Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for 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 amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2003-08-14
Institutions: European Commission
Subjects: approximation of laws, award of contract, energy policy, liberalisation of the market, postal service, services contract, transport market, water management

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 14.8.2003
COM(2003) 501 final

2000/0117 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
proposal for 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

AMENDING THE PROPOSAL OF THE COMMISSION
pursuant to Article 250 (2) of the EC Treaty

2000/0117 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
proposal for 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

1.

INTRODUCTION

Under  the  third  indent,  point  (c),  of  the  second  subparagraph  of  Article  251(2)  of  the  EC
Treaty,  the  Commission  shall  deliver  an  opinion  on  the  amendments  proposed  by  the
European  Parliament  at  second  reading.  The  Commission's  opinion  on  the  19  amendments
proposed by Parliament is given below.

2.

BACKGROUND

Transmission of the proposal to the EP and the Council
(COM(2000) 276 final – 2000/0117(COD)) pursuant to Article 175(1)
of the Treaty:

11 July 2000

Opinion of the European Economic and Social Committee:

26 April 2001

Opinion of the Committee of the Regions:

13 December 2000

Opinion of the European Parliament at first reading:

17 January 2002

Proposal amended by the Commission:

Adoption of Council's common position:

6 May 2002

20 March 2003

Opinion of the European Parliament at second reading:

2 July 2003

3.

SUBJECT OF THE COMMISSION PROPOSAL

The  proposal  for  a  Directive  coordinating  the  procurement  procedures  in  the  water,  energy,
transport and postal services sectors pursues a threefold objective of modernising, simplifying
and rendering more flexible the existing legal framework in this field: modernising in order to
take  account  of  new  technologies  and  changes  in  the  economic  environment,  including  the
liberalisations under way or set to take place in some of the activities covered, simplifying to
make the current texts more easily comprehensible, so that contracts are awarded in complete
conformity  with  the  standards  and  principles  governing  this  area  and  the  bodies  involved

2

(whether  they  are  purchasers  or  suppliers)  are  in  a  better  position  to  know  their  rights,  and
making procedures more flexible in order to meet the needs of purchasers.

4.

COMMISSION  OPINION  ON  THE  AMENDMENTS  PROPOSED  BY  THE  EUROPEAN
PARLIAMENT

4.1.

Amendments accepted by the Commission (No 15 in part)

Subject to verification, it would appear that the terminology used in certain language versions
(at least the  Italian,  Spanish, German  and  Portuguese  versions)  is  not  in  line  with  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  in  Community  postal  services  and  the
improvement  of  quality  of  service1  (the  Postal  Directive).  In  paragraph 2,  for  instance,  the
Italian version refers to a "plico postale" instead an "invio postale", while the Spanish version
refers to "la expedición" instead of "el transporte". Even though this change to Article 6 does
not concern all the language versions, the Commission can accept Amendment 15 in so far as
it concerns aligning the terminology with that used in the Postal Directive.

4.2.

Amendments rejected by the Commission (Nos 1, 7, 12, 13, 14, 15 in part, 16, 18,
28, 29, 35, 39, 40, 41, 50, 53, 54, 55 and 56)

Amendment 1 proposes 1) including a guarantee of "a high standard of  reliable services of
general interest at affordable prices" among the  aims  of the  Directive,  adding  that  2)  award
procedures must be coordinated "taking into account the overall aims laid down in Articles 2
and 6 of the EC Treaty".

1)  The  Commission  cannot  accept  this  part  of  the  amendment,  since  the  Directive  is  aimed
only at coordinating procedures for the award of contracts and does not concern the standard
of services of general interest offered in the various Member States.

