting of
the
criteria for the award of the contract in duly justified
cases for which they must be able to give reasons,
where the weighting cannot be established in advance,
in particular on account of
the
contract. In such cases, they must indicate the descending
order of importance of the criteria.

the complexity of

tender,

Where the contracting entities choose to award a contract
to the most economically advantageous
they
should assess the tenders in order to determine which
one offers the best value for money. In order to do this,
they should determine the economic and quality criteria
which,
taken as a whole, must make it possible to
determine the most economically advantageous tender
for the contracting entity. The determination of
these
criteria depends on the object of the contract since they
must allow the level of performance offered by each
tender to be assessed in the light of the object of the
contract, as defined in the technical specifications, and
the value for money of each tender to be measured. In
order to guarantee equal treatment, the criteria for the
to be
tenders
award of
compared and assessed objectively.
these conditions
are fulfilled, economic and qualitative criteria for the
award of
the contract, such as meeting environmental
requirements, may enable the contracting entity to meet
the needs of the public concerned, as expressed in the
specifications of the contract. Under the same conditions,
a contracting entity may use criteria aiming to meet social
in particular in response to the needs —
requirements,
the contract — of
defined in the specifications of
particularly disadvantaged groups of people to which
those receiving/using the works,
services
which are the object of the contract belong.

contract must

enable
If

supplies or

the

(55) The award criteria should not affect the application of
certain
such as the services provided by architects,

national provisions on the
services,
engineers or lawyers.

remuneration of

(56) Council Regulation (EEC, Euratom) No 1182/71 of 3 June
1971 determining the rules applicable to periods, dates
and time-limits (1) should apply to the calculation of the
time-limits contained in this Directive.

(57) This Directive should be without prejudice to the existing
international obligations of
the
Member States and should not prejudice the application
of the provisions of the Treaty, in particular Articles 81
and 86 thereof.

the Community or of

(58) This Directive should not prejudice the time-limits set out
in Annex XXIV, within which Member States are required
to transpose and apply Directive 93/38/EEC.

(59) The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down the
procedures
implementing powers
the exercise of
conferred on the Commission (2).

for

HAVE ADOPTED THIS DIRECTIVE:

(1) OJ L 124, 8.6.1971, p. 1.
(2) OJ L 184, 17.7.1999, p. 23.

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TITLE I

General provisions applicable to contracts and design contests

CONTENTS

CHAPTER I

Basic Terms

Article 1

Definitions

CHAPTER II

Definition of the activities and entities covered

Section 1

Article 2

Entities

Contracting entities

Section 2

Activities

Article 3

Article 4

Article 5

Article 6

Article 7

Article 8

Article 9

Gas, heat and electricity

Water

Transport services

Postal services

Exploration for, or extraction of, oil, gas, coal or other solid fuels, as well as ports and airports

Lists of contracting entities

Contracts covering several activities

CHAPTER III

General principles

Article 10

Principles of awarding contracts

TITLE II

Rules applicable to contracts

CHAPTER I

General provisions

Article 11

Article 12

Article 13

Article 14

Article 15

Economic operators

Conditions relating to Agreements concluded within the World Trade Organisation

Confidentiality

Framework agreements

Dynamic purchasing systems

CHAPTER II

Thresholds and exclusion provisions

Section 1

Article 16

Article 17

Thresholds

Contract thresholds

Methods of calculating the estimated value of contracts, framework agreements and dynamic
systems

Section 2

Contracts and concessions and contracts subject to special arrangements

S u b s e c t i o n 1

Article 18

Works and service concessions

S u b s e c t i o n 2

Exclusions applicable to all contracting entities and to all types of contract

Article 19

Article 20

Article 21

Article 22

Article 23

Contracts awarded for purposes of resale or lease to third parties

Contracts awarded for purposes other than the pursuit of an activity covered or for the pursuit
of such an activity in a third country

Contracts which are secret or require particular security measures

Contracts awarded pursuant to international rules

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

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S u b s e c t i o n 3

Exclusions applicable to all contracting entities, but to service contracts only

Article 24

Article 25

Contracts relating to certain services excluded from the scope of this Directive

Service contracts awarded on the basis of an exclusive right

S u b s e c t i o n 4

Exclusions applicable to certain contracting entities only

Article 26

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

S u b s e c t i o n 5

Contracts subject to special arrangements, provisions concerning central purchasing bodies and
the general procedure in case of direct exposure to competition

Article 27

Article 28

Article 29

Article 30

Contracts subject to special arrangements

Reserved contracts

Contracts and framework agreements awarded by central purchasing bodies

Procedure for establishing whether a given activity is directly exposed to competition

CHAPTER III

Rules applicable to service contracts

Article 31

Article 32

Article 33

Service contracts included in Annex XVII A

Service contracts listed in Annex XVII B

Mixed service contracts listed in Annex XVII A and in Annex XVII B

CHAPTER IV

Specific rules governing specifications and contract documents

Article 34

Article 35

Article 36

Article 37

Article 38

Article 39

Technical specifications

Communication of technical specifications

Variants

Subcontracting

Conditions for performance of contracts

Obligations relating to taxes, environmental protection, employment protection provisions and
working conditions

CHAPTER V

Procedures

Article 40

Use of open, restricted and negotiated procedures

CHAPTER VI

Rules on publication and transparency

Section 1

Article 41

Article 42

Article 43

Article 44

Section 2

Article 45

Article 46

Article 47

Section 3

Article 48

Article 49

Article 50

Publication of notices

Periodic indicative notices and notices on the existence of a system of qualification

Notices used as a means of calling for competition

Contract award notices

Form and manner of publication of notices

Time-limits

Time-limits for receipt of requests to participate and for receipt of tenders

Open procedures: specifications, additional documents and information

Invitations to submit a tender or to negotiate

Communication and information

Rules applicable to communication

Information to applicants for qualification, candidates and tenderers

Information to be stored concerning awards

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CHAPTER VII

Conduct of the procedure

Article 51

General provisions

Section 1

Article 52

Article 53

Article 54

Section 2

Article 55

Article 56

Article 57

Section 3

Article 58

Article 59

TITLE III

Article 60

Article 61

Article 62

Article 63

Article 64

Article 65

Article 66

TITLE IV

Article 67

Article 68

Article 69

Article 70

Article 71

Article 72

Article 73

Annex I

Annex II

Annex III

Annex IV

Annex V

Annex VI

Qualification and qualitative selection

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

Qualification systems

Criteria for qualitative selection

Awards

Contract award criteria

Use of electronic auctions

Abnormally low tenders

Tenders comprising products originating in third countries and relations with those countries

Tenders comprising products originating in third countries

Relations with third countries as regards service contracts

Rules governing service design contests

General provision

Thresholds

Design contests excluded

Rules on advertising and transparency

Means of communication

Rules on the organisation of design contests, the selection of participants and the jury

Decisions of the jury

Statistical obligations, executory powers and final provisions

Statistical obligations

Advisory Committee

Revision of thresholds

Amendments

Implementation of the Directive

Repeal

Addressees

Contracting entities in the sectors of transport or distribution of gas or heat

Contracting entities in the sectors of production, transport or distribution of electricity

Contracting entities in the sectors of production, transport or distribution of drinking water

Contracting entities in the field of rail services

Contracting entities in the field of urban railway, tramway, trolleybus or bus services

Contracting entities in the postal services sector

Annex VII

Contracting entities in the sectors of exploration for and extraction of oil or gas

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Annex VIII

Contracting entities in the sectors of exploration for and extraction of coal and other solid fuels

Annex IX

Annex X

Annex XI

Annex XII

Annex XIII

Contracting entities in the field of maritime or inland port or other terminal facilities

Contracting entities in the field of airport installations

List of legislation referred to in Article 30(3)

List of professional activities as set out in Article 1(2), point b

Information to be included in contract notices:
A. Open procedures
B. Restricted procedures
C. Negotiated procedures
D. Simplified contract notice for use in a dynamic purchasing system

Annex XIV

Information to be included in the notice on the existence of a system of qualification

Annex XV A

Information to be included in the periodic indicative notice

Annex XV B

Information to be included in notices of publication of a periodic notice on a buyer profile not
used as a means of calling for competition

Annex XVI

Information to be included in the contract award notice

Annex XVII A

Services within the meaning of Article 31

Annex XVII B

Services within the meaning of Article 32

Annex XVIII

Information to be included in the design contest notice

Annex XIX

Information to be included in the results of design contest notices

Annex XX

Features concerning publication

Annex XXI

Definition of certain technical specifications

Annex XXII

Summary table of the time-limits laid down in Article 45

Annex XXIII

Requirements relating to equipment for the electronic receipt of tenders, requests to participate,
applications for qualification as well as plans and projects in contests

Annex XXIV

Time-limits for transposition and implementation

Annex XXV

Correlation table

GENERAL PROVISIONS APPLICABLE TO CONTRACTS AND DESIGN CONTESTS

TITLE I

CHAPTER I

Basic terms

Article 1

Definitions

For the purposes of this Directive, the definitions set out

1.
in this Article shall apply.

2. (a) ‘supply, works and service contracts’ means contracts for
pecuniary interest concluded in writing between one or
more of the contracting entities referred to in Article
2(2), and one or more contractors,
suppliers, or
service providers;

(b) ‘works contracts’ means contracts having as their object
either the execution, or both the design and execution,
of works related to one of
the activities within the
meaning of Annex XII or a work, or the realisation by

whatever means of a work corresponding to the
specified by the contracting entity. A
requirements
‘work’ means the outcome of building or civil engin-
eering works taken as a whole which is sufficient of
itself to fulfil an economic or technical function;

(c) ‘supply contracts’ means contracts other

than those
referred to in (b) having as their object the purchase,
lease,
the
rental or hire-purchase, with or without
option to buy, of products.

A contract having as its object the supply of products,
which also covers, as an incidental matter, the siting and
installation operations
shall be considered to be a
‘supply contract’;

(d) ‘service contracts’ means contracts other than works or
supply contracts having as their object the provision of
services referred to in Annex XVII.

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A contract having as its object both products and
services within the meaning of Annex XVII shall be
considered to be a ‘service contract’ if the value of the
services in question exceeds that of the products covered
by the contract.

A contract having as its object services within the
meaning of Annex XVII and including activities within
the meaning of Annex XII that are only incidental to the
principal object of the contract shall be considered to be
a service contract.

‘Tenderer’ means an economic operator who submits a tender,
and ‘candidate’ means one who has sought an invitation to take
part in a restricted or negotiated procedure.

‘Central purchasing body’ means a contracting authority
8.
within the meaning of Article 2(1)(a) or a contracting authority
within the meaning of Article 1(9) of Directive 2003/. . ./EC
which:

— acquires supplies and/or services intended for contracting

entities; or

3. (a) ‘Works concession’ means a contract of the same type as
a works
the
except
consideration for the works to be carried out consists
either solely in the right to exploit the work or in that
right together with payment;

contract

that

fact

the

for

service

contract

(b) ‘service concession’ means a contract of the same type as
the
except
that
a
consideration for
services consists
the provision of
either solely in the right to exploit the service or in
that right together with payment.

fact

the

for

4.
‘Framework agreement’ means an agreement between one
or more contracting entities referred to in Article 2(2) and one
or more economic operators,
the purpose of which is to
establish the terms governing contracts to be awarded during
a given period, in particular with regard to price and, where
appropriate, the quantities envisaged.

the requirements of

‘Dynamic purchasing system’ means a completely elec-
5.
tronic process for making commonly used purchases,
the
characteristics of which, as generally available on the market,
meet
the contracting entity, which is
limited in duration and open throughout its validity to any
economic operator which satisfies the selection criteria and
has submitted an indicative tender that complies with the spec-
ification.

6.
‘Electronic auction’ means a repetitive process involving
an electronic device for the presentation of new prices, revised
downwards, and/or new values concerning certain elements of
tenders, which is held after an initial full evaluation of the
tenders, enabling them to be ranked using automatic evaluation
methods.

‘Contractor’, ‘supplier’ or ‘service provider’ means either a
7.
natural or a legal person, or a contracting entity within the
meaning of Article 2(2)(a) or (b), or a group of such persons
and/or entities which offers on the market, respectively, the
execution of works and/or a work, products or services.

‘Economic operator’
shall cover equally the concepts of
contractor, supplier and service provider. It is used merely in
the interests of simplification.

— awards

public

framework
agreements for works, supplies or services intended for
contracting entities.

concludes

contracts

or

‘Open, restricted and negotiated procedures’ means the
entities,
applied by

contracting

9.
procurement procedures
whereby:

(a)

in the case of open procedures, any interested economic
operator may submit a tender;

(b) in the case of restricted procedures, any economic operator
may request to participate and only candidates invited by
the contracting entity may submit a tender;

(c)

in the case of negotiated procedures, the contracting entity
consults
and
negotiates the terms of the contract with one or more of
these;

economic operators of

choice

the

its

(d) ‘design contests’ means those procedures which enable the
contracting entity to acquire, mainly in the fields of town
and country planning, architecture, engineering or data
processing, a plan or design selected by a jury after
having been put out to competition with or without the
award of prizes.

‘Written’ or ‘in writing’ means any expression consisting
10.
of words or
reproduced and
that can be read,
subsequently communicated. It may include information trans-
mitted and stored by electronic means.

figures

11.
‘Electronic means’ means using electronic equipment for
the processing (including digital compression) and storage of
data which is transmitted, conveyed and received by wire, by
radio, by optical means or by other electromagnetic means.

12.
‘Common Procurement Vocabulary (CPV)’ means the
reference nomenclature applicable to public contracts as
adopted by Regulation (EC) No 2195/2002 of the European
Parliament and of the Council of 5 November 2002 on the
Common Procurement Vocabulary (CPV) (1) while ensuring
equivalence with the other existing nomenclatures.

(1) OJ L 340, 16.12.2002, p. 1.

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In the event of varying interpretations of the scope of this
Directive, owing to possible differences between the CPV and
NACE nomenclatures listed in Annex XII or between the CPV
and CPC (provisional version) nomenclatures listed in Annex
XVII, the NACE or the CPC nomenclature respectively shall
take precedence.

CHAPTER II

Definition of the activities and entities covered

S e c t i o n 1

Entities

Article 2

Contracting entities

1.

For the purposes of this Directive,

(a)

‘contracting authorities’ means the State, regional or local
authorities, bodies governed by public law, associations
formed by one or several such authorities or one or
several of such bodies governed by public law.

‘A body governed by public law’ means any body:

— established for the specific purpose of meeting needs in
interest, not having an industrial or

the general
commercial character,

— having legal personality and

— financed, for the most part, by the State, regional or
local authorities, or other bodies governed by public
law; or subject to management supervision by those
bodies; or having an administrative, managerial or
supervisory board, more than half of whose members
are appointed by the State, regional or local authorities,
or by other bodies governed by public law;

— can appoint more than half of the undertaking's admin-

istrative, management or supervisory body.

2.

This Directive shall apply to contracting entities:

(a) which are contracting authorities or public undertakings
the activities referred to in

and which pursue one of
Articles 3 to 7;

(b) which, when they are not contracting authorities or public
undertakings, have as one of their activities any of the
activities referred to in Articles 3 to 7, or any combination
thereof and operate on the basis of special or exclusive
rights granted by a competent authority of a Member State.

For the purposes of this Directive,

3.
‘special or exclusive
rights’ mean rights granted by a competent authority of a
Member State by way of any legislative, regulatory or adminis-
trative provision the effect of which is to limit the exercise of
activities defined in Articles 3 to 7 to one or more entities, and
which substantially affects the ability of other entities to carry
out such activity.

S e c t i o n 2

Activities

Article 3

Gas, heat and electricity

As far as gas and heat are concerned, this Directive shall

1.
apply to the following activities:

(a) the provision or operation of fixed networks intended to
provide a service to the public in connection with the
production, transport or distribution of gas or heat; or

(b) the supply of gas or heat to such networks.

(b) ‘public undertaking’ means any undertaking over which the
contracting authorities may exercise directly or indirectly a
dominant influence by virtue of their ownership of it, their
financial participation therein, or the rules which govern it.

2.
The supply of gas or heat to networks which provide a
service to the public by a contracting entity other than a
contracting authority shall not be considered a relevant
activity within the meaning of paragraph 1 where:

A dominant influence on the part of the contracting auth-
orities shall be presumed when these authorities, directly or
indirectly, in relation to an undertaking:

(a) the production of gas or heat by the entity concerned is the
unavoidable consequence of carrying out an activity other
than those referred to in paragraphs 1 or 3 of this Article
or in Articles 4 to 7; and

— hold the majority of

the undertaking's

subscribed

capital, or

— control the majority of the votes attaching to shares

issued by the undertaking, or

(b) supply to the public network is aimed only at

the
economic exploitation of such production and amounts
to not more than 20 % of the entity's turnover having
regard to the average for
the preceding three years,
including the current year.

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As far as electricity is concerned,

3.
apply to the following activities:

this Directive shall

(a) the provision or operation of fixed networks intended to
provide a service to the public in connection with the
production, transport or distribution of electricity; or

(b) the supply of electricity to such networks.

(b) supply to the public network depends only on the entity's
own consumption and has not exceeded 30 % of
the
entity's total production of drinking water, having regard
to the average for the preceding three years, including the
current year.

Article 5

Transport services

4.
The supply of electricity to networks which provide a
service to the public by a contracting entity other than a
contracting authority shall not be considered a relevant
activity within the meaning of paragraph 3 where:

1.
This Directive shall apply to activities relating to the
provision or operation of networks providing a service to the
public in the field of transport by railway, automated systems,
tramway, trolley bus, bus or cable.

(a) the production of electricity by the entity concerned takes
place because its consumption is necessary for carrying out
an activity other than those referred to in paragraphs 1 or
3 of this Article or in Articles 4 to 7; and

(b) supply to the public network depends only on the entity's
the
own consumption and has not exceeded 30 % of
entity's total production of energy, having regard to the
average for
including the
the preceding three years,
current year.

As regards transport services, a network shall be considered to
exist where the service is provided under operating conditions
laid down by a competent authority of a Member State, such as
conditions on the routes to be served, the capacity to be made
available or the frequency of the service.

This Directive shall not apply to entities providing bus
2.
transport services to the public which were excluded from the
scope of Directive 93/38/EEC pursuant to Article 2(4) thereof.

Article 4

Water

Article 6

Postal services

1.

This Directive shall apply to the following activities:

(a) the provision or operation of fixed networks intended to
provide a service to the public in connection with the
production, transport or distribution of drinking water; or

(b) the supply of drinking water to such networks.

This Directive shall also apply to contracts or design
2.
contests awarded or organised by entities which pursue an
activity referred to in paragraph 1 and which:

(a) are connected with hydraulic engineering projects,

irri-
the volume of
gation or land drainage, provided that
water
the supply of drinking water
represents more than 20 % of the total volume of water
made available by such projects or irrigation or drainage
installations, or

to be used for

(b) are connected with the disposal or treatment of sewage.

3.
The supply of drinking water to networks which provide
a service to the public by a contracting entity other than a
contracting authority shall not be considered a relevant activity
within the meaning of paragraph 1 where:

(a) the production of drinking water by the entity concerned
takes place because its consumption is necessary for
carrying out an activity other than those referred to in
Articles 3 to 7; and

This Directive shall apply to activities relating to the
1.
provision of reserved postal services, other postal services or,
on the conditions set out in paragraph 2(d), ancillary postal
services.

For the purpose of this Directive and without prejudice to

2.
Directive 97/67/EC:

(a)

‘postal item’ means an item addressed in the final form in
which it is to be carried, irrespective of weight. In addition
to items of correspondence, such items also include for
instance books, catalogues, newspapers, periodicals and
postal packages containing merchandise with or without
commercial value, irrespective of weight;

(b) ‘reserved postal services’ means services consisting of the
clearance, sorting, routing and delivery of postal
items
which are or may be reserved on the basis of Article 7
of Directive 97/67/EC;

(c)

‘other postal services’ means services other than those listed
the clearance, sorting, routing and
in (b) consisting of
delivery of postal items; and

(d) ‘ancillary postal services’ means services provided in the

following areas:

— mail

service management
and subsequent

preceding
‘mailroom management services’);

services
to despatch,

(services both
such as

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— added-value services linked to and provided entirely by
electronic means (including the secure transmission of
coded
address
management services and transmission of registered
electronic mail);

electronic means,

documents

by

— services concerning postal items not included in point

(a), such as direct mail bearing no address;

— financial services, as defined in category 6 of Annex
XVII A and in Article 24(c) and including in particular
postal money orders and postal giro transfers;

— philatelic services; and

— logistics services (services combining physical delivery
and/or warehousing with other non-postal functions),

on condition that such services are provided by an entity
which also provides postal services within the meaning of
points (b) or (c) and provided that the conditions set out in
Article 30(1) are not satisfied in respect of the services falling
within those points.

Article 7

Exploration for, or extraction of, oil, gas, coal or other
solid fuels, as well as ports and airports.

This Directive shall apply to activities relating to the exploi-
tation of a geographical area for the purpose of:

(a) exploring for or extracting oil, gas, coal or other solid fuels,

or

(b) the provision of airports and maritime or inland ports or
other terminal facilities to carriers by air, sea or inland
waterway.

Article 8

Member States shall notify the Commission periodically of
any changes to their lists.

Article 9

Contracts covering several activities

1.
A contract which is intended to cover several activities
shall be subject to the rules applicable to the activity for which
it is principally intended.

However, the choice between awarding a single contract and
awarding a number of separate contracts may not be made
with the objective of excluding it
this
Directive or, where applicable, Directive 2003/. . ./EC.

from the scope of

2.
If one of the activities for which the contract is intended
is subject to this Directive and the other to the abovemen-
tioned Directive 2003/. . ./EC and if it is objectively impossible
to determine for which activity the contract
is principally
intended, the contract shall be awarded in accordance with
the abovementioned Directive 2003/. . ./EC.

3.
If one of the activities for which the contract is intended
is subject to this Directive and the other is not subject to either
this Directive or the abovementioned Directive 2003/. . ./EC,
and if
is objectively impossible to determine for which
activity the contract is principally intended, the contract shall
be awarded in accordance with this Directive.

it

CHAPTER III

General principles

Article 10

Lists of contracting entities

Principles of awarding contracts

The non-exhaustive lists of contracting entities within the
meaning of this Directive are contained in Annexes I to X.

Contracting entities shall treat economic operators equally and
non-discriminatorily and shall act in a transparent way.

TITLE II

RULES APPLICABLE TO CONTRACTS

CHAPTER I

General provisions

Article 11

Economic operators

Candidates or

1.
the
Member State in which they are established, are entitled to
provide the relevant service, shall not be rejected solely on

tenderers who, under

the law of

the ground that, under the law of
which the contract
required to be either natural or legal persons.

is awarded,

the Member State in
they would have been

However, in the case of service and works contracts as well as
for supply contracts covering in addition services and/or siting
and installation operations, legal persons may be required to
indicate, in the tender or the request to participate, the names
and relevant professional qualifications of
to be
responsible for the performance of the contract in question.

the staff

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Groups of economic operators may submit tenders or put
2.
themselves forward as candidates. In order to submit a tender
or a request to participate, these groups may not be required
by the contracting entities to assume a specific legal form;
however, the group selected may be required to do so when
it has been awarded the contract, to the extent to which this
change is necessary for the satisfactory performance of the
contract.

Article 12

Conditions relating to agreements concluded within the
World Trade Organisation

For the purposes of the award of contracts by contracting
entities, Member States shall apply in their relations conditions
as favourable as those which they grant to economic operators
the Agreement.
of
Member States shall, to this end, consult one another within
the Advisory Committee for Public Contracts on the measures
to be taken pursuant to the Agreement.

in implementation of

third countries

Article 13

Confidentiality

1.
In the context of provision of technical specifications to
interested economic operators, of qualification and selection of
economic operators and of award of contracts, contracting
entities may impose requirements with a view to protecting
the confidential nature of
information which they make
available.

limit

This Directive shall not

2.
the right of economic
operators to require a contracting entity, in accordance with
the national law to which it is subject, to respect the confi-
dential nature of information which they make available; such
information may include,
trade
secrets and the confidential aspects of tenders.

in particular,

technical or

Article 14

Framework agreements

Contracting entities may regard a framework agreement
1.
as a contract within the meaning of Article 1(2) and award it in
accordance with this Directive.

2. Where contracting entities have awarded a framework
agreement in accordance with this Directive, they may avail
themselves of point
(i) of Article 40(3) when awarding
contracts based on that framework agreement.

Contracting

4.
agreements in order to hinder, limit or distort competition.

entities may

not misuse

framework

Article 15

Dynamic purchasing systems

1. Member States may provide that contracting entities may
use dynamic purchasing systems.

shall

rules of

follow the

2.
In order
to set up a dynamic purchasing system,
the open
contracting entities
procedure in all its phases up to the award of the contracts
to be concluded under this system. All tenderers who satisfy
the selection criteria and have submitted an indicative tender
which complies with the specification and any possible
additional documents
system;
indicative tenders may be improved at any time provided
that they continue to comply with the specification. With a
view to setting up the system and to the award of contracts
under that system, contracting entities shall use solely elec-
tronic means in accordance with Article 48(2) to (5).

admitted to the

shall be

For the purposes of setting up the dynamic purchasing

3.
system, contracting entities shall:

(a) publish a contract notice making it clear that a dynamic

purchasing system is involved;

(b) indicate in the specification, amongst other matters, the
nature of the purchases envisaged under that system, as
well as all
the necessary information concerning the
purchasing system, the electronic equipment used and the
technical connection arrangements and specifications;

(c) offer by electronic means, on publication of the notice and
until the system expires, unrestricted, direct and full access
to the specification and to any additional documents and
shall indicate in the notice the internet address at which
such documents may be consulted.

the entire period of

Contracting entities shall give any economic operator,
4.
throughout
the dynamic purchasing
system, the possibility of submitting an indicative tender and
of being admitted to the system under the conditions referred
to in paragraph 2. They shall complete evaluation within a
maximum of 15 days from the date of submission of the
indicative tender. However, they may extend the evaluation
period provided that no invitation to tender is issued in the
meantime.

3. Where a framework agreement has not been awarded in
accordance with this Directive, contracting entities may not
avail themselves of point (i) of Article 40(3).

The contracting entities shall inform the tenderer referred to in
the first subparagraph at the earliest possible opportunity of its
admittance to the dynamic purchasing system or of
the
rejection of its indicative tender.

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Each specific contract shall be the subject of an invitation
5.
to tender. Before issuing the invitation to tender, contracting
entities shall publish a simplified contract notice inviting all
interested economic operators to submit an indicative tender,
in accordance with paragraph 4, within a time-limit that may
not be less than 15 days from the date on which the simplified
notice was sent. Contracting entities may not proceed with
tendering until
the
indicative tenders received within that time-limit.

they have completed evaluation of all

Article 17

Methods of calculating the estimated value of contracts,
framework agreements and dynamic purchasing systems

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 renewals of the contract.

6.
Contracting entities shall invite all tenderers admitted to
the system to submit a tender for each specific contract to be
they shall set a
awarded under the system. To that end,
time-limit for the submission of tenders.

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.

They shall award the contract to the tenderer which submitted
the best tender on the basis of the award criteria set out in the
the dynamic
contract notice
for
purchasing system. Those criteria may,
if appropriate, be
formulated more precisely in the invitation referred to in the
first subparagraph.

establishment of

the

A dynamic purchasing system may not last for more than

7.
four years, except in duly justified exceptional cases.

Contracting entities may not resort to this system to prevent,
restrict or distort competition.

No charges may be billed to the interested economic operators
or to parties to the system.

CHAPTER II

Thresholds and exclusion provisions

S e c t i o n 1

Thresholds

Article 16

Contract thresholds

Save where they are ruled out by the exclusions in Articles 19
to 26 or pursuant to Article 30, concerning the pursuit of the
this Directive shall apply to contracts
activity in question,
which have
(VAT)
value-added tax
estimated to be no less than the following thresholds:

excluding

value

a

(a) EUR 499 000 in the case of supply and service contracts;

(b) EUR 6 242 000 in the case of works contracts.

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

supplies and/or

3. With regard to framework agreements and dynamic
the estimated value to be taken into
purchasing systems,
consideration shall be the maximum estimated value net of
VAT of all the contracts envisaged for the total term of the
agreement or system.

4.
For the purposes of Article 16, 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.

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

6. (a) Where a proposed work or purchase of services may
result in contracts being awarded at the same time in
the form of separate lots, account shall be taken of the
total estimated value of all such lots.

Where the aggregate value of the lots is equal to or
exceeds the threshold laid down in Article 16,
this
Directive shall apply to the awarding of each lot.

the contracting entities may waive such
However,
lots the estimated value of
application in respect of
than EUR 80 000 for
less
is
which, net of VAT,
services or EUR 1 million for works, provided that the
aggregate cost of those lots does not exceed 20 % of the
aggregate value of the lots as a whole.

(b) Where a proposal for the acquisition of similar supplies
may result in contracts being awarded at the same time
in the form of separate lots, account shall be taken of
the total estimated value of all such lots when applying
Article 16.

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Where the aggregate value of the lots is equal to or
exceeds the threshold laid down in Article 16,
this
Directive shall apply to the awarding of each lot.

(c)

fees, commissions payable and other forms of remun-
eration, in the case of contracts involving design tasks.

However,
the contracting entities may waive such
application in respect of lots, the estimated value of
which, net of VAT, is less than EUR 80 000, provided
that the aggregate cost of those lots does not exceed
20 % of the aggregate value of the lots as a whole.

7.
In the case of supply or service contracts which are
in nature or which are intended to be renewed
regular
the estimated
the calculation of
within a given period,
contract value shall be based on the following:

(a) either the total actual value of the successive contracts of
the same type awarded during the preceding twelve months
or financial year, if possible adjusted to take account of the
changes in quantity or value which would occur in the
course of the twelve months following the initial contract;

(b) or the total estimated value of the successive contracts
awarded during the twelve months following the first
delivery, or during the financial year if
is longer
than twelve months.

that

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

(a)

in the case of fixed-term contracts, if that term is less than
or equal to 48 months: the total value for their full term;

(b) in the case of contracts without a fixed term or with a term
greater than 48 months: the monthly value multiplied by
48.

S e c t i o n 2

Contracts and concessions and contracts subject

to special

arrangements

SUBSECTION 1

Article 18

8.
The basis for calculating the estimated value of a contract
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.

Works and service concessions

This Directive shall not apply to works and service concessions
which are awarded by contracting entities carrying out one or
more of the activities referred to in Articles 3 to 7, where those
concessions are awarded for carrying out those activities.

9. With regard to supply contracts relating to the leasing,
hire, rental or hire purchase of products, the value to be taken
as a basis for calculating the estimated contract value shall be
as follows:

(a)

in the case of fixed-term contracts, if that term is less than
or equal to twelve months, the total estimated value for the
term of the contract or,
if the term of the contract is
greater than twelve months, the total value including the
estimated residual value;

(b) in the case of contracts without a fixed term or the term of
which cannot be defined, the monthly value multiplied by
48.

For the purposes of calculating the estimated contract
10.
value of service contracts, the following amounts shall, where
appropriate, be taken into account:

(a) the premium payable, and other forms of remuneration, in

the case of insurance services;

(b) fees, commissions,

interest and other modes of remun-
eration, in the case of banking and other financial services;

SUBSECTION 2

Exclusions applicable to all contracting entities and to all types
of contract

Article 19

Contracts awarded for purposes of resale or lease to third
parties

1.
This Directive shall not apply to contracts awarded for
purposes of resale or lease to third parties, provided that the
contracting entity enjoys no special or exclusive right to sell or
lease the subject of such contracts, and other entities are free to
sell or lease it under the same conditions as the contracting
entity.

