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 procedures for the award of public works contracts, public supply contracts and public service contracts 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, liberalisation of the market, public contract, services contract, supplies contract, works contract

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 14.8.2003
COM(2003) 503 final

2000/0115 (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 procedures for the award of public works contracts, public supply
contracts and public service contracts

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

2000/0115 (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 procedures for the award of public works contracts, public supply
contracts and public service contracts

1.

INTRODUCTION

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

2.

BACKGROUND

Transmission of the proposal to the EP and the Council
(COM(2000) 275 final – 2000/0115(COD)) pursuant to Article 175(1)
of the Treaty:

12 July 2000

Opinion of the European Economic and Social Committee:

26 April 2001

Opinion of the Committee of the Regions:

Opinion of the European Parliament at first reading:

Council's common position:

13 December 2000

17 January 2002

20 March 2003

Opinion of the European Parliament at second reading:

2 July 2003

3.

SUBJECT OF THE PROPOSAL

The  proposal  for  a  Directive  is  aimed  at  recasting  Community  legislation  on  public
procurement,  the  objective  being  to  create  a  genuine  internal  European  market  in  this  area.
This  legislation  is  intended  not  to  replace  national  law  but  to  ensure  compliance  with  the
principles of equality of treatment, non-discrimination and transparency in the award of public
contracts in all Member States.

This  proposal,  which  follows  on  from  the  debate  launched  by  the  Green  Paper  on  Public
Procurement,  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, simplifying to make the current texts

2

more easily comprehensible for users, so that contracts  are  awarded  in complete  conformity
with  the  standards  and  principles  governing  this  area  and  the  companies  involved  are  in  a
better position to know their rights, and making procedures more flexible in order to meet the
needs of public purchasers.

Moreover,  the  recasting  of  the  three  Directives  in  force  will  make  available  to  economic
operators, contracting authorities and European citizens a single, clear and transparent text.

4.

COMMISSION  OPINION  ON  THE  AMENDMENTS  PROPOSED  BY  THE  EUROPEAN
PARLIAMENT

4.1.

Amendments accepted by the Commission: 7 and 84

Amendment 7: this amends recital 24 on the exclusion of certain audiovisual service contracts
in  order  to  clarify  that  “broadcast”  should  be  taken  to  include  also  transmission  and
distribution using any form of electronic network. This is a useful clarification.

Amendment 84: this amends point VIII of Annex III to add ANAS S.p.a. to the list of Italian
public-law bodies. The company meets the criteria laid down in the Directive for identifying
such bodies.

4.2.

Amendments accepted subject to reformulation: 9, 25 and 77

Amendment  77:  this  divides  recital  (9)  in  the  common  position  into  two  recitals,  for  which
purpose  it  introduces  a  recital  (9a).  The  Commission  thus  takes  over  this  amendment  and
modifies recital (9) accordingly in order to avoid repetitions:

"(9)

(9a)

In view of the diversity of public works contracts, contracting authorities 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 must be determined by qualitative and economic criteria, which
may be defined by national law.

A contract shall be deemed  to  be  a  public  works  contract  only  if  its  subject-matter
specifically covers the execution of activities listed in Annex  I, even if the contract
covers the provision of other services necessary for the execution of such activities.
Public service contracts, in particular in the 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 a complement thereto, the fact that such works are included
in  the  contract  does  not  justify  the  qualification  of  the  contract  as  a  public  works
contract."

Amendment  9:  this  proposes  editorial  changes  to  recital  (32).  It  is  proposed  that  this
amendment should be taken over, using the wording of the "posting of workers" Directive, as
follows:

"(32)

The  laws,  regulations  and  collective  agreements,  at  both  national  and  Community
level, which are in force in the areas of work and employment conditions and safety
at work apply during performance of a public contract, providing that such rules, and
their  application,  comply  with  Community  law.  In  cross-border  situations,  where

3

workers  from  one  Member  State  provide  services  in  another  Member  State  for  the
purpose  of  performing  a  public  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  services1  lays  down  the  minimum
conditions  which  must  be  observed  by  the  host  country  in  respect  of  such  posted
workers. If national law contains provisions to this effect, 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  public
contract."