2)  Recital 12  already  contains  a  reference  to  the  aims  laid  down  in  Article 6  and  the  social
aims  have  already  been  taken  into  account  at  the  appropriate  points  in  the  Directive  (for
example, in Recital 43 and Article 38 on the implementation clauses, or Article 57 as regards
verifying respect for social legislation when examining bids that seem abnormally low etc.).
Moreover, given that no reference of this kind to Article 2 of the Treaty has been proposed for
the other Directive on public procurement, acceptance of this amendment would be a source
of legal uncertainty and could lead to conclusions a contrario as to the possibilities for taking
account of the social aims.

Amendments 7 and 28  are  aimed  at  introducing,  into  the  recital  and  the  operative  part,  an
obligation - whenever possible - for public authorities to define their technical specifications
in terms of accessibility for people with disabilities and design for all requirements.

1

OJ  L  15  of  21 January 1998,  p.14,  last  amended  by  Directive  2002/39/EC  (OJ  L  176  of  5 July 2002,
p. 21).

3

                                                
Accessibility for people with disabilities is undoubtedly an important social aspect; however,
even if it may be technically possible to prescribe it, this will not be appropriate in all cases.
The  Amendment  would  make  this  obligation  apply  across  the  board  and  even  to  contracts
relating to items not intended for use by persons with disabilities, such as the construction of
barracks or training facilities for port police).

Following Parliament's first reading, the common position also makes it possible for a public
contract to contain requirements regarding accessibility for people with disabilities, thanks to
Annex XXI  to  the  Directive,  which  concerns  the  technical  specifications.  The  "Public
Procurement  Directive",  the  purpose  of  which  is  to  coordinate  procedures,  is  not,  however,
the appropriate instrument for imposing an obligation to prescribe requirements of this kind.

Amendment 12  is  aimed  at  restricting  the  field  of  application  of  electronic  auctions  by
prohibiting  their  use  for  contracts  for  works  or  certain  kinds  of  services  (described  as
"intellectual", "creative" or "complex").

Quite apart from the difficulty of defining such categories of services at Community level, the
amendment  is  unacceptable  as  it  would  be  inconsistent  with  the  delimitation  of  the  field  of
application of electronic auctions provided for in Recital 22 and Article 56. It should also be
pointed out that the possibility of banning, or restricting the scope for, electronic auctions at
national level is explicitly provided for by the common position in paragraph 1 of Article 56.

Amendment 13 is aimed at giving purchasing groups set up by the State, local authorities or
bodies  governed  by  public  law  the  status  of  contracting  authorities.  The  effect  of  this
amendment would be to regard any body whatsoever as a contracting authority provided that
it had been set up in order to centralise purchasing. This element would be in addition to the
definition  of  purchasing  groups  already  given  in  Article 1(2)(8),  which  is  based  on  two
elements  -  i.e.  being  a  contracting  authority,  and  acquiring  goods  and  services  for  other
contracting  authorities.  The  amendment  would  introduce  a  manifest  contradiction  with  the
definition  in  Article 2(1)(a),  which  lays  down  conditions  for  qualification  as  a  contracting
authority.

Amendment 14 is aimed at modifying the definition of "special or exclusive rights".

1) On the one hand, it broadens the concept by eliminating the condition that such rights must
"substantially affect[s] the ability of other undertakings to carry out such activity".

2) At the same time, it restricts the scope of the concept by inserting into the operative part a
provision  from  Recital 25,  according  to  which  rights  granted  "to  a  limited  number  of
undertakings, on the basis of objective, proportional and non-discriminatory criteria that allow
any  interested  person  who  satisfies  them  the  opportunity  to  benefit  from  them,  shall  not
constitute special or exclusive rights".

1) The broadening of the definition is not acceptable, as it would unjustifiably  make private
businesses subject to the Directive.

2)  Since  the  final  subparagraph  of  the  amendment  is  superfluous,  it  is  also  unacceptable.
Moreover,  if  this  provision  were  included  in  the  operative  part,  it  would  be  all  the  more
tempting to conclude a contrario that Community law legitimated rights granted on the basis
of subjective, disproportional and discriminatory criteria.