2.
The contracting entities shall notify the Commission at its
request of all the categories of products or activities which they
regard as excluded under paragraph 1. The Commission may
periodically publish in the Official Journal of the European Union,
lists of the categories of products
for information purposes,
and activities which it considers
to be covered by this
exclusion.
the Commission shall respect any
In so doing,
sensitive commercial aspects that the contracting entities may
point out when forwarding information.

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Article 20

Article 23

Contracts awarded for purposes other than the pursuit of
an activity covered or for the pursuit of such an activity
in a third country

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

award for purposes other

This Directive shall not apply to contracts which the
1.
contracting entities
than the
pursuit of their activities as described in Articles 3 to 7 or
in
the pursuit of such activities in a third country,
for
conditions not involving the physical use of a network or
geographical area within the Community.

The contracting entities shall notify the Commission at its
2.
request of any activities which they regard as excluded under
paragraph 1. The Commission may periodically publish in the
Official Journal of the European Union for information purposes,
lists of the categories of activities which it considers to be
covered by this exclusion. In so doing, the Commission shall
respect any sensitive commercial aspects that the contracting
entities may point out when forwarding this information.

For the purposes of this Article,

1.
‘affiliated undertaking’
means any undertaking the annual accounts of which are
consolidated with those of the contracting entity in accordance
the Seventh Council Directive
with the requirements of
83/349/EEC of 13 June 1983 based on the Article 44(2)(g)
of the Treaty on consolidated accounts (1) (2), or, in the case
of entities not subject to that Directive, any undertaking over
contracting entity may exercise, directly or
which the
influence within the meaning of
indirectly, a dominant
Article 2(1)(b) or which may exercise a dominant influence
in common with the
over the contracting entity or which,
contracting entity,
influence of
another undertaking by virtue of ownership, financial partici-
pation, or the rules which govern it.

to the dominant

is subject

Provided that the conditions in paragraph 3 are met, this

2.
Directive shall not apply to contracts awarded:

Article 21

(a) by a contracting entity to an affiliated undertaking, or

Contracts which are secret or require particular security
measures

This Directive shall not apply to contracts when they are
declared to be secret by a Member State, when their
execution must be accompanied by special security measures
in accordance with the laws, regulations or administrative
provisions in force in the Member State concerned, or when
the protection of the basic security interests of that State so
requires.

Article 22

Contracts awarded pursuant to international rules

This Directive shall not apply to contracts governed by
different procedural rules and awarded:

(a) pursuant

to an international agreement concluded in
accordance with the Treaty between a Member State and
one or more third countries and covering supplies, works,
services or design contests intended for the joint implemen-
tation or exploitation of a project by the signatory States;
all agreements shall be communicated to the Commission,
which may consult
the Advisory Committee for Public
Contracts referred to in Article 68;

(b) pursuant to a concluded international agreement relating to
the stationing of troops and concerning the undertakings of
a Member State or a third country;

(c) pursuant to the particular procedure of an international

organisation.

formed exclusively by a number of
(b) by a joint venture,
contracting entities
the purpose of carrying out
for
activities within the meaning of Articles 3 to 7, to an
these
undertaking which is
contracting entities.

affiliated with one of

3.

Paragraph 2 shall apply:

(a) to service contracts provided that at

least 80 % of the
average turnover of the affiliated undertaking with respect
to services for the preceding three years derives from the
provision of such services to undertakings with which it is
affiliated;

(b) to supplies contracts provided that at least 80 % of the
average turnover of the affiliated undertaking with respect
to supplies for the preceding three years derives from the
provision of such supplies to undertakings with which it is
affiliated;

(c)

to works contracts provided that at
the
average turnover of the affiliated undertaking with respect
to works for the preceding three years derives from the
provision of such works to undertakings with which it is
affiliated.

least 80 % of

(1) OJ L 193, 18.7.1983, p. 1. Directive as last amended by Directive
2001/65/EC of the European Parliament and of the Council (OJ L
283, 27.10.2001, p. 28).

(2) The title of the Directive has been adjusted to take account of the
renumbering of the Articles of the Treaty in accordance with Article
12 of the Treaty of Amsterdam; the original reference was to
Article 54(3)(g) of the Treaty.

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When, because of the date on which an affiliated undertaking
the turnover is not
was created or commenced activities,
available for the preceding three years,
it will be sufficient
for that undertaking to show that the turnover referred to in
is credible, particularly by means of
points (a),
business projections.

(b) or (c)

(a) the acquisition or rental, by whatever financial means, of
land, existing buildings or other immovable property or
concerning rights thereon; nevertheless,
financial service
contracts concluded at the same time as, before or after
the contract of acquisition or rental, in whatever form, shall
be subject to this Directive;

Where more
than one undertaking affiliated with the
services,
contracting entity provides
supplies or works, the above percentages shall be calculated
taking into account the total turnover deriving respectively
from the provision of services, supplies or works by those
affiliated undertakings.

the same or

similar

4.

This Directive shall not apply to contracts awarded:

formed exclusively by a number of
(a) by a joint venture,
contracting entities
the purpose of carrying out
for
activities within the meaning of Articles 3 to 7, to one
of these contracting entities, or

(b) by a contracting entity to such a joint venture of which it
forms part, provided that the joint venture has been set up
in order to carry out the activity concerned over a period
of at least three years and that the instrument setting up
the joint venture stipulates that the contracting entities,
which form it, will be part thereof for at least the same
period.

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

5.
at
the
application of paragraphs 2, 3 and 4:

request,

its

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

(b) the nature and value of the contracts involved,

(c) such proof

as may be deemed necessary by

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

(b) arbitration and conciliation services;

(c)

services

in connection with the issue,

financial
purchase or
instruments,
entities to raise money or capital;

sale,
financial
in particular transactions by the contracting

securities or other

transfer of

(d) employment contracts;

(e) research and development services other than those where
the benefits accrue exclusively to the contracting entity for
its use in the conduct of its own affairs, on condition that
the
service provided is wholly remunerated by the
contracting entity.

Article 25

Service contracts awarded on the basis of an exclusive
right

This Directive shall not apply to service contracts awarded to
an entity which is itself a contracting authority within the
meaning of Article 2(1)(a) or to an association of contracting
authorities on the basis of an exclusive right which they enjoy
pursuant
regulation or administrative
provision which is compatible with the Treaty.

to a published law,

SUBSECTION 4

Exclusions applicable to certain contracting entities only

Article 26

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

This Directive shall not apply:

SUBSECTION 3

Exclusions applicable to all contracting entities, but to service
contracts only

(a) to contracts for the purchase of water if awarded by
contracting entities engaged in one or both of the activities
referred to in Article 4(1).

Article 24

Contracts relating to certain services excluded from the
scope of this Directive

This Directive shall not apply to service contracts for:

(b) to contracts for the supply of energy or of fuels for the
production of energy,
if awarded by contracting entities
engaged in an activity referred to in Article 3(1), Article
3(3) or Article 7(a).

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SUBSECTION 5

Contracts
concerning

subject
special
to
central purchasing

arrangements,
bodies

and the

provisions
general

procedure in case of direct exposure to competition

Article 27 (*)

Contracts subject to special arrangements

to Article 30 the Kingdom of

Without prejudice
the
Netherlands, the United Kingdom and the Republic of Austria
shall ensure, by way of the conditions of authorisation or other
appropriate measures, that any entity operating in the sectors
mentioned in Decisions 93/676/EEC (1), 97/367/EC (2) and
2002/205/EC (3):

(a) observes

of

non-discrimination

and
principles
the
the award of
competitive procurement
supplies, works and service contracts,
in particular as
regards the information which the entity makes available
to economic operators
its procurement
intentions;

in respect of

concerning

(b) communicates to the Commission, under the conditions
93/327/EEC (4),

defined
information relating to the award of contracts.

Commission

Decision

in

the cases set out in Article 1(8) shall be deemed to have
complied with this Directive insofar as the central purchasing
body has complied with it or, where appropriate, with
Directive 2003/. . ./EC.

Article 30

Procedure for establishing whether a given activity is
directly exposed to competition

1.
Contracts intended to enable an activity mentioned in
Articles 3 to 7 to be carried out shall not be subject to this
in the Member State in which the activity is
Directive if,
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 that are in conformity with the Treaty
provisions on competition, such as the characteristics of the
goods or services concerned, the existence of alternative goods
or services, the prices and the actual or potential presence of
more than one supplier of the goods or services in question.

Article 28

Reserved contracts

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

to be

Member States may reserve the right to participate in contract
award procedures to sheltered workshops or provide for such
contracts
sheltered
the employees
employment programmes where most of
concerned are handicapped persons who, by reason of the
nature or the seriousness of their disabilities, cannot carry on
occupations under normal conditions.

executed in the

context of

If free access to a given market cannot be presumed on the
basis of the first subparagraph, it shall be demonstrated that
access to the market in question is free de facto and de jure.

The notice used to make the call for competition shall make
reference to this Article.

Article 29

Contracts and framework agreements awarded by central
purchasing bodies

4. When a Member State considers that, in compliance with
paragraphs 2 and 3, paragraph 1 is applicable to a given
activity,
it shall notify the Commission and inform it of all
relevant facts, and in particular of any law, regulation, adminis-
trative provision or agreement concerning compliance with the
conditions set out in paragraph 1, where appropriate together
with the position adopted by an independent national authority
that is competent in relation to the activity concerned.

1. Member States may prescribe that contracting entities
may purchase works,
from or
through a central purchasing body.

supplies

services

and/or

Contracting entities which purchase works,

2.
supplies
and/or services from or through a central purchasing body in

(*) To be updated should other decisions pursuant to Article 3 be

adopted before this Directive is adopted.

(1) OJ L 316, 17.12.1993, p. 41.
(2) OJ L 156, 13.6.1997, p. 55.
(3) OJ L 68, 12.3.2002, p. 31.
(4) OJ L 129, 27.5.1993, p. 25.

Contracts intended to enable the activity concerned to be
carried out shall no longer be subject to this Directive if the
Commission:

— has adopted a Decision establishing the applicability of
paragraph 1 in accordance with paragraph 6 and within
the period it provides for, or

— has not adopted a Decision concerning such applicability

within that period.

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However, where free access to a given market is presumed on
the basis of the first subparagraph of paragraph 3, and where
an independent national authority that is competent in the
applicability of
activity
activity
paragraph 1,
concerned to be carried out shall no longer be subject to
this Directive if the Commission has not established the inap-
plicability of paragraph 1 by a Decision adopted in conformity
with paragraph 6 and within the period it provides for.

established
intended to enable

concerned has
contracts

the

the

for

the

the Member State concerned
5. When the legislation of
provides
ask the
contracting
it,
Commission to establish the applicability of paragraph 1 to a
given activity by a Decision in conformity with paragraph 6. In
such a case, the Commission shall
immediately inform the
Member State concerned.

entities may

That Member State shall, taking account of paragraphs 2 and 3,
inform the Commission of all relevant facts, and in particular
of any law, regulation, administrative provision or agreement
concerning compliance with the
in
paragraph 1, where appropriate together with the position
adopted by
is
competent in the activity concerned.

an independent national

conditions

authority

set out

that

The Commission may also begin the procedure for adoption of
a Decision establishing the applicability of paragraph 1 to a
the
given activity on its own initiative.
Commission shall
immediately inform the Member State
concerned.

In such a case,

If, at the end of the period laid down in paragraph 6, the
Commission has not adopted a Decision concerning the appli-
cability of paragraph 1 to a given activity, paragraph 1 shall be
deemed to be applicable.

For the adoption of a Decision under this Article,

in
6.
the
accordance with the procedure under Article 68(2),
Commission shall be allowed a period of
three months
commencing on the first working day following the date on
which it receives the notification or the request. However, this
period may be extended once by a maximum of three months
in duly justified cases, in particular if the information contained
in the notification or the request or in the documents annexed
thereto is incomplete or inexact or if the facts as reported
undergo any substantive changes. This extension shall be
an independent national
limited to one month where
authority that is competent in the activity concerned has estab-
lished the applicability of paragraph 1 in the cases provided for
under the third subparagraph of paragraph 4.

When an activity in a given Member State is already the subject
of a procedure under this Article, further requests concerning
the same activity in the same Member State before the expiry
of the period opened in respect of the first request shall not be

considered as new procedures and shall be treated in the
context of the first request.

for applying
The Commission shall adopt detailed rules
paragraphs 4, 5 and 6 in accordance with the procedure
under Article 68(2).

These rules shall include at least:

(a) the publication in the Official Journal, for information, of
the date on which the three-month period referred to in
the first subparagraph begins, and, in case this period is
prolonged, the date of prolongation and the period by
which it is prolonged;

(b) publication of the possible applicability of paragraph 1 in
accordance with the second or
third subparagraph of
paragraph 4 or in accordance with the fourth subparagraph
of paragraph 5; and

(c)

the arrangements for forwarding positions adopted by an
in the activity
independent authority that
concerned, regarding questions relevant to paragraphs 1
and 2.

is competent

CHAPTER III

Rules applicable to service contracts

Article 31

Service contracts listed in Annex XVII A

Contracts which have as their object services listed in Annex
XVII A shall be awarded in accordance with Articles 34 to 59.

Article 32

Service contracts listed in Annex XVII B

Contracts which have as their object services listed in Annex
XVII B shall be governed only by Articles 34 and 43.

Article 33

Mixed contracts including services listed in Annexes
XVII A and services listed in Annex XVII B

Contracts which have as their subject matter services listed
both in Annex XVII A and in Annex XVII B shall be awarded
in accordance with the provisions of Articles 34 to 59 where
the value of the services listed in Annex XVII A is greater than
the value of the services listed in Annex XVII B. In other cases,
contracts shall be governed by Articles 34 and 43.

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CHAPTER IV

Specific rules governing specifications and contract
documents

Article 34

Technical specifications

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

An appropriate means might be constituted by a technical
dossier
from a
recognised body.

from the manufacturer or a test

report

it may not

reject a tender

5. Where a contracting entity uses the option provided for
laying down performance or functional
in paragraph 3 of
requirements,
for products,
services or works which comply with a national standard trans-
posing a European standard, with a European technical
approval, a common technical specification, an international
standard, or a technical reference system established by a
European standardisation body, if these specifications address
the performance or functional requirements which it has laid
down.

Technical

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

shall afford equal access

specifications

to the

3. Without prejudice to legally binding national technical
compatible with
rules,
Community
be
formulated:

that
technical

specifications

extent
the

shall

they

law,

are

standards,

transposing

in order of preference,

(a) either by reference to technical specifications defined in
to national
Annex XXI and,
standards
European
European
technical approvals, common technical specifications, inter-
national standards, other technical reference systems estab-
lished by the European standardisation bodies or — when
these do not exist — national standards, national technical
approvals or national technical specifications relating to the
design, calculation and execution of the works and use of
the products. Each reference shall be accompanied by the
words ‘or equivalent’;

(b) or in terms of performance or functional requirements; the
latter may include environmental characteristics. However,
such parameters 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
mentioned in subparagraph (b), with reference to the spec-
ifications mentioned in subparagraph (a) as a means of
presuming conformity with such performance or functional
requirements;

specifications mentioned in
(d) or by referring
subparagraph (a)
and by
referring to the performance or functional requirements
mentioned in subparagraph (b) for other characteristics.

certain characteristics,

to the
for

In his tender, the tenderer shall prove to the satisfaction of the
contracting entity and by any appropriate means that
the
product, service or work in compliance with the standard
meets the performance or
the
contracting entity.

requirements of

functional

An appropriate means might be constituted by a technical
dossier
from a
recognised body.

from the manufacturer or a test

report

in terms

contracting entities

lay down environmental
6. Where
characteristics
functional
or
requirements as referred to in paragraph 3(b) they may use
the detailed specifications, or,
if necessary, parts thereof, as
defined by European or (multi-) national eco-labels, or by
any other eco-label, provided that:

of performance

— those specifications are appropriate to define the charac-
teristics of the supplies or services that are the object of
the contract,

— the requirements for the label are drawn up on the basis of

scientific information,

— the eco-labels are adopted using a procedure in which all
consumers,
and environmental organi-

such as government bodies,

stakeholders,
manufacturers, distributors
sations can participate, and

— they are 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 from the manufacturer or a
test report from a recognised body.

laid down in the

specifications

4. Where a contracting entity makes use of the option of
referring to the specifications mentioned in paragraph 3(a), it
cannot reject a tender on the ground that the products and
services tendered for do not comply with the specifications to
which it has referred, once the tenderer proves in his tender to
the satisfaction of the contracting entity, by whatever appro-
priate means, that the solutions which he proposes satisfy in an
equivalent manner the requirements defined by the technical
specifications.

7.
‘Recognised bodies’, within the meaning of this Article,
are test and calibration laboratories, and certification and
inspection bodies which comply with applicable European
standards.

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

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Unless justified by the subject-matter of

the contract,
8.
technical specifications shall not refer to a specific make or
source, or to a particular process, or to trade marks, patents,
types or a specific origin or production with the effect of
certain
favouring or
products. Such reference shall be permitted, on an exceptional
basis, where a sufficiently precise and intelligible description of
the subject-matter of the contract pursuant to paragraphs 3
and 4 is not possible; such reference shall be accompanied
by the words ‘or equivalent’.

eliminating certain undertakings or

Article 35

Communication of technical specifications

Contracting entities shall make available on request to
1.
economic operators interested in obtaining a contract
the
technical specifications regularly referred to in their supply,
works or service contracts, or
the technical specifications
which they intend to apply to contracts covered by periodic
indicative notices within the meaning of Article 41(1).

This indication shall be without prejudice to the question of
the principal economic operator's liability.

Article 38

Conditions for performance of contracts

Contracting entities may lay down special conditions relating
these are
to the performance of a contract, provided that
compatible with Community law and are indicated in the
notice used as a means of calling for competition or in the
specifications. The conditions governing the performance of a
contract may, in particular, concern social and environmental
considerations.

Article 39

Obligations relating to taxes, environmental protection,
and working
employment

provisions

protection

conditions

the

based on
2. Where
documents available to interested economic operators,
the
inclusion of a reference to those documents shall be sufficient.

specifications

technical

are

Article 36

Variants

1. Where the criterion for the award of the contract is that
of
the most economically advantageous tender, contracting
entities may take account of variants which are submitted by
a tenderer and meet the minimum requirements specified by
the contracting entities.

indicate in the specifications
The contracting entities shall
whether or not
the
minimum requirements to be met by the variants and any
specific requirements for their presentation.

they authorise variants and,

so,

if

In the procedures

for awarding supply or

2.
service
contracts, contracting entities which have authorised variants
pursuant to paragraph 1 may not reject a variant on the sole
lead either to a service
ground that it would,
if successful,
contract
to a supply
contract rather than a service contract.

than a supply contract, or

rather

The

in the

contracting entity may state

1.
contract
documents, or be required by a Member State so to do, from
which body or bodies a candidate or tenderer may obtain the
appropriate information on the obligations relating to taxes, to
environmental protection, to protection provisions and to the
working conditions which are in force in the Member State,
region or locality in which the services are to be provided and
which shall be applicable to the works carried out on site or to
the services provided during the performance of the contract.

The contracting entity which supplies the information
2.
referred to in paragraph 1 shall request
the tenderers or
candidates in the contract award procedure to indicate that
they have taken account, when drawing up their tender, of
the obligations relating to employment protection provisions
and the working conditions which are in force in the place
where the service is to be provided.

The first subparagraph shall be without prejudice to the
application of Article 57.

CHAPTER V

Procedures

Article 40

Article 37

Subcontracting

Use of open, restricted and negotiated procedures

1. When awarding supply, works or
service contracts,
contracting entities shall apply the procedures adjusted for
the purposes of this Directive.

In the contract documents, the contracting entity may ask, or
may be required by a Member State to ask, the tenderer to
indicate in his tender any share of the contract he intends to
subcontract to third parties and any proposed subcontractors.

2.
Contracting entities may choose any of the procedures
described in Article 1(9)(a), (b) or (c), provided that, subject
to paragraph 3, a call
for competition has been made in
accordance with Article 42.

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Contracting entities may use a procedure without prior

3.
call for competition in the following cases:

adopted and the total estimated cost of subsequent works
shall be taken into consideration by the contracting entities
when they apply the provisions of Articles 16 and 17;

(a) when no tenders or no suitable tenders or no applications
have been submitted in response to a procedure with a
prior
initial
the
conditions of contract are not substantially altered;

competition, provided that

call

for

study or development, and not

(b) where a contract is purely for the purpose of research,
experiment,
the
purpose of securing a profit or of recovering research
and development costs, and insofar as the award of such
contract does not prejudice the competitive award of
subsequent contracts which do seek,
in particular, those
ends;

for

(c) when,

for technical or artistic reasons, or for reasons
connected with the protection of exclusive rights,
the
contract may be executed only by a particular economic
operator;

(d)

(e)

(f)

insofar as is strictly necessary when, for reasons of extreme
urgency brought about by events unforeseeable by the
the time-limits laid down for open
contracting entities,
procedures,
negotiated
procedures with a prior call for competition cannot be
adhered to;

procedures

restricted

and

in the case of supply contracts for additional deliveries by
the original supplier which are intended either as a partial
replacement of normal supplies or installations or as the
extension of existing supplies or installations, where a
change of supplier would oblige the contracting entity to
acquire material having different technical characteristics
which would result in incompatibility or disproportionate
technical difficulties in operation and maintenance;

initially awarded or

for additional works or services which were not included in
first
the project
concluded but have,
through unforeseen circumstances,
become necessary to the performance of the contract, on
condition that the award is made to the contractor or
service provider executing the original contract:

in the contract

— when such additional works or services cannot be
technically or economically separated from the main
contract without great inconvenience to the contracting
entities; or

— when such additional works or

separable
contract, are strictly necessary to its later stages;

from the performance of

services, although
the original

(g)

in the case of works contracts, for new works consisting in
the repetition of similar works assigned to the contractor to
which the same contracting entities awarded an earlier
contract, provided that such works conform to a basic
project for which a first contract was awarded after a call
for competition; as soon as the first project is put up for
tender, notice shall be given that this procedure might be

(h) for supplies quoted and purchased on a commodity market;

(i)

(j)

for contracts to be awarded on the basis of a framework
the condition referred to in
agreement, provided that
Article 14(2) is fulfilled;

for bargain purchases, where it
is possible to procure
supplies by taking advantage of a particularly advantageous
opportunity available for a very short
time at a price
considerably lower than normal market prices;

(k) for purchases of supplies under particularly advantageous
conditions from either a supplier definitively winding up
his business activities or the receivers or liquidators of a
bankruptcy, an arrangement with creditors or a similar
procedure under national laws or regulations;

(l) when the service contract concerned is part of

the
follow-up to a design contest organised in accordance
in
with the provisions of
accordance with the relevant rules, be awarded to the
winner or to one of the winners of that contest; in the
latter case, all the winners shall be invited to participate in
the negotiations.

this Directive

and shall,

CHAPTER VI

Rules on publication and transparency

S e c t i o n 1

Publication of notices

Article 41

Periodic indicative notices and notices on the existence of
a system of qualification

1.
Contracting entities shall make known, at least once a
year, by means of a periodic indicative notice as referred to
in Annex XV A, published by the Commission or by them-
selves on their ‘buyer profile’, as described in point 2(b) of
Annex XX:

(a) where supplies are concerned, the estimated total value of
the contracts or the framework agreements by product area
which they intend to award over the following 12 months,
where the total estimated value, taking into account the
is equal to or greater
provisions of Articles 16 and 17,
than EUR 750 000.

The product area shall be established by the contracting
entities by reference to the CPV nomenclature;

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(b) where services are concerned, the estimated total value of
the contracts or the framework agreements in each of the
categories of services listed in Annex XVII A which they
intend to award over the following 12 months, where such
estimated total value, taking into account the provisions of
Articles 16 and 17,
than
EUR 750 000;

to or greater

equal

is

(c) where works are concerned, the essential characteristics of
the works contracts or the framework agreements which
they intend to award over the 12 coming months, whose
estimated value is equal to or greater than the threshold
specified in Article 16, taking into account the provisions
of Article 17.

The notices referred to in (a) and (b) shall be sent to the
Commission or published on the buyer profile as soon as
possible after the beginning of the budgetary year.

The notice referred to in (c) shall be sent to the Commission or
published on the buyer profile as soon as possible after the
decision approving the planning of the works contracts or the
framework agreements that the contracting entities intend to
award.

Contracting entities which publish the periodic indicative
notice on their buyer profiles shall transmit to the Commission,
the periodic
electronically, a notice of
in accordance with the
indicative notice on a buyer profile,
format and modalities
the electronic transmission of
notices indicated in point 3 of Annex XX.

the publication of

for

The publication of the notices referred to in (a), (b) and (c) shall
be compulsory only where the contracting entities take the
option of reducing the time-limits for the receipt of tenders
as laid down in Article 45(4).

This paragraph shall not apply to procedures without prior call
for competition.

2.
Contracting entities may, in particular, publish or arrange
for the Commission to publish periodic indicative notices
relating to major projects without
repeating information
previously included in a periodic indicative notice, provided
that it is clearly pointed out that these notices are additional
ones.

3. Where contracting entities choose to set up a qualifi-
cation system in accordance with Article 53, the system shall
be the subject of a notice as referred to in Annex XIV, indi-
cating the purpose of the qualification system and how to have
access to the rules concerning its operation. Where the system
is of a duration greater than three years, the notice shall be
published annually. Where the system is of a shorter duration,
an initial notice shall suffice.

Article 42

Notices used as a means of calling for competition

In the case of supply, works or service contracts, the call

1.
for competition may be made:

(a) by means of a periodic indicative notice as referred to in

Annex XV A; or

(b) by means of a notice on the existence of a qualification

system as referred to in Annex XIV; or

(c) by means of a contract notice as referred to in Annex

XIII A, B or C.

2.
In the case of dynamic purchasing systems, the system's
call for competition shall be by contract notice as referred to in
paragraph 1(c), whereas calls for competition for contracts
based on such systems shall be by simplified contract notice
as referred to in Annex XIII D.

3. When a call for competition is made by means of a
periodic indicative notice, the notice shall:

(a) refer specifically to the supplies, works or services which

will be the subject of the contract to be awarded;

(b) indicate that the contract will be awarded by restricted or
further publication of a
negotiated procedure without
notice of a call
for competition and invite interested
economic operators to express their interest in writing; and

(c) have been published in accordance with Annex XX not
more than 12 months prior to the date on which the
is sent. Moreover,
invitation referred to in Article 47(5)
the contracting entity shall meet
laid
down in Article 45.

the time-limits

Article 43

Contract award notices

1.
Contracting entities which have awarded a contract or a
framework agreement shall, within two months of the award of
the contract or framework agreement, send a contract award
notice as referred to in Annex XVI under conditions to be laid
down by the Commission in accordance with the procedure
referred to in Article 68(2).

In the case of contracts awarded under a framework agreement
within the meaning of Article 14(2), the contracting entities
shall not be bound to send a notice of the results of the award
procedure for each contract based on that agreement.

Contracting entities shall send a contract award notice based
on a dynamic purchasing system within two months after the
award of each contract. They may, however, group such
notices on a quarterly basis. In that case, they shall send the
grouped notices within two months after the end of each
quarter.

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The information provided in accordance with Annex XVI
2.
and intended for publication shall be published in accordance
with Annex XX.
the Commission shall
respect any sensitive commercial aspects which the contracting
entities may point out when forwarding this information,
concerning the number of tenders received,
the identity of
economic operators, or prices.

In this connection,

service contract

3. Where contracting entities award a research-and-devel-
opment
(‘R & D contract’) by way of a
procedure without a call for competition in accordance with
Article 40(3)(b), they may limit to the reference ‘research and
development
the information to be provided in
accordance with Annex XVI concerning the nature and
quantity of the services provided.

services’

Where contracting entities award an R & D contract which
cannot be awarded by way of a procedure without a call for
competition in accordance with Article 40(3)(b), they may, on
grounds of commercial confidentiality, limit the information to
be provided in accordance with Annex XVI concerning the
nature and quantity of the services supplied.

In such cases, contracting entities
information published under
detailed than that contained in the notice of
competition published in accordance with Article 42(1).

shall ensure that any
this paragraph is no less
for

the call

The notices referred to in Articles 41, 42 and 43 shall be
published in accordance with the technical characteristics for
publication set out in point 1(a) and (b) of Annex XX.

3.
Notices drawn up and transmitted by electronic means in
accordance with the format and modalities of transmission
indicated in point 3 of Annex XX, shall be published no
later than five days after they are sent.

Notices which are not
transmitted by electronic means in
accordance with the format and modalities of transmission
indicated in point 3 of Annex XX shall be published not
later than 12 days after they are transmitted. However,
in
exceptional cases, the contract notices referred to in Article
42(1)(c) shall be published within five days in response to a
request by the contracting entity, provided that the notice has
been sent by fax.

Contract notices shall be published in full in an official
4.
the Community as chosen by the contracting
language of
entity,
language version constituting the sole
authentic text. A summary of the important elements of each
notice shall be published in the other official languages.

this original

The costs of publication of notices by the Commission shall be
borne by the Community.

If they use a qualification system, contracting entities shall
ensure in such cases that such information is no less detailed
than the category referred to in the list of qualified service
providers drawn up in accordance with Article 53(7).

5.
Notices and their contents may not be published at
national level before the date on which they are sent to the
Commission. (take it back!!)

In the case of contracts awarded for services listed in
indicate in the

4.
Annex XVII B, the contracting entities shall
notice whether they agree to publication.

5.
Information provided in accordance with Annex XVI and
marked as not being intended for publication shall be
published only in simplified form and in accordance with
Annex XX for statistical purposes.

Article 44

Form and manner of publication of notices

1.
The notices shall include the information mentioned in
Annexes XIII, XIV, XV A, XV B and XVI and, where appro-
priate, any other information deemed useful by the contracting
entity in the format of
standard forms adopted by the
Commission in accordance with the procedure referred to in
Article 68(2).

level

at national

Notices published
contain
information other than that contained in the notices dispatched
to the Commission or published on a buyer profile in
accordance with the first subparagraph of Article 41(1), but
shall mention the date of dispatch of
the notice to the
Commission or its publication on the buyer profile.

shall not

Periodic indicative notices may not be published on a buyer
profile before the dispatch to the Commission of the notice of
their publication in that form; they shall mention the date of
that dispatch.

Contracting entities shall ensure that they are able to

6.
supply proof of the dates on which notices are dispatched.

7.
The Commission shall give the contracting entity confir-
mation of the publication of the information sent, mentioning
the date of that publication. Such confirmation shall constitute
proof of publication.

2.
Notices sent by contracting entities to the Commission shall
be sent either by electronic means in accordance with the format
and modalities of transmission indicated in point 3 of Annex XX,
or by other means.

8.
Contracting entities may publish in accordance with
paragraphs 1 to 7 contract notices which are not subject to
the publication requirement laid down in this Directive.

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S e c t i o n 2

Time-limits

Article 45

5. Where notices are drawn up and transmitted by elec-
tronic means in accordance with the format and modalities
of transmission indicated in point 3 of Annex XX the time-
limits for receipt of requests to participate in restricted and
tenders in open
negotiated procedures, and for receipt of
procedures, may be reduced by seven days.

Time-limits for receipt of requests to participate and for
receipt of tenders

1. When fixing the time-limits for requests to participate
and the receipt of
take
particular account of the complexity of the contract and the
time required for drawing up tenders, without prejudice to the
minimum time-limits set by this Article.

tenders, contracting entities shall

2.
In the case of open procedures, the minimum time-limit
for receipt of tenders shall be 52 days from the date on which
the contract notice was sent.

