WRITTEN QUESTION E-1727/03 by Antonio Di Pietro (ELDR) to the Commission. The Merloni Law on public procurement.
Date: 2003-05-23
Institutions: European Parliament, Provisional data
Subjects: Italy, administrative transparency, award of contract, infringement procedure (EU), provision of services, works contract

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The fact is, however, that in Italy certain categories of caretaker and janitor work up to 59 hours a week,
and up to a maximum of 11 consecutive hours per day. Moreover, it is often the case that the relevant
national collective agreements contain no reference to length of work. This too runs contrary to the
directive, which establishes that all workers have the right to know their working time.

The aim of the European working time directives is to implement the Charter of Fundamental Social
Rights of Workers, and they have as their legal basis the articles of the Treaty relating to the improvement
of the health and safety of all workers.

The European Parliament has already highlighted the problems associated with the definition of working
time provided in Directive 93/104/EEC in its report A5-0010/2002 (3), which was adopted in February
2002, and which also emphasised that reference to national
laws could give rise to grave risks of
distortions and disparities between Member States.

Does the Commission consider the exclusion of caretakers and janitors from the scope of this directive to
be justified?

How will it remedy the problems that have been encountered with regard to the definition of working
time when undertaking its forthcoming, eagerly-awaited and urgent review of Directive 93/104/EC?

(1) OJ L 307, 13.12.1993, p. 18.
(2) OJ L 195, 1.8.2000, p. 41.
(3) OJ C 284 E, 21.11.2002, p. 362.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(23 June 2003)

Directive 93/104/EC (1)
lays down minimum safety and health requirements for the organisation of
working time. According to Article 1(3) of this Directive, it applies to all sectors of activity, both public
and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Article 17 of
this Directive, with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing,
other work at sea and the activities of doctors in training. The sectors and activities excluded from
Directive 93/104/EC are now covered by Directive 2000/34/EC (2), which Member States must transpose
into national law by 1 August 2003 (1 August 2004 for doctors in training).

The exclusion from the scope of the Directive of workers other than those expressly mentioned in the
Article above would not be in compliance with the Directive.

The new Italian legislation (3) is currently being examined in order to determine whether it complies with
the Directive.

With regard to the second question, the Commission intends to address the definition of working time,
particularly in the light of the case-law of the Court of Justice, in the communication on working time
which will be adopted in the course of this year.

(1) Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working

time (cid:1) OJ L 307, 13.12.1993.

(2) Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive
93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded
from that Directive, (cid:1) OJ L 195, 1.8.2000.
Forwarded to the Commission by letter dated 14 April 2003.

(3)

(2003/C 280 E/196)

WRITTEN QUESTION E-1727/03

by Antonio Di Pietro (ELDR) to the Commission

Subject: The Merloni Law on public procurement

(23 May 2003)

In Italy, Law No 166 of 1 August 2002 on public procurement (cid:1) the so-called ‘Merloni Law’ (cid:1) abolished
the principle whereby, even in the case of contracts of under the threshold value of EUR 40 000 (the limit

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is now EUR 100 000), the ‘contracting authority must in all cases adequately publicise the call for tenders’
(phrase now deleted).

Does the Commission not consider that this change brings Italian legislation in this area into conflict with
Community Directive 92/50/EEC (1) of 18 June 1992?

Is it true that the Commission has initiated infringement proceedings against Italy in respect of this and
other aspects of the Merloni Law that contravene the principles laid down in the Treaty regarding
competition and the freedom to provide services?

If so, can it provide detailed information on the grounds, timing and current stage of the proceedings?

(1) OJ L 209, 24.7.1992, p. 1.

Answer given by Mr Bolkestein on behalf of the Commission

(4 July 2003)

Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of
public service contracts (1) applies as a general rule to contracts with an estimated value excluding VAT
equal to or more than the equivalent in EUR 200 000 special drawing rights, i.e. EUR 249 681 for 2002
and 2003. For central government departments, the Directive applies as a general rule to contracts with an
estimated value excluding VAT equal to or more than the equivalent in EUR 130 000 special drawing
rights, i.e. EUR 162 293 for 2002 and 2003. The amendment to Italian law on public works referred to by
the Honourable Member which aims to raise the threshold for the need for appropriate advertising from
EUR 40 000 to EUR 100 000 does not therefore infringe on Directive 92/50/EEC. However, as the Court of
Justice ruled in its recent case law, contracting authorities which conclude contracts are still bound to
comply with the fundamental rules of the EC Treaty, particularly those relating to the freedom of
establishment and the freedom to provide services, and also with the general principles of non-
discrimination, equality of treatment and transparency (2), even for contracts not exceeding the thresholds
set by the Community directives on public contracts. On the subject of compliance with the latter
principle, the Court stipulated that the obligation of transparency which is imposed on the contracting
authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to
enable the services market to be opened up to competition and the impartiality of procurement procedures
to be reviewed (3).

On 19 December 2002 the Commission initiated proceedings against
Italy with regard to several
provisions of Law No 109/1994 (framework law on public works), recently amended by Law No 166/
2002. One of these provisions, which appears to violate the general principle of transparency, relates to
service contracts for engineering and architecture falling below the threshold of EUR 100 000.

In addition to the provision mentioned above, the proceedings initiated by the Commission also concern
the scope of the rules on works contracts vis-à-vis those of service and supply contracts, the rules on
works carried out in order to set off development charges, provisions on works management and project
validation services, technical control services (collaudo), and the role of the promoter in the project-
financing procedure (Article 37(a) ff. of the law referred to above). The Commission will decide how to
continue with the proceedings on the basis of the remarks made by the Italian Government, which are
expected shortly.

(1) OJ L 209, 24/07/1992.
(2) See the Order of 3 December 2001, Case C-59/00, § 19-20.
(3) See in particular the Judgment of 7 December 2000, Case C-324/98, § 61-62.