4

In  addition to proposing the  terminological  alignment  accepted by the  Commission  (see  4.1
above), Amendment 15 is aimed at introducing a difference in treatment between "reserved
postal  services"  and  "other  postal  services"  by  eliminating  the  difference  introduced  in  the
common position between these and "ancillary postal services".

This change is not acceptable, as it could lead to differences in treatment of postal operators
under the Directive, since operators offering the same services - in the category "other postal
services" - might or might not be covered by the Utilities Directive, depending on whether or
not  they  also  conducted  an  activity  coming  under  "reserved  postal  services".  The  common
position,  on  the  other  hand,  had  come  to  give  the  same  treatment  to  all  postal  activities,
whether reserved or  not,  and  provides  for  different  treatment  only  in  the  case  of  non-postal
("ancillary"  activities.  This  is  justified,  since  "reserved  postal  services"  and  "other  postal
services" are services of the same kind: as liberalisation of the postal sector progresses, some
services will shift from the reserved category to the "other services" category2.

Amendment  16  introduces,  into  the  operative  part,  an  obligation  on  the  part  of  contracting
entities  to  respect  the  fundamental  principles  of  Community  law  in  connection  with  all
contracts, including those falling below the thresholds for the application of the Directive.

Clearly, these principles, as repeatedly acknowledged by the Court in its case law, apply to all
public contracts irrespective of their value. It is not legally appropriate, however, to lay down
an obligation of this kind in this Directive, which applies only above certain thresholds. In the
case of contracts below these threshold, it could lead to legal uncertainty as regards the field
of application of the Directive and hence the extent of the procedural obligations it lays down.
In  the  case  of  contracts  that  are  covered  by  the  Directive,  on  the  other  hand,  this  provision
would be duplicating Recital 9 of the common position.

Amendment 18  is  aimed  at  increasing  the  obligations  of  contracting  entities  as  regards
respect  of  the  confidentiality  of  data  provided  by  the  economic  operators,  particularly  by
giving a list of the information or documents concerned and specifying that these obligations
must be respected both during and after the award procedures.

Now that the two public procurement Directives have been aligned in the common positions,
part  of  this  amendment  (the  list  of  information  or  documents  concerned)  has  already  been
taken into account. The absolute nature of the provision ("throughout the procedure and at its
end)  is  not,  however,  acceptable.  On  the  one  hand,  a  provision  of  this  kind  could  distort
competition (the business that had designed a project under a services contract would then be
the only one able to carry it out, as the plans could not be given to a different tenderer), and
on the other, there might be a conflict between the obligations of transparency (vis-à-vis the
inspection bodies) and the obligations of confidentiality.

Amendment  29  proposes  1)  adding  references  to  a  specific  producer  or  supplier  to  a
provision  that  prohibits  references  to  a  "specific  production"  other  than  on  an  exceptional
basis.  Furthermore,  it  2)  eliminates  the  condition  that  reference  to  a  specific  production  is
prohibited only if it has "the effect of favouring or eliminating certain undertakings or certain
products.".

2

Thus,  handling  of  postal  items  weighing  between  50 g  and  100 g  will  be  a  "reserved  postal  service"
until 1 January 2006, after which it will come under "other postal services".

5

                                                
This amendment is unacceptable for various reasons:

- eliminating the condition referred to in point 2), which is an aspect of the law as it stands,
would  be  to  suppress  a  provision  that  limits  the  prohibition  to  cases  in  which  the  specific
origin/production  has  a  restrictive  effect  on  participation  in  contracts.  The  reason  for  this
suppression  would appear to be  a  fear that  this  provision  would  prevent  contracting  entities
from  requiring  production  processes  that  only  a  small  number  of  economic  operators  could
provide  (e.g.  biologically-grown  or  less-polluting  products).  There  are  no  grounds  for  this
fear, as the "Concordia Bus Judgment"3 deemed such requirements to be legitimate.