3.
In restricted procedures and in negotiated procedures
with a prior call for competition, the following arrangements
shall apply:

(a) the time-limit

for receipt of requests to participate,

in
response to a notice published under Article 42(1)(c), or
in response to an invitation by the contracting entities
under Article 47(5), shall, as a general rule, be fixed at
no less than 37 days from the date on which the notice
or invitation was sent and may in no case be less than 22
days if the notice is sent for publication by means other
than electronic means or fax, and at no less than 15 days if
the notice is transmitted by such means;

(b) the time-limit for receipt of tenders may be set by mutual
agreement between the contracting entity and the selected
candidates, provided that all candidates have the same time
to prepare and submit their tenders;

is not possible to reach agreement on the
(c) where it
time-limit
the contracting entity
for receipt of
shall fix a time-limit which shall, as a general rule, be at
least 24 days and shall in no case be less than 10 days
from the date of the invitation to tender.

tenders,

If

4.
the contracting entities have published a periodic
indicative notice as referred to in Article 41(1) in accordance
with Annex XX, the minimum time-limit for receipt of tenders
in open procedures shall, as a general rule, not be less than 36
days, but shall in no case be less than 22 days from the date on
which the notice was sent.

the

indicative notice has, besides

the
These reduced time-limits are permitted, provided that
periodic
information
required by Annex XV A, part I, included all the information
the latter
required by Annex XV A, part
information is available at the time the notice is published
and that the notice has been sent for publication between no
less than 52 days and not longer than 12 months before the
date on which the contract notice referred to in Article 42(1)(c)
was sent.

insofar as

II,

Except

in the case of a time-limit

6.
set by mutual
agreement in accordance with paragraph 3(b), time-limits for
receipt of tenders in open, restricted and negotiated procedures
may be further reduced by five days where the contracting
entity offers unrestricted and full direct access to the contract
documents and any supplementary documents by electronic
means from the date on which the notice used as a means
of calling for competition is published,
in accordance with
Annex XX. The notice should specify the internet address at
which this documentation is accessible.

In open procedures,

7.
the
the
reductions provided for in paragraphs 4, 5 and 6 may in no
case result in a time-limit for receipt of tenders of less than 15
days from the date on which the contract notice was sent.

cumulative

effect of

the cumulative effect of

if the contract notice is not transmitted by fax or
However,
electronic means,
the reductions
provided for in paragraphs 4, 5 and 6 may in no case result
in a time-limit for receipt of tenders in an open procedure of
less than 22 days from the date on which the contract notice
was transmitted.

8.
The cumulative effect of the reductions provided for in
paragraphs 4, 5 and 6 may in no case result in a time-limit for
receipt of requests to participate,
in response to a notice
published under Article 42(1)(c), or in response to an invitation
by the contracting entities under Article 47(5), of less than 15
days from the date on which the contract notice or invitation
was sent.

In restricted and negotiated procedures, the cumulative effect of
the reductions provided for in paragraphs 4, 5 and 6 may in
no case, except that of a time-limit set by mutual agreement in
for
accordance with paragraph 3(b), result
receipt of tenders of less than 10 days from the date of the
invitation to tender.

in a time-limit

If, for whatever reason, the contract documents and the
9.
supporting documents or additional
information, although
requested in good time, have not been supplied within the
time-limits set in Articles 46 and 47, or where tenders can
be made only after a visit to the site or after on-the-spot
contract
inspection of
documents,
tenders shall be
extended accordingly, except in the case of a time-limit set
by mutual agreement in accordance with paragraph 3(b), so
that all economic operators concerned may be aware of all the
information needed for the preparation of a tender.

documents
the time-limits for receipt of

supporting

the

the

A summary table of the time-limits laid down in this

10.
Article is given in Annex XXII.

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Article 46

Open procedures: specifications, additional documents and
information

(b) the final date for receipt of tenders, the address to which
they are to be sent, and the language or languages in which
they are to be drawn up;

In open procedures, where contracting entities do not
1.
offer unrestricted and full direct access to the specifications
in
and any supporting documents by electronic means
accordance with Article 45(6),
and
supporting documents shall be sent to economic operators
within six days of receipt of the request, provided that the
request was made in good time before the time-limit
for
submission of tenders.

specifications

the

(c) a reference to any published contract notice;

(d) an indication of any documents to be attached;

(e)

the criteria for the award of the contract, where they are
not indicated in the notice on the existence of a qualifi-
cation system used as a means of calling for competition;

Provided that

it has been requested in good time,
2.
additional
information relating to the specifications shall be
supplied by the contracting entities or competent departments
not later than six days before the time-limit fixed for receipt of
tenders.

(f)

the relative weighting of the contract award criteria or,
where appropriate,
such
the order of
if this information is not given in the contract
criteria,
notice,
the notice on the existence of a qualification
system or the specifications.

importance of

Article 47

Invitations to submit a tender or to negotiate

In restricted procedures

1.
and negotiated procedures,
contracting entities shall simultaneously and in writing invite
the selected candidates to submit their tenders or to negotiate.
The invitation to the candidates shall include:

— either a copy of
documents, or

the specifications and any supporting

— a

reference

to accessing the

and the
supporting documents indicated in the first indent, when
they are made directly available by electronic means in
accordance with Article 45(6).

specifications

notice,

indicative

5. When a call for competition is made by means of a
periodic
shall
subsequently invite all candidates to confirm their interest on
the basis of detailed information on the contract concerned
before beginning the selection of tenderers or participants in
negotiations.

contracting

entities

This invitation shall include at least the following information:

(a) nature and quantity,

including all options concerning
if possible, the estimated
complementary contracts and,
time available for exercising these options for renewable
contracts,
the
estimated publication dates of future notices of competition
for works, supplies or services to be put out to tender;

the nature and quantity and,

if possible,

(b) type of procedure: restricted or negotiated;

the

any

and/or

specifications

supporting
2. Where
documents are held by an entity other than the contracting
entity responsible for the award procedure,
the invitation
shall state the address from which those specifications and
documents may be requested and, if appropriate, the closing
the sum payable for
date for requesting such documents,
obtaining them and any payment procedures. The competent
department shall send that documentation to the economic
operator immediately upon receipt of the request.

3.
The additional information on the specifications or the
supporting documents shall be sent by the contracting entity or
the competent department not less than six days before the
final date fixed for receipt of tenders, provided that they were
requested in good time.

(c) where appropriate,

the date on which the delivery of
the execution of works or services is to

supplies or
commence or terminate;

(d) the address and closing date for the submission of requests
for tender documents and the language or languages in
which they are to be drawn up;

(e)

the address of the entity which is to award the contract and
supply the information necessary for obtaining the specifi-
cations and other documents;

(f) economic and technical conditions,

financial guarantees

and information required from economic operators;

In addition,

4.
following:

the invitation shall

include at

least

the

(g) the amount and payment procedures for any sum payable

for obtaining tender documents;

(a) where appropriate, the time-limit for requesting additional
documents, as well as the amount and terms of payment of
any sum to be paid for such documents;

(h) form of the contract which is the subject of the invitation
lease, hire or hire-purchase, or any

to tender: purchase,
combination of these; and

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(i)

the contract award criteria and their weighting or, where
appropriate, the order of importance of such criteria, if this
information is not given in the indicative notice or the
specifications or in the invitation to tender or to negotiate.

(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;

S e c t i o n 3

Communication and information

Article 48

Rules applicable to communication

All communication and information exchange referred to
1.
in this Title may be carried out by post, 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
combination of those means, according to the choice of the
contracting entity.

2.
The means of communication chosen shall be generally
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
entities examine the content of
to
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.
means, as well as their
shall be
non-discriminatory, generally available and interoperable with
the information and communication technology products in
general use.

technical characteristics,

The following rules shall apply to devices for the elec-

5.
tronic receipt of tenders and requests to participate:

(c) contracting entities may require that requests for partici-
pation made by fax should 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 for sending confirmation by post or electronic
means, should 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 47(5).

Article 49

Information to applicants for qualification, candidates and
tenderers

1.
Contracting entities shall as soon as possible inform the
economic operators involved of decisions reached concerning
the conclusion of a framework agreement, the award of the
contract, or admission to a dynamic purchasing system,
including the grounds for any decision not
to conclude a
framework agreement or award a contract for which there
has been a call
to recommence the
to implement a dynamic purchasing
procedure, or not
system; this information shall be provided in writing if the
contracting entities are requested to do so.

for competition or

Contracting entities shall, as soon as possible, inform any
2.
unsuccessful candidate or tenderer so requesting 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. The relevant time-
limits may under no circumstances exceed 15 days from
receipt of the written enquiry.

(a)

information regarding the specifications necessary for the
electronic submission of tenders and requests to participate,
including encryption, shall be available to interested parties.
Moreover, the devices for the electronic receipt of tenders
and
conform to the
requirements of Annex XXIII;

to participate

requests

shall

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

(c) tenderers or candidates shall undertake to submit, before
laid down for submission of
expiry of
tenders or
documents,
the
certificates and declarations mentioned in Articles 52(2),
52(3), 53 and 54 if they do not exist in electronic format.

the time-limit
requests

to participate,

that

decide

contracting

However,
certain
entities may
information on the contract award or the conclusion of the
framework agreement or on admission to a dynamic
purchasing system, 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 a
particular economic operator, public or private, including the
interests of the economic operator to whom the contract has
been awarded, or might prejudice fair competition between
economic operators.

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

The following rules shall apply to the transmission of

6.
requests to participate:

(a) requests to participate in procedures for the award of

contracts may be made in writing or by telephone;

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 the longer period and of the date by
which his application will be accepted or refused.

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Applicants whose qualification is

refused shall be
4.
informed of this decision and the reasons for refusal as soon
as possible and under no circumstances more than 15 days
later than the date of
the decision. The reasons shall be
based on the criteria for qualification referred to in Article
53(2).

5.
Contracting entities which establish and operate a system
of qualification may bring the qualification of an economic
operator to an end only for reasons based on the criteria for
qualification referred to in Article 53(2). The intention to bring
qualification to an end shall be notified in writing to the
economic operator beforehand, at least 15 days before the
date on which qualification is due to end, together with the
reason or reasons justifying the proposed action.

Article 50

Information to be stored concerning awards

1.
Contracting entities shall keep appropriate information
on each contract which shall be sufficient to permit them at
a later date to justify decisions taken in connection with:

(a) the qualification and selection of economic operators and

award of contracts;

(b) the use of procedures without a prior call for competition

by virtue of Article 40(3);

(c) the non-application of Chapters III to VI of this Title by
virtue of the derogations provided for in Chapter II of Title
I and in Chapter II of this Title.

Contracting entities shall take appropriate steps to document
the progress of award procedures conducted by electronic
means.

2.
The information shall be kept for at least four years from
the date of award of the contract so that the contracting entity
will be able, during that period,
to provide the necessary
information to the Commission if the latter so requests.

CHAPTER VII

Conduct of the procedure

Article 51

General provisions

For the purpose of selecting participants in their award

1.
procedures:

(a) contracting entities having provided rules and criteria for
the exclusion of tenderers or candidates in accordance with
Article 54(1), (2) or (4) shall exclude economic operators
which comply with such rules and meet such criteria;

(b) they shall select tenderers and candidates in accordance
with the objective rules and criteria laid down pursuant
to Article 54;

(c)

in restricted procedures and in negotiated procedures with
a call for competition, they shall where appropriate reduce
in accordance with Article 54 the number of candidates
selected pursuant to subparagraphs (a) and (b).

2. When a call for competition is made by means of a
notice on the existence of a qualification system and for the
purpose of selecting participants in award procedures for the
specific contracts which are the subject of
for
competition, contracting entities shall:

the call

(a) qualify economic operators
provisions of Article 53;

in accordance with the

(b) apply

to such qualified

those
provisions of paragraph 1 that are relevant to restricted
or negotiated procedures.

economic operators

Contracting entities shall verify that the tenders submitted
3.
by the
and
requirements applicable to tenders and award the contract on
the basis of the criteria laid down in Articles 55 and 57.

comply with the

selected tenderers

rules

S e c t i o n 1

Qualification and qualitative selection

Article 52

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

1. When selecting participants for a restricted or negotiated
procedure,
in reaching their decision as to qualification or
when the criteria and rules are being updated, contracting
entities shall not:

(a)

impose administrative, technical or financial conditions on
certain economic operators which would not have been
imposed on others;

(b) require tests or evidence which would duplicate objective

evidence already available.

2. Where they request production of certificates drawn up
by independent bodies attesting the
the
economic operator with certain quality assurance standards,
contracting entities shall refer to quality assurance systems
based on the relevant European standards series certified by
bodies conforming to the European standards series concerning
certification.

compliance of

Contracting entities shall recognise equivalent certificates from
bodies established in other Member States. They shall also
accept
assurance
measures from economic operators.

equivalent

evidence

quality

other

of

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For works and service contracts, and only in appropriate
3.
cases, the contracting entities may require, in order to verify
the economic operator's technical capacity, an indication of the
environmental management measures which the economic
the
operator will be able to apply when carrying out
contract. In such cases, should the contracting entities require
the production of certificates drawn up by independent bodies
attesting the compliance of the economic operator with certain
environmental management standards, they shall refer to the
EMAS or to environmental management standards based on
the relevant European or international standards certified by
bodies
relevant
European or international standards concerning certification.

conforming to Community law or

the

The contracting entities shall recognise equivalent certificates
from bodies established in other Member States. They shall also
accept
environmental
of
management measures from economic operators.

equivalent

evidence

other

Article 53

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.

Under the same conditions, a group of economic operators as
referred to in Article 11 may rely on the capacity of
participants in the group or of other entities.

5. Where the criteria and rules for qualification referred to
in paragraph 2 include requirements relating to the technical
and/or professional capacity of the economic operator,
the
latter may where necessary rely on the capacity of other
entities, whatever the legal nature of the link between itself
and those entities. In this case the economic operator must
prove to the contracting entity that those resources will be
available to it throughout the period of the validity of the
qualification system, for example by producing an undertaking
by those entities to make the necessary resources available to
the economic operator.

Under the same conditions, a group of economic operators
referred to in Article 11 may rely on the capacity of
participants in the group or of other entities.

6.
The criteria and rules for qualification referred to in
paragraph 2 shall be made available to economic operators
on request. The updating of these criteria and rules shall be
communicated to the interested economic operators.

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

the qualification
its
it shall communicate to interested economic

entities or bodies meets

certain other

The system under paragraph 1 may involve different

2.
qualification stages.

7.
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.

It shall be operated on the basis of objective criteria and rules
for qualification 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.

3.
The criteria and rules for qualification referred to in
paragraph 2 may include the exclusion criteria listed in
Article 45 of Directive 2003/. . ./EC on the terms and
conditions set out therein.

8. When establishing or operating a qualification system,
contracting entities shall in particular observe the provisions
of Article 41(3) concerning notices on the existence of a
system of qualification, of Article 49(3), (4) and (5) concerning
the information to be delivered to economic operators having
applied for qualification, of Article 51(2) concerning the
selection of participants when a call for competition is made
by means of a notice on the existence of a qualification system
as well as the provisions of Article 52 on mutual recognition
concerning administrative,
technical or financial conditions,
certificates, tests and evidence.

Where the contracting entity is a contracting authority within
the meaning of Article 2(1)(a), those criteria and rules shall
include the exclusion criteria listed in Article 45(1) of
Directive 2003/. . ./EC.

9. 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.

4. Where the criteria and rules for qualification referred to
in paragraph 2 include requirements relating to the economic
and financial capacity of the economic operator, the latter may
where necessary rely on the capacity of other entities, whatever
the legal nature of the link between itself and those entities. In
this case the economic operator must prove to the contracting
entity that these resources will be available to it throughout the
period of the validity of the qualification system, for example
by producing an undertaking by those entities to that effect.

Article 54

Criteria for qualitative selection

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 interested economic
operators.

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Contracting entities which select candidates for restricted
2.
or negotiated procedures shall do so according to objective
rules and criteria which they have established 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
need
the
the particular
of
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

The criteria set out in paragraphs 1 and 2 may include
listed in Article 45 of Directive
exclusion criteria

4.
the
2003/. . ./EC on the terms and conditions set out therein.

Where the contracting entity is a contracting authority within
the meaning of Article 2(1)(a), the criteria and rules referred to
in paragraphs 1 and 2 of this Article shall include the exclusion
criteria listed in Article 45(1) of Directive 2003/. . ./EC.

the economic operator,

5. Where the criteria referred to in paragraphs 1 and 2
include requirements relating to the economic and financial
the latter may where
capacity of
necessary and for a particular contract rely on the capacity
of other entities, whatever
the link
between itself and those entities. In this case the economic
the
operator
necessary resources will be available to it,
for example by
delivering an undertaking by those entities to that effect.

shall prove to the contracting entity that

the legal nature of

Under the same conditions, a group of economic operators as
referred to in Article 11 may rely on the capacity of
participants in the group or of other entities.

to

the

relating

technical

requirements

the economic operator,

6. Where the criteria referred to in paragraphs 1 and 2
and/or
include
the latter
professional capacity of
may where necessary and for a particular contract rely on
the capacity of other entities, whatever the legal nature of
the link between itself and those entities.
In this case the
economic operator must prove to the contracting entity that
those resources will be
for the execution of
available to it, for example by delivering an undertaking by
those entities to make the necessary resources available to
the economic operator.

that contract

S e c t i o n 2

Awards

Article 55

Contract award criteria

1. Without prejudice to national laws, regulations or admin-
istrative provisions on the remuneration of certain services, the
criteria on which the contracting entities shall base the award
of contracts shall be:

for

tender

(a) where the contract is awarded on the basis of the most
economically advantageous
the contracting
entities, various criteria justified by the subject-matter of
the contract in question, such as delivery or completion
date,
running costs, cost-effectiveness, quality, aesthetic
and functional characteristics, environmental characteristics,
technical merit, after-sales service and technical assistance,
commitments with regard to parts, security of supply, and
price; or

(b) the lowest price only.

third
to the provisions of
2. Without prejudice
subparagraph,
in the case referred to in paragraph 1(a), the
contracting entity shall specify the relative weighting which it
gives to each of the criteria chosen to determine the most
economically advantageous tender.

the

This weighting can be expressed by providing for a range with
an appropriate maximum spread. Where, in the opinion of the
contracting entity, weighting is not possible for demonstrable
indicate the criteria in
reasons, the contracting entity shall
descending order of importance.

The relative weighting or order of
specified, as appropriate,
calling for competition,
interest
referred to in Article 47(5),
tender or to negotiate, or in the specifications.

importance shall be
in the notice used as a means of
in the invitation to confirm the
in the invitation to

Article 56

Use of electronic auctions

1. Member States may prescribe that contracting entities
may use electronic auctions.

2.
In open, restricted or negotiated procedures with prior
call for competition, the contracting entities may decide that
the award of a contract shall be preceded by an electronic
auction when the contract specifications can be established
with precision.

Under the same conditions, a group of economic operators as
referred to in Article 11 may rely on the capacity of
participants in the group or of other entities.

In the same circumstances, an electronic auction may be held
on the opening for competition of contracts to be awarded
under the dynamic purchasing system referred to in Article 15.

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The electronic auction shall be based:

(a) either solely on prices when the contract is awarded to the

lowest price:

(b) or on prices and/or on the new values of the features of the
tenders indicated in the specification, when the contract is
awarded to the most economically advantageous tender.

electronic

auction to determine

The invitation shall also state the mathematical formula to be
used in the
automatic
rerankings on the basis of the new prices and/or new values
submitted. That formula shall incorporate the weighting of all
the criteria established to determine the most economically
advantageous tender, as indicated in the notice used as a
means of calling for competition or in the specifications; for
that purpose, any ranges shall, however, be reduced beforehand
to a specified value.

3.
Contracting entities which decide to hold an electronic
auction shall state that fact in the notice used as a means of
calling for competition.

Where variants are authorised, a separate formula shall be
provided for each variant.

The specifications shall include, inter alia, the following details:

(a) the features whose values will be the subject of electronic
auction, provided that such features are quantifiable and
can be expressed in figures or percentages;

(b) any limits on the values which may be submitted, as they
result from the specifications relating to the subject of the
contract;

entities
shall
least sufficient

Throughout each phase of an electronic auction the
6.
instantly
to all
communicate
contracting
tenderers at
information to enable them to
ascertain their relative rankings at any moment. They may
also communicate other information concerning other prices
or values submitted, provided that that is stated in the specifi-
cations. They may also at any time announce the number of
participants in that phase of the auction. In no case, however,
may they disclose the identities of the tenderers during any
phase of an electronic auction.

(c) the information which will be made available to tenderers
in the course of the electronic auction and, where appro-
priate, when it will be made available to them;

The contracting entities shall close an electronic auction

7.
in one or more of the following manners:

(d) the relevant information concerning the electronic auction

process;

(a)

in the invitation to take part in the auction they shall
indicate the date and time fixed in advance;

(e) the conditions under which the tenderers will be able to
bid and, in particular, the minimum differences which will,
where appropriate, be required when bidding;

(f)

relevant

information

the
electronic
equipment used and the arrangements and technical spec-
ifications for connection.

concerning

the

Before

proceeding with

4.
auction,
contracting entities shall make a full initial evaluation of the
tenders in accordance with the award criterion/criteria set and
with the weighting fixed for them.

electronic

the

All tenderers who have submitted admissible tenders shall be
invited simultaneously by electronic means to submit new
prices and/or new values;
the invitation shall contain all
relevant information concerning individual connection to the
electronic equipment being used and shall state the date and
the electronic auction. The electronic
time of
auction may take place in a number of successive phases.
The electronic auction may not
than two
working days after the date on which invitations are sent out.

the start of

sooner

start

the

(b) when they receive no more new prices or new values
concerning minimum
requirements
which meet
the contracting entities shall
differences.
In that event,
state in the invitation to take part
in the auction the
time which they will allow to elapse after receiving the
last submission before they close the electronic auction;

(c) when the number of phases in the auction, fixed in the
invitation to take part in the auction, has been completed.

When the contracting entities have decided to close an elec-
tronic auction in accordance with subparagraph (c), possibly in
combination with the arrangements laid down in subparagraph
(b), the invitation to take part in the auction shall indicate the
timetable for each phase of the auction.

8. When they have
closed an electronic auction the
in accordance
contracting entities shall award the contract
with Article 55 on the basis of the results of the electronic
auction.

5. When the contract is to be awarded on the basis of the
most economically advantageous tender, the invitation shall be
accompanied by the outcome of the full evaluation of the
relevant tender carried out in accordance with the weighting
provided for in the first subparagraph of Article 55(2).

9.
The contracting entities may not have improper recourse
to electronic auctions nor may they use them in such a way as
to prevent, restrict or distort competition or to change the
subject-matter of the contract, as defined in the notice used
as a means of calling for competition and in the specification.

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Article 57

Abnormally low tenders

1.
If, for a given contract, tenders appear to be abnormally
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:

(a) the economics of the manufacturing process, of the services

provided and of the construction method;

(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 work proposed

by the tenderer;

(d) compliance with the provisions relating to employment
protection and working conditions in force at the place
where the work, service or supply is to be performed;

(e) the possibility of the tenderer obtaining State aid.

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

3. Where a contracting entity establishes that a tender is
abnormally low because the tenderer has obtained a State
aid, the tender can only be rejected on that ground alone
after consultation with the tenderer where the latter is unable
to prove, within a sufficient time-limit fixed by the contracting
entity, that the aid in question was granted legally. Where the
contracting entity rejects a tender in these circumstances,
it
shall inform the Commission of that fact.

S e c t i o n 3

Tenders comprising products originating in third countries and
relations with those countries

Any tender submitted for the award of a supply contract
2.
may be rejected where the proportion of the products orig-
inating in third countries, as determined in accordance with
Council Regulation (EEC) No 2913/92 (1), exceeds 50 % of the
total value of the products constituting the tender. For the
purposes of this Article, software used in telecommunications
network equipment shall be regarded as products.

3.
Subject to the second subparagraph, where two or more
tenders are equivalent in the light of the contract award criteria
defined in Article 55, preference shall be given to those tenders
which may not be rejected pursuant to paragraph 2. The prices
of those tenders shall be considered equivalent for the purposes
of this Article, if the price difference does not exceed 3 %.

However, a tender shall not be preferred to another pursuant
to the first subparagraph where its acceptance would oblige the
contracting entity to acquire equipment having technical
characteristics different
from those of existing equipment,
resulting in incompatibility, technical difficulties in operation
and maintenance, or disproportionate costs.

For the purposes of this Article, those third countries to
4.
which the benefit of the provisions of this Directive has been
extended by a Council Decision in accordance with paragraph
1 shall not be taken into account
for determining the
proportion, referred to in paragraph 2, of products originating
in third countries.

The Commission shall submit an annual report to the
5.
Council, commencing in the second half of
the first year
following the entry into force of this Directive, on progress
made in multilateral or bilateral negotiations regarding access
for Community undertakings to the markets of third countries
in the fields covered by this Directive, on any result which such
negotiations may have achieved, and on the implementation in
practice of all the agreements which have been concluded.

The Council, acting by a qualified majority on a proposal from
the Commission, may amend the provisions of this Article in
the light of such developments.

Tenders

comprising

Article 58

products
countries

originating

in

third

Relations with third countries as regards service contracts

Article 59

1.
This Article shall apply to tenders covering products orig-
inating in third countries with which the Community has not
concluded, whether multilaterally or bilaterally, an agreement
ensuring comparable and effective access
for Community
undertakings to the markets of those third countries. It shall
be without prejudice to the obligations of the Community or
its Member States in respect of third countries.

inform the Commission of any
1. Member States shall
general difficulties encountered,
in law or in fact, by their
undertakings in securing the award of service contracts in
third countries.

(1) OJ L 302, 19.10.1992, p. 1. Regulation as last amended by
European Parliament and Council Regulation (EC) No 955/1999
(OJ L 119, 7.5.1999, p. 1).

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report

The Commission shall

to the Council before
2.
31 December . . ., and periodically thereafter, on the opening
up of service contracts in third countries and on progress in
negotiations with these countries on this subject, particularly
within the framework of the WTO.

3.
The Commission shall endeavour, by approaching the
third country concerned, to remedy any situation whereby it
finds, on the basis either of the reports referred to in paragraph
2 or of other information, that, in the context of the award of
service contracts, a third country:

(a) does not grant Community undertakings effective access
comparable to that granted by the Community to under-
takings from that country; or

In the circumstances referred to in paragraph 3,

the
4.
Commission may at any time propose that
the Council
decide to suspend or restrict, over a period to be laid down
in the decision, the award of service contracts to:

(a) undertakings governed by the law of the third country in

question;

(b) undertakings affiliated to the undertakings specified in
in the
point
Community but having no direct and effective link with
the economy of a Member State;

and having their

registered office

(a)

(c) undertakings

submitting tenders which have as

their
subject-matter services originating in the third country in
question.

(b) does not grant Community undertakings national treatment
or the same competitive opportunities as are available to
national undertakings; or

The Council shall act, by qualified majority, as soon as possible.

The Commission may propose these measures on its own
initiative or at the request of a Member State.

(c) grants undertakings

from other

third countries more

favourable treatment than Community undertakings.

This Article

5.
the
commitments of the Community in relation to third countries.

be without

prejudice

shall

to

TITLE III

RULES GOVERNING SERVICE DESIGN CONTESTS

Article 60

General provision

2.
This Title shall apply to all design contests where the
total amount of contest prizes and payments to participants
is equal to or greater than EUR 499 000.

The rules for the organisation of a design contest shall be
1.
in conformity with paragraph 2 of
this Article and with
Articles 61 and 63 to 66 and shall be made available to
those interested in participating in the contest.

The admission of participants to design contests shall not

2.
be limited:

(a) by reference to the territory or part of the territory of a

Member State;

(b) on the ground that, under the law of the Member State in
they would have been
is organised,

which the contest
required to be either natural or legal persons.

For the purposes of this paragraph, ‘threshold’ means the total
amount of the prizes and payments, including the estimated
the service contract which might
value net of VAT of
subsequently be
the
contracting entity does not exclude such an award in the
contest notice.

concluded under Article 40(3)

if

Article 62

Design contests excluded

This Title shall not apply to:

Article 61

Thresholds

1. contests which are organised in the same cases as referred

to in Articles 20, 21 and 22 for service contracts;

1.
This Title shall apply to design contests organised as part
of a procurement procedure for services whose estimated value,
net of VAT, is equal to or greater than EUR 499 000.

For the purposes of
‘threshold’ means the
this paragraph,
estimated value net of VAT of the service contract, including
any possible prizes and/or payments to participants.

2. design contests organised for the pursuit,

in the Member
State concerned, of an activity to which the applicability
of paragraph 1 of Article 30 has been established by a
Commission decision or has been deemed applicable
pursuant to paragraph 4, second or third subparagraph,
or to paragraph 5, fourth subparagraph, of that Article.

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Article 63

Rules on advertising and transparency

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

1.
Contracting entities which wish to organise a design
for competition by means of a contest
contest shall call
notice. Contracting entities which have held a design contest
shall make the results known by means of a notice. The call for
competition shall contain the information referred to in Annex
XVIII and the notice on the results of a design contest shall
contain the
information referred to in Annex XIX in
accordance with the format of standard forms adopted by
the Commission in accordance with the procedure in Article
68(2).

The notice on the results of a design contest shall be forwarded
to the Commission within two months of the closure of the
design contest and under conditions to be laid down by the
Commission in accordance with the procedure referred to in
Article 68(2). In this connection, the Commission shall respect
any sensitive commercial aspects which the contracting entities
may point out when forwarding this information, concerning
the number of projects or plans received, the identity of the
economic operators and the prices tendered.

Article 44(2) to (8) shall also apply to notices relating to

2.
design contests.

Article 65

Rules on the organisation of design contests, the selection
of participants and the jury

1. When organising design contests, contracting entities
shall apply procedures which are adapted to the provisions
of this Directive.

2. Where design contests are restricted to a limited number
of participants, contracting entities shall establish clear and
the
non-discriminatory
number of candidates invited to participate shall be sufficient
to ensure genuine competition.

selection criteria.

In any

event,

3.
The jury shall be composed exclusively of natural persons
who are independent of participants in the contest. Where a
particular
from
participants in a contest, at least a third of its members shall
have the same qualification or an equivalent qualification.

qualification

professional

required

is

Article 64

Means of communication

The jury shall be autonomous

1.
opinions.

in its decisions or

Article 66

Decisions of the jury

Article 48(1),

1.
cations relating to contests.

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

and

Communications,

2.
of
exchanges
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

It shall examine the plans and projects submitted by the
2.
candidates anonymously and solely on the basis of the criteria
indicated in the contest notice.

3.
It shall record its ranking of projects in a report, signed
by its members, made according to the merits of each project,
together with its remarks and any points which may need
clarification.

The following rules shall apply to the devices for the

3.
electronic receipt of plans and projects:

Anonymity must be observed until the jury has reached

4.
its opinion or decision.

(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 devices for the
electronic receipt of plans and projects shall comply with
the requirements of Annex XXIII;

Candidates may be invited,

5.
to answer
questions which the jury has recorded in the minutes to
clarify any aspects of the projects.

if need be,

Complete minutes shall be drawn up of the dialogue

6.
between jury members and candidates.

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STATISTICAL OBLIGATIONS, EXECUTORY POWERS AND FINAL PROVISIONS

TITLE IV

Article 67

Statistical obligations

Article 69

Revision of thresholds

1. Member States shall ensure,
in accordance with the
arrangements to be laid down under the procedure provided
for in Article 68(2), that the Commission receives every year a
statistical report concerning the total value, broken down by
Member State and by category of activity to which Annexes I
to X refer, of the contracts awarded below the thresholds set
out in Article 16 but which would be covered by this Directive
were it not for those thresholds.

As regards the categories of activity to which Annexes II,
2.
III, V, IX and X refer, Member States shall ensure that the
Commission receives a statistical report on contracts awarded
no later than 31 October . . . for the previous year, and before
31 October of each year
in accordance with
arrangements to be laid down under the procedure provided
for in Article 68(2). The statistical report shall contain the
information required to verify the proper application of the
Agreement.

thereafter,

The information required under the first subparagraph shall
not include information concerning contracts for the R & D
services listed in category 8 of Annex XVII A, for telecommuni-
cations services listed in category 5 of Annex XVII A whose
CPV positions are equivalent to the CPC reference numbers
7524, 7525 and 7526, or for the services listed in Annex
XVII B.