Amendment 25: according to the justification given, this amendment changes Article 16(b) in
order to make clear that the exception must also apply to broadcasting bodies in the field of
the  Internet.  In  this  sense,  the  concerns  underlying  this  amendment  correspond  to  those
expressed in Amendment 7 (recital 24). On the other hand, the reference to "material" is not
acceptable  since  it  could  be  understood  as  extending  the  present  exclusion,  which  relates
solely to service contracts, to include supply contracts.

The Commission takes over this amendment in the following form:

"Article 16

Specific exclusions

This Directive shall not apply to public service contracts for:

…

b)

…"

4.3.

the  acquisition,  development,  production  or  co-production  of  programmes  by
broadcasters and contracts for broadcasting time.

Amendments rejected by the Commission: 1, 8, 15, 16, 18-87, 20, 23, 26, 27, 31,
33, 44, 47, 51, 52, 54, 68, 69, 70-95, and 91

Amendment 1 and Amendment 23:

Amendment  1  adds  to  recital  (2),  pointing  out  that  contracting  authorities  are  obliged  to
observe  the  principles  in  the  Treaty  even  for  contracts  which  fall  below  the  thresholds  for
application of the Directive.

Amendment  23  inserts  the  obligation  on  contracting  authorities  to  respect  the  fundamental
principles of Community law in connection with all contracts, including those falling below
the thresholds for application of the Directive.

1

OJ L 18, 21.1.1997, p. 1.

4

                                                
There  can  be  no  doubt  that,  as  has  been  recognised  in  the  well-established  case  law  of  the
Court of Justice, these principles apply to public contracts whatever their value. However, it is
not legally desirable to establish an obligation such as this under the present Directive, which
applies only above certain thresholds. For contracts below these thresholds this could lead to
legal  uncertainty  with  regard  to  the  scope  of  the  Directive  and  thus  of  the  procedural
obligations  it  lays  down.  In  addition,  for  contracts  covered  by  the  Directive  this  insertion
would be a duplication of recital (2) in the common position.

Amendment  8  and  Amendment  33:  Amendment  8  changes  recital  (27)  regarding  the
technical  specifications  to  state  that  whenever  possible  contracting  authorities  must
systematically  lay  down  and  refer  to  specifications  that  take  in  to  account  accessibility  for
people with disabilities.

Along  the  same  lines,  Amendment  33  adds  a  paragraph  6a  to  Article  23  regarding  the
technical  specifications  so  as  to  oblige  contracting  authorities  whenever  possible  to  define
their technical specifications in terms of accessibility for people with disabilities and adds that
these specifications must be clearly indicated in the contract documents.

Accessibility for people with disabilities is undoubtedly an important social aspect; however,
while  it  may  be  technically  possible  to  prescribe  this  it  would  not  be  desirable  in  all  cases.
The  fact  is  that  this  amendment  would  lead  to  a  generalisation  of  this  obligation  even  for
contracts for installations that are by nature not intended to be used by people with disabilities
(e.g. the construction of barracks or training centres for the fire service).

Furthermore, following Parliament’s first reading the common position makes it possible in a
public contract to lay down accessibility requirements for people with disabilities; this follows
from  Annexe  VI  to  the  Directive  on  the  technical  specifications.  However,  the  public  -
contracts  Directive,  the  purpose  of  which  is  to  coordinate  procedures,  is  not  the  proper
instrument for imposing an obligation to prescribe such features.

Lastly, the obligation to indicate such technical specifications only in the contract documents,
as laid down in Amendment 33, contradicts the general rule stated in Article 23(1), whereby
technical  specifications  may  be  set  out  in  the  contract  notice  (which  provides  prior
information compared with the contract documents).