- as far as point 1) is concerned,  given that Article 34 of  the  operative part  and Annex XXI
thereto already refer to "a specific make or source", a "particular process" and "specific origin
or production", the addition of references to producers or suppliers would also be superfluous.

-  finally,  if  this  amendment  were  accepted,  it  would  lead  to  inconsistency  between  the  two
Directives, given that an essentially identical amendment (No 90) has not been adopted for the
other proposal for a Directive on public procurement.

Amendment  35  is  aimed  at  increasing  the  scope  for  awarding  contracts  for  the  purpose  of
research, experiment, study or development without competition by eliminating the conditions
provided for in the law as it stands, according to which such contract may not be awarded "for
the purpose of securing a profit or of recovering research and development costs, and in so far
as  the  award  of  such  contracts  does  not  prejudice  the  competitive  award  of  subsequent
contracts which do seek, in particular, those ends".

If  these  conditions  were  eliminated,  the  amendment  would  exempt  contracts  that  currently
must be awarded competitively  from  this obligation, thus calling  the  Community patrimony
[acquis communautaire[ into question. The amendment could also create captive markets for
very long periods of time, since the application of this exception could easily be followed by
the invocation of another exception on technical grounds (compatibility, for example) so that
contracts could continue to be awarded to the tenderer who was awarded the original research
contract. The amendment is therefore unacceptable.

Amendment 39 calls for the use of  an  advanced  electronic signature within the meaning of
Directive 1999/93/EC and of reliable security if tenders submitted by electronic means are to
be accepted.

According to the justification given, the amendment "is intended to provide appropriate data
security when tenders are submitted by electronic means".

The main objective seems to be to obtain a guarantee that it will be possible to detect changes
made  to  tenders  after  they  have  been  submitted  and  thus  reconstitute  their  original  content,
and to guarantee that only authorised persons can know about the content of tenders.

3

Court  Judgment  of  17 September 2002,  Concordia  Bus  Finland  Oy  Ab,  formerly  Stagecoach  Finland
Oy Ab v Helsingin kaupunki and HKL-Bussiliikenne, Case C-513/99, ECR 2002 p. I-07213.

6

                                                
In  this  sense  the  amendment  is  superfluous,  and  it  could  on  the  contrary  hold  back  the
adaptation of the Directive to technical progress, given that there are other technical means, in
accordance  with  Annex  XXIII,  of  ensuring  the  security  of  tenders  on  reception.  In  other
words,  the  integrity  of  data  can  be  ensured  by  technical  or  organisational  means  other  than
advanced  signatures.  Since  this  a  field  where  technological  development  is  rapid,  accepting
the  amendment  would  mean  having  to  amend  the  Directive  to  take  account  of  technical
progress.

The amendment could also, however, have the purpose of guaranteeing that the identity of a
tender’s author can be established with certainty at the tender submission stage. It should be
pointed  out  that  there  is  no  such  requirement  at  Community  level  for  conventional  (non-
electronic)  tenders  and  that  the  use  of  electronic  means  of  transmission  does  not  imply  any
such  requirement.  All  the  same,  if  –  for  reasons  of  legal  security  –  a  contracting  authority
wants  to  require  this  level  of  identification  and  authentication  in  the  case  of  electronic
signatures, the Directive already offers the possibility of doing so. Indeed, recital (47) of the
common position explicitly states that Directive 1999/93/EC shall apply. As things stand, that
means that any requirement to be able to identify with certainty tenderers and their bids can
be  satisfied  by  means  of  a  reference  to  the  national  legislation  transposing  Directive
1999/93/EC,  which  ensures  that  only  an  advanced  electronic  signature  can  be  used  to  meet
these requirements.

Amendment 40  is  aimed  at  requiring  the  use  of  an  accredited  third  party  to  safeguard  the
confidentiality of data sent by tenderers.