The arrangements under paragraphs 1 and 2 shall be laid

3.
down in such a way as to ensure that:

(a)

in the interests of administrative simplification, contracts of
lesser value may be excluded, provided that the usefulness
of the statistics is not jeopardised;

(b) the confidential nature of

the information provided is

respected.

Article 68

Committee procedure

1.
The Commission shall be assisted by the Advisory
Committee for Public Contracts instituted by Article 1 of
Council Decision 71/306/EEC (1)
(hereinafter referred to as
‘the Committee’).

2. Where reference is made to this paragraph, Articles 3 and
7 of Decision 1999/468/EC shall apply, having regard to the
provisions of Article 8 thereof.

3.

The Committee shall adopt its rules of procedure.

1.
The Commission shall verify the thresholds established in
Article 16 every two years from . . . (*), and shall, if necessary
with regard to the second subparagraph,
revise them in
accordance with the procedure provided for in Article 68(2).

The calculation of the value of these thresholds shall be based
on the average daily value of the euro, expressed in SDR, over
the 24 months terminating on the last day of August preceding
the revision with effect
the
thresholds thus revised shall, where necessary, be rounded
down to the nearest thousand euro so as to ensure that the
thresholds in force provided for by the Agreement, expressed
in SDR, are observed.

from 1 January. The value of

At

the same time as performing the revision under
2.
paragraph 1, the Commission shall,
in accordance with the
procedure provided for in Article 68(2), align the thresholds
laid down in Article 61 (design contests) with the revised
threshold applicable to service contracts.

The values of the thresholds laid down in accordance with
paragraph 1 in the national currencies of Member States not
participating in Monetary Union shall, in principle, be revised
every two years from 1 January 2004. The calculation of such
values shall be based on the average daily values of those
currencies, expressed in euro, over the 24 months terminating
on the last day of August preceding the revision with effect
from 1 January.

The revised thresholds referred to in paragraph 1, their
3.
values in national currencies and the aligned thresholds referred
to in paragraph 2 shall be published by the Commission in the
Official Journal of the European Union at the beginning of the
month of November following their revision.

Article 70

Amendments

1.
The Commission may amend,
procedure provided for in Article 68(2):

in accordance with the

(a)

the list of contracting entities in Annexes I to X so that
they fulfil the criteria set out in Articles 2 to 7;

(b) the procedures for the drawing-up, transmission, receipt,
the notices

translation, collection and distribution of
referred to in Articles 41, 42, 43 and 63;

(1) OJ L 185, 16.8.1971, p. 15. Decision as amended by Decision

77/63/EEC (OJ L 13, 15.1.1977, p. 15).

(*) Date of entry into force of this Directive.

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(c)

the procedures for specific references to particular positions
in the CPV nomenclature in the notices;

in the first subparagraph for the application of the provisions
necessary to comply with Article 6 of this Directive.

(d) the reference numbers in the nomenclature set out

in
Annex XVII, insofar as this does not change the material
scope of the Directive, and the procedures for reference in
the notices to particular positions in this nomenclature
within the categories of services listed in the Annex;

(e)

in
the reference numbers in the nomenclature set out
Annex XII,
insofar as this does not change the material
scope of the Directive, and the procedures for reference
to particular positions of this nomenclature in the notices;

When Member States adopt those measures, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. The
methods of making such references shall be laid down by
Member States.

The provisions of Article 30 are applicable from . . . (***).

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.

(f) Annex XI;

(g) the procedure for sending and publishing data referred to
in Annex XX, on grounds of technical progress or for
administrative reasons;

Article 72

Repeal

Directive 93/38/EEC is hereby repealed, without prejudice to
the obligations of the Member States concerning the time-limits
for transposition into national law set out in Annex XXIV.

(h) the technical details and characteristics of the devices for
electronic receipt referred to in points (a), (f) and (g) of
Annex XXIII;

References to the repealed Directive shall be construed as being
made to this Directive and shall be read in accordance with the
correlation table in Annex XXV.

(i)

in the interests of administrative simplification as provided
for in Article 67(3), the procedures for the use, drawing-up,
transmission, receipt, translation, collection and distribution
of the statistical reports referred to in Article 67(1) and (2);

(j)

the technical procedures for the calculation methods set
out in Article 69(1) and (2), second subparagraph.

Article 73

Entry into force

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Union.

Article 71

Implementation of the Directive

Article 74

Addressees

This Directive is addressed to the Member States.

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by . . . (*) at the latest. They shall forthwith inform
the Commission thereof.

. . .

Member States may avail themselves of an additional period of
up to . . . months (**) after expiry of the time-limit provided for

For the European Parliament

The President

For the Council

The President

(*) 21 months after the entry into force of this Directive.
(**) Number of months to be calculated at the entry into force of this
Directive so that the deadline will expire 1 January 2009. Thus, if
the Directive is adopted on 1 July 2003 the time-limit provided for
in the first indent expires on 1 April 2005 and the additional
time-limit would be 45 months.

(***) Date of entry into force of this Directive.

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CONTRACTING ENTITIES IN THE SECTORS OF TRANSPORT OR DISTRIBUTION OF GAS OR HEAT

ANNEX I

Belgium

— Distrigaz/NV Distrigaz

— Local authorities, or associations of local authorities, for this part of their activities.

Denmark

— Entities distributing gas or heat on the basis of an authorisation pursuant to § 4 of the lov om varmeforsyning, see

Consolidation Act No 772 of 24 July 2000

— Entities transporting gas on the basis of a licence pursuant to § 10 of lov nr. 449 om naturgasforsyning of 31 May

2000

— Entities transporting gas on the basis of an authorisation pursuant to bekendtgørelse nr. 141 om rørledningsanlæg

på dansk kontinentalsokkelområde til transport af kulbrinter of 13 March 1974

Germany

— Local authorities, public law bodies or associations of public law bodies or State-controlled undertakings supplying
gas or heat to others or operating a general supply network pursuant to Article 2(3) of the Gesetz über die
Elektrizitäts- und Gasversorgung (Energiewirtschaftsgesetz) of 24 April 1998, as last amended on 10 November
2001.

Greece

— ‘∆ηµόσια Επιχείρηση Αερίου (∆.ΕΠ.Α.) ΑΕ’, which transports and distributes gas in accordance with Law No 2364/95,

as amended by Laws Nos 2528/97, 2593/98 and 2773/99.

Spain

— Enagas, SA

— Bahía de Bizkaia Gas, SL

— Gasoducto Al Andalus, SA

— Gasoducto de Extremadura, SA

— Infraestructuras Gasistas de Navarra, SA

— Regasificadora del Noroeste, SA

— Sociedad de Gas de Euskadi, SA

— Transportista Regional de Gas, SA

— Unión Fenosa de Gas, SA

— Bilbogas, SA

— Compañía Española de Gas, SA

— Distribución y Comercialización de Gas de Extramadura, SA

— Distribuidora Regional de Gas, SA

— Donostigas, SA

— Gas Alicante, SA

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— Gas Andalucía, SA

— Gas Aragón, SA

— Gas Asturias, SA

— Gas Castilla — La Mancha, SA

— Gas Directo, SA

— Gas Figueres, SA

— Gas Galicia SDG, SA

— Gas Hernani, SA

— Gas Natural de Cantabria, SA

— Gas Natural de Castilla y León, SA

— Gas Natural SDG, SA

— Gas Natural de Alava, SA

— Gas Natural de La Coruña, SA

— Gas Natural de Murcia SDG, SA

— Gas Navarra, SA

— Gas Pasaia, SA

— Gas Rioja, SA

— Gas y Servicios Mérida, SL

— Gesa Gas, SA

— Meridional de Gas, SAU

— Sociedad del Gas Euskadi, SA

— Tolosa Gas, SA

France

— Société nationale des gaz du Sud-Ouest, transporting gas

— Gaz de France, set up and operated pursuant to loi no 46-628 sur la nationalisation de l'électricité et du gaz of

8 April 1946, as amended

— Entities distributing electricity mentioned in Article 23 of loi no 46-628 sur la nationalisation de l'électricité et du

gaz of 8 April 1946, as amended

— Compagnie française du méthane, transporting gas

— Local authorities or associations of local authorities, distributing heat.

Ireland

— Bord Gáis Éireann

— Other entities that may be licensed to undertake the activity of natural gas distribution or transmission by the

Commission for Energy Regulation pursuant to the provisions of the Gas Acts 1976 to 2002

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— Entities licensed under the Electricity Regulation Act 1999 which as operators of ‘Combined Heat and Power Plants’

are engaged in the distribution of heat

Italy

— SNAM Rete Gas spa, SGM and EDISON T & S, transporting gas

— Entities distributing gas governed by the consolidated text of the laws on the direct assumption of control of public
services by local authorities and provinces, approved by Royal Decree No. 2578 of 15 October 1925 and by
Presidential Decree No. 902 of 4 October 1986

— Entities distributing heat to the public as referred to in Article 10 of Law No. 308 of 29 May 1982 — Norme sul
contenimento dei consumi energici, lo sviluppo delle fonti rinnovabili di energia, l'esercizio di centrali elettriche
alimentate con combustibili dagli idrocarburi

— Local authorities, or associations of local authorities, distributing heat to the public

Luxembourg

— Société de transport de gaz SOTEG SA

— Gaswierk Esch-Uelzecht SA

— Service industriel de la Ville de Dudelange

— Service industriel de la Ville de Luxembourg

— Local authorities or associations formed by those local authorities responsible for the distribution of heat

Netherlands

— Entities producing, transporting or distributing gas on the basis of a licence (vergunning) granted by the municipal

authorities pursuant to the Gemeentewet

— Municipal or provincial authorities transporting or distributing gas pursuant to the Gemeentewet or the Provin-

ciewet

— Local authorities or associations of local authorities distributing heat to the public

Austria

— Entities authorised to transport or distribute gas pursuant to the Energiewirtschaftsgesetz, dRGBl. I, pp. 1451-1935

or the Gaswirtschaftsgesetz, BGBl. I No 121/2000, as amended

— Entities authorised to transport or distribute heat pursuant to the Gewerbeordnung, BGBl. No 194/1994, as

amended

Portugal

— Entities transporting or distributing gas pursuant to Article 1 of Decree-Law No 8/2000 of 8 February 2000, with

the exception of subparagraphs (ii) and (iii) of paragraph 3(b) of that Article

Finland

— Public or other entities operating a gas network transport system and transporting or distributing gas under a
licence pursuant to Chapter 3(1) or Chapter 6(1) of the maakaasumarkkinalaki/naturgasmarknadslagen (508/2000);
and municipal entities or public enterprises producing, transporting or distributing heat or providing heat to
networks

Sweden

— Entities transporting or distributing gas or heat on the basis of a concession pursuant to lagen (1978:160) om vissa

rörledningar

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United Kingdom

— A public gas transporter as defined in section 7(1) of the Gas Act 1986

— A person declared to be an undertaker for the supply of gas under Article 8 of the Gas (Northern Ireland) Order

1996

— A local authority which provides or operates a fixed network which provides or will provide a service to the public

in connection with the production, transport or distribution of heat

— A person licensed under section 6(1)(a) of the Electricity Act 1989 whose licence includes the provisions referred to

in section 10(3) of that Act

— The Northern Ireland Housing Executive

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CONTRACTING ENTITIES IN THE SECTORS OF PRODUCTION, TRANSPORT OR DISTRIBUTION OF
ELECTRICITY

ANNEX II

Belgium

— SA Electrabel/NV Electrabel

— Local authorities and associations of local authorities, for this part of their activities

— SA Société de Production d'Electricité/NV Elektriciteitsproductie Maatschappij

Denmark

— Entities producing electricity on the basis of a licence pursuant to § 10 of the lov om elforsyning, see Consolidation

Act No 767 of 28 August 2001

— Entities transporting electricity on the basis of a licence pursuant to § 19 of the lov om elforsyning, see Consoli-

dation Act No 767 of 28 August 2001

— Entities undertaking responsibility for the system on the basis of a licence pursuant to § 27 of the lov om

elforsyning, see Consolidation Act No 767 of 28 August 2001

Germany

— Local authorities, public law bodies or associations of public law bodies or State undertakings, supplying electricity
to other undertakings or operating a general supply network pursuant to Article 2(3) of the Gesetz über die
Elektrizitäts- und Gasversorgung (Energiewirtschaftsgesetz) of 24 April 1998, as last amended on 10 November
2001.

Greece

— ‘∆ηµόσια Επιχείρηση Ηλεκτρισµού ΑΕ’, set up by Law No 1468/1950 περί
accordance with Law No 2773/1999 and Presidential Decree No 333/1999

ιδρύσεως της ∆ΕΗ and operates in

— The company ‘∆ιαχειριστής ελληνικού συστήµατος µεταφοράς ηλεκτρικής ενήργειας ΑΕ’ known as ‘∆ιαχειριστής του
to Article 14 of Law No 2773/1999 and Presidential Decree

set up pursuant
συστήµατος ή ∆ΕΣΜΗΕ’,
No 328/2000 (Greek Official Gazette 268)

Spain

— Red Eléctrica de España, SA

— Endesa, SA

— Iberdrola, SA

— Unión Fenosa, SA

— Hidroeléctrica del Cantábrico, SA

— Electra del Viesgo, SA

— Otras entidades encargadas de la producción, transporte y distribución de electricidad en virtud de la Ley 54/1997,

de 27 de noviembre, del Sector eléctrico y su normativa de desarrollo

France

— Électricité de France, set up and operating pursuant to loi no 46-628 sur la nationalisation de l'électricité et du gaz

of 8 April 1946, as amended.

— Entities distributing electricity and referred to in Article 23 of loi no 46-628 sur la nationalisation de l'électricité et

du gaz of 8 April 1946, as amended.

— Compagnie nationale du Rhône.

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Ireland

— The Electricity Supply Board

— ESB Independent Energy (ESBIE — electricity supply)

— Synergen Ltd (electricity generation)

— Viridian Energy Supply Ltd (electricity supply)

— Huntstown Power Ltd (electricity generation)

— Bord Gáis Éireann (electricity supply)

— Electricity Suppliers and Generators licensed under the Electricity Regulation Act 1999

Italy

— Companies in the Gruppo Enel authorised to produce, transmit and distribute electricity within the meaning of

Legislative Decree No 79 of 16 March 1999, as subsequently amended and supplemented

— Other undertakings operating on the basis of concessions under Legislative Decree No 79 of 16 March 1999

Luxembourg

— Compagnie grand-ducale d'électricité de Luxembourg (CEGEDEL), producing or distributing electricity pursuant to
the convention concernant l'établissement et l'exploitation des réseaux de distribution d'énergie électrique dans le
Grand-Duché du Luxembourg of 11 November 1927, approved by the Law of 4 January 1928

— Local authorities responsible for the transport or distribution of electricity

— Société électrique de l'Our (SEO)

— Syndicat de communes SIDOR

Netherlands

— Entities distributing electricity on the basis of a licence (vergunning) granted by the provincial authorities pursuant

to the Provinciewet

Austria

— Entities operating a transmission or distribution network pursuant to the Elektrizitätswirtschafts- und Organisations-
gesetz, BGBl. I No 143/1998, as amended, or pursuant to the Elektrizitätswirtschafts(wesen)gesetze of the nine
Länder

Portugal

— BASIC LEGISLATION

— Electricidade de Portugal (EDP), set up pursuant to Decree-Law No 182/95 of 27 July 1995, as amended by

Decree-Law No 56/97 of 14 March 1997

— Empresa Eléctrica dos Açores (EDA), operating pursuant to Regional Legislative Decree No 15/96/A of 1 August

1996

— Empresa de Electricidade da Madeira (EEM), operating pursuant to Decree-Law No 99/91 and Decree-Law

No 100/91, both of 2 March 1991

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— PRODUCTION OF ELECTRICITY

— Entities producing electricity pursuant to Decree-Law No 183/95 of 27 July 1995, as amended by Decree-Law

No 56/97 of 14 March 1997, as further amended by Decree-Law No 198/2000 of 24 August 2000

— Independent producers of electricity pursuant to Decree-Law No 189/88 of 27 May 1988, as amended by
Decree-Laws No 168/99 of 18 May 1999, No 313/95 of 24 November 1995, No 312/2001 of 10 December
2001 and No 339-C/2001 of 29 December 2001

— TRANSPORT OF ELECTRICITY

— Entities transporting electricity pursuant to Decree-Law No 185/95 of 27 July 1995, as amended by Decree-Law

No 56/97 of 14 March 1997

— DISTRIBUTION OF ELECTRICITY

— Entities distributing electricity pursuant to Decree-Law No 184/95 of 27 July 1995, as amended by and further
to Decree-Laws No 56/97 of 14 March 1997, No 344-B/82 of 19 September 1982 and No 341/90 of
30 October 1990

Finland

— Municipal entities and public enterprises producing electricity and entities responsible for the maintenance of
electricity transport or distribution networks and for transporting electricity or for the electricity system under a
licence pursuant to Section 4 or 16 of the sähkömarkkinalaki/elmarknadslagen (386/1995)

Sweden

— Entities transporting or distributing electricity on the basis of a concession pursuant to ellagen (1997:857)

United Kingdom

— A person licensed under section 6 of the Electricity Act 1989

— A person licensed under Article 10(1) of the Electricity (Northern Ireland) Order 1992.

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CONTRACTING ENTITIES IN THE SECTORS OF PRODUCTION, TRANSPORT OR DISTRIBUTION OF
DRINKING WATER

ANNEX III

Belgium

— Aquinter

— Local authorities and associations of local authorities, for this part of their activities

— Société wallonne des Eaux

— Vlaams Maatschappij voor Watervoorziening

Denmark

— Entities supplying water as defined in § 3(3) of lovbekendtgørelse nr. 130 om vandforsyning m.v. of 26 February

1999

Germany

— Entities producing or distributing water pursuant to the Eigenbetriebsverordnungen or Eigenbetriebsgesetze of the

Länder (public utility companies)

— Entities producing or distributing water pursuant to the Gesetze über die kommunale Gemeinschaftsarbeit oder

Zusammenarbeit of the Länder

— Entities producing water pursuant to the Gesetz über Wasser- und Bodenverbände of 12 February 1991, as last

amended on 15 May 2002

— Publicly-owned companies producing or distributing water pursuant to the Kommunalgesetze,

in particular the

Gemeindeverordnungen of the Länder

— Undertakings set up pursuant to the Aktiengesetz of 6 September 1965, as last amended on 19 July 2002, or the
GmbH-Gesetz of 20 April 1892, as last amended on 19 July 2002, or having the legal status of a Kommanditgesell-
schaft (limited partnership), producing or distributing water on the basis of a special contract with regional or local
authorities

Greece

— ‘Εταιρεία Υδρεύσεως και Αποχετεύσεως Πρωτευούσης ΑΕ’ (‘ΕΥ∆ΑΠ’ or ‘ΕΥ∆ΑΠ ΑΕ’). The legal status of the company is
governed by the provisions of Consolidated Law No 2190/1920, Law No 2414/1996 and additionally by the
provisions of Law No 1068/80 and Law No 2744/1999

— ‘Εταιρεία Ύδρευσης και Αποχέτευσης Θεσσαλονίκης ΑΕ’ (‘ΕΥΑΘ ΑΕ’) governed by the provisions of Law No 2937/2001

(Greek Official Gazette 169 A') and of Law No 2651/1998 (Greek Official Gazette 248 A')

— ‘∆ηµοτική Επιχείρηση Ύδρευσης και Αποχέτευσης Μείζονος Περιοχής Βόλου’ (‘∆ΕΥΑΜΒ’), which operates pursuant to

Law No 890/1979

— ‘∆ηµοτικές Επιχειρήσεις Ύδρευσης — Αποχέτευσης’, which produce and distribute water pursuant to Law No 1069/80

of 23 August 1980

— ‘Σύνδεσµοι Ύδρευσης’, which operate pursuant to Presidential Decree No 410/1995, in accordance with the Κώδικος

∆ήµων και Κοινοτήτων

— ‘∆ήµοι και Κοινότητες’, which operate pursuant to Presidential Decree No 410/1995, in accordance with the Κώδικος

∆ήµων και Κοινοτήτων

Spain

— Mancomunidad de Canales de Taibilla

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— Otras entidades públicas integradas o dependientes de las Comunidades Autónomas y de las Corporaciones locales

que actúan en el ámbito de la distribución de agua potable.

— Otras entidades privadas que tienen concedidos derechos especiales o exclusivos por las Corporaciones locales en el

ámbito de la distribución de agua potable.

France

— Regional or local authorities and public local bodies producing or distributing drinking water

Ireland

— Entities producing or distributing water pursuant to the Local Government (Sanitary Services) Act 1878 to 1964

Italy

— Bodies responsible for managing the various stages of the water distribution service under the consolidated text of
the laws on the direct assumption of control of public services by local authorities and provinces, approved by
Royal Decree No 2578 of 15 October 1925, Presidential Decree No 902 of 4 October 1986 and Legislative Decree
No 267 setting out the consolidated text of the laws on the structure of local authorities, with particular reference to
Articles 112 to 116

— Ente Autonomo Acquedotto Pugliese set up by Royal Decree-Law No 2060 of 19 October 1919

— Ente Acquedotti Siciliani set up by Regional Law No 2/2 of 4 September 1979 and Regional Law No 81 of 9 August

1980

— Ente Sardo Acquedotti e Fognature set up by Law No 9 of 5 July 1963

Luxembourg

— Departments of the local authorities responsible for water distribution

— Associations of local authorities producing or distributing water, set up pursuant to the loi concernant la création
des syndicats de communes of 23 February 2001, as amended and supplemented by the Law of 23 December 1958
and by the Law of 29 July 1981, and pursuant to the loi ayant pour objet le renforcement de l'alimentation en eau
potable du Grand-Duché du Luxembourg à partir du réservoir d'Esch-sur-Sûre of 31 July 1962

Netherlands

— Entities producing or distributing water according to the Waterleidingwet

Austria

— Local authorities and associations of

local authorities producing,

transporting or distributing drinking water

pursuant to the Wasserversorgungsgesetze of the nine Länder

Portugal

— Intermunicipal systems — Undertakings involving the State or other public entities, with a majority shareholding,
and private undertakings, pursuant to Decree-Law No 379/93 of 5 November 1993. Direct administration by the
State is permissible

— Municipal systems — Local authorities, associations of local authorities, local authority services, undertakings in
which all or a majority of the capital is publicly owned or private undertakings pursuant to Decree-Law No 379/93
of 5 November 1993 and Law No 58/98 of 18 August 1998

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Finland

— Water supply authorities coming under Section 3 of the vesihuoltolaki/lagen om vattentjänster (119/2001)

Sweden

— Local authorities and municipal companies producing, transporting or distributing drinking water pursuant to lagen

(1970:244) om allmänna vatten- och avloppsanläggningar

United Kingdom

— A company holding an appointment as a water undertaker or a sewerage undertaker under the Water Industry Act

1991

— A water and sewerage authority established by section 62 of the Local Government etc (Scotland) Act 1994

— The Department for Regional Development (Northern Ireland)

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ANNEX IV

CONTRACTING ENTITIES IN THE FIELD OF RAIL SERVICES

Belgium

— Société nationale des Chemins de fer belges/Nationale Maatschappij der Belgische Spoorwegen

Denmark

— Danske Statsbaner

— Entities pursuant to lov nr. 1317 om amtskommunernes overtagelse af de statslige ejerandele i privatbanerne of

20 December 2000

Germany

— Deutsche Bahn AG

— Other undertakings providing railway services to the public pursuant to Article 2(1) of the Allgemeines Eisen-

bahngesetz of 27 December 1993, as last amended on 21 June 2002

Greece

— ‘Οργανισµός Σιδηροδρόµων Ελλάδος ΑΕ’ (‘ΟΣΕ ΑΕ’), pursuant to Law No 2671/98

— ‘ΕΡΓΟΣΕ ΑΕ’ pursuant to Law No 2366/95

Spain

— Ente público Gestor de Infraestructuras Ferroviarias (GIF)

— Red Nacional de los Ferrocarriles Españoles (RENFE)

— Ferrocarriles de Vía Estrecha (FEVE)

— Ferrocarrils de la Generalitat de Catalunya (FGC)

— Eusko Trenbideak (Bilbao)

— Ferrocarriles de la Generalitat Valenciana (FGV)

— Ferrocarriles de Mallorca

France

— Société nationale des chemins de fer français and other rail networks open to the public, referred to in loi

d'orientation des transports intérieurs No 82-1153 of 30 December 1982, Title II, Chapter 1

— Réseau ferré de France, State-owned company set up by Law No 97-135 of 13 February 1997

Ireland

— Iarnród Éireann (Irish Rail)

— Railway Procurement Agency

Italy

— Ferrovie dello Stato Spa

— Trenitalia Spa

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— Entities, companies and undertakings providing railway services on the basis of a concession pursuant to Article 10
of Royal Decree No 1447 of 9 May 1912, approving the consolidated text of the laws on le ferrovie concesse
all'industria privata, le tramvie a trazione meccanica e gli automobili

— Entities, companies and undertakings providing railway services on the basis of a concession pursuant to Article 4
of Law No 410 of 4 June 1949 — Concorso dello Stato per la riattivazione dei pubblici servizi di trasporto in
concessione

— Entities, companies and undertakings or local authorities providing railway services on the basis of a concession
pursuant to Article 14 of Law No 1221 of 2 August 1952 — Provvedimenti per l'esercizio ed il potenziamento di
ferrovie di altre linee di trasporto in regime di concessione

— Entities, companies and undertakings providing public transport services pursuant to Articles 8 and 9 of Legislative
Decree No 422 of 19 November 1997 — Conferimento alle regioni ed agli enti locali di funzioni e compiti in
materia di trasporto pubblico locale, under the terms of Article 4(4) of Law No 9 of 15 March 1997, as amended by
Legislative Decree No 400 of 20 September 1999 and by Article 45 of Law No 166 of 1 August 2002

Luxembourg

— Chemins de fer luxembourgeois (CFL)

Netherlands

— Procuring entities in the field of railway services

Austria

— Österreichische Bundesbahn

— Schieneninfrastrukturfinanzierungs-Gesellschaft mbH sowie

— Entities authorised to provide transport services pursuant to Eisenbahngesetz, BGBl. No 60/1957, as amended

Portugal

— CP — Caminhos de Ferro de Portugal, EP, pursuant to Decree-Law No 109/77 of 23 March 1977

— REFER, EP, pursuant to Decree-Law No 104/97 of 29 April 1997

— RAVE, SA, pursuant to Decree-Law No 323-H/2000 of 19 December 2000

— Fertagus, SA, pursuant to Decree-Law No 189-B/99 of 2 June 1999

— Metro do Porto, SA, pursuant to Decree-Law No 394-A/98 of 15 December 1998, as amended by Decree-Law

No 261/2001 of 26 September 2001

— Normetro, SA, pursuant

to Decree-Law No 394-A/98 of 15 December 1998, as amended by Decree-Law

No 261/2001 of 26 September 2001

— Metropolitano Ligeiro de Mirandela, SA, pursuant to Decree-Law No 15/95 of 8 February 1995

— Metro do Mondego, SA, pursuant to Decree-Law No 10/2002 of 24 January 2002

— Metro Transportes do Sul, SA, pursuant to Decree-Law No 337/99 of 24 August 1999

— Local authorities and local authority undertakings providing transport services pursuant to Law No 159/99 of

14 September 1999

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— Public authorities and public undertakings providing railway services pursuant to Law No 10/90 of 17 March 1990

— Private undertakings providing railway services pursuant to Law No 10/90 of 17 March 1990, where they hold

special or exclusive rights

Finland

— VR Osakeyhtiö/VR Aktiebolag

Sweden

— Public entities operating railway services in accordance with förordningen (1996:734) om statens spåranläggningar

and lagen (1990:1157) om järnvägssäkerhet

— Regional and local public entities operating regional or local railway communications pursuant to lagen (1997:734)

om ansvar för viss kollektiv persontrafik

— Private entities operating railway services pursuant to an authorisation granted under förordningen (1996:734) om

statens spåranläggningar, where such permission complies with Article 2(3) of the Directive

United Kingdom

— Railtrack plc

— Eurotunnel plc

— Northern Ireland Transport Holding Company

— Northern Ireland Railways Company Limited

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CONTRACTING ENTITIES IN THE FIELD OF URBAN RAILWAY, TRAMWAY, TROLLEYBUS OR BUS
SERVICES

ANNEX V

Belgium

— Société des Transports intercommunaux de Bruxelles/Maatschappij voor intercommunaal Vervoer van Brussel

— Société régionale wallonne du Transport et ses sociétés d'exploitation (TEC Liège–Verviers, TEC Namur–Luxem-
bourg, TEC Brabant wallon, TEC Charleroi, TEC Hainaut)/Société régionale wallonne du Transport en haar exploi-
tatiemaatschappijen (TEC Liège–Verviers, TEC Namur–Luxembourg, TEC Brabant wallon, TEC Charleroi, TEC Hai-
naut)

— Vlaamse Vervoermaatschappij (De Lijn)

— Private companies benefiting from special or exclusive rights.

