Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors
Date: 2004-03-31
Institutions: Council of the European Union, European Parliament
Subjects: award of contract, energy distribution, mineral prospecting, petroleum exploration, postal service, service concession, services contract, transport lines, water

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(Acts whose publication is obligatory)

DIRECTIVE 2004/17/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 31 March 2004

coordinating the procurement procedures of entities operating in the water, energy, transport and
postal services sectors

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, 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
Committee (2),

the Economic and Social

Having regard to the Opinion of
Regions (3),

the Committee of

the

Acting in accordance with the procedure laid down in Article
251 of the Treaty (4), in the light of the joint text approved by
the Conciliation Committee on 9 December 2003,

Whereas:

(1)

On the occasion of new amendments being made to
Council Directive 93/38/EEC of 14 June 1993 coordi-
nating the procurement procedures of entities operating
in the water, energy, transport and telecommunications
sectors (5), which are necessary to meet
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, the Directive should, in the inter-
ests of clarity, be recast. This Directive is based on
Court of
in particular case-law on
award criteria, which clarifies the possibilities for the

Justice case-law,

(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. 293), Council Common Position of 20 Mars 2003
(OJ C 147 E, 24.6.2003, p. 137) and Position of the European
Parliament of 2 July 2003 (not yet published in the Official Journal).
Legislative Resolution of the European Parliament of 29 January
2004 and Decision of the Council of 2 February 2004.

(5) OJ L 199, 9.8.1993, p. 84. Directive as last amended by Commis-

sion Directive 2001/78/EC (OJ L 285, 29.10.2001, p. 1).

(2)

(3)

(4)

the needs of

contracting entities to meet
the public
concerned, including in the environmental and/or social
area, provided that such criteria are linked to the sub-
the contract, do not confer an unrest-
ject-matter of
ricted freedom of choice on the contracting entity, are
expressly mentioned and comply with the fundamental
principles mentioned in recital 9.

One major reason for the introduction of rules coordi-
nating procedures for the award of contracts in these
sectors is the variety of ways in which national autho-
rities can influence the behaviour of
these entities,
including participation in their capital and representa-
tion in the entities' administrative, managerial or super-
visory bodies.

Another main reason why it is necessary to coordinate
procurement procedures applied by the entities operat-
ing 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 concern-
ing the supply to, provision or operation of networks
for providing the service concerned.

legislation,

in particular Council
and
Community
Regulation (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 trans-
port 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
is
designed to introduce more competition between car-
riers providing air transport services to the public. It is
therefore not appropriate to include such entities in the
the competitive
scope of
this Directive.
position of Community shipping,
it would also be
inappropriate to make the contracts awarded in this
sector subject to the rules of this Directive.

transport sector (7),

In view of

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

tion (EC) No 1/2003 (OJ L 1, 4.1.2003, p. 1).

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

1994 Act of Accession.

(5)

(6)

(7)

(8)

(9)

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The scope of Directive 98/38/EEC covers, at present,
certain contracts awarded by contracting entities operat-
ing 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. One of its consequences has been the introduc-
tion 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
telecommunications services (1) 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 tele-
communications regulations of 26 November 2001. It is
therefore no longer necessary to regulate purchases by
entities operating in this sector.

It
is therefore no longer appropriate to maintain the
Advisory Committee on Telecommunications Procure-
ment set up by Council Directive 90/531/EEC of 17 Sep-
tember 1990 on the procurement procedures of entities
operating in the water, energy transport and telecom-
munications sectors (2).

(10)

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.

non-discrimination is no more than a specific expres-
sion, the principle of mutual recognition, the principle
of proportionality, as well as the principle of transpar-
ency. In view of the nature of the sectors affected by
such coordination, the latter should, while safeguarding
those principles, establish a frame-
the application of
work for sound commercial practice and should allow
maximum flexibility.

For public contracts the value of which is lower than
that triggering the application of provisions of Commu-
it is advisable to recall the case-law
nity coordination,
developed by the Court of Justice according to which
the rules and principles of the Treaties referred to above
apply.

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.

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

removes

sector

In order to guarantee the opening up to competition of
public procurement contracts awarded by entities oper-
ating in the water, energy, transport and postal services
sectors, it is advisable to draw up provisions for Com-
munity coordination of contracts above a certain value.
Such coordination is based on the requirements infer-
able from Articles 14, 28 and 49 of the EC Treaty and
from Article 97 of
the Euratom Treaty, namely the
principle of equal treatment, of which the principle of

(1) OJ C 156, 3.6.1999, p. 3.
(2) 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).