Amendment 15: this changes Article 1(7), which defines an "electronic auction".

It removes:

1) as regards values other than prices, any mention that these values relate to certain elements
of tenders;

2) mention of the fact that the auction occurs after an initial full evaluation of the tenders;

3)  the  possibility  of  using  electronic  auctions  for  awarding  works  contracts  or  contracts  for
“intellectual-creative services” and other more complex services.

As regards point 1), this deletion is not acceptable, since it would allow auctions to proceed
with regard to new aspects not covered in the contract for which tenders had been invited and
would thus undermine the principle of equal treatment.

5

As regards point 2), this deletion is not acceptable, since a full initial evaluation of the tenders
by the contracting authority is indispensable to allow a subsequent reranking in the electronic
auction phase .

As regards point 3), such an exclusion is excessive, since the definition of electronic auctions
already  restricts  their  use  to  the  elements  that  are  “suitable  for  automatic  evaluation  by
electronic means, without any intervention by the contracting authority”. Furthermore, Article
54(1) of the common position allows Member States who consider it desirable to prohibit use
of this instrument or to restrict it, for example, to supply contracts only.

Amendment  16:  this  changes  Article  1(9),  adding  to  the  list  of  contracting  authorities
purchasing groups set up by such authorities.

It  thus  has  the  purpose  of  considering  central  purchasing  bodies  set  up  by  the  State,  local
authorities and bodies governed by public law to be contracting authorities. The amendment
would have the effect of qualifying any body as a contracting authority provided it had been
set up for the purpose of centralising purchases. This element would be supplementary to the
definition of central  purchasing body  already  given in Article  1(10),  which  is  based  on  two
elements: being  a contracting authority  and  acquiring  goods  and  services  intended  for  other
contracting  authorities.  The  amendment  would  introduce  a  manifest  contradiction  with  the
definition  given  in  Article  1(9),  which  lays  down  conditions  for  being  regarded  as  a
contracting authority.

Amendments 18, 87, 91 and 44: these amendments concern competitive dialogue.

Amendments  18  and  87  change  Article  1,  adding  a  paragraph  15a  with  a  definition  of  a
particularly  complex  contract  based  on  the  impossibility  of  defining  the  technical  or  other
means of meeting the contracting authority’s requirements as a result of the failure of a design
contest or other previous procedure.

Article  29  already  establishes  the  conditions  under  which  a  contract  can  objectively  be
considered  as  being  "particularly  complex".  Adding  the  requirement  of  another  procedure
prior to  the  use  of dialogue  would  lead  to  not  inconsiderable  wastage  of  time  and  money  –
both  for  public  purchasers  and  for  economic  operators  –  which  would  go  against  the
flexibility that the amendment seeks to achieve.

Amendment 91 adds to Article 29 a paragraph 1a stating that:

1)  contracting  authorities  may  make  use  of  competitive  dialogue  in  the  cases  mentioned  in
Amendments 18 and 87,

2) the award criterion must be the most economically advantageous tender.

As  regards  point  1),  this  part  of  the  amendment  is  not  acceptable  for  the  same  reasons  as
Amendments 18 and 87.

As regards point 2), this part of the amendment is superfluous because Article 29(1), second
paragraph,  states  that  "a  public  contract  shall  be  awarded  on  the  sole  basis  of  the  award
criterion of the most economically advantageous tender".

Amendment 44 changes the second paragraph of Article 29(6) in order to allow adjustments
to final bids after the dialogue phase has been concluded, provided the basic features of the
tender are not "fundamentally" changed.

6

Such changes to the proposed solutions may be made during the dialogue phase, but not at the
final offer stage, as they would be likely to give an advantage to certain tenderers rather than
others  by  reopening  the  dialogue  phase  for  some.  This  amendment  is  thus  unacceptable,
especially since it weakens the safeguard provided in the common position, which is that the
basic features of tenders may not be changed.