Denmark

— Danske Statsbaner

— Entities providing bus services to the public (ordinary regular services) on the basis of an authorisation pursuant to

lovbekendtgørelse nr. 738 om buskørsel of 22 December 1999

Germany

— Undertakings providing, on the basis of an authorisation, short-distance transport services to the public pursuant to

the Personenbeförderungsgesetz of 21 March 1961, as last amended on 21 August 2002

Greece

— ‘Ηλεκτροκίνητα Λεωφορεία Περιοχής Αθηνών — Πειραιώς ΑΕ’ (‘ΗΛΠΑΠ ΑΕ’), established and operating pursuant to

Legislative Decree No 768/1970 (A' 273), Law No 588/1977 (A' 148) and Law No 2669/1998 (A' 283)

— ‘Ηλεκτρικοί Σιδηρόδροµοι Αθηνών — Πειραιώς’ (‘ΗΣΑΠ ΑΕ’), established and operating pursuant to Laws Nos 352/1976

(A' 147) and 2669/1998 (A' 283)

— ‘Οργανισµός Αστικών Συγκοινωνιών Αθηνών ΑΕ’

(‘ΟΑΣΑ ΑΕ’), established and operating pursuant

to Laws

Nos 2175/1993 (A' 211) and 2669/1998 (A' 283)

— ‘Εταιρεία Θερµικών Λεωφορείων ΑΕ’ (‘ΕΘΕΛ ΑΕ’), established and operating pursuant to Laws Nos 2175/1993 (A' 211)

and 2669/1998 (A' 283)

— ‘Αττικό Μετρό ΑΕ’, established and operating pursuant to Law No 1955/1991

— ‘Οργανισµός Αστικών Συγκοινωνιών Θεσσαλονίκης’

(‘ΟΑΣΘ’), established and operating pursuant

to Decree

No 3721/1957, Legislative Decree No 716/1970 and Laws Nos 66/79 and 2898/2001 (A' 71)

— ‘Κοινό Ταµείο Είσπραξης Λεωφορείων’ (‘ΚΤΕΛ’), operating pursuant to Law No 2963/2001 (A' 268)

— ‘∆ηµοτικές Επιχειρήσεις Λεωφορείων Ρόδου και Κω’, otherwise known as ‘ΡΟ∆Α’ and ‘∆ΕΑΣ ΚΩ’ respectively, operating

pursuant to Law No 2963/2001 (A' 268)

Spain

— Entidades que prestan servicios públicos de transporte urbano con arreglo a la Ley 7/1985, de 2 de abril, Reguladora
de las Bases de Régimen Local; Real Decreto legislativo 781/1986, de 18 de abril, por el que se aprueba el texto
refundido de las disposiciones legales vigentes en materia de régimen local y correspondiente legislación autonómica
en su caso

— Entidades que prestan servicios públicos de autobuses con arreglo a la disposición transitoria tercera de la Ley

16/1987, de 30 de julio, de Ordenación de los Transportes Terrestres

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France

— Entities providing transport services to the public pursuant to Article 7-II of loi d'orientation des transports

intérieurs no 82-1153 of 30 December 1982

— Régie autonome des transports parisiens, Société nationale des chemins de fer français and other entities providing
transport services on the basis of an authorisation granted by the Syndicat des transports d'Ile-de-France, pursuant to
Order No 59-151 of 7 January 1959 as amended and the Decrees implementing it with regard to the organisation
of passenger transport in the Ile-de-France region

— Réseau ferré de France, State-owned company set up by Law No 97-135 of 13 February 1997

Ireland

— Iarnród Éireann (Irish Rail)

— Railway Procurement Agency

— Luas (Dublin Light Rail)

— Bus Éireann (Irish Bus)

— Bus Átha Cliath (Dublin Bus)

— Entities providing transport services to the public pursuant to the amended Road Transport Act 1932

Italy

— Entities, companies and undertakings providing public transport services by rail, automated system, tramway,

trolleybus or bus or managing the relevant infrastructures at national, regional or local level

They include, for example:

— Entities, companies and undertakings providing transport services on the basis of a concession pursuant to Law
No 1822 of 28 September 1939 — Disciplina degli autoservizi di linea (autolinee per viaggiatori, bagagli e
pacchi agricoli in regime di concessione all'industria privata) — Article 1, as amended by Article 45 of the
Presidential Decree No 771 of 28 June 1955

— Entities, companies and undertakings providing transport services to the public pursuant to Article 1(4) or (15)
of Royal Decree No 2578 of 15 October 1925 — Approvazione del testo unico della legge sull'assunzione
diretta dei pubblici servizi da parte dei comuni e delle province

— Entities, companies and undertakings providing transport services to the public pursuant to Legislative Decree
No 422 of 19 November 1997 — Conferimento alle regioni ed agli enti locali di funzioni e compiti in materia
di trasporto pubblico locale, under the terms of Article 4(4) of Law No 59 of 15 March 1997 — as amended by
Legislative Decree No 400 of 20 September 1999, and by Article 45 of Law No 166 of 1 August 2002

— Entities, companies and undertakings providing public transport services pursuant

to Article 113 of the
consolidated text of the laws on the structure of local authorities, approved by Law No 267 of 18 August
2000 as amended by Article 35 of Law No 448 of 28 December 2001

— Entities, companies and undertakings operating on the basis of a concession pursuant to Article 242 or 256 of
Royal Decree No 1447 of 9 May 1912 approving the consolidated text of the laws on le ferrovie concesse
all'industria privata, le tramvie a trazione meccanica e gli automobili

— Entities, companies and undertakings and local authorities operating on the basis of a concession pursuant to
Article 4 of Law No 410 of 4 June 1949 — Concorso dello Stato per la riattivazione dei pubblici servizi di
trasporto in concessione

— Entities, companies and undertakings operating on the basis of a concession pursuant to Article 14 of Law
No 1221 of 2 August 1952 — Provvedimenti per l'esercizio ed il potenziamento di ferrovie e di altre linee di
trasporto in regime di concessione

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Luxembourg

— Chemins de fer du Luxembourg (CFL)

— Service communal des autobus municipaux de la Ville de Luxembourg

— Transports intercommunaux du canton d'Esch-sur-Alzette (TICE)

— Bus service undertakings operating pursuant to the règlement grand-ducal concernant les conditions d'octroi des
autorisations d'établissement et d'exploitation des services de transports routiers réguliers de personnes rémunérées
of 3 February 1978

Netherlands

— Entities providing transport services to the public pursuant to chapter II (Openbaar Vervoer) of the Wet Person-

envervoer

Austria

— Entities authorised to provide transport services pursuant to the Eisenbahngesetz, BGBl. No 60/1957, as amended,

or the Kraftfahrliniengesetz, BGBl. I No 203/1999, as amended

Portugal

— Metropolitano de Lisboa, EP, pursuant to Decree-Law No 439/78 of 30 December 1978

— Local authorities, local authority services and local authority undertakings under Law No 58/98 of 18 August 1998,

which provide transport services pursuant to Law No 159/99 of 14 September 1999

— Public authorities and public undertakings providing railway services pursuant to Law No 10/90 of 17 March 1990

— Private undertakings providing railway services pursuant to Law No 10/90 of 17 March 1990, where they hold

special or exclusive rights

— Entities providing public transport services pursuant to Article 98 of the Regulamento de Transportes em Auto-

móveis (Decree No 37272 of 31 December 1948)

— Entities providing public transport services pursuant to Law No 688/73 of 21 December 1973

— Entities providing public transport services pursuant to Decree-Law No 38144 of 31 December 1950

Finland

— Entities providing regular coach transport services under a special or exclusive licence pursuant to the laki luvan-
varaisesta henkilöliikenteestä tiellä/lagen om tillståndspliktig persontrafik på väg (343/1991) and municipal transport
authorities and public enterprises providing public transport services by bus, rail or underground railway, or
maintaining a network for the purpose of providing such transport services

Sweden

— Entities operating urban railway or tramway services pursuant to lagen (1997:734) om ansvar för viss kollektiv

persontrafik and lagen (1990:1157) om järnvägssäkerhet

— Public or private entities operating a trolley bus or bus service pursuant with lagen (1997:734) om ansvar för viss

kollektiv persontrafik and yrkestrafiklagen (1998:490)

United Kingdom

— London Regional Transport

— London Underground Limited

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— Transport for London

— A subsidiary of Transport for London within the meaning of section 424(1) of the Greater London Authority Act

1999

— Strathclyde Passenger Transport Executive

— Greater Manchester Passenger Transport Executive

— Tyne and Wear Passenger Transport Executive

— Brighton Borough Council

— South Yorkshire Passenger Transport Executive

— South Yorkshire Supertram Limited

— Blackpool Transport Services Limited

— Conwy County Borough Council

— A person who provides a London local service as defined in section 179(1) of the Greater London Authority Act
1999 (a bus service) in pursuance of an agreement entered into by Transport for London under section 156(2) of
that Act or in pursuance of a transport subsidiary's agreement as defined in section 169 of that Act

— Northern Ireland Transport Holding Company

— A person who holds a road service licence under section 4(1) of the Transport Act (Northern Ireland) 1967 which

authorises him to provide a regular service within the meaning of that licence

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ANNEX VI

CONTRACTING ENTITIES IN THE POSTAL SERVICES SECTOR

BELGIUM

De Post/La Poste

DENMARK

Post Danmark, jf. Lov nr. 569 om Post Danmark A/S of 6 June 2002

GERMANY

—

GREECE

Ελληνικά Ταχυδροµεία ΕΛΤΑ established by Legislative Decree No 496/70 and operating pursuant to Law No 2668/98
(ELTA)

SPAIN

Correos y Telégrafos, SA

FRANCE

La Poste

IRELAND

An Post plc

ITALY

Poste Italiane s.p.a.

LUXEMBOURG

Entreprise des Postes et Télécommunications Luxembourg

NETHERLANDS

—

AUSTRIA

Österreichische Post AG

PORTUGAL

CTT — Correios de Portugal

FINLAND

—

SWEDEN

Posten Sverige AB

Posten Logistik AB

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BLSI-I AB

DPD Nordic AB

DPD Sverige AB

Falcon Air AB

Hultbergs Inrikes Transporter AB (HIT)

Posten Express AB

Posten Logistik AB

Poståkeriet Sverige AB

SwedeGiro AB

TAB

UNITED KINGDOM

—

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CONTRACTING ENTITIES IN THE SECTORS OF EXPLORATION FOR AND EXTRACTION OF OIL OR GAS

ANNEX VII

Belgium

—

Denmark

Entities pursuant to

— Lov om Danmarks undergrund, see Consolidation Act No 526 of 11 June 2002

— Lov om kontinentalsoklen, see Consolidation Act No 182 of 1 May 1979

Germany

— Undertakings pursuant to the Bundesberggesetz of 13 August 1980.

Greece

— ‘Ελληνικά Πετρέλαια ΑΕ’, pursuant to Law No 2593/98 για την αναδιοργάνωση της ∆ΕΠ ΑΕ και των θυγατρικών της

εταιρειών, το καταστατικό αυτής και άλλες διατάξεις

Spain

— BG International Limited Quanum, Asesores & Consultores, SA

— Cambria Europe, Inc.

— CNWL oil (España), SA

— Compañía de investigación y explotaciones petrolíferas, SA

— Conoco limited

— Eastern España, SA

— Enagas, SA

— España Canadá resources Inc.

— Fugro — Geoteam, SA

— Galioil, SA

— Hope petróleos, SA

— Locs oil compay of Spain, SA

— Medusa oil Ltd

— Muphy Spain oil company

— Onempm España, SA

— Petroleum oil & gas España, SA

— Repsol Investigaciones petrolíferas, SA

— Sociedad de hidrocarburos de Euskadi, SA

— Taurus petroleum, AN

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— Teredo oil limited

— Unión Fenosa gas exploración y producción, SA

— Wintersahll, AG

— YCI España, LC

— Otras entidades que operan en virtud de la Ley 34/1998, de 7 de octubre, del Sector de hidrocarburos y su

normativa de desarrollo

France

— Entities responsible for exploration for and the extraction of oil or gas pursuant to the code minier and its

implementing rules, particularly Decree No 95-427 of 19 April 1995

Ireland

— Entities granted an authorisation, license, permit or concession to explore for or extract oil and gas pursuant to the

following legal provisions:

— Continental Shelf Act 1968

— Petroleum and Other Minerals Development Act 1960

— Licensing Terms for Offshore Oil and Gas Exploration and Development 1992

— Petroleum (Production) Act (NI) 1964

Italy

— Entities granted an authorisation, permit, licence or concession to explore for or extract oil and gas or to store

natural gas underground pursuant to the following legislative provisions:

— Law No 136 of 10 February 1953

— Law No 6 of 11 January 1957, as amended by Law No 613 of 21 July 1967

— Law No 9 of 9 January 1991

— Legislative Decree No 625 of 25 November 1996

— Law No 170 of 26 April 1974, as amended by the Legislative Decree No 164 of 23 May 2000

Luxembourg

—

Netherlands

— Entities pursuant to Mijnbouwwet (1 January 2003)

Austria

— Entities authorised to explore for or extract oil or gas pursuant to the Mineralrohstoffgesetz, BGBl. I No 38/1999, as

amended

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Portugal

Entities pursuant to

— Decree-Law No 109/94 of 26 April 1994 and Portaria (Ministerial Order) No 790/94 of 5 September 1994

— Decree-Law No 82/94 of 24 August 1994 and Despacho (Decision) No A-87/94 of 17 January 1994

Finland

—

Sweden

— Entities holding a concession for exploring for or exploiting oil or gas pursuant to minerallagen (1991:45) or which

have been granted an authorisation pursuant to lagen (1966:314) om kontinentalsockeln

United Kingdom

— A person operating by virtue of a licence granted or having effect as if granted under the Petroleum Act 1998

— A person licensed under the Petroleum (Production) Act (Northern Ireland) 1964

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CONTRACTING ENTITIES IN THE SECTORS OF EXPLORATION FOR AND EXTRACTION OF COAL AND
OTHER SOLID FUELS

ANNEX VIII

Belgium

—

Denmark

— Entities exploring for or extracting coal or other solid fuels pursuant to Consolidation Act No 569 of 30 June 1997

Germany

— Undertakings exploring for or extracting coal or other solid fuels pursuant to the Bundesberggesetz of 13 August

1980

Greece

— ‘∆ηµόσια Επιχείρηση Ηλεκτρισµού’, which prospects for and extracts coal and other solid fuels pursuant to the Mining

Code of 1973, as amended by the law of 27 April 1976

Spain

— Alto Bierzo, SA

— Antracitas de Arlanza, SA

— Antracitas de Gillon, SA

— Antracitas de La Granja, SA

— Antracitas de Tineo, SA

— Campomanes Hermanos, SA

— Carbones de Arlanza, SA

— Carbones de Linares, SA

— Carbones de Pedraforca, SA

— Carbones del Puerto, SA

— Carbones el Túnel, SL

— Carbones San Isidro y María, SA

— Carbonifera del Narcea, SA

— Compañia Minera Jove, SA

— Compañía General Minera de Teruel, SA

— Coto minero del Narcea, SA

— Coto minero del Sil, SA

— Empresa Nacional Carbonífera del Sur, SA

— Endesa, SA

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— Gonzalez y Diez, SA

— Hijos de Baldomero García, SA

— Hullas del Coto Cortés, SA

— Hullera Vasco-leonesa, SA

— Hulleras del Norte, SA

— Industrial y Comercial Minera, SA

— La Carbonífera del Ebro, SA

— Lignitos de Meirama, SA

— Malaba, SA

— Mina Adelina, SA

— Mina Escobal, SA

— Mina La Camocha, SA

— Mina La Sierra, SA

— Mina Los Compadres, SA

— Minas de Navaleo, SA

— Minas del Principado, SA

— Minas de Valdeloso, SA

— Minas Escucha, SA

— Mina Mora primera bis, SA

— Minas y explotaciones industriales, SA

— Minas y ferrocarriles de Utrillas, SA

— Minera del Bajo Segre, SA

— Minera Martín Aznar, SA

— Minero Siderúrgica de Ponferrada, SA

— Muñoz Sole hermanos, SA

— Promotora de Minas de carbón, SA

— Sociedad Anónima Minera Catalano-aragonesa

— Sociedad minera Santa Bárbara, SA

— Unión Minera del Norte, SA

— Union Minera Ebro Segre, SA

— Viloria Hermanos, SA

— Virgilio Riesco, SA

— Otras entidades que operan en virtud de la Ley 22/1973, de 21 de julio, de Minas y su normativa de desarrollo

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France

— Entities exploring for or extracting coal or other solid fuels pursuant to the code minier and its implementing rules,

particularly Decree No 95-427 of 19 April 1995

Ireland

— Bord na Mona plc. set up and operating pursuant to the Turf Development Act 1946 to 1998

Italy

— Carbosulcis spa

Luxembourg

—

Netherlands

—

Austria

— Entities authorised to explore for or extract coal or other solid fuels pursuant to the Mineralrohstoffgesetz, BGBl. I

No 38/1999, as amended

Portugal

— Empresa Nacional de Urânio

Finland

— Entities benefiting from a special concession for the exploration for or extraction of solid fuels pursuant to the laki
oikeudesta luovuttaa valtion kiinteistövarallisuutta/lagn om rätt att överlåta statlig fastighetsförmögenhet (973/2002)

Sweden

— Entities benefitting from a concession for the exploration for or extraction of coal or other solid fuels on the basis of
a concession pursuant to minerallagen (1991:45) or lagen (1985:620) om vissa torvfyndigheter, or which have been
granted an authorisation pursuant to lagen (1966:314) om kontinentalsockeln

United Kingdom

— Any licensed operator (within the meaning of the Coal Industry Act 1994)

— The Department of Enterprise, Trade and Investment (Northern Ireland)

— A person operating by virtue of a prospecting licence, a mining lease, a mining licence or a mining permission as

defined by section 57(1) of the Mineral Development Act (Northern Ireland) 1969

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CONTRACTING ENTITIES IN THE FIELD OF MARITIME OR INLAND PORT OR OTHER TERMINAL
FACILITIES

ANNEX IX

Belgium

— Gemeentelijk Havenbedrijf van Antwerpen

— Havenbedrijf van Gent

— Maatschappij der Brugse Zeevaartinrichtigen

— Port autonome de Charleroi

— Port autonome de Namur

— Port autonome de Liège

— Port autonome du Centre et de l'Ouest

— Société régionale du Port de Bruxelles/Gewestelijk Vennootschap van de Haven van Brussel

— Zeekanaal en Watergebonden Grondbeheer Vlaanderen

Denmark

— Ports as defined in § 1 of lov nr. 326 om havne of 28 May 1999

Germany

— Seaports owned totally or partially by territorial authorities (Länder, Kreise, Gemeinden)

— Inland ports subject to the Hafenordnung pursuant to the Wassergesetze of the Länder

Greece

— ‘Οργανισµός Λιµένος Πειραιώς Ανώνυµη Εταιρεία’ (‘ΟΛΠ ΑΕ’), pursuant to Law No 2688/99

— ‘Οργανισµός Λιµένος Θεσσαλονίκης Ανώνυµη Εταιρεία’ (‘ΟΛΘ ΑΕ’), pursuant to Law No 2688/99

— ‘Οργανισµός Λιµένος Αλεξανδρούπολης Ανώνυµη Εταιρεία’ (‘ΟΛΑ ΑΕ’), pursuant to Law No 2932/01

— ‘Οργανισµός Λιµένος Βόλου Ανώνυµη Εταιρεία’ (‘ΟΛΒ ΑΕ’), pursuant to Law No 2932/01

— ‘Οργανισµός Λιµένος Ελευσίνας Ανώνυµη Εταιρεία’ (‘ΟΛΕ ΑΕ’), pursuant to Law No 2932/01

— ‘Οργανισµός Λιµένος Ηγουµενίτσας Ανώνυµη Εταιρεία’ (‘ΟΛΗΓ ΑΕ’), pursuant to Law No 2932/01

— ‘Οργανισµός Λιµένος Ηρακλείου Ανώνυµη Εταιρεία’ (‘ΟΛΗ ΑΕ’), pursuant to Law No 2932/01

— ‘Οργανισµός Λιµένος Καβάλας Ανώνυµη Εταιρεία’ (‘ΟΛΚ ΑΕ’), pursuant to Law No 2932/01

— ‘Οργανισµός Λιµένος Κέρκυρας Ανώνυµη Εταιρεία’ (‘ΟΛΚΕ ΑΕ’), pursuant to Law No 2932/01

— ‘Οργανισµός Λιµένος Λαυρίου Ανώνυµη Εταιρεία’ (‘ΟΛΛ ΑΕ’), pursuant to Law No 2932/01

— ‘Οργανισµός Λιµένος Ραφήνας Ανώνυµη Εταιρεία’ (‘ΟΛΡ ΑΕ’), pursuant to Law No 2932/01

— Other ports, governed by Presidential Decree No 649/1977. (Εποπτεία, οργάνωση, λειτουργία και διοικητικός έλεγχος

λιµένων.)

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Spain

— Ente público Puertos del Estado

— Autoridad Portuaria de Alicante

— Autoridad Portuaria de Almería — Motril

— Autoridad Portuaria de Avilés

— Autoridad Portuaria de la Bahía de Algeciras

— Autoridad Portuaria de la Bahía de Cádiz

— Autoridad Portuaria de Baleares

— Autoridad Portuaria de Barcelona

— Autoridad Portuaria de Bilbao

— Autoridad Portuaria de Cartagena

— Autoridad Portuaria de Castellón

— Autoridad Portuaria de Ceuta

— Autoridad Portuaria de Ferrol — San Cibrao

— Autoridad Portuaria de Gijón

— Autoridad Portuaria de Huelva

— Autoridad Portuaria de Las Palmas

— Autoridad Portuaria de Málaga

— Autoridad Portuaria de Marín y Ría de Pontevedra

— Autoridad Portuaria de Melilla

— Autoridad Portuaria de Pasajes

— Autoridad Portuaria de Santa Cruz de Tenerife

— Autoridad Portuaria de Santander

— Autoridad Portuaria de Sevilla

— Autoridad Portuaria de Tarragona

— Autoridad Portuaria de Valencia

— Autoridad Portuaria de Vigo

— Autoridad Portuaria de Villagarcía de Arousa

— Otras entidades Portuarias de las Comunidades Autónomas de Andalucía, Asturias, Baleares, Canarias, Cantabria,

Cataluña, Galicia, Murcia, País Vasco y Valencia.

France

— Port autonome de Paris set up pursuant to loi no 68-917 relative au port autonome de Paris of 24 October 1968

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— Port autonome de Strasbourg set up pursuant to the convention entre l'État et la ville de Strasbourg relative à la
construction du port rhénan de Strasbourg et à l'exécution de travaux d'extension de ce port of 20 May 1923,
approved by the Law of 26 April 1924

— Ports autonomes operating pursuant to Articles L. 111-1 et seq. of the code des ports maritimes

— Ports non autonomes operating pursuant to Articles R. 121-1 et seq. of the code des ports maritimes

— Ports managed by the regional or département authorities or operating pursuant to a concession granted by the
regional or département authorities pursuant to Article 6 of Law No 83-663 of 22 July 1983 supplementing loi
no 83-8 relative à la répartition des compétences entre les communes, les départements et l'État of 7 January 1983

— Voies navigables de France, State-owned company subject to the provisions of Article 124 of Law No 90-1168 du

29 December 1990, as amended

Ireland

— Ports operating pursuant to Harbours Acts 1946 to 2000

— Port of Rosslare Harbour operating pursuant to the Fishguard and Rosslare Railways and Harbours Acts 1899

Italy

— National ports and other ports managed by the Capitaneria di Porto pursuant to the Codice della navigazione, Royal

Decree No 327 of 30 March 1942

— Autonomous ports (enti portuali) set up by special laws pursuant to Article 19 of the Codice della navigazione,

Royal Decree No 327 of 30 March 1942

Luxembourg

— Port de Mertert, set up and operating pursuant to the loi relative à l'aménagement et à l'exploitation d'un port fluvial

sur la Moselle of 22 July 1963, as amended

Netherlands

— Contracting entities in the field of sea port or inland port or other terminal equipment

Austria

— Inland ports owned totally or partially by the Länder and/or Gemeinden

Portugal

— APDL — Administração dos Portos do Douro e Leixões, SA, pursuant to Decree-Law No 335/98 of 3 November

1998

— APL — Administração do Porto de Lisboa, SA, pursuant to Decree-Law No 336/98 of 3 November 1998

— APS — Administração do Porto de Sines, SA, pursuant to Decree-Law No 337/98 of 3 November 1998

— APSS — Administração dos Portos de Setúbal e Sesimbra, SA, pursuant to Decree-Law No 338/98 of 3 November

1998

— APA — Administração do Porto de Aveiro, SA, pursuant to Decree-Law No 339/98 of 3 November 1998

— IPN — Instituto Portuário do Norte, pursuant to Decree-Law No 242/99 of 28 June 1999

— ICP — Instituto Portuário do Centro, pursuant to Decree-Law No 243/99 of 28 June 1999

— IPS — Instituto Portuário do Sul, pursuant to Decree-Law No 244/99 of 28 June 1999

— IDN — Instituto da Navegabilidade do Douro, pursuant to Decree-Law No 138-A/97 of 3 June 1997

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Finland

— Ports operating pursuant to the laki kunnallisista satamajärjestyksistä ja liikennemaksuista/lagen om kommunala
hamnanordningar och trafikavgifter (955/1976) and ports instituted under a licence pursuant to section 3 of the laki
yksityisistä yleisistä satamista/lagen om privata allmänna hamnar (1156/1994)

— Saimaan kanavan hoitokunta/Förvaltningsnämnden för Saima kanal

Sweden

— Ports and terminal facilities according to lagen (1983:293) om inrättande, utvidgning och avlysning av allmän farled

och allmän hamn and förordningen (1983:744) om trafiken på Göta kanal

United Kingdom

— A local authority which exploits a geographical area for the purpose of providing maritime or inland port or other

terminal facilities to carriers by sea or inland waterway

— A harbour authority within the meaning of section 57 of the Harbours Act 1964

— British Waterways Board

— A harbour authority as defined by section 38(1) of the Harbours Act (Northern Ireland) 1970

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CONTRACTING ENTITIES IN THE FIELD OF AIRPORT INSTALLATIONS

ANNEX X

Belgium

— Belgocontrol

— Brussels International Airport Company

— Luchthaven van Deurne

— Luchthaven van Oostende

— SA Brussels South Charleroi Airport

— SA Société de Développement et de Promotion de l'Aéroport de Bierset

Denmark

— Airports operating on the basis of an authorisation pursuant to § 55(1) of the lov om luftfart, see Consolidation Act

No 543 of 13 June 2001

Germany

— Airports as defined in Article 38(2)(1) of the Luftverkehrs-Zulassungs-Ordnung of 19 June 1964, as last amended on

21 August 2002

Greece

— ‘Υπηρεσία Πολιτικής Αεροπορίας’ (‘ΥΠΑ’) operating pursuant to Legislative Decree No 714/70, as amended by Law
No 1340/83; the organisation of the company is laid down by Presidential Decree No 56/89, as amended
subsequently

— The company ‘∆ιεθνής Αερολιµένας Αθηνών’ at Spata operating pursuant to Legislative Decree No 2338/95 Κύρωση
Σύµβασης Ανάπτυξης του Νέου ∆ιεθνούς Αεροδροµίου της Αθήνας στα Σπάτα, ‘ίδρυση της εταιρείας “∆ιεθνής Αερολιµένας
Αθηνών ΑΕ” έγκριση περιβαλλοντικών όρων και άλλες διατάξεις’

— ‘Φορείς ∆ιαχείρισης’ in accordance with Presidential Decree No 158/02 ‘Ίδρυση, κατασκευή, εξοπλισµός, οργάνωση,
διοίκηση, λειτουργία και εκµετάλλευση πολιτικών αερολιµένων από φυσικά πρόσωπα, νοµικά πρόσωπα ιδιωτικού δικαίου και
Οργανισµούς Τοπικής Αυτοδιοίκησης’ (Greek Official Gazette A 137)

Spain

— Ente público Aeropuertos Españoles y Navegación Aérea (AENA)

France

— Airports operated by State-owned companies pursuant to Articles L.251-1, L.260-1 and L.270-1 of the code de

l'aviation civile

— Airports operating on the basis of a concession granted by the State pursuant to Article R.223-2 of the code de

l'aviation civile

— Airports operating pursuant to an arrêté préfectoral portant autorisation d'occupation temporaire

— Airports set up by a public authority and which are the subject of a convention as laid down in Article L.221-1 of

the code de l'aviation civile

Ireland

— Airports of Dublin, Cork and Shannon managed by Aer Rianta — Irish Airports

— Airports operating on the basis of a public use licence granted pursuant to the Irish Aviation Authority Act 1993 as
amended by the Air Navigation and Transport (Amendment) Act, 1998, and at which any scheduled air services are
performed by aircraft for the public transport of passengers, mail or cargo

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Italy

— AAAVTAG

— Managing entities set up by special laws

— Entities operating airport facilities on the basis of a concession granted pursuant to Article 694 of the Codice della

navigazione, Royal Decree No 347 of 30 March 1942

— RAI Registro Aeronautico Italiano

Luxembourg

— Aéroport du Findel

Netherlands

— Airports operating pursuant to Articles 18 and following of the Luchtvaartwet

Austria

— Entities authorised to provide airport facilities pursuant to the Luftfahrtgesetz, BGBl. No 253/1957, as amended

Portugal

— ANA — Aeroportos de Portugal, SA, set up pursuant to Decree-Law No 404/98 of 18 December 1998

— NAV — Empresa Pública de Navegação Aérea de Portugal, EP, set up pursuant to Decree-Law No 404/98 of

18 December 1998

— ANAM — Aeroportos e Navegação Aérea da Madeira, SA, set up pursuant

to Decree-Law No 453/91 of

11 December 1991

Finland

— Airports managed by the ‘Ilmailulaitos/Luftfartsverket’, or by a municipal or public enterprise pursuant to the

ilmailulaki/luftfartslagen (281/1995)

Sweden

— Publicly-owned and operated airports in accordance with luftfartslagen (1957:297)

— Privately-owned and operated airports with an operating licence under the act, where this licence corresponds to the

criteria of Article 2(3) of the Directive

United Kingdom

— A local authority which exploits a geographical area for the purpose of providing airport or other terminal facilities

to carriers by air

— An airport operator within the meaning of the Airports Act 1986 who has the management of an airport subject to

economic regulation under Part IV of that Act

— An airport operator within the meaning of the Airports Act 1986 who has the management of an airport subject to

economic regulation under Part IV of that Act

— Highland and Islands Airports Limited

— An airport operator within the meaning of the Airports (Northern Ireland) Order 1994

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LIST OF COMMUNITY LEGISLATION REFERRED TO IN ARTICLE 30(3)

ANNEX XI

A. TRANSPORT OR DISTRIBUTION OF GAS OR HEAT

Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for
the internal market in natural gas (1)

B. PRODUCTION, TRANSMISSION OR DISTRIBUTION OF ELECTRICITY

Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules
for the internal market in electricity (2)

C. PRODUCTION, TRANSPORT OR DISTRIBUTION OF DRINKING WATER

—

D. CONTRACTING ENTITIES IN THE FIELD OF RAIL SERVICES

—

E. CONTRACTING ENTITIES IN THE FIELD OF URBAN RAILWAY, TRAMWAY, TROLLEYBUS OR MOTOR BUS

SERVICES

—

F. CONTRACTING ENTITIES IN THE FIELD OF POSTAL SERVICES

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 (3)

G. EXPLORATION FOR AND EXTRACTION OF OIL OR GAS

Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting
and using authorisations for the prospection, exploration and production of hydrocarbons (4)

H. EXPLORATION FOR AND EXTRACTION OF COAL OR OTHER SOLID FUELS

—

I. CONTRACTING ENTITIES IN THE FIELD OF SEAPORT OR INLAND PORT OR OTHER TERMINAL EQUIPMENT

—

J. CONTRACTING ENTITIES IN THE FIELD OF AIRPORT INSTALLATIONS

—

(1) OJ L 204, 21.7.1998, p. 1.
(2) OJ L 27, 30.1.1997, p. 20.
(3) OJ L 15, 21.1.1998, p. 14. Directive last amended by Directive 2002/39/EC (OJ L 176, 5.7.2002, p. 21).
(4) OJ L 164, 30.6.1994, p. 3.

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ANNEX XII

LIST OF ACTIVITIES AS SET OUT IN ARTICLE 1(2), (b) (1)

Section F

NACE (1)

Construction

Division

Group

Class

Subject

Notes

CPV Code

45

Construction

This division includes:

45000000

construction of new buildings and works,
restoring and common repairs

45.1

Site preparation

45100000

45.11

Demolition and wreck-
ing of buildings; earth
moving

This class includes:

45110000

— demolition of buildings and other

structures

— clearing of building sites

— earth moving:

excavation,

landfill,
levelling and grading of construction
rock removal,
sites,
blasting, etc.

trench digging,

— site preparation for mining:

overburden removal and other devel-
opment and preparation of mineral
properties and sites

This class also includes:

— building site drainage

— drainage of agricultural or

forestry

land

45.12

Test drilling and boring

This class includes:

45120000

— test drilling,

test boring and core
sampling for construction, geophysi-
cal, geological or similar purposes

This class excludes:

— drilling of production oil or gas wells,

see 11.20

— water well drilling, see 45.25

— shaft sinking, see 45.25

— oil and gas

field exploration, geo-
physical, geological and seismic sur-
veying, see 74.20

45.2

Building of
complete
constructions or parts
engin-
civil
thereof;
eering

45200000

(1) In the event of any difference of interpretation between the CPV and the NACE, the NACE nomenclature will apply.