The confidentiality of data sent by tenderers would  appear to be sufficiently safeguarded by
the provisions of Annex XXIII

Furthermore,  stipulating  that  the  certification  bodies  must  be  accredited  could  lead  to
distortions  stemming  from  differences  between 
the  various  Member  States  where
accreditation is concerned.

Amendment 41 is aimed, on the one hand, at stipulating that contracting entities must inform
economic operators  of their decisions as to qualification within two months. It  also  adds an
obligation for contracting entities to inform applicants in the month following the submission
of the application if the decision will take more than two months.

Given that the amendment would oblige contracting entities to complete their evaluation of an
application  for qualification within  two  months,  it  is  unacceptable,  since  one  of  the  reasons
for the inclusion of the qualification systems in this Directive was to take account of the fact
that the contracting entities need highly complex industrial equipment (such as railway rolling
stock), for which the technical evaluation may call for long periods of tests and analyses etc.
The  amendment  is  also  self-contradictory,  in  that  it  refers  to  a  "maximum"  period  of  two
months for decisions, while also providing for an extension of this period. The second part of
the amendment is also unacceptable, as the complexity of the equipment and the tests required
could be such that the contracting entities would not know by the end of one month whether
or not it would be possible to take a decision within two months.

Amendment  50,  as  far  as  the  criterion  of  "the  most  economically  advantageous  tender"  is
concerned, is aimed at:

1) eliminating the phrase "for the contracting entities",

7

2) eliminating the emphasis on the most "economically"* advantageous tender,

3) changing "justified by the subject-matter of the contract" to "linked to the subject-matter of
the contract",

4) adding production methods to the criteria to be taken into account, and

5) adding "the tenderer's equal treatment policy".

As  for  point  1),  the  elimination  of  the  phrase  "for  the  contracting  entities"  would  make  it
possible  to  take  account  of  vague  and  often  unquantifiable  elements  in  connection  with  a
possible benefit for "society" in the broad sense. Award criteria of this kind would no longer
perform their intended function of permitting an evaluation of the intrinsic qualities of bids in
order to identify the one that offered the purchaser the best value for money. This would also
run counter to the purpose of the public procurement Directives by creating serious risks of
inequality of treatment.

As for point 2),  these risks  would  be  greatly  aggravated if this part  of the  amendment were
taken  into  account,  and  this  would  also  be  a  fundamental  change  in  the  entire  thinking
underlying not only Community coordination as it stands and the Commission's proposal for a
Directive,  but  also  public  procurement  in  general,  which  would  be  denied  its  budgetary
function. This part of the amendment would also lead to considerable inconsistency between
the two Directives.

As for point 3), this part of the  amendment is aimed at ensuring that the new Directive will
afford the same scope for taking account of certain criteria as the existing law, as interpreted
by  the  Court  in  the  above-mentioned  Concordia  Bus  Judgment.  This  amendment  is
superfluous,  as  the  common  position  already  provides  the  necessary  clarifications  and
guarantees in Article 55 in conjunction with Recital 54.

As  for  point 4,  production  methods  come  under  the  broader  definition  of  "environmental
characteristics"  explicitly  listed  among  the  criteria  given  as  examples.  Since  production
methods are acknowledged in Annex XXI as possible technical specifications, there is nothing
to  prevent  these  same  specifications  from  constituting  award  criteria.  It  would  therefore  be
excessive to mention them explicitly among the examples of criteria, which are not exhaustive
to begin with.

As  for  point  5),  taking  account  of  matters  not  linked  to  the  subject-matter  of  the  contract  -
such as the tenderer's equal treatment policy - would run counter to the purpose of the public
procurement Directive, which is to guarantee  "healthy"  public  spending  and equal access to
public  contracts,  and  turn  it  into  an  instrument  that  excluded  other  policies.  The  tenderer's
equal  treatment  policy  does  not  permit  an  evaluation  of  the  quality  of  a  bid  with  a  view  to
determining  the  best  value  for  money;  taking  it  into  account  would  be  in  order  to  give
preference  to  a  "socially  responsible"  business,  and  perhaps  award  contracts  to  tenderers
whose bids did not represent the best value for money.