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

(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 the Treaty, in particular with
a view to promoting sustainable development. This
Directive therefore clarifies how the contracting entities
the environment
may contribute to the protection of
and the promotion of sustainable development, whilst
ensuring the possibility of obtaining the best value for
money for their contracts.

(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, pro-
vided that these measures are in conformity with the
Treaty.

life or the preservation of plant

life,

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(14)

in

of

of

on

the

the

and

expansion

conclusion

In view of

liberalisation

the Agreements

Round multilateral

Council Decision 94/800/EC of 22 December 1994
concerning
the
behalf
regards matters within its
European Community, as
the
reached
competence,
Uruguay
(1986
negotiations
to 1994) (1), approved in particular the WTO Agreement
on Government Procurement (hereinafter referred to as
the ‘Agreement’),
the aim of which is to establish a
multilateral
framework of balanced rights and obliga-
relating to public contracts with the aim of
tions
of
achieving
world trade.
the international rights and
commitments devolving on the Community as a result
of the acceptance of the Agreement, the arrangements
to be applied to tenderers and products from signatory
third countries are those defined by the Agreement. The
Agreement
The
contracting entities covered by the Agreement which
comply with this Directive and which apply the latter
third countries which are
to economic operators of
signatories to the Agreement should therefore be in
conformity with the Agreement.
It is also appropriate
that
this Directive should guarantee for Community
economic operators conditions for participation in pub-
lic procurement which are just as favourable as those
reserved for economic operators of
third countries
which are signatories to the Agreement.

effect.

direct

have

does

not

these services or

supplies are necessary for

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 contract-
ing entities place at the disposal of contractors, insofar
the
as
execution of the works in question. It should be under-
stood that,
the
services concerned are those rendered by the contracting
entities through their own personnel. On the other
the value of services contracts,
hand, calculation of
whether or not
the disposal of a
to be placed at
contractor for the subsequent execution of works, fol-
lows the rules applicable to service contracts.

the purposes of

this paragraph,

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 cate-
gories corresponding to particular headings of a com-
mon classification and by bringing them together in two
Annexes, XVII A and XVII B, according to the regime to
which they
in
Annex XVII B, the relevant provisions of this Directive
should be without prejudice to the application of Com-
munity rules specific to the services in question.

subject. As

services

regards

are

(15)

Before launching a procurement procedure, contracting
entities may, using a technical dialogue, seek or accept
the
advice which may be used in the preparation of
specifications, 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 should be determined by qualitative and econom-
ic criteria, which may be defined by national law.

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 of such activities. Service contracts,
in parti-
cular 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 con-
sequence 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 works contract.

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

(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 po-
tential for increased cross-frontier trade to be realised.
Contracts for other services need to be monitored dur-
ing this transitional period before a decision is taken on
the full application of this Directive. In this respect, the
mechanism for such monitoring needs to be defined.
This mechanism should, at the same time, enable inter-
ested parties to have access to the relevant information.

(19) Obstacles to the free provision of services should be
avoided. Therefore, service providers may be either nat-
ural or legal persons. This Directive should not, how-
ever, 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 new electronic purchasing techniques are con-
tinually being developed. Such techniques help to in-
crease 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

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and the principles of equal treatment, non-discrimina-
tion and transparency. To that extent, a tender sub-
mitted 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 elec-
tronic catalogue if the latter uses the means of commu-
nication chosen by the contracting entity in accordance
with Article 48.

are quantifiable so that they can be expressed in figures
or percentages. On the other hand,
those aspects of
tenders which imply an appreciation of non-quantifiable
elements should not be the object of electronic auctions.
Consequently, certain works contracts and certain ser-
vice contracts having as their subject-matter intellectual
performances, such as the design of works, should not
be the object of electronic auctions.

(21)

(22)

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 pur-
chases 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
the
system.
contracting entity, through the establishment 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 electronic facilities
available, and hence to ensure optimum use of funds
through broad competition.

purchasing

technique

allows

This

(23)

In view of

the large volumes purchased,

Certain centralised purchasing techniques have been
developed in Member States. Several contracting autho-
rities are responsible for making acquisitions or award-
ing contracts/framework agreements for contracting en-
tities.
those
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
treat-
the principles of non-discrimination and equal
ment, 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.