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Section F

NACE (1)

Construction

Division

Group

Class

Subject

Notes

45.21

General construction of
buildings
civil
engineering works

and

This class includes:

construction of all
construction of
structions:

civil

types of buildings
engineering con-

CPV Code

45210000

bridges,
highways, viaducts, tunnels and subways

including

those

elevated

for

long-distance pipelines,
and power lines

communication

urban pipelines, urban communication and
powerlines;

ancillary urban works

assembly and erection of prefabricated
constructions on the site

This class excludes:

service activities incidental to oil and gas
extraction, see 11.20

erection of complete prefabricated con-
structions
from self-manufactured parts
not of concrete, see divisions 20, 26 and
28

stadiums,

construction work, other than buildings,
for
gym-
nasiums, tennis courts, golf courses and
other sports installations, see 45.23

swimming pools,

building installation, see 45.3

building completion, see 45.4

architectural and engineering activities, see
74.20

project management for construction, see
74.20

45.22

Erection of roof cover-
ing and frames

This class includes:

erection of roofs

roof covering

waterproofing

45220000

45.23

Construction of high-
ways,
airfields
roads,
and sport facilities

This class includes:

45230000

construction of highways, streets, roads,
other vehicular and pedestrian ways

construction of railways

construction of airfield runways

stadiums,

construction work, other than buildings,
gym-
for
nasiums, tennis courts, golf courses and
other sports installations

swimming pools,

painting of markings on road surfaces and
car parks

This class excludes:

preliminary earth moving, see 45.11

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Section F

NACE (1)

Construction

Division

Group

Class

Subject

Notes

45.24

Construction of water
projects

This class includes

construction of:

CPV Code

45240000

45.25

Other
construction
work involving special
trades

waterways, harbour
pleasure ports (marinas), locks, etc.

and river works,

dams and dykes

dredging

subsurface work

This class includes:

45250000

construction activities specialising in one
common to different kinds of
aspect
requiring specialised skill or
structures,
equipment:

construction of foundations, including pile
driving

water well drilling and construction, shaft
sinking

erection of non-self-manufactured steel
elements

steel bending

bricklaying and stone setting

scaffolds and work platform erecting and
dismantling, including renting of scaffolds
and work platforms

erection of chimneys and industrial ovens

This class excludes:

renting of scaffolds without erection and
dismantling, see 71.32

45.3

Building installation

45.31

Installation of electrical
wiring and fittings

This class includes:

installation in buildings or other con-
struction projects of:

45300000

45310000

electrical wiring and fittings

telecommunications systems

electrical heating systems

residential antennas and aerials

fire alarms

burglar alarm systems

lifts and escalators

lightning conductors, etc.

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Section F

NACE (1)

Construction

Division

Group

Class

Subject

Notes

45.32

Insulation work activi-
ties

This class includes:

installation in buildings or other con-
struction projects of
thermal, sound or
vibration insulation

This class excludes:

waterproofing, see 45.22

CPV Code

45320000

45.33

Plumbing

This class includes:

45330000

installation in buildings or other con-
struction projects of:

plumbing and sanitary equipment

gas fittings

heating, ventilation, refrigeration or air-
conditioning equipment and ducts

sprinkler systems

This class excludes:

installation of electrical heating systems,
see 45.31

45.34

Other building instal-
lation

This class includes:

45340000

installation of illumination and signalling
systems for roads, railways, airports and
harbours

installation in buildings or other con-
struction projects of fittings and fixtures
n.e.c.

45.4

Building completion

45.41

Plastering

This class includes:

45400000

45410000

application in buildings or other con-
struction projects of interior and exterior
plaster or stucco, including related lathing
materials

45.42

Joinery installation

This class includes:

45420000

installation of not self-manufactured doors,
windows, door and window frames, fitted
kitchens, staircases, shop fittings and the
like, of wood or other materials

interior
wooden wall
titions, etc.

completion such as

ceilings,
coverings, movable par-

This class excludes:

laying of parquet and other wood floor
coverings, see 45.43

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Section F

NACE (1)

Construction

Division

Group

Class

Subject

Notes

45.43

Floor and wall covering

This class includes:

CPV Code

45430000

laying,
in
hanging
buildings or other construction projects of:

fitting

tiling,

or

ceramic, concrete or cut stone wall or
floor tiles

parquet and other wood floor coverings
carpets
coverings,
and linoleum floor
including of rubber or plastic

terrazzo, marble, granite or slate floor or
wall coverings

wallpaper

45.44

Painting and glazing

This class includes:

45440000

interior and exterior painting of buildings,
painting of civil engineering structures

installation of glass, mirrors, etc.

This class excludes:

installation of windows, see 45.42

This class includes:

45450000

installation of private swimming pools
steam cleaning, sand blasting and similar
activities for building exteriors

other building completion and finishing
work n.e.c.

This class excludes:

interior cleaning of buildings and other
structures, see 74.70

45500000

This class excludes:

45500000

renting of
machinery
operators, see 71.32

construction or demolition
without
and

equipment

45.45

Other building comple-
tion

45.5

Renting of construction
or
demolition equip-
ment with operator

45.50

Renting of construction
or
demolition equip-
ment with operator

(1) Council Regulation (EEC) No 3037/90 of 9 October 1990 on the statistical classification of economic activities in the European
Community (OJ L 293, 24.10.1990, p. 1), Regulation as last amended by Commission Regulation (EC) No 729/2002 (OJ L 6,
10.1.2002, p. 3).

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ANNEX XIII

INFORMATION TO BE INCLUDED IN CONTRACT NOTICES

A. OPEN PROCEDURES

1. Name, address, telegraphic address, electronic address, telephone number, telex and fax number of the contracting

entity.

2. Where appropriate, state whether the contract is reserved for sheltered workshops or whether its execution is

reserved in the context of sheltered employment programmes.

3. Nature of the contract (supply, works or service, where appropriate, state if it is a framework agreement or a

dynamic purchasing system).

Category of service within the meaning of Annex XVII A or XVII B and description (nomenclature reference No(s)).

Where appropriate, state whether tenders are requested for purchase, lease, rental or hire purchase or any combi-
nation of these.

4. Place of delivery, site or place of performance of service.

5. For supplies and works:

(a) Nature and quantity of the goods to be supplied (nomenclature reference No(s)), including any options for
further procurement and, if possible, the estimated time available for exercising these options as well as the
number of renewals, if any. In the case of recurring contracts, also, if possible, an estimate of the timing of the
subsequent calls for competition for the goods to be procured or the nature and extent of the services to be
provided and general nature of the work (nomenclature reference No(s));

(b) Indication of whether the suppliers may tender for some and/or all the goods required.

If, for works contracts, the work or the contract is subdivided into several lots, the order of size of the different
lots and the possibility of tendering for one, for several or for all the lots;

(c) For works contracts: information concerning the purpose of the work or the contract where the latter also

involves the drawing-up of projects.

6. For services:

(a) The nature and quantity of the goods to be supplied, including any options for further procurement and, if
possible, the estimated time available for exercising these options as well as the number of renewals, if any. In
the case of recurring contracts, also,
if possible, an estimate of the timing of the subsequent calls for
competition for the services to be procured;

(b) Indication of whether the execution of the service is reserved by law, regulation or administrative provision to a

particular profession;

(c) Reference of the law, regulation or administrative provision;

(d) Indication of whether legal persons should indicate the names and professional qualifications of the staff to be

responsible for the execution of the service;

(e)

Indication of whether service providers may tender for a part of the services concerned.

7. Where known, indication of whether authorisation to submit variants exists or not.

8. Time-limits for delivery or completion or duration of service contract and, as far as possible, the starting date.

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9. (a) Address from which the contract documents and additional documents may be requested;

(b) Where appropriate, the amount and terms of payment of the sum to be paid to obtain such documents.

10. (a) Final date for receipt of tenders or indicative tenders where a dynamic purchasing system is introduced;

(b) Address to which they should be sent;

(c) Language or languages in which they should be drawn up.

11. (a) Where applicable, the persons authorised to be present at the opening of tenders;

(b) Date, time and place of such opening.

12. Where applicable, any deposits and guarantees required.

13. Main terms concerning financing and payment and/or references to the provisions in which these are contained.

14. Where appropriate, the legal form to be taken by the grouping of economic operators to whom the contract is

awarded.

15. Minimum economic and technical conditions required of the economic operator to whom the contract is awarded.

16. Period during which the tenderer is bound to keep open his tender.

17. Where appropriate, particular conditions to which performance of the contract is subject.

18. Criteria referred to in Article 55 to be used for award of the contract:

‘lowest price’ or ‘most economically
advantageous tender’. Criteria representing the most economically advantageous tender as well as their weighting
or, where appropriate, the order of importance of these criteria shall be mentioned where they do not appear in the
specifications.

19. Where appropriate, the reference to publication in the Official

the European Union of the periodic
information notice or of the notice of the publication of this notice on the buyer profile to which the contract
refers.

Journal of

20. Name and address of the body responsible for appeal and, where appropriate, mediation procedures. Precise
information concerning time-limits for lodging appeals, or, if need be, the name, address, telephone number, fax
number and e-mail address of the department from which this information may be obtained.

21. Date of dispatch of the notice by the contracting entity.

22. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by

that Office).

23. Any other relevant information.

B. RESTRICTED PROCEDURES

1. Name, address, telegraphic address, electronic address, telephone number, telex and fax number of the contracting

entity.

2. Where appropriate, state whether the contract is reserved for sheltered workshops or whether its execution is

reserved in the context of sheltered employment programmes.

3. Nature of the contract (supplies, works or services; where appropriate, state if it is a framework agreement).

Category of service within the meaning of Annex XVII A or XVII B and description (nomenclature reference No(s)).

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Where appropriate, state whether tenders are requested for purchase, lease, rental or hire purchase or any combi-
nation of these.

4. Place of delivery, site or place of performance of service.

5. For supplies and works:

(a) The nature and quantity of the goods to be supplied (nomenclature reference No(s)), including any options for
further procurement and, if possible, the estimated time available for exercising these options as well as the
number of renewals, if any. In the case of recurring contracts, also, if possible, an estimate of the timing of the
subsequent calls for competition for the goods to be procured or the nature and extent of the services to be
provided and general nature of the work (nomenclature reference No(s));

(b) Indication of whether the suppliers may tender for some and/or all the goods required.

If, for works contracts, the work or the contract is subdivided into several lots, the order of size of the different
lots and the possibility of tendering for one, for several or for all the lots;

(c)

Information concerning the purpose of the work or the contract where the latter also involves the drawing-up
of projects.

6. For services:

(a) The nature and quantity of the goods to be supplied, including any options for further procurement and, if
possible, the estimated time available for exercising these options as well as the number of renewals, if any. In
the case of recurring contracts, also,
if possible, an estimate of the timing of the subsequent calls for
competition for the services to be procured;

(b) Indication of whether the execution of the service is reserved by law, regulation or administrative provision to a

particular profession;

(c) Reference to the law, regulation or administrative provision;

(d) Indication of whether legal persons should indicate the names and professional qualifications of the staff to be

responsible for the execution of the service;

(e)

Indication of whether service providers may tender for a part of the services concerned.

7. Where known, indication of whether authorisation to submit variants exists or not.

8. Time-limits for delivery or completion or duration of service contract and, as far as possible, for starting.

9. Where appropriate, the legal form to be taken by the grouping of economic operators to whom the contract is

awarded.

10. (a) Final date for receipt of requests to participate;

(b) Address to which they should be sent;

(c) Language or languages in which they should be drawn up.

11. Final date for dispatch of invitations to tender.

12. Where applicable, any deposits and guarantees required.

13. Main terms concerning financing and payment and/or references to the provisions in which these are contained.

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14. Information concerning the economic operator's position and the minimum economic and technical conditions

required of him.

15. Criteria referred to in Article 55 to be used for award of the contract:

‘lowest price’ or ‘most economically
advantageous tender’. Criteria representing the most economically advantageous tender as well as their weighting
or, where appropriate, the order of importance of these criteria shall be mentioned where they do not appear in the
specifications or will not be indicated in the invitation to tender.

16. Where appropriate, particular conditions to which performance of the contract is subject.

17. Where appropriate, the reference to publication in the Official

the European Union of the periodic
information notice or of the notice of the publication of this notice on the buyer profile to which the contract
refers.

Journal of

18. Name and address of the body responsible for appeal and, where appropriate, mediation procedures. Precise
information concerning time-limits for lodging appeals, or, if need be, the name, address, telephone number, fax
number and e-mail address of the service from which this information may be obtained.

19. Date of dispatch of the notice by the contracting entities.

20. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by

that Office).

21. Any other relevant information.

C. NEGOTIATED PROCEDURES

1. Name, address, telegraphic address, electronic address, telephone number, telex and fax number of the contracting

entity.

2. Where appropriate, state whether the contract is reserved for sheltered workshops or whether its execution is

reserved in the context of sheltered employment programmes.

3. Nature of the contract (supplies, works or services; where appropriate, state if it is a framework agreement).

Category of service within the meaning of Annex XVII A or XVII B and description (nomenclature reference No(s)).

Where appropriate, state whether tenders are requested for purchase, lease, rental or hire purchase or any combi-
nation of these.

4. Place of delivery, site or place of performance of service.

5. For supplies and works:

(a) The nature and quantity of the goods to be supplied (nomenclature reference No(s)), including any options for
further procurement and, if possible, the estimated time available for exercising these options as well as the
number of renewals, if any. In the case of recurring contracts, also, if possible, an estimate of the timing of the
subsequent calls for competition for the goods to be procured or the nature and extent of the services to be
provided and general nature of the work (nomenclature reference No(s));

(b) Indication of whether the suppliers may tender for some and/or all the goods required.

If, for works contracts, the work or the contract is subdivided into several lots, the order of size of the different
lots and the possibility of tendering for one, for several or for all the lots;

(c) For works contracts: information concerning the purpose of the work or the contract where the latter also

involves the drawing-up of projects.

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6. For services:

(a) The nature and quantity of the goods to be supplied, including any options for further procurement and, if
possible, the estimated time available for exercising these options as well as the number of renewals, if any. In
the case of recurring contracts, also,
if possible, an estimate of the timing of the subsequent calls for
competition for the services to be procured;

(b) Indication of whether the execution of the service is reserved by law, regulation or administrative provision to a

particular profession;

(c) Reference of the law, regulation or administrative provision;

(d) Indication of whether legal persons should indicate the names and professional qualifications of the staff to be

responsible for the execution of the service;

(e)

Indication of whether service providers may tender for a part of the services concerned.

7. Where known, indication of whether authorisation to submit variants exists or not.

8. Time-limits for delivery or completion or duration of service contract and, as far as possible, for starting.

9. Where appropriate, the legal form to be taken by the grouping of economic operators to whom the contract is

awarded.

10. (a) Final date for receipt of requests to participate;

(b) Address to which they should be sent;

(c) Language or languages in which they should be drawn up.

11. Where appropriate, any deposits and guarantees required.

12. Main terms concerning financing and payment and/or references to the provisions in which these are contained.

13. Information concerning the economic operator's position and the minimum economic and technical conditions

required of him.

14. Criteria referred to in Article 55 to be used for award of the contract:

‘lowest price’ or ‘most economically
advantageous tender’. Criteria representing the most economically advantageous tender as well as their weighting
or, where appropriate, the order of importance of these criteria shall be mentioned where they do not appear in the
specifications or will not be indicated in the invitation to negotiate.

15. Where appropriate, the names and addresses of the economic operators already selected by the contracting entity.

16. Where applicable, date(s) of previous publications in the Official Journal of the European Union.

17. Where appropriate, particular conditions to which performance of the contract is subject.

18. Where appropriate, the reference to publication in the Official

the European Union of the periodic
information notice or of the notice of the publication of this notice on the buyer profile to which the contract
refers.

Journal of

19. Name and address of the body responsible for appeal and, where appropriate, mediation procedures. Precise
information concerning time-limits for lodging appeals, or, if need be, the name, address, telephone number, fax
number and e-mail address of the service from which this information may be obtained.

20. Date of dispatch of the notice by the contracting entity.

21. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by

that Office).

22. Any other relevant information.

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D. SIMPLIFIED CONTRACT NOTICE FOR USE IN A DYNAMIC PURCHASING SYSTEM (1)

1. Country of contracting entity.

2. Name and e-mail address of contracting entity.

3. Publication reference of the contract notice on the dynamic purchasing system.

4. E-mail address at which the contract documents and additional documents relating to the dynamic purchasing system

are available.

5. Subject-matter of contract: description by reference number(s) of CPV nomenclature and quantity or extent of the

contract to be awarded.

6. Timeframe for submitting indicative tenders.

(1) With a view to admission to the system in order to be able subsequently to participate in the invitation to tender for the specific

contract.

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ANNEX XIV

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

1. Name, address, telegraphic address, electronic address, telephone number, telex and fax number of the contracting

entity.

2. Where appropriate, state whether the contract is reserved for sheltered workshops or whether its execution is

reserved in the context of sheltered employment programmes.

3. Purpose of the qualification system (description of the goods, services or works or categories thereof to be procured

through the system — nomenclature reference No(s)).

4. Conditions to be fulfilled by the economic operators in view of their qualification pursuant to the system and the
methods according to which each of those conditions will be verified. Where the description of such conditions and
verification methods is voluminous and based on documents available to interested economic operators, a summary
of the main conditions and methods and a reference to those documents shall be sufficient.

5. Period of validity of the qualification system and the formalities for its renewal.

6. Reference to the fact that the notice acts as the call for competition.

7. Address where further information and documentation concerning the qualification system can be obtained (if

different from the addresses mentioned under 1).

8. Name and address of the body responsible for appeal and, where appropriate, mediation procedures. Precise
information concerning time-limits for lodging appeals, or, if need be, the name, address, telephone number, fax
number and e-mail address of the service from which this information may be obtained.

9. Where known, criteria referred to in Article 55 to be used for award of the contract:

‘lowest price’ or ‘most
economically advantageous tender’. Criteria representing the most economically advantageous tender as well as their
weighting or, where appropriate, the order of importance of these criteria, shall be mentioned where they do not
appear in the specifications or will not be indicated in the invitation to tender or to negotiate.

10. Any other relevant information.

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INFORMATION TO BE INCLUDED IN THE PERIODIC INDICATIVE NOTICE

ANNEX XV A

I. HEADINGS TO BE COMPLETED IN ALL CASES

1. Name, address, telegraphic address, electronic address, telephone number, telex and fax number of the contracting

entity or the service from which additional information may be obtained.

2. (a) For supply contracts: nature and quantity or value of the services or products to be supplied (nomenclature

reference No(s)).

(b) For works contracts: nature and extent of the services to be provided, the general characteristics of the work or

of the lots by reference to the work (nomenclature reference No(s)).

(c) For service contracts:

intended total procurement in each of the service categories listed in Annex XVII A

(nomenclature reference No(s)).

3. Date of dispatch of the notice or of dispatch of the notice of the publication of this notice on the buyer profile.

4. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by

that Office).

5. Any other relevant information.

II. INFORMATION WHICH SHOULD BE SUPPLIED WHERE THE NOTICE IS USED AS A MEANS OF CALLING FOR

COMPETITION OR PERMITS THE REDUCTION OF THE TIME-LIMITS FOR THE RECEIPT OF TENDERS

6. A reference to the fact that interested suppliers should advise the entity of their interest in the contract or contracts.

7. Where appropriate, state whether the contract is reserved for sheltered workshops or whether its execution is

reserved in the context of sheltered employment programmes.

8. Time-limit for the receipt of applications for an invitation to tender or to negotiate.

9. Nature and quantity of the goods to be supplied or general nature of the work or category of service within the
meaning of Annex XVII A and description, stating if framework agreement(s) are envisaged, including any options
for further procurement and the estimated time available for exercising these options as well as the number of
renewals, if any. In the case of recurring contracts, also, an estimate of the timing of the subsequent calls for
competition.

10. State whether purchase, lease, rental or hire-purchase or any combination of these is involved.

11. Time-limits for delivery or completion or duration of service contract and, as far as possible, for starting.

12. Address to which interested undertakings should send their expressions of interest in writing.

Time-limit for receipt of expressions of interest.

Language or languages authorised for the presentation of candidatures or tenders.

13. Economic and technical conditions, and financial and technical guarantees required of suppliers.

14. (a) Estimated date for initiating the award procedures in respect of the contract or contracts (if known);

(b) Type of award procedure (restricted or negotiated);

(c) The amount of and payment details for any sum to be paid to obtain documents concerning the consultation.

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15. Where appropriate, particular conditions to which performance of the contract is subject.

16. Name and address of the body responsible for appeal and, where appropriate, mediation procedures. Precise
information concerning time-limits for lodging appeals, or, if need be, the name, address, telephone number, fax
number and e-mail address of the service from which this information may be obtained.

17. Where known, criteria referred to in Article 55 to be used for award of the contract:

‘lowest price’ or ‘most
economically advantageous tender’. Criteria representing the most economically advantageous tender as well as their
weighting or, where appropriate, the order of importance of these criteria shall be mentioned, where they do not
appear in the specifications, or will not be indicated in the invitation to confirm interest referred to in Article 47(5)
or in the invitation tender or to negotiate.

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INFORMATION TO BE INCLUDED IN NOTICES OF PUBLICATION OF A PERIODIC INDICATIVE NOTICE
ON A BUYER PROFILE NOT USED AS A MEANS OF CALLING FOR COMPETITION

ANNEX XV B

1. Country of the contracting entity.

2. Name of the contracting entity.

3. Internet address of the ‘buyer profile’ (URL).

4. CPV Nomenclature reference No(s).

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INFORMATION TO BE INCLUDED IN THE CONTRACT AWARD NOTICE

ANNEX XVI

I. Information for publication in the Official Journal of the European Union (1)

1. Name and address of the contracting entity.

2. Nature of the contract (supplies, works or services and Nomenclature reference No(s); where appropriate state if it is

a framework agreement).

3. At least a summary indication of the nature and quantity of the products, works or services provided.

4. (a) Form of the call for competition (notice on the existence of a system of qualification; periodic notice; call for

tenders);

(b) Reference of publication of the notice in the Official Journal of the European Union;

(c) In the case of contracts awarded without a prior call for competition, indication of the relevant provision of

Article 40(3) or Article 32.

5. Award procedure (open, restricted or negotiated).

6. Number of tenders received.

7. Date of award of the contract.

8. Price paid for bargain purchases pursuant to Article 40(3)(j).

9. Name and address of the economic operator(s).

10. State, where appropriate, whether the contract has been, or may be, subcontracted.

11. Price paid or the prices of the highest and lowest tenders taken into account in the award of the contract.

12. Name and address of the body responsible for the appeal and, where appropriate, mediation procedures. Precise
information concerning the time-limit for lodging appeals, or, if need be, the name, address, telephone number, fax
number and e-mail address of the service from which this information may be obtained.

13. Optional information:

— value and share of the contract which has been or may be subcontracted to third parties,

— award criteria.

II. Information not intended for publication

14. Number of contracts awarded (where an award has been split between several suppliers).

15. Value of each contract awarded.

16. Country of origin of the product or service (Community origin or non-Community origin; if the latter, broken

down by third country).

17. Which award criteria were used (most economically advantageous; lowest price)?

(1) Information in headings 6, 9 and 11 is deemed information not intended for publication where the awarding entity considers that

publication thereof might be detrimental to a sensitive commercial interest.

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18. Was the contract awarded to a tenderer who submitted a variant, in accordance with Article 36(1)?

19. Were any tenders excluded on the grounds that they were abnormally low, in accordance with Article 57?

20. Date of transmission of the notice by the contracting entity.

21. In the case of contracts for services listed in Annex XVII B, agreement by the contracting entity to publication of the

notice (Article 43(4)).

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ANNEX XVII A (1)

SERVICES WITHIN THE MEANING OF ARTICLE 31

Category
No

Subject

1

Maintenance and repair services

CPC (1)
reference No

6112, 6122,
633, 886

CPV reference No(s)

50000000, 50100000, 50110000, 50111110, 50112000, 50112100, 50112110,
50112111, 50112120, 50112200, 50112300, 50113000, 50113100, 50113200,
50114000, 50114100, 50114200, 50115000, 50115100, 50115200, 50116000,
50116100, 50116200, 50116300, 50116400, 50116500, 50116510, 50116600,
50117000, 50117100, 50117200, 50117300, 50118000, 50118100, 50118110,
50118200, 50118300, 50118400, 50118500, 50200000, 50210000, 50211000,
50211100, 50211200, 50211210, 50211211, 50211212, 50211300, 50211310,
50212000, 50220000, 50221000, 50221100, 50221200, 50221300, 50221400,
50222000, 50222100, 50223000, 50224000, 50224100, 50224200, 50225000,
50230000, 50231000, 50231100, 50232000, 50232100, 50232200, 50240000,
50241000, 50241100, 50241200, 50242000, 50243000, 50244000, 50245000,
50246000, 50246100, 50246200, 50246300, 50246400, 50314000, 50315000,
50330000, 50331000, 50332000, 50333000, 50333100, 50333200, 50334000,
50334100, 50334110, 50334120, 50334130, 50334140, 50334200, 50334300,
50334400, 50340000, 50341000, 50341100, 50341200, 50342000, 50343000,
50344000, 50344100, 50344200, 50400000, 50410000, 50411000, 50411100,
50411200, 50411300, 50411400, 50411500, 50412000, 50413000, 50413100,
50413200, 50420000, 50421000, 50421100, 50421200, 50422000, 50430000,
50431000, 50432000, 50433000, 50510000, 50511000, 50511100, 50511200,
50512000, 50513000, 50514000, 50514100, 50514200, 50530000, 50531000,
50531100, 50531200, 50531300, 50531400, 50531600, 50532000, 50532100,
50532200, 50532300, 50532400, 50800000, 50810000, 50820000, 50821000,
50822000, 50830000, 50840000, 50841000, 50842000, 50850000, 50860000,
50870000, 50880000, 50881000, 50882000, 50883000, 50884000, 50911000,
50911100, 50911110, 50911120, 50911130, 50911200, 50911210, 50911220,
50912100, 50913100, 50913300, 50913310, 50913400, 50913500, 50913510,
50914000, 50914100, 50914200, 50914300, 50914400, 50914500, 50914600,
50920000, 50921000, 50921100, 50922000, 50923000, 50924000, 50930000,
50931000, 50931100, 50931200, 50931300, 50931400, 50932000, 50932100,
50932200, 50933000, 50934000, 50935000, 50940000, 50941000, 50942000,
50951000, 50952000, 50952100, 50952110, 50952200, 50952400, 50952500,
50960000, 50961000, 50961100, 50961110, 50961200, 50962000, 50970000,
50971000, 50971100, 50971200, 50972000, 50973000, 50973100, 50973200,
50973300, 50973400, 50974000, 50974100, 50974200, 50974300, 50975000,
50975100, 50975200, 50975300, 50976000, 50976100, 50976200, 74732000,
74732100, 74741000, 74742000, 74743000

2

3

4

5

transport

services (2),
Land
including armoured car services,
and
except
courier
transport of mail

services,

transport

Air
of
passengers and freight, except
transport of mail

services

712 (except
71235),
7512,
87304

55521200, 60110000, 60112000, 60112100, 60112200, 60112300, 60113000,
60113100, 60113310, 60113400, 60114000, 60115000, 60115100, 60115110,
60116000, 60116100, 60116200, 60116300, 60122110, 60122120, 60122130,
60122140, 60122150, 60122160, 60122161, 60122170, 60123100, 60123200,
60123300, 60123400, 60123500, 60123600, 64120000, 64121000, 64122000,
74612000

73 (except
7321)

62110000, 62122000, 62210000, 62230000, 62300000

Transport of mail by land (2) and
by air

71235,
7321

62121000

Telecommunications services

752

64200000, 64210000, 64211000, 64212000, 64213000, 64214000, 64214200,
64216000, 64216100, 64216110, 64216120, 64216130, 64216140, 64216200,
64216210, 64216300, 64221000, 64222000, 64223000, 64224000, 64225000,
64226000, 72315000, 72318000, 72511100

(1) In the event of any difference of interpretation between the CPV and the CPC, the CPC nomenclature will apply.

24.6.2003

EN

Official Journal of the European Union

C 147 E/227

6

7

8

9

10

11

12

Category
No

Subject

Financial services:
(a) insurance services
(b) banking

and

services (3)

investment

CPC (1)
reference No

ex 81, 812,
814

Computer services and related
services

84

R&D services (4)

Accounting, auditing and book-
keeping services

85

862

CPV reference No(s)

66000000, 66100000, 66110000, 66120000, 66130000, 66140000, 66200000,
66300000, 66310000, 66311000, 66312000, 66313000, 66314000, 6315000,
66316000, 66317000, 66320000, 66321000, 66330000, 66331000, 66332000,
66333000, 66334000, 66335000, 66340000, 66341000, 66342000, 66343000,
66343100, 66343200, 66350000, 66360000, 66370000, 66371000, 66372000,
66373000, 66374000, 66380000, 66381000, 66382000, 66383000, 66384000,
67200000, 67210000, 67211000, 67212000, 67220000, 67221000, 67230000,
67240000, 67250000, 67251000, 67260000

50310000, 50311000, 50311400, 50312000, 50312100, 50312110, 50312120,
50312200, 50312210, 50312220, 50312300, 50312310, 50312320, 50312400,
50312410, 50312420, 50312500, 50312510, 50312520, 50312600, 50312610,
50312620, 50313000, 50313100, 50313200, 50316000, 50317000, 50320000,
50321000, 50322000, 50323000, 50323100, 50323200, 50324000, 50324100,
50324200, 72000000, 72100000, 72110000, 72120000, 72130000, 72140000,
72150000, 72200000, 72210000, 72211000, 72212000, 72220000, 72221000,
72222000, 72222100, 72222200, 72222300, 72223000, 72224000, 72224100,
72224200, 72225000, 72226000, 72227000, 72228000, 72230000, 72231000,
72232000, 72240000, 72241000, 72243000, 72245000, 72246000, 72250000,
72251000, 72252000, 72253000, 72253100, 72253200, 72254000, 72254100,
72260000, 72261000, 72262000, 72263000, 72264000, 72265000, 72266000,
72267000, 72268000, 72300000, 72310000, 72311000, 72311100, 72311200,
72311300, 72312000, 72312100, 72312200, 72313000, 72314000, 72315100,
72316000, 72317000, 72319000, 72320000, 72321000, 72510000, 72511000,
72511110, 72512000, 72514000, 72514100, 72514200, 72514300, 72520000,
72521000, 72521100, 72540000, 72541000, 72541100, 72550000, 72560000,
72570000, 72580000, 72590000, 72591000

63368000, 73000000, 73100000, 73110000, 73111000, 73112000

74121000, 74121100, 74121110, 74121112, 74121113, 74121120, 74121200,
74121210, 74121220, 74121230, 74121240, 74121250, 74541000

Market
and
opinion polling services

research

public

864

74130000, 74131000, 74131100, 74131110, 74131120, 74131121, 74131130,
74131200, 74131300, 74131400, 74131500, 74131600, 74132000, 74133000,
74423100, 74423110

Management consulting
services (5) and related services

865, 866

73200000, 73210000, 73220000, 73300000, 74121111, 74141000, 74141100,
74141110, 74141200, 74141300, 74141400, 74141500, 74141510, 74141600,
74141610, 74141620 74141700, 74141800, 74141900, 74142200, 74150000,
74871000, 90311000, 93620000

services;

services;

Architectural
engin-
eering services and integrated
engineering
urban
planning and landscape engin-
eering services; related scientific
and technical consulting services;
technical
testing and analysis
services

867

72242000, 72244000, 74142300, 74142310, 74220000, 74221000, 74222000,
74223000, 74224000, 74225000, 74225100, 74230000, 74231100, 74231110,
74231120, 74231130, 74231200, 74231300, 74231310, 74231320, 74231400,
74231500, 74231510, 74231520, 74231521, 74231530, 74231540, 74231600,
74231700, 74231710, 74231720, 74231721, 74231800, 74231900, 74232000,
74232100, 74232110, 74232120, 74232200, 74232210, 74232220, 74232230,
74232240, 74232300, 74232310, 74232320, 74232400, 74232500, 74232600,
74233000, 74233100, 74233200, 74233300, 74233400, 74233500, 74233600,
74233700, 74240000, 74250000, 74251000, 74252000, 74252100, 74260000,
74261000, 74262000, 74262100, 74263000, 74270000, 74271000, 74271100,
74271200, 74271210, 74271220, 74271300, 74271400, 74271500, 74271700,
74271710, 74271720, 74271800, 74272000, 74272100, 74272110, 74272111,
74272112, 74272113, 74272300, 74273000, 74273100, 74273200, 74274000,
74274100, 74274200, 74274300, 74274400, 74274500, 74275000, 74275100,
74275200, 74276000, 74276100, 74276200, 74276300, 74276400, 74300000,
74310000, 74311000, 74312000, 74312100, 74313000, 74313100, 74313110,
74313120, 74313130, 74313140, 74313141, 74313142, 74313143, 74313144,
74313145, 74313146, 74313147, 74313200, 74313210, 74313220, 74874000

13

Advertising services

871

74410000, 74411000, 74412000, 78225000

C 147 E/228

EN

Official Journal of the European Union

24.6.2003

Category
No

14

Subject

Building-cleaning
property management services

services

and

CPC (1)
reference No

874, 82201
to 82206

15

Publishing and printing services
on a fee or contract basis

88442

CPV reference No(s)

70300000, 70310000, 70311000, 70320000, 70321000, 70322000, 70330000,
70331000, 70331100, 70332000, 70332100, 70332200, 70332300, 74710000,
74720000, 74721000, 74721100, 74721210, 74721300, 74722000, 74724000,
74730000, 74731000, 74744000, 74750000, 74760000, 93411200, 93411300,
93411400

74831530, 78000000, 78100000, 78110000, 78111000, 78112000, 78113000,
78113100, 78114000, 78114100, 78114200, 78114300, 78114400, 78115000,
78115100, 78116000, 78117000, 78118000, 78119000, 78120000, 78121000,
78122000, 78122100, 78123000, 78124000, 78125000, 78130000, 78131000,
78132000, 78133000, 78134000, 78135000, 78135100, 78136000, 78140000,
78141000, 78142000, 78150000, 78151000, 78152000, 78153000, 78160000,
78170000, 78180000, 78200000, 78210000, 78220000, 78221000, 78222000,
78223000, 78224000, 78230000, 78240000, 78300000, 78310000, 78311000,
78312000

16

and

disposal
Sewage
services; sanitation and similar
services

refuse

94

71221110, 74734000, 74735000, 85142200, 90000000, 90100000, 90110000,
90111000, 90111100, 90111200, 90111300, 90112000, 90112100, 90112200,
90112210, 90112300, 90113000, 90114000, 90120000, 90121000, 90121100,
90121110, 90121120, 90121130, 90121140, 90121200, 90121300, 90121310,
90121320, 90121330, 90121340, 90121400, 90122000, 90122100, 90122110,
90122111, 90122112, 90122113, 90122120, 90122121, 90122122, 90122123,
90122124, 90122130, 90122131, 90122200, 90122210, 90122220, 90122230,
90122240, 90122300, 90122310, 90122320, 90122330, 90122340, 90200000,
90210000, 90211000, 90212000, 90213000, 90220000, 90221000, 90240000,
90300000, 90310000, 90312000, 90313000, 90313100, 90313110, 90313120,
90314000, 90315000, 90315100, 90315200, 90315300, 90320000

(1) CPC nomenclature (provisional version) is used to define the scope of Directive 93/38/EEC as regards service contracts.
(2) Except for rail transport services covered by category 18.
(3) Except financial services relating to the issue, sale, purchase or transfer of securities or other financial instruments. Also excluded: contracts involving the acquisition or
rental, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon; nevertheless, financial service contracts
concluded at the same time as, before or after the contract of acquisition or rental, in whatever form, shall be subject to this Directive.