Amendment 20: this changes Article 6 in order to strengthen the obligations of the contracting
authority  with  regard  to  respecting  the  confidential  nature  of  the  information  supplied  by
economic operators, by imposing these obligations throughout and after the award procedure.

The absolute nature of the phrase "throughout and after the award procedure" could have the
effect  of  hindering  competition:  where  a  company  had  designed  a  project  under  a  services
contract, it would then be the only one in a position to carry out that project since the plans
could  not  be  communicated  to  any  other  applicant  or  tenderer.  Secondly,  there  could  be  a
contradiction between transparency obligations, for example vis-à-vis supervisory bodies, and
the obligations of confidentiality.

Amendment  26:  this  adds  to  Article  16  a  paragraph  1a  in  order  to  introduce  an  exemption
from the application of the Directive for the purchase of schoolbooks where the price of these
books in the contracting authority’s country is laid down by law.

The fact that there is  a  retail price laid  down  by law does not  justify non-application of the
Directive. This is because even in the absence of price competition there is nothing to prevent
the award of a contract on the basis of the criterion of the most economically  advantageous
tender. Even where the choice of works and editions is laid down centrally, it is still possible
to centre competition on aspects other than price. Economic aspects (e.g. terms of payment2 or
the coverage of transport costs) or qualitative aspects (such as delivery times in the event of
additional  purchases,  the  right  to  exchange  books  and  the  time  limits  involved,  possible
responsibility  for  storage  and  the  management  of  book  distribution,  taking  back  transport
packaging  etc.)  can  in  fact  be  used  to  identify  the  tender  that  constitutes  overall  the
economically most advantageous bid. Such cases of award on the basis of aspects other than
price are not isolated instances, and for contracts relating to certain services – e.g. architects’
services3 – the Directive explicitly provides for competition to be based on aspects other than
the fixed-tariff prices.

Amendment  27:  this  introduces  an  Article  18a  in  order  to  exclude  from  the  scope  of  the
Directive  contracts  concluded  by  a  contracting  authority  with  an  entity  over  which  it  has
complete  control  or  with  a  joint  venture  formed  by  that  contracting  authority  with  other
contracting authorities.

This amendment is intended to take account of the "Teckal" judgment and is taken over from
an amendment at first reading. The Commission had taken this over in its amended proposal,
setting out – in more detail than the Court had in its judgment – the conditions that had to be
met for a contract to be described as “in-house”, as it considered that the judgment left a large
number  of  questions  open.  The  Council  having  been  unable  to  reach  agreement  on  this
proposal, the Commission accepted that the common position should make no mention of it,
since the legislator was not in a position to provide any greater legal security. For the same

2

3

Even with identical prices, the economic assessment for a tender demanding payment on delivery is not
the same as for one allowing payment 60 days after delivery.
See  recital  45  and  the  beginning  of  Article  53(1)  "Without  prejudice  to  national  laws,  regulations  or
administrative provisions concerning the remuneration of certain services...".

7

                                                
reason  the  Commission  considers  that  the  amendment  does  not  clarify  the  conditions  for
applying this case law and that it is therefore preferable to carry on with the case law alone,
especially  because  there  will  shortly  be  further  developments  in  this  case  law  following  a
request for a preliminary ruling (case C-26/03) .

Amendment 31: this adds a subparagraph 2a to Article 23(4) on technical specifications, with
a  view  to  requiring  a  contracting  authority  that  decides  a  tender  has  not  satisfied  its
requirements in an equivalent manner  to  inform the  tenderer, on  request,  of the  grounds for
the non-equivalence.

This amendment is superfluous because this obligation is already covered by Article 41 and is
explicitly mentioned in recital (27).

Amendment  47  and Amendment 54: the  purpose  of  these  is  to  introduce  into  the  Directive
qualification systems similar to those allowed by the special-sectors Directive.