* Translator's note

The  term  "economically"  has  been  retained  in  the  English  version  of  the  amendment  despite  the  fact
that the term "économiquement" has been deleted in the French version.

8

                                                
Amendments  53  and  56  concern  Article 59.  This  provision,  currently  applicable  only  to
service  contracts,  is  intended  to  cover  any  difficulties  encountered  by  European  economic
operators in their attempts to obtain access to service contracts in third countries. Under this
provision,  the  Commission must  endeavour  to  solve  any  problems  concerning  access  to  the
contracts  of  third  countries.  The  amendment  would  extend  the  existing  provisions  to  three
types of contract, and also introduce an obligation to approach third countries if they  fail to
respect certain ILO Conventions.

There is no justification for extending the existing obligations to approach third countries to
cover supply and works contracts too, since other instruments exist for these types of contract
-  either  in  the  Directive  (see,  for  example,  Article 58),  or  under  bilateral  or  multilateral
agreements or negotiations. This aspect of the amendment is therefore not acceptable.

As  for  the  new  case  in  which  the  Commission  would  have  to  approach  a  third  country,  a
Directive  on  public  procurement  is  not  the  appropriate  instrument  for  introducing  an
obligation on the part of the Commission to monitor respect by third countries of international
labour law.

Amendment 55 would introduce a legal presumption of free access to the  railway sector in
the  event  of  implementation  and  correct  application  of  Directives 91/440/EEC  on  the
development of the Community' s railways4, Council Directive 95/18/EC of 19 June 1995 on
the licensing of railway undertakings5 and Directive 2001/14/EC of the European Parliament
and of the Council of  26  February  2001  on  the  allocation  of  railway  infrastructure  capacity
and the levying of charges for the use of railway infrastructure and safety certification6. The
amendment is linked up with the general exclusion mechanism provided for in Article 30.

This package of Directives on the railway sector does not, as it stands, constitute liberalisation
in the same sense as the other Directives quoted in Annex XI. It would also be premature to
introduce  a  legal  presumption  of  free  access  at  this  stage,  given  that  other  measures  are
currently being discussed with a view to fully liberalising goods transport by 2008.

Amendment  54,  which  addresses  a  specifically  German  situation,  would  introduce  a  legal
presumption  of  freedom  of  access  to  activities  comprising  exploration  for  and  extraction  of
coal  or  other  solid  fuels  in  the  event  of  a  Member  State  voluntarily  making  a  Directive
(94/22/EC)  relating  to  hydrocarbons  licences  applicable  to  the  coal  sector.  This  amendment
links up with the exclusion mechanism provided for in Article 30.

The introduction of a legal presumption linked to the voluntary application of a Community
Directive beyond its actual scope poses major problems in terms of legal certainty and does
not  take  into  account  the  differences  between  the  hydrocarbons  sector  and  that  of  coal  and
other  solid  fuels.  Such  a  voluntary  application  cannot  be  ignored,  however.  Moreover,
following  the  first  reading,  the  common  position  already  contains  a  Recital  (40)  making  it
clear that voluntary application of this kind constitutes a fact that has to be taken into account
for the purposes of Article 30 of the Directive.

4

5

6

OJ L 237 of 24 August 1991, p. 25, last amended by Directive 2001/12/EC, OJ L 75 of 15 March 2001,
p. 1.
OJ L 143 of 27 June 1995, p. 70, last amended by Directive 2001/13/EC, OJ L 75 of 15 March 2001,
p. 26.
OJ L 75 of 15 March 2001, p. 29.

9

                                                
5.

CONCLUSION

Under Article 250(2) of the EC Treaty, the Commission alters its proposal as described above.

10