(4) Except R&D services other than those where the benefits accrue exclusively to the contracting entity for its use in the conduct of its own affairs on condition that the

service provided is wholly remunerated by the contracting entity.

(5) Except arbitration and conciliation services.

24.6.2003

EN

Official Journal of the European Union

C 147 E/229

ANNEX XVII B

SERVICES WITHIN THE MEANING OF ARTICLE 32

Category
No

Subject

CPC reference
No

CPV reference No(s)

17

Hotel and restaurant services

64

55000000, 55100000, 55200000, 55210000, 55220000, 55221000, 55240000,
55241000, 55242000, 55243000, 55250000, 55260000, 55270000, 55300000,
55310000, 55311000, 55312000, 55320000, 55321000, 55322000, 55330000,
55400000, 55410000, 55500000, 55510000, 55511000, 55512000, 55520000,
55521000, 55521100, 55522000, 55523000, 55523100, 55524000, 93410000,
93411000

18

Transport services by rail

711

60111000, 60121000, 60121100, 60121200, 60121300, 60121400, 60121500,
60121600

19

Water transport services

72

61000000, 61100000, 61110000, 61200000, 61210000, 61220000, 61230000,
61240000, 61250000, 61400000, 63370000, 63371000, 63372000, 71221120,
71221130

20

Supporting
transport services

and

auxiliary

74

62224000, 62224100, 62226000, 63000000, 63100000, 63110000, 63111000,
63112000, 63112100, 63112110, 63120000, 63121000, 63121100, 63121110,
63122000, 63200000, 63210000, 63220000, 63221000, 63222000, 63222100,
63223000, 63223100, 63223110, 63223200, 63223210, 63224000, 63225000,
63226000, 63300000, 63310000, 63311000, 63313000, 63314000, 63315000,
63320000, 63330000, 63340000, 63341000, 63341100, 63342000, 63343000,
63343100, 63344000, 63350000, 63351000, 63352000, 63353000, 63360000,
63361000, 63362000, 63363000, 63364000, 63365000, 63366000, 63366100,
63369000, 63400000, 63410000, 63420000, 63430000, 63500000, 63510000,
63511000, 63512000, 63514000, 63515000, 63516000, 63520000, 63521000,
63522000, 63523000, 63524000, 63600000, 71221140, 74322000, 93600000

21

Legal services

861

74110000, 74111000, 74111100, 74111200, 74112000, 74112100, 74112110,
74113000, 74113100, 74113200, 74113210, 74114000

Personnel placement and supply
services (1)

872

74512000, 74522000, 95100000, 95110000, 95120000, 95130000, 95131000,
95132000, 95133000

22

23

24

Investigation
security
services, except armoured car
services

and

873 (except
87304)

Education and vocational edu-
cation services

92

25

Health and social services

93

74611000, 74613000, 74614000, 74614100, 74614110, 74615000, 74620000

80000000, 80100000, 80110000, 80200000, 80210000, 80211000, 80212000,
80220000, 80300000, 80310000, 80320000, 80330000, 80340000, 80400000,
80411000, 80411100, 80411200, 80412000, 80421000, 80422000, 80422100,
80423000, 80423100, 80423110, 80423120, 80423200, 80423300, 80423320,
80424000, 80425000, 80426000, 80426100, 80426200, 80427000, 80428000,
80430000, 92312212, 92312213

60113300, 74511000, 85000000, 85100000, 85110000, 85111000, 85111100,
85111200, 85111300, 85111320, 85111400, 85111500, 85111600, 85111700,
85111800, 85112000, 85112100, 85120000, 85121000, 85121100, 85121200,
85121300, 85130000, 85131000, 85131100, 85131110, 85140000, 85141000,
85141100, 85141200, 85141210, 85141211, 85141212, 85141220, 85142000,
85142100, 85142200, 85142300, 85142400, 85143000, 85144000, 85144100,
85145000, 85146000, 85146100, 85146200, 85147000, 85148000, 85149000,
85200000, 85300000, 85310000, 85311000, 85311100, 85311200, 85311300,
85312000, 85312100, 85312200, 85312300, 85312310, 85312320, 85312330,
85312400, 85320000, 85323000

C 147 E/230

EN

Official Journal of the European Union

24.6.2003

Category
No

Subject

CPC reference
No

CPV reference No(s)

26

Recreational,
sporting services

cultural

and

96

27

Other services

(1) Except employment contracts.

74875000, 74875100, 74875200, 77310000, 77311000, 77313000, 77400000,
80413000, 80414000, 80415000, 92000000, 92100000, 92110000, 92111000,
92111100, 92111200, 92111210, 92111220, 92111230, 92111240, 92111250,
92111260, 92111300, 92111310, 92111320, 92112000, 92120000, 92121000,
92122000, 92130000, 92140000, 92200000, 92210000, 92211000, 92220000,
92221000, 92300000, 92310000, 92311000, 92312000, 92312100, 92312110,
92312120, 92312130, 92312140, 92312200, 92312210, 92312220, 92312230,
92312240, 92312250, 92320000, 92330000, 92331000, 92331100, 92331200,
92332000, 92340000, 92341000, 92342000, 92342100, 92342200, 92350000,
92351000, 92351100, 92351200, 92352000, 92352100, 92352200, 92360000,
92400000, 92500000, 92510000, 92511000, 92512000, 92520000, 92521000,
92521100, 92521200, 92521210, 92521220, 92522000, 92522100, 92522200,
92530000, 92531000, 92532000, 92533000, 92534000, 92600000, 92610000,
92620000, 92621000, 92622000

50111100, 50232110, 50246500, 50520000, 50521000, 50522000, 50523000,
50531500, 50531510, 50700000, 50710000, 50711000, 50712000, 50720000,
50730000, 50731000, 50732000, 50732100, 50740000, 50760000, 50761000,
50762000, 50911230, 50912200, 50913200, 50915000, 50915100, 50915200,
50952300, 50977000, 52000000, 52100000, 52200000, 52300000, 52400000,
52500000, 52600000, 52700000, 52800000, 52900000, 60113200, 60200000,
60210000, 60220000, 61300000, 62221000, 62222000, 62223000, 63367000,
64110000, 64111000, 64112000, 64113000, 64114000, 64115000, 64116000,
64214100, 64214400, 65000000, 65100000, 65110000, 65120000, 65130000,
65200000, 65210000, 65300000, 65310000, 65320000, 65400000, 65410000,
65500000, 67100000, 67110000, 67120000, 67121000, 67122000, 67130000,
67140000, 67300000, 70100000, 70110000, 70111000, 70112000, 70120000,
70121000, 70121100, 70121200, 70122000, 70122100, 70122110, 70122200,
70122210, 70123000, 70123100, 70123200, 70130000, 70311100, 70311200,
70333000, 71000000, 71100000, 71110000, 71120000, 71130000, 71140000,
71150000, 71160000, 71170000, 71180000, 71181000, 71211300, 71211310,
71211320, 71211400, 71211600, 71211900, 71300000, 71310000, 71311000,
71320000, 71321000, 71321100, 71321200, 71321300, 71321400, 71330000,
71331000, 71332000, 71332100, 71332200, 71333000, 71340000, 71350000,
71360000, 71380000, 74122000, 74122100, 74122200, 74271600, 74271900,
74321000, 74321100, 74420000, 74421000, 74422000, 74423000, 74423200,
74423210, 74542000, 74543000, 74731100, 74810000, 74811000, 74811100,
74811200, 74811300, 74811310, 74811320, 74811330, 74811340, 74812000,
74813000, 74820000, 74821000, 74830000, 74831000, 74831100, 74831110,
74831200, 74831210, 74831300, 74831400, 74831500, 74831510, 74831520,
74831600, 74832000, 74832100, 74841000, 74842000, 74844000, 74850000,
74851000, 74860000, 74861000, 74870000, 74872000, 74873100, 74876000,
74877000, 75000000, 75100000, 75110000, 75111000, 75111100, 75111200,
75112000, 75112100, 75120000, 75121000, 75122000, 75123000, 75124000,
75125000, 75130000, 75131000, 75131100, 75200000, 75210000, 75211000,
75211100, 75211110, 75211200, 75211300, 75220000, 75221000, 75222000,
75230000, 75231000, 75231100, 75231200, 75231210, 75231220, 75231230,
75231240, 75240000, 75241000, 75241100, 75242000, 75242100, 75242110,
75250000, 75251000, 75251100, 75251110, 75251120, 75252000, 75300000,
75310000, 75311000, 75312000, 75313000, 75313100, 75314000, 75320000,
75330000, 75340000, 76000000, 76100000, 76110000, 76111000, 76120000,
76200000, 76210000, 76211000, 76211100, 76211200, 76300000, 76310000,
76320000, 76330000, 76340000, 76400000, 76410000, 76411000, 76420000,
76430000, 76431000, 76440000, 76450000, 76460000, 76470000, 76480000,
76490000, 76491000, 76492000, 76500000, 76510000, 76520000, 76521000,
76522000, 76530000, 76531000, 77000000, 77100000, 77110000, 77120000,
77210000, 77211000, 77211100, 77211300, 77220000, 77230000, 77330000,
77500000, 77510000, 77600000, 77610000, 77700000, 78400000, 85321000,
85322000, 90114100, 90115000, 90122132, 90123000, 90123100, 90123200,
90123300, 90230000, 91000000, 91100000, 91110000, 91120000, 91130000,
91131000, 91200000, 91300000, 91310000, 91320000, 91330000, 91331000,
91331100, 92230000, 92312211, 93100000, 93110000, 93111000, 93112000,
93120000, 93121000, 93130000, 93140000, 93150000, 93160000, 93200000,
93210000, 93211000, 93220000, 93221000, 93221100, 93221200, 93221300,
93300000, 93310000, 93320000, 93330000, 93411100, 93500000, 93510000,
93511000, 93511100, 93621000, 93700000, 93710000, 93711000, 93711100,
93711110, 93711200, 93712000, 93910000, 93930000, 93940000, 93950000,
95000000, 99000000, 99100000

24.6.2003

EN

Official Journal of the European Union

C 147 E/231

INFORMATION TO BE INCLUDED IN THE DESIGN CONTEST NOTICE

ANNEX XVIII

1. Name, address, electronic address telephone, telex and fax numbers of the contracting authority and of the service

from which additional documents may be obtained.

2. Project description (nomenclature reference No(s)).

3. Nature of the contest: open or restricted.

4. In the case of open contests: final date for receipt of projects.

5. In the case of restricted contests:

(a) the number of participants envisaged, or range;

(b) where applicable, names of participants already selected;

(c) criteria for the selection of participants;

(d) final date for receipt of requests to participate.

6. Where applicable, indication of whether participation is reserved to a particular profession.

7. Criteria to be applied in the evaluation of projects.

8. Where applicable, names of the selected members of the jury.

9. Indication of whether the decision of the jury is binding on the authority.

10. Where applicable, number and value of prizes.

11. Where applicable, details of payments to all participants.

12. Indication of whether the prize-winners are permitted any follow-up contracts.

13. Name and address of the body responsible for the appeal and, where appropriate, mediation procedures. Precise
information concerning the time-limit for lodging appeals, or, if need be, the name, address, telephone number, fax
number and e-mail address of the service from which this information may be obtained.

14. Date of dispatch of the notice.

15. Date of receipt of the notice by the Office for Official Publications of the European Communities.

16. Any other relevant information.

C 147 E/232

EN

Official Journal of the European Union

24.6.2003

ANNEX XIX

INFORMATION TO BE INCLUDED IN THE RESULTS OF DESIGN CONTEST NOTICES

1. Name, address, telegraphic address and telephone, telex and fax numbers of the contracting authority.

2. Project description (nomenclature reference No(s)).

3. Total number of participants.

4. Number of foreign participants.

5. Winner(s) of the contest.

6. Where applicable, the prize(s).

7. Other information.

8. Reference of the design contest notice.

9. Name and address of the body responsible for the appeal and, where appropriate, mediation procedures. Precise
information concerning the time-limit for lodging appeals, or, if need be, the name, address, telephone number, fax
number and e-mail address of the service from which this information may be obtained.

10. Date of dispatch of the notice.

11. Date of receipt of the notice by the Office for Official Publications of the European Communities.

24.6.2003

EN

Official Journal of the European Union

C 147 E/233

ANNEX XX

FEATURES CONCERNING PUBLICATION

1. Publication of notices

(a) Notices referred to in Articles 41, 42, 43 and 63 must be sent by the contracting entities to the Office for Official
Publications of
the European Communities in the format required by Commission Directive 2001/78/EC of
13 September 2001 amending Annex IV to Council Directive 93/36/EEC, Annexes IV, V and VI to Council
Directive 93/37/EEC, Annexes III and IV to Council Directive 92/50/EEC, as amended by Directive 97/52/EC,
and Annexes XII to XV, XVII and XVIII to Council Directive 93/38/EEC, as amended by Directive 98/4/EC (Directive
on the use of standard forms in the publication of public contract notices) (1). The periodic indicative notices
referred to in Article 41(1), published on a buyer profile as described in paragraph 2(b), must also use that
format, as must the notice of such publication;

(b) Notices referred to in Articles 41, 42, 43 and 63 must be published by the Office for Official Publications of the
European Communities or by the contracting entities in the event of a periodic indicative notice published on a
buyer profile in accordance with Article 41(1).

In addition, contracting authorities may publish this information on the Internet on a ‘buyer profile’ as referred to in
point 2(b);

(c) The Office for Official Publications of the European Communities will give the contracting authority the confir-

mation referred to in Article 44(7).

2. Publication of complementary or additional information

(a) Contracting entities are encouraged to publish the specifications and the additional documents in their entirety on

the Internet;

(b) The buyer profile may include periodic indicative notices as referred to in Article 41(1), information on ongoing
invitations to tender, scheduled purchases, contracts concluded, procedures cancelled and any useful general
information, such as a contact point, a telephone and a fax number, a postal address and an e-mail address.

3. Format and modalities for the electronic transmission of notices

The format and procedure for sending notices electronically are accessible at the Internet address ‘http://simap.eu.int’.

(1) OJ L 285, 29.10.2001, p. 1 and OJ L 214, 9.8.2002, p. 1.

C 147 E/234

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Official Journal of the European Union

24.6.2003

ANNEX XXI

DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS

For the purposes of this Directive,

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

(b) ‘Technical specification’, in the case of works contracts, means the totality of the technical 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 contracting entity. These characteristics shall include levels of environmental performance, design
for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety
or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test
methods, packaging, marking and labelling, user instructions, and production processes 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 entity 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;

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:

— ‘international standard’: a standard adopted by an international 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;

— ‘national standard’: a standard adopted by a national standards organisation and made available to the general

public;

‘European technical approval’ means a favourable technical assessment of the fitness for use of a product, based on
the 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 technical approvals are issued by an
approval body designated for this purpose by the Member State;

‘Common technical specifications’ means a technical specification laid down in accordance with a procedure
recognised by the Member States which has been published in the Official Journal of the European Union;

‘Technical reference’: any product produced by European standardisation bodies, other than official standards,
according to procedures adapted to developments in market needs.

3.

4.

5.

24.6.2003

EN

Official Journal of the European Union

C 147 E/235

SUMMARY TABLE OF THE TIME-LIMITS LAID DOWN IN ARTICLE 45

ANNEX XXII

Open procedures

Time-limit for receipt of tenders
Without a periodic indicative notice

Time-limit

Electronic
transmission of
the notice

Contract
documents
available
electronically

Electronic
transmission
plus ‘electronic’
contract
documents

Effect on first
subparagraph
of paragraph 7

Effect on
second
subparagraph
of paragraph 7

52

45

47

40

none

none

With publication of a periodic indicative notice

A: Time-limit in
general

Electronic
transmission of
the notice

Contract
documents
available
electronically

Electronic
transmission
plus ‘electronic’
contract
documents

Effect on first
subparagraph
of paragraph 7

Effect on
second
subparagraph
of paragraph 7

36

29

31

24

none

none

B: Minimum
time-limit

Electronic
transmission of
the notice

Contract
documents
available
electronically

Electronic
transmission
plus ‘electronic’
contract
documents

Effect on first
subparagraph
of paragraph 7

Effect on
second
subparagraph
of paragraph 7

22

15

17

10

The period of
10 days is
extended to 15
days

The period of
17 days is
extended to 22
days

Restricted and negotiated procedures

Time-limit for the receipt of requests to participate:

General
time-limit

Electronic
transmission of
the notice

37

30

Minimum
time-limit

Electronic
transmission of
the notice

Contract
documents
available
electronically

Not applicable
(n.a.)

Contract
documents
available
electronically

Electronic
transmission
plus ‘electronic’
contract
documents

Effect on first
subparagraph
of paragraph 8

Effect on
second
subparagraph
of paragraph 8

n.a.

none

n.a.

Electronic
transmission
plus ‘electronic’
contract
documents

Effect on first
subparagraph
of paragraph 8

Effect on
second
subparagraph
of paragraph 8

22

15

n.a.

n.a.

none

n.a.

Minimum
time-limit

Electronic
transmission of
the notice

Contract
documents
available
electronically

Electronic
transmission
plus ‘electronic’
contract
documents

Effect on first
subparagraph
of paragraph 8

Effect on
second
subparagraph
of paragraph 8

15

8

n.a.

n.a.

The period of 8
days is extended
to 15 days

n.a.

C 147 E/236

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Official Journal of the European Union

24.6.2003

A: Time-limit in
general

Electronic
transmission of
the notice

Time-limit for the receipt of tenders

Contract
documents
available
electronically

Electronic
transmission
plus ‘electronic’
contract
documents

Effect on first
subparagraph
of paragraph 8

Effect on
second
subparagraph
of paragraph 8

24

n.a.

19

n.a.

n.a.

none

B: Minimum
time-limit

Electronic
transmission of
the notice

Contract
documents
available
electronically

Electronic
transmission
plus ‘electronic’
contract
documents

Effect on first
subparagraph
of paragraph 8

Effect on
second
subparagraph
of paragraph 8

10

n.a.

5

n.a.

n.a.

C: Time-limit
set by
agreement

Electronic
transmission of
the notice

Contract
documents
available
electronically

Electronic
transmission
plus ‘electronic’
contract
documents

Effect on first
subparagraph
of paragraph 8

The period of 5
days is extended
to 10 days

Effect on
second
subparagraph
of paragraph 8

n.a.

n.a.

n.a.

n.a.

n.a.

24.6.2003

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Official Journal of the European Union

C 147 E/237

ANNEX XXIII

REQUIREMENTS RELATING TO DEVICES FOR THE ELECTRONIC RECEIPT OF TENDERS, REQUESTS TO
PARTICIPATE, APPLICATIONS FOR QUALIFICATION AS WELL AS PLANS AND PROJECTS IN CONTESTS

Devices for the electronic receipt of tenders, requests to participate, applications for qualification as well as plans and
projects in contests must guarantee, through technical means and appropriate procedures, at least that:

(a) electronic signatures relating to tenders, requests to participate and applications for qualification as well as to the
forwarding of plans and projects comply with national provisions adopted pursuant to Directive 1999/93/EC (1);

(b) the exact time and date of the receipt of tenders, requests to participate, applications for qualification as well as the

submission of plans and projects can be determined precisely;

(c)

it may be reasonably ensured that, before the time-limits laid down, no-one can have access to data transmitted
under these requirements;

(d)

if that access prohibition is infringed,

it may be reasonably ensured that the infringement is clearly detectable;

(e) only authorised persons may set or change the dates for opening data received;

(f) during the various stages of the qualification procedure, the contract award procedure or contest, access to all data

submitted, or to part thereof, must be possible only through simultaneous action by authorised persons;

(g) simultaneous action by authorised persons must give access to data transmitted only after the prescribed date;

(h) data received and opened in accordance with these requirements must remain accessible only to persons authorised

to acquaint themselves therewith.

(1) Directive 1999/93/EC of the European Parliament and of the Council on 13 December 1999, a Community framework for electronic

signatures (OJ L 13, 19.1.2000, p. 12).

C 147 E/238

EN

Official Journal of the European Union

24.6.2003

ANNEX XXIV

TIME-LIMITS FOR TRANSPOSITION AND IMPLEMENTATION

Directive

Time-limits for transposition

Time-limits for implementation

93/38/EEC (OJ L 199, 9.8.1993, p. 84)

1.7.1994

Spain: 1.1.1997;
Greece and Portugal: 1.1.1998

98/4/EC (OJ L 101, 1.4.1998, p. 1)

16.2.1999

Greece and Portugal: 16.2.2000

24.6.2003

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Official Journal of the European Union

C 147 E/239

ANNEX XXV

CORRELATION TABLE (1)

This Directive

Directive 93/38/EEC

Article 1(1)

Article 1(2)(a)

Article 1(1), 1st sentence

Article 1(4), 1st sentence,

Article 1(2)(b), 1st sentence

Article 1(4)(b), 1st sentence

Article 1(2)(b), 2nd sentence

Article 14(10), 2nd sentence

Article 1(2)(c), 1st subparagraph

Article 1(4)(a)

Article 1(2)(c), 2nd subparagraph

Article 1(2)(d), 1st subparagraph

Article 1(4)(c), 1st part

Article 1(2)(d), 2nd subparagraph

Article 1(4), 2nd subparagraph

Article 1(2)(d), 3rd subparagraph

Article 1(3)(a)

Article 1(3)(b)

Article 1(4)

Article 1(5)

Article 1(6)

Article 1(5)

Article 1(7), 1st paragraph

Article 1(6), in fine

Article 1(7), 2nd paragraph

Article 1(7), 3rd subparagraph

Article 1(6), 1st sentence

Article 1(7)

Article 1(16)

Article 1(8)

Article 1(9), (a) to (c)

Article 1(9), (d)

Article 1(10)

Article 1(11)

Article 1(12)

Article 2(1)(a)

Article 2(1)(b)

Adapted

Amended

Adapted

Adapted

New

Adapted

Adapted

New

New

New

Adapted

New

New

Amended

New

Adapted

New

Adapted

Adapted

New

New

New

Article 1(14) and (15)

Deleted

Article 1(1)

Article 1(2)

(1) ‘Adapted’ indicates that the wording has been reformulated without changing the scope of the text of the repealed Directive. Changes

to the scope of the provisions of the repealed Directive are denoted by the word ‘Amended’.

C 147 E/240

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Official Journal of the European Union

24.6.2003

This Directive

Directive 93/38/EEC

Article 2(2)

Article 2(3)

Article 3(1)

Article 3(2)

Article 3(3)

Article 3(4)

Article 4(1)

Article 4(2)

Article 4(3)

Article 5(1)

Article 5(2)

Article 6

Article 7

Article 8

Article 9

Article 10

Article 11(1), 1st subparagraph

Article 11(1), 2nd subparagraph

Article 11(2)

Article 12

Article 13(1)

Article 13(2)

Article 14

Article 15

Article 16

Article 17(1)

Article 17(2)

Article 17(3)

Article 17(4)

Article 2(1)

Article 2(3)

Article 2(2)(a)(iii)

Article 2(5)(b)

Article 2(2)(a)(ii)

Article 2(5)(a)

Article 2(2)(a)(i)

Article 6(2)

Article 2(5)(a)

Article 2(2)(c)

Article 2(4)

Article 2(2)(b)

Article 2(2)(d)

Article 2(6)

Article 4(2)

Article 33(2)

Article 33(3)

Article 33(1)

Article 42a

Article 4(3)

Article 4(4)

Article 5

Article 14(1)

Article 14(2) and (6)

Article 14(13)

Article 14(9)

Article 14(11)

Adapted

Amended

Adapted

Adapted

Adapted

Adapted

Adapted

Adapted

Adapted

Amended

Amended

New

Deleted

Amended

New

Amended

Amended

Amended

Amended

New

Amended

Amended

Adapted

Amended

Adapted

24.6.2003

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Official Journal of the European Union

C 147 E/241

This Directive

Directive 93/38/EEC

Article 17(5)

Article 14(12)

Article 17(6)(a), 1st subparagraph

Article 14(10), 3rd sentence

Article 17(6)(a), 2nd subparagraph

Article 17(6)(a), 3rd subparagraph

Article 17(6)(b), 1st subparagraph

Article 17(6)(b), 2nd subparagraph

Article 17(6)(b), 3rd subparagraph

Article 14(10), 2nd subparagraph,
2nd sentence

Article 14(10), 2nd subparagraph,
3rd sentence

Article 14(10), 2nd subparagraph,
1st sentence

Article 14(10), 2nd subparagraph,
2nd sentence

Adapted

Amended

Adapted

Amended

Amended

Adapted

New

Amended

Amended

Amended

New

Article 14(7)

Article 14(8)

Article 14(4)

Article 14(3)

Article 14(5)

Article 7

Article 6(1) and (3)

Adapted

Article 10

Article 12, 1

Article 12, 2

Article 12, 3

Article 1(3)

Amended

Article 13(1), 1st subparagraph, points (a)
and (b)

Amended

Article 17(7)

Article 17(8)

Article 17(9)

Article 17(10)

Article 17(11)

Article 18

Article 19

Article 20

Article 21

Article 22(a)

Article 22(b)

Article 22(c)

Article 23(1)

Article 23(2)

Article 23(3), 1st subparagraph, point a

Article 13(1), 1st subparagraph in fine

Amended

Article 23, 1st subparagraph, points b and c

Article 23(3), 2nd subparagraph

New

New

Article 23(3), 3rd subparagraph

Article 13(1), 2nd subparagraph

Amended

Article 23(4)(a)

Article 23(4)(b)

Article 23(4) in fine

Article 13(1), 1st subparagraph, point b

Amended

New

New

C 147 E/242

EN

Official Journal of the European Union

24.6.2003

This Directive

Directive 93/38/EEC

Article 23(5)

Article 24(a)

Article 24(b)

Article 24(c)

Article 24(d)

Article 24(e)

Article 25

Article 26(a)

Article 26(b)

Article 27

Article 28

Article 29

Article 30

Article 31

Article 32

Article 33

Article 34

Article 35

Article 36 paragraph 1

Article 36(2)

Article 37

Article 38

Article 39(1)

Article 39(2)

Article 40(1)

Article 13(2)

Article 1(4), c, i

Article 1(4), c, iii

Article 1(4), c, iv

Article 1(4), c, v

Article 1(4), c, vi

Amended

Amended

Article 1(4), c, ii and Annex XVI A, footnote
2

Deleted

Article 11

Article 9(1), a

Article 9(1), b

Article 9(2)

Article 3(1)

Article 3(2)

Article 3(3) to (5)

Article 8

Article 15

Article 16

Article 17

Article 18 and Article 34(4)

Article 19

Article 34(3)

Article 27

Article 29(1)

Article 29(2)

Article 4(1)

Amended

Adapted

Adapted

Deleted

Deleted

Amended

Deleted

New

New

New

Deleted

Adapted

Amended

Adapted

Amended

New

Amended

New

Amended

24.6.2003

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Official Journal of the European Union

C 147 E/243

This Directive

Directive 93/38/EEC

Article 40(2) and (3)

Article 20(1) and (2)

Article 41(1), 1st subparagraph

Article 22(1)

Article 41(1), 2nd to 6th subparagraph

Article 41(2)

Article 41(3)

Article 42(1)

Article 42(2)

Article 22(4)

Article 30(9)

Article 21(1)

Article 42(2)(a) and (b)

Article 21(2), a and b

Article 42(2)(c), 1st sentence

Article 22(3), 1st sentence

Article 42(2)(c), 2nd sentence

Article 22(3), 2nd sentence

Article 43(1)

Article 43(2)

Article 43(3)

Article 43(4)

Article 43(5)

Article 44(1)

Article 44(2)

Article 24(1)

Article 24(2)

Article 24(3), 4th sentence

Article 24(4)

Article 24(3), 1st to 3rd sentences

Adapted

Article 44(3), 1st subparagraph

Article 44(3), 2nd subparagraph, 1st sentence

Article 25(3), 1st sentence

Article 44(3), 2nd subparagraph, 2nd sentence

Article 25(3), 2nd sentence

Article 44(4), 1st subparagraph

Article 25(2)

Article 44(4), 2nd subparagraph

Article 25(4)

Article 44(5)

Article 44(6)

Article 44(7)

Article 44(8)

Article 45(1)

Article 45(2)

Article 25(5)

Article 25(1)