Amendment 47 introduces the possibility of launching the competition procedure by means
of a notice, the content of which is not regulated, stating that a qualification system exists. It
also  does  away  with  the  obligation  to  publish  a  contract  notice  for  the  conclusion  of  a
framework  agreement  or  for  the  award  of  a  public  contract  by  the  competitive-dialogue
procedure.

Amendment 54 introduces an Article 44a containing specific rules for qualification systems.
These provisions are closely aligned on the analogous provisions in the current special-sectors
Directive (93/38/EEC).

However, the amendment does not take over the provisions on the obligations to give reasons
for  decisions  taken  on  qualification,  nor  those  requiring  mutual  recognition  and  equal
treatment  in  connection  with  qualification  systems.  As  regards  the  selection  of  economic
operators,  the  amendment  confines  itself  to  saying  that  the  system  is  to  be  operated  on  the
basis of “objective  criteria and rules to be established by the contracting authority”, without
any  reference  to  the  general  rules  on  which  the  Directive  and  well-established  law  –  going
back  to  the  first  coordination  Directives  –  base  the  qualitative  selection  of  participants  in
contract award procedures. It should be stressed that such “objective criteria” could open the
way to not applying the compulsory exclusions for serious offences (see Article 45(1)).

The  amendment  would  result  in  an  unacceptable  loss  of  transparency  and  could  lead  to
contracts  being  reserved  for  companies  which  had  taken  note  of  the  initial  notice  since,
instead of there being as many notices as there are award procedures, there would be a single
notice announcing the existence of the system and thereby opening the competition procedure
for  all  the  contracts  that  the  system  covered.  The  qualification  system  would  in  theory  be
always open, but in practice gaining access to it would be very uncertain, as it would depend
on economic operators’ finding out about the  very  existence of the system,  which had  been
announced months or even years before.

In addition, this amendment would allow a contracting authority to take over for its own use
another  contracting  authority’s  qualification  system  without  this  being  made  public  at
Community level. The fact is that the amendment contains the obligation to inform "interested
economic operators", which seems to mean only the operators entered in the existing system.
This would  be  detrimental  to the competition procedures  for contracts and  to newly  created
businesses. It should also be noted that where it applied to “central” contracting authorities the

8

introduction  of  qualification  systems  would  be  contrary  to  the  Government  Procurement
Agreement and would place the Union in a situation breaching its international commitments.

Moreover,  Amendment  47  is  unacceptable  because,  by  making  it  possible  to  conclude
framework agreements or award contracts by means of competitive dialogue without having
published contract  notices, it  would  deprive  economic  operators  of  their  principal  source  of
information and would prevent any competitive award procedure.

Amendment  51  adds  a  new  paragraph  2a  to  Article  42  in  order  to  require  contracting
authorities to use an accredited third party to guarantee the confidentiality of the information
transmitted by tenderers.

The confidentiality of the information transmitted by tenderers would seem to be sufficiently
safeguarded by the provisions in Annex X.

Furthermore, requiring certification bodies to be accredited could cause distortions due to the
disparities between Member States with regard to accreditation.

Amendment  52  adds  a  new  paragraph  3a  to  Article  42  requiring  the  use  of  advanced
electronic signatures 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.

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 X,  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 (35) 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.

9

Amendments  70  and  95  change  Article  53(1)(a)  concerning  the  criterion  of  the  most
economically advantageous tender to:

1) remove the requirement that this tender must be the most advantageous "for the contracting
authorities";

2)  replace  "various  criteria  justified  by  the  subject  of  the  public  contract"  with  "various
criteria directly linked to the subject of the public contract";

3)  add  to  the  list  of  examples  of  criteria  relating  to  tenders  the  characteristics  "relating  to
production methods" and "the tenderer’s policy in relation to people with disabilities and its
equal treatment policy".

As regards point 1), the elimination of the words "for the contracting authorities" 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 regards point 2), 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  well-
established law, as interpreted by the Court in the Concordia bus judgment. This amendment
is  superfluous,  as  the  common  position  already  provides  the  necessary  clarifications  and
guarantees in Article 53 in conjunction with recital 44.

As  regards  point  3),  production  methods  play  a  part  in  the  broader  definition  of  the
"environmental  characteristics"  that  are  explicitly  mentioned  among  the  criteria  given  as
examples.  Since  the  production  methods  are  recognised  in  Annex  VI  as  possible  technical
specifications,  there is nothing to prevent  these  same  specifications  from  constituting  award
criteria.  It  would  therefore  be  otiose  to  mention  them  explicitly  among  the  examples  of
criteria, which are anyway not an exhaustive list.

Taking  account  of  matters  not  linked  to  the  subject-matter  of  the  contract  –  such  as  the
tenderer's policy with regard to the disabled and equal treatment – 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  only  serves  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; the purpose of taking such matters
into account would be to give preference to a "socially responsible" business, and thus award
contracts to tenderers whose bids did not necessarily represent the best value for money.

Amendment  68  introduces  a  new  article  in  order  to  force  the  Member  States  to  set  up
effective, open and transparent mechanisms to ensure implementation of the Directive. It goes
on to specify that for this purpose Member States may set up independent public procurement
agencies  with  broad  powers,  including  the  right  to  set  aside  a  contract  award  or  re-open  a
contracting process.

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This  amendment  is  partly  superfluous  and  is  inappropriate  in  the  present  Directive,  in  that
Directive  89/665/CEE  on  review  procedures  for  public  contracts  already  required  Member
States  to  provide  effective  remedies  at  national  level  with  regard  to  the  award  of  contracts
covered by the current public-procurement Directives, including interlocutory procedures and
powers  to  set  aside  decisions  taken  unlawfully  and  to  award  damages.  The  Member  States
may fulfil this obligation either by ensuring that the national courts have these powers or by
setting up bodies vested with suitable powers. The obligation that this amendment introduces
is  thus  already  the  subject  of  Community  legislation  and  does  not  need  to  be  reiterated.  In
addition, in its Internal Market Strategy the Commission announced that it would reexamine
the question of "supervisory authorities" as part of its preparatory work on revising the above-
mentioned Directive, and it has promised that a legislative proposal will be presented in the
course of 2004.

Amendment 69 changes point 1 of Annexe VII, Part A, Prior information notice, to make it
compulsory to:

1) give the contracting authority’s telephone number;

2) and, in the case of service and works contracts, give details of the departments from which
information  can  be  obtained  concerning  the  rules  and  regulations  on  taxes,  environmental
protection, employment protection and working conditions applicable in the place where the
contract is to be performed.

As regards point 1), while it is useful to give the contracting authority’s telephone number in
the  contract  notice,  this  is  not  the  case  for  the  prior  information  notice,  since  it  could  be
interpreted  as a possibility  of  entering into contact with  the  contracting  authority  before  the
contract  award  procedure  is  launched,  which  could  be  detrimental  to  the  principle  of  equal
treatment for economic operators and to a proper competition procedure for contracts.

As regards point 2), although economic operators have a legitimate interest in being properly
informed  of  their  possible  obligations,  this  obligation  would  contradict  Article  27,  under
which  giving  details  of  these  departments  is  an  option  which  only  the  Member  State
concerned  can  transform  into  an  obligation.  It  should  also  be  pointed  out  that  prior
information  notices  concern  sets  of  contracts  that  may  be  carried  out  under  differing
legislation,  e.g.  at  regional  level,  which  would  make  it  excessively  complicated  to  put  into
effect  any  obligation  to  give  details  of  all  the  departments  responsible  for  providing  the
above-mentioned information.

5.

CONCLUSION

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as set out
above.

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