Article 25(3), 3rd sentence

Article 26(1), 1st subparagraph, 1st sentence

Amended

New

Adapted

New

Adapted

Amended

Adapted

Adapted

Adapted

New

New

New

Amended

Adapted

Amended

Amended

New

New

Deleted

New

C 147 E/244

EN

Official Journal of the European Union

24.6.2003

This Directive

Directive 93/38/EEC

Article 26(2)

Adapted

Article 26(1), 2nd and 3rd sentences

Adapted

Article 45(3)

Article 45(4)

Article 45(5) to (8)

Article 45(9)

Article 45(10)

Article 46(1)

Article 46(2)

Article 47(3), i

Article 48(1)

Article 48(2)

Article 48(3)

Article 48(4)

Article 48(5)

Article 48(6)

Article 49(1)

Article 28(3)

Article 28(1)

Article 28(2)

Article 47(1), 1st sentence

Article 28(4), 1st sentence

Article 47(1), 2nd sentence, 1st indent

Article 47(1), 2nd sentence, 2nd indent

Article 28(4), 2nd sentence

Amended

Article 47(2)

Article 47(3)

Article 28(2)

Article 47(4), a to d

Article 28(4), a to d and f

Article 47(4)(e)

Article 47(4)(f)

Article 28(4)(f)

Article 28(4), e

Article 47(5), a to h

Article 21(2), c

New

Amended

New

Amended

Amended

New

New

Amended

Adapted

Deleted

Amended

New

Adapted

New

Article 28(6) 1st and 2nd sentences and 1st
indent

Amended

New

Article 28(6), 2nd and 4th indent

Amended

Article 28(5)

Article 41(3)

New

New

Amended

Amended

Article 49(2), 1st subparagraph

Article 41(4), 1st subparagraph

Amended

Article 49(2), 2nd subparagraph

Article 41(2), 2nd subparagraph

Adapted

Article 49(3)

Article 30(4)

24.6.2003

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Official Journal of the European Union

C 147 E/245

This Directive

Directive 93/38/EEC

Article 49(4)

Article 49(5)

Article 50(1)

Article 50(2)

Article 51

Article 52(1)

Article 52(2)

Article 52(3)

Article 53(1)

Article 53(2)

Article 53(3)

Article 53(4)

Article 53(5)

Article 53(6)

Article 53(7)

Article 53(8)

Article 53(9)

Article 54(1)

Article 54(2)

Article 54(3)

Article 54(4), 1st subparagraph

Article 54(4), 2nd subparagraph

Article 54(5)

Article 54(6)

Article 55(1)

Article 55(2)

Article 56

Article 30(6)

Article 30(8)

Article 41(1)

Article 41(2)

Article 30(5)

Article 32

Article 30(1)

Article 30(2)

Article 30(3)

Article 30(7)

Article 21(3)

Article 21(5)

Article 31(1)

Article 31(3)

Article 31(2)

Article 34(1)

Article 34(2)

Article 35(1) and (2)

Amended

Amended

Amended

New

Amended

Amended

New

Amended

New

New

New

New

Deleted

New

Adapted

Adapted

New

New

Amended

Deleted

New

Article 57(1) and (2)

Article 34(5), 1st and 2nd subparagraphs

Amended

C 147 E/246

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Official Journal of the European Union

24.6.2003

This Directive

Directive 93/38/EEC

Article 57(3)

Article 34(5), 3rd subparagraph

Amended

Article 58(1) and (2)

Article 36(1) and (2)

Article 58(3)

Article 36(3) and (4)

Adapted

Article 58(4) and (5)

Article 36(5) and (6)

Article 59

Article 60(1)

Article 60(2)

Article 37

Article 23(3)

Article 23(4)

Article 61(1) and (2)

Article 23(1) and (2)

Article 62(1)

Article 62(2)

Article 6(1), Article 12

Article 63(1), 1st subparagraph

Article 21(4)

Adapted

Amended

Amended

New

Amended

Article 63(1), 2nd subparagraph

Article 24(1) and (2), 2nd sentence

Adapted

Article 63(2)

Article 64

Article 65(1)

Article 65(2)

Article 65(3)

Article 66

Article 67

Article 68(1)

Article 68(2)

Article 68(3)

Article 25

Article 4(1)

Article 23(5)

Amended

New

Adapted

Article 23(6), 1st subparagraph

Article 23(6), 2nd subparagraph

Amended

Article 42

Article 39

Article 40(5)

Amended

Deleted

Amended

New

New

Amended

Amended

New

Article 69(1), 1st subparagraph

Article 14(15), 1st sentence

Article 69(1), 2nd subparagraph

Article 14(15), 2nd sentence

Article 69(2), 1st subparagraph

Article 69(2), 2nd subparagraph

Article 14(14), 1st and 2nd sentences

Amended

Article 69(3)

Article 14(14), 3rd sentence and (15), 3rd
sentence

Adapted

Article 70(1), point a

Article 40(1)

Amended

24.6.2003

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Official Journal of the European Union

C 147 E/247

This Directive

Directive 93/38/EEC

Article 70(1), point b

Article 70(1), point c

Article 70(1), point d

Article 70(1), point e

Article 70(1), points f, g and h

Article 40(2)

Article 40(3)

Article 40(3)

Article 70(1), point i

Article 40(2) and 42(2)

Article 70(1), point j

Annex I

Annex II

Annex III

Annex IV

Annex V

Annex VI

Annex VII

Annex VIII

Annex IX

Annex X

Annex XI

Annex XII

Annex XIII, A to C

Annex XIII, D

Annex XIV

Annex XV, A

Annex XV, B

Annex XVI

Annex XVII A

Annex XVII B

Article 14(16)

Article 40(4)

Article 43 and Article 44

Annex III

Annex II

Annex I

Annex VI

Annex VII

Annex IV

Annex V

Annex IX

Annex VIII

Annex XI

Annex XII

Annex XIII

Annex XIV

Annex XV

Annex XVI A

Annex XVI B

Annexes XVIII and XIX

Annexes XVII and XVIII

Adapted

Amended

Amended

New

New

Adapted

Adapted

Deleted

Deleted

Adapted

Adapted

Adapted

Adapted

Adapted

New

Adapted

Adapted

Adapted

Adapted

New

Adapted

Amended

New

Amended

Amended

New

Amended

Amended

Adapted

Amended

C 147 E/248

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Official Journal of the European Union

24.6.2003

This Directive

Directive 93/38/EEC

Annex XX, point 1(a)

Annex XX, point 1(b)

Article 25(2)

Annex XX, point 1(c)

Annex XX, points 2 and 3

Annex XXI, point 1

Annex XXI, point 2, 1st sentence

Annex XXI, point 2, 1st indent

Article 1(8)

Article 1(9)

Annex XXI, point 2, 2nd indent

Article 1(10)

Article 1(12)

Article 1(11)

Article 1(13)

Annex XXI, point 2, 3rd indent

Annex XXI, point 3

Annex XXI, point 4

Annex XXII

Annex XXIII

Annex XXIV

Annex XXV

New

Amended

New

New

Amended

Adapted

New

Amended

New

Amended

Deleted

New

New

New

New

24.6.2003

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Official Journal of the European Union

C 147 E/249

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 11 July 2000, the Commission presented its proposal for a Directive of the European Parliament
and the Council coordinating the procurement procedures of entities operating in the water, energy and
transport sectors (‘utilities’ Directive) (1). The proposal is based on Articles 47 (2), 55 and 95 of the
Treaty.

The European Parliament delivered its Opinion at first reading on 17 January 2002 (2).

The Economic and Social Committee has given its Opinion on 26 April 2001 (3).

The Committee of Regions has given its Opinion on 13 December 2000 (4).

On 30 September 2002, the Council reached a political agreement with a view to adopting a common
position in accordance with Article 251 (2) of the Treaty.

On 20 March 2003 the Council adopted its common position on the proposal as set out in doc.
12634/02 MAP 38 CODEC 1180.

II. OBJECTIVE

The objective of the Commission's proposal is to simplify and modernize the existing legal framework
for public procurement in the sectors concerned adapting it to the gradual
liberalisation in those
sectors. The Council has pursued this objective by aligning, where relevant, a number of provisions
to those of the ‘classical’ Directive (see document 11029/02) and by seeking to ensure a maximum
degree of flexibility, taking into account the specificities of the individual sectors.

III. ANALYSIS OF THE COMMON POSITION (5)

1. General

The common position maintains the objective of the Commission's proposal, integrating a number of
EP amendments which all contribute in a useful way to the further clarification of the objective. Some
of those amendments have also been accepted by the Commission in its modified proposal (COM
(2002) 235) (6). Like in the ‘classical’ directive, certain new features have been introduced, such as
electronic auctions and dynamic purchasing systems.

The Council has sought to further underline the relationship between the two directives by including
the postal services sector in the ‘utilities’ directive and by adapting the provisions accordingly.

2. European Parliament amendments

The Council has been able to accept several of the European Parliament amendments and has incor-
porated them in the text of the common position. Some amendments have been accepted in substance
In some other cases the Council has only accepted parts of the
but not in the exact wording.
amendments and other amendments have been rejected.

(1) OJ C 29 E, 30.1.2001, p. 112.
(2) OJ C 271 E, 7.11.2002, p. 293.
(3) OJ C 193, 10.7.2001, p. 1.
(4) OJ C 144, 16.5.2001, p. 20.
(5) The numbering of articles refers to the result of the first reading of Parliament (doc. 5307/02) or, where it is specially

indicated (now . . .) to the Common Position (doc. 12634/02).

(6) OJ C 203 E, 27.8.2002, p. 183.

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It should, however, be stressed that the alignment of some important provisions to those of the
‘classical’ has made it possible for the Council to accept a number of amendments which had only
been suggested for the ‘classical’ directive.

2.1. The following European Parliament amendments have been accepted by the Council and have been integrated

into the text

Amendment 111 — New recital 2a, now recital 13 (Reference to some objectives mentioned as such in
the Treaty)

The Council has accepted the mentioning of some important Treaty objectives in order to clarify the
relationship to the procurement provisions as a useful addition to the original proposal.
It has,
however, introduced some slight modifications in the wording.

Amendment 8 — Recital 42, now: recital 55 (Inclusion of engineers)

This amendment has been accepted in line with the common position on the ‘classical’ directive.

Amendment 21 — Article 19, paragraph 6 point a, now: Article 17, paragraph 10 (Inclusion of other
forms of remuneration)

Accepted.

Amendment 43 — Article 38 (title), now: Article 39 (title) (Inclusion of environmental protection into
the title)

The Council has accepted the amendment and aligned the text to the wording of the ‘classical’ directive.

Amendment 70 — Article 55, paragraph 1, now: Article 57, paragraph 1 (Reasons for low tenders for
all types of contracts)

The Council has accepted the amendment as a useful clarification and has introduced only an editorial
change.

Amendments 78, 79 and 80 — Annex XII, Part A, point 21a (now: Annex XIII, A, point 21); Annex
XII, Part B, point 19a (now: Annex XIII, B, point 19); Annex XII, Part C, point 20a (now: Annex XIII, C,
point 19). (Additional information on body for appeal)

The Council has introduced this amendment in the relevant parts of the annex with a minor editorial
change, considering that it provides a useful increase of transparency.

Amendments 81, 82 and 83 — Annex XIII, point 7 a, now: Annex XIV, point 8; Annex XIVa, point
14a; now: Annex XVa, A, point 16; Annex XV, point 20a, now: Annex XVI, point 12 (Additional
information on body for appeal)

See reasoning regarding amendments 78, 79 and 80.

Amendments 85 and 86 — Annex XVII, point 15 a, now Annex XVIII, point 14; Annex XVIII, point
10a, now: Annex XIX, point 9 (Additional information on body for appeal)

See reasoning regarding amendments 78, 79 and 80.

2.2. The following European Parliament amendments have been accepted in principle, but with modifications

Amendments 89 and 96 — New recital 3a, now recital 12 (Integration of environmental protection
and sustainable development as a horizontal policy into all relevant Community legislation)

The Council has accepted the amendment with some modifications in line with the provisions in the
body of the text.

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Amendment 4 — New recital 4a (Conditions referring to social and employment policy objectives)

The Council has accepted important parts of the objectives of the amendment and has inserted wording
to this effect in the new recital 43. This has been done also in order to maintain a high degree of
parallelism with the corresponding recitals of the ‘classical’ directive.

Amendment 6 — Recital 28, now: recital 32 (Extension of the mentioned provisions on affiliated
undertakings to other types of contracts and to joint ventures)

The Council has accepted the European Parliament amendment, reformulating it
in
coherence with the text of the provision itself. Further explanations have been added to clarify the
provision.

to bring it

Amendment 7 — Recital 34, now: recital 41 (General provisions on the equivalence of tenders)

The Council has accepted the objectives of the European Parliament amendment and has introduced it
with some modification in the wording.

Amendment 9 — New recital 42a, (not taken on board as a separate recital) (Abnormally low tenders
following from disregard of social provisions)

The Council has acknowledged the substance of the European Parliament amendment, but has not seen
any strong reason to add a separate recital, given that the re-structured Article 57, point 1 d) in
substance states the same thing.

Amendments 13 and 16 — Article 2, paragraph 2 a) and b); Article 6a (new), now: Article 6 (Inclusion
of postal services)

The Council has taken on board the inclusion of ‘postal services’. However, the scope and the detailed
provisions concerning the postal sector have been modified in order to ensure a maximum degree of
coherence between the two directives and to obtain the necessary flexibility, which the amendments
also call for, and to ensure legal certainty.

Amendment 18 — Article 10, now: Article deleted in the course of re-structuring (Cumulative
fulfilment of requirements by different economic operators)

The Council has accepted the substance of the amendment. For reasons of legal technique, however, the
Council has chosen to include this by adjusting the provisions in Article 53 (4) and (5) as well as
Article 54 (5) and (6).

Amendment 22 — Article 19, paragraph 7, point b), now: Article 17, paragraph 1 (Clause on tacit
renewal of contracts)

The Council has accepted the substance of the amendment, but included all renewals of contracts in
Article 17 (1), in line with the similar provision in the ‘classical’ directive.

Amendment 26 — Article 26, now: Article 23 (Applicability of the provisions on affiliated under-
takings and joint ventures to all types of contracts)

The Council has accepted the substance of the amendment and has taken on board the contents
through a re-structuring of Article 23 (see also reasoning regarding amendment 6).

Amendments 27 and 28 — Article 26, now: Article 23 (Provisions applicable to affiliated undertakings
and joint ventures)

The Council has accepted the main aspect of the amendment — the extension of this provision to all
three types of contracts — and has incorporated it by restructuring Article 23 (see also reasoning
regarding amendments 6 and 26).

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Amendment 29 — Article 27, now: Article 26 (Exclusion for contracts on the supply of energy or
fuels)

The Council has accepted the amendment, but has introduced modifications of the wording, which do
not affect the substance.

Amendments 99 and 118 — Article 34, paragraph 5, sub-paragraph 1 (Proof of equivalence regarding
technical standards)

The Council has accepted the substance of the amendment. The concept according to which it is up to
the tenderer to deliver the proof of equivalence has, however, been expressed in a different wording.

Amendments 91 and 98 — Article 34, paragraph 3, sub-paragraph 1, now: paragraph 6 (European
eco-labels, national and pluri-national standards as technical specifications)

The Council has accepted the substance of the amendment, but has preferred to lay down the
conditions on those labels and standards as technical specifications in a new paragraph 6.

Amendment 35 — Article 34, paragraph 3, sub-paragraph 2, now: paragraph 6 (Scope of performance
and functional requirements)

The Council has accepted the substance of the amendment but has preferred to specify how and to
which extent environmental considerations may be taken into account in the new paragraph 6 and in
Annex XX (see also reasoning regarding amendments 91 and 98).

Amendments 38 and 100 — Article 34, paragraph 5, subparagraph 2 and paragraph 6, now:
paragraph 4 and 5 (Interpretation of ‘appropriate means’)

The Council has accepted part of the amendment and its main substance but has changed the wording
in order to keep the functionality similar to the ‘classical’ directive.

Amendment 40 — Article 34, paragraph 7, now: paragraph 8 (References to specific sources or a
particular process)

The Council has been in a position to accept part of the European Parliament amendment insofar as it
can be interpreted as excluding references to specific producers or suppliers but making possible
references to specific production processes in order to pursue the objective of ‘sustainable devel-
opment’. By adding the new wording ‘unless justified by the subject-matter of the contract’, the text
of the common position makes references to specific production processes possible, if justified by the
type of contract and if not excluding for the tenderers the possibility of proof of equivalence. In this
way the Council has sought to integrate the substance of the European Parliament amendment.

Amendment 33 — Article 33, paragraph 3, now: Article 38 (Conditions regarding the performance of
the contract)

The Council has accepted part of the amendment but has included it in Article 38 (new) in a general
wording.

Amendment 50 — Article 47, paragraph 1, subparagraph 2 a (new), now: Article 48, paragraph 1
(Electronic signature)

As far as the use of electronic signatures and the confidentiality of transmitted data are concerned, the
Council has accepted the underlying concern as such but has preferred to do so through the provisions
of Annex XXIII (new). The Council considers, however, that these legitimate concerns are adequately
protected through this Annex and that the obligatory use of encryption would not be appropriate.

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Amendment 51 — Article 47, paragraph 2, now: Article 48, paragraph 3 (Additional requirement
ensuring adequate data protection)

The Council has integrated part of the amendment by extending the requirement to the storage of
information.

Amendment 53 — Article 48, paragraph 4, now: Article 49, paragraph 4 (Information on refusal
within a certain time period)

The Council has accepted the substance of this amendment and has decided to integrate an even stricter
requirement in order to enhance transparency even further.

Amendment 57 — Article 52, paragraph 2, subparagraph 2a (new), now: Article 53, paragraph 3
(Personal exclusion reasons as part of qualification system requirements)

The Council has accepted part of the European Parliament amendment but has preferred to phrase the
requirement as a Member State option for contracting authorities.

Amendment 64 — Article 53a (new) (Environmental management standards)

The Council has accepted most of the substance of the amendment and has integrated it into the new
Article 52, paragraph 3. (See also recital 52).

Amendments 67, 68 and 69 — Article 54, paragraphs 3, 4 and 5, now, Article 55 paragraph 2,
sub-paragraph 2 (Detailed provisions on information on the weighting)

The Council has acknowledged the need to make the proposed provision simpler by inserting a
simplified text in paragraph 2 and by deleting the former paragraphs 3, 4 and 5. In line with the
agreement reached on the ‘classical’ Directive, the Council has also introduced some more flexibility by
allowing contracting entities to indicate the criteria in descending order of importance in certain
justified cases.

Amendment 74 — Article 62, paragraph 1, subparagraph 2 a (new), now: Article 64 (Electronic
signature — ‘Design contests’)

As the amendments are substantially identical, see reasoning regarding amendment 50.

Amendment 75 — Article 62, paragraph 2, now: Article 64, paragraph 2 (Additional requirement
ensuring adequate data protection — ‘Design contests’)

See reasoning regarding amendment 51.

Amendment 95 — Annex XX, point 1, now: Annex XXI, paragraph 1 (Clarification on technical
specifications as far as they relate to environmental matters)

The Council has accepted only part of the amendment. In particular, it was not in a position to include
the ‘environmental impact’ as an important feature of defining a technical specification. However, in
line with the common position on the ‘classical’ directive, the wording ‘environmental performance
levels’ has been introduced.

2.3. Amendments have been rejected and have thus not been integrated into the text

Amendment 1 — Recital 2, now: recital 9 (Reference to the affordability and reliability of services in
the ‘utilities’ area)

The Council has rejected the amendment, given that this Directive does not seek to harmonise the
quality and affordability of the services offered.

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Amendment 5 — Recital 8, now: recital 10 (Reference to the fact that the provisions deal with private
and public entities)

The Council has rejected the European Parliament amendment because the proposed additions are not
considered as adding anything indispensable to the reasoning already given in the same recital.

Amendments 123 and 10 — Article 1, paragraph 7 and paragraph 7a (new), now: paragraph 4
(Definition of framework contracts)

The Council has preferred the terminology used in the original Commission proposal. The European
Parliament amendments would have diminished the necessary flexibility for contracting entities, besides
subjecting them to a stricter regime than what applies to contracting authorities under the ‘classical’
directive.

Amendment 11 — Article 1, point 9, now point 9 d) (Design contests with and/or without prizes)

The Council has rejected the idea of a mandatory award of prizes in design contests.

Amendment 106 — Article 2, paragraph 1, point a) (Inclusion of purchasing groups in the definition
of contracting authorities)

The Council has rejected the amendment since it could risk leading to legal uncertainty concerning the
distinction between ‘bodies governed by public law’ and ‘public undertakings’. However, the Council
has accepted part of the substance of the amendment by inserting a legally clear definition of ‘central
purchasing bodies’ [see Article 1(8) (new)) and operative provisions governing the possibilities of using
such purchasing bodies (see Article 29 (new)].

Amendment 14 — Article 2, paragraph 3 (Definition of special and exclusive rights)

The Council has preferred to maintain the original Commission proposal in this regard with only a
small modification of the wording.

Amendment 124 — Article 13, now: Article 14 (Provisions on framework contracts)

See explanation regarding amendments 123 and 10.

Amendment 19 — Article 14, paragraph 1a (new), now: Article 16 (Reference to some objectives
mentioned as such in the Treaty)

The Council has considered the reference to Treaty objectives as being sufficiently dealt with in recital
13 (see also reasoning regarding amendment 111).

Amendment 23 — Article 22, now: Article 21 (Contracts which are secret or which require security
measures)

The Council has not been in a position to incorporate the European Parliament amendment because it
has not considered the addition of the clause to be necessary.

Amendment 25 — Article 25 (Extension of the provision on special and exclusive rights to contracts
other than service contracts)

The Council has preferred to follow the original approach and scope as proposed by the Commission.

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Amendment 30 — Article 27, paragraph 2, now: Article 26 (Possibility of revision of legislation for
contracts covered by the first paragraph of this Article)

The Council has not been in a position to accept the European Parliament amendment considering that
there is no need for a special revision clause in this part of the directive since any revision of this
legislation must anyway be adopted pursuant to Article 251 of the Treaty.

Amendments 31 and 117 — Article 29, now: Article 30 (Procedure for establishing whether a given
activity is exposed to competition)

The Council has preferred to maintain most of the contents of the Commission proposal and has only
streamlined some of its provisions. The substance of amendment 117 has been partially accepted.

Amendment 32 — Article 33, paragraph 2 (Provisions on additional information on sub-contracting)

The Council has rejected the European Parliament amendment since the requirements in the social and
employment field — in the first instance — should apply to the main contractor, whose obligation it
will then be to ensure that subcontractors observe these prescriptions. However, the Member States
have an option to decide on a general obligation to require additional information on subcontractors.

Amendment 36 — Article 34, paragraph 3a (new) (Definition of ‘equivalent standards’)

Given that the Council already has integrated several European Parliament amendments by restruc-
turing paragraphs 3 and 6 of this Article, it has considered the wording to be clear enough and does
not see the need to introduce further qualifications of the term ‘equivalent’ (see also reasoning regarding
amendments 91, 98 and 35 above).

Amendment 120 — Article 37 (Further provisions on sub-contracting)

The Council has rejected the European Parliament amendment since it would make the text
unnecessarily complicated and conceptually difficult.

Amendment 45 — Article 39, paragraph 3, point (b), now: Article 40, paragraph 3, point (b)
(Procedure without call for competition in the case of certain research contracts)

In the view of the Council, this European Parliament amendment would not make the distinction
between research and commercial exploitation any clearer. The Council has thus preferred to maintain
the original Commission text.

Amendment 47 — Article 41, paragraph 1, sub-paragraph 1a (new), now: Article 42 (Mandatory
inclusion of
for
competition’))

relating to employment protection in the (‘call

information on obligations

The Council has not accepted this mandatory inclusion in the calls for competition. Instead, it has
preferred to provide for the insertion of information related to employment protection and working
conditions in the contract documents as an option for the contracting entities or as an obligation that
might be imposed by the Member States (see general clause in Article 38 (new)).

Amendment 48 — Article 46, paragraph 2, point (f), now: Article 47, paragraph 4 (Prohibition to
discriminate between tenderers)

The Council has rejected the European Parliament amendment since the list provided for in paragraph
4 is open anyway, which is clear from the introductory part ‘shall include at least . . .’.

Amendment 49 — Article 47, paragraph 1, subparagraph 1, now: Article 48, paragraph 1 (Choice of
the communication method by the ‘contracting authorities’)

The Council has rejected this amendment since it would oblige contracting entities to accept tenders or
other communications by electronic means even if not equipped to do so.

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Amendment 103 — Article 47, paragraph 4a (new), now: Article 48 (Certification of confidentiality on
request)

The Council has not been in a position to accept the amendment as being too difficult to handle in
practice (see also reasoning for the ‘classical directive’, amendment 75).

Amendment 52 — Article 48, paragraph 3, now: Article 49, paragraph 3 (Information on qualification
systems within a certain period)

The Council has not accepted the amendment, since the provision could then be interpreted as
imposing an obligation to complete examinations within two months, which would not be practicable
as a general rule.

Amendment 54 — Article 49, paragraph 2, now: Article 50, paragraph 2 (Information to be kept for a
certain period)

The Council has preferred to maintain the time span as envisaged in the Commission proposal in order
to avoid creating high and hardly justified costs for contracting entities.

Amendment 55 — Article 49a (new) (Review procedures)

The Council has taken the view that another clause on review procedures is not necessary. Review
procedures for alleged infringements of the procedural rules are already provided for in Directive
92/13/EEC and review procedures concerning detached workers are provided for under Directive
96/71/EC.

Amendment 56 — Article 50, paragraph 1, now: Article 51, paragraph 1 (Proof of compliance with
provisions in Article 38)

The Council has rejected the amendment as this separate requirement would not fit into the general
concept expressed in the new paragraph 1. However, the Council agrees with Parliament that applicable
social rules (including collective agreements) of course must be respected by the tenderers and that it
should be possible for the authorities to exclude tenderers not having observed the relevant social
obligations. For reasons of coherence, the Council has chosen to state this explicitly, not in the body of
the text, but in recitals 44 and 54 (new).

Amendment 58 — Article 53, paragraph 3 a (new), now: Article 54 (Sectoral provisions)

The Council has not taken over this amendment because it does not seem to be consistent with the
objective of a unified framework for procurement contracts and since it might create problems in terms
of ensuring that the Community continues to observe its international obligations pursuant to the
Global Procurement Agreement (GPA).

Amendment 109 — Article 53, paragraph 4, now: Article 54 (Mandatory criterion ‘personal reasons’)

The Council has not been in the position to render the application of these exclusion clauses obligatory
for all categories of contracting entities. (see also the reasoning with regard to amendment 57 above).

Amendment 60 — Article 53, paragraph 4a (new), now: Article 54 (Provisions on criminal
enforcement)

law

The Council has preferred to follow the Commission's proposal, which contains a cross-reference to the
list of exclusion reasons in the ‘classical’ directive.

Amendment 61 — Article 53, paragraph 4b (new), now: Article 54 (Provision on ‘official lists’)

The Council has considered the provision in question to be inappropriate to impose on all contracting
authorities, given that the framework of this directive is more flexible.

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Amendment 62 — Article 53, paragraph 4c (new), now: Article 54 (Non-interference with promotion
of social and employment policy)

The Council does not find it necessary or appropriate to integrate the suggested provision in the
directive, since it would impair the distinction between award criteria and technical specifications
and risk leading to misunderstandings.

Amendment 125 — Article 54, paragraph 1, point a, now: Article 55 (Inclusion of benefits for third
parties in contract award criteria)

In full coherence to the ‘classical’ directive, the Council has preferred to follow the Commission's
proposal to clarify that ‘economic advantage’ is to be considered from the point of view of ‘advantage
for the contracting authorities’. The Council has therefore not accepted the amendment. The Council
also considers that the term ‘justified by’ is more appropriate than ‘linked’ or ‘directly linked’. The new
wording of recital 54 provides further explanation as to how this term should be interpreted.

Amendment 66 — Article 54, paragraph 2, now: Article 55, paragraph 2 (Weighting of criteria)

The Council prefers the detailed rules for the weighting of criteria envisaged in the Commission
proposal. However,
the Council has added a provision giving flexibility in cases where such
weighting is not possible for demonstrable reasons.

Amendment 71 — Article 57, paragraph 3, now: Article 59, paragraph 3 (Extension of third country
implications to all types of contracts and to ILO standards)

The Council has not been in a position to accept the first part of the amendment since it agrees with
the Commission's proposal which is intentionally limited to service contracts. The second part of the
amendment would have entailed a commitment by the Commission to address questions which are not
the subject of the reports referred to in paragraph 2 of the article.

Amendment 73 — Article 62, paragraph 1, subparagraph 1, now: Article 64 (Choice of means of
communication)

Like in relation to amendment 49 to Article 47 (now: Article 48), the Council rejects this amendment
since it would oblige contracting entities to accept plans, projects or other communications by elec-
tronic means even if not equipped to do so.

Amendments 76 and 77 — Annex X, now: Annex XI (List of legislation referred to in Article 29 (3))

The Council has not been in a position to accept amendment 76 because it would have introduced a
legal presumption of free access to markets in the sectors concerned. Recognising, however, that where
a Member State has decided to render Directive 94/22/EC applicable to the coal sector, this should be
taken into account. The Council has chosen to clarify this in the corresponding recital. Regarding
amendment 77 the Council has not been able to accept the inclusion of Directive 91/440/EEC in
Annex X, as it is not a liberalisation directive. The Council therefore has preferred to maintain the
original wording of the Commission proposal in this regard.

Amendment 84 — Annex XVI A, Category 6, point (b) (Banking and investment services in Service
Category 6)

The Council has considered the deletion of the row for ‘banking and investment services’ as being too
far-reaching. Instead it has introduced in Article 24 and in recital 26 a similar solution to the one
chosen for the ‘classical’ directive, based on acceptance of EP amendment 37 to that latter proposal.

Amendment 88 — Annex XXI A (new) (Annex on international core labour standards)

The rejection of this amendment is consequential to the rejection of amendment 71.

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3. Important changes to the text introduced by the Council in comparison to the original

Commission's proposal

Dynamic purchasing systems and electronic auctions — now: Article 15/Article 40

The Council has introduced more detailed provisions on dynamic purchasing systems and electronic
auctions, thereby mirroring the provisions of the ‘classical’ directive and adapting the procurement
framework to techniques which have been developed and applied in a number of Member States.

Inclusion of ‘postal services’ into the ‘utilities Directive’ — now: Article 6

This inclusion seeks to take account of the liberalisation introduced in the Member States, while at the
same time clarifying which options and special arrangements are still appropriate.

Contracts awarded to affiliated undertakings and to joint ventures — now: Article 23

It has been regarded as necessary to introduce special provisions on contracts that are awarded to
affiliated undertakings and joint ventures, being a feature not uncommon in the ‘utilities’ field. By
clarifying the conditions under which contracts, awarded without calls for competition by joint
ventures of a contracting authority and other entities, are subject to the rules of the directive, a
compromise between the different legal requirements and traditions in the Member States has been
reached.

Environmental criteria as technical specifications — now: Article 34

By introducing this paragraph the Council has sought to contribute to a clarification of the use of
environmental technical specifications with the aim of giving Member States the necessary degree of
flexibility and in order to respond to practical requirements.

Decisions of the jury — now: Article 66

This provision mirrors that of
acknowledged as an important prerequisite during the procedures applied in the ‘utilities’ field.

the ‘classical directive’. The safeguarding of anonymity has been

4. Conclusion

The common position on the ‘utilities’ directive maintains the concept and objectives of
the
Commission's original proposal while integrating several of the Parliament's amendments, at least in
substance. The Council has to a large extent aligned the text of the common position on the ‘utilities’
directive to the ‘classical’ directive, hereby underlining the fact that the two directives are to be seen as
integral parts of a new legal framework for public procurement in the European Union.