(25)

Since use of the technique of electronic auctions is likely
to increase, such auctions should be given a Community
definition and be governed by specific rules in order to
ensure that they operate fully in accordance with the
principles of equal
treatment, non-discrimination and
transparency. To that end, provision should be made
for such electronic auctions to deal only with contracts
for works, supplies or services for which the specifica-
tions can be determined with precision. Such may in
particular be the case for recurring supplies, works and
service contracts. With the same objective, it should also
be possible to establish the respective ranking of
the
the electronic auction. Re-
tenderers at any stage of
course to electronic auctions enables contracting entities
to ask tenderers to submit new prices, revised down-
wards, and, when the contract is awarded to the most
economically advantageous tender, also to improve ele-
In order to
ments of
guarantee compliance with the principle of transparency,
only the elements suitable for automatic evaluation by
electronic means, without any intervention and/or ap-
preciation by the contracting entity, may be the object
of electronic auctions, that is, only the elements which

the tenders other than prices.

for

that,

the fact

There has to be an appropriate definition of the concept
of special or exclusive rights. The consequence of the
definition is that
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 over the public highway will
not in itself constitute exclusive or special rights within
the meaning of this Directive. Nor does the fact that an
entity supplies 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 con-
stitute an exclusive or special right within the meaning
of
rights granted by a
Member State in any form, including by way of acts of
concession, 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.

this Directive. Nor may

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(26)

(27)

(28)

It is appropriate for the contracting entities to apply
common procurement procedures in respect of
their
activities relating to water and for such rules also to
apply where contracting authorities within the meaning
of
their
this Directive award contracts in respect 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.

this Directive.

already excluded from the

Certain entities providing bus transport services to the
public were
scope of
Directive 93/38/EEC. Such entities should also be ex-
cluded from the scope of
In order to
forestall the existence of a multitude of specific arrange-
ments 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.

Taking into account the further opening up of Commu-
nity postal services to competition and the fact
that
such services are provided through a network by con-
tracting authorities, public undertakings and other un-
dertakings, contracts awarded by contracting entities
providing postal services should be subject to the rules
of this Directive,
including those in Article 30, 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 2004/18/EC of the European Parliament and
of the Council of 31 March 2004 on the coordination
of procedures for the award of public works contracts,
public supply contracts and public service contracts (1).
in question,
For a definition of
is
the activities
necessary to take
the definitions of
into account
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 Commu-
nity postal services and the improvement of quality of
service (2).

it

their

Whatever
legal 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
It should therefore be permissible to defer
Directive.
application of this Directive to accommodate the addi-

(1) See page 114 of this Official Journal.
(2) OJ L 15, 21.1.1998, p. 14. Directive as last amended by Regulation

(EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

time required for

this adjustment. Given the
tional
varying situations of such entities, Member States should
have the option of providing for a transitional period
for
this Directive to contracting
entities operating in the postal services sector.

the application of

(29)

Contracts may be awarded for the purpose of meeting
the requirements of several activities, possibly subject to
different legal regimes.
It should be clarified that the
legal regime applicable to a single contract intended to
cover several activities should be subject to the rules
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
purposes of estimating the contract value and drawing
up the tender documents. In certain cases, such as the
purchase of a single piece of equipment for the pursuit
of activities for which information allowing an estima-
tion of the respective rates of use would be unavailable,
it might be objectively impossible to determine for
which activity the contract is principally intended. The
rules applicable to such cases should be indicated.

(30) Without prejudice to the international commitments of
the Community,
it is necessary to simplify the imple-
mentation of this Directive, particularly by simplifying
the thresholds and by rendering applicable to all con-
tracting entities, regardless of the sector in which they
operate, the provisions regarding the information to be
given to participants concerning decisions taken in rela-
tion to contract award procedures and the results there-
of. 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 thresh-
olds laid down in the Agreement, which are expressed
in Special Drawing Rights (SDR). In this context, provi-
sion 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.

(31)

is
Provision should be made for cases in which it
possible to refrain from applying the measures
for
coordinating procedures on grounds relating to State
security or secrecy, or because specific rules on the
awarding of contracts which derive from international
agreements,
troops, or
relating to the stationing of
which are specific to international organisations are
applicable.

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(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.

(38)

(33)

rental of

In the context of services, contracts for the acquisition
or
rights to such
immovable property or
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 relat-
ing to the issue, purchase, sale or transfer of securities
or other financial instruments; in particular, transactions
by the contracting entities to raise money or capital are
not covered.

(36)

This Directive should cover the provision of services
only where based on contracts.

(37)

Pursuant to Article 163 of the Treaty, the encourage-
ment 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 devel-
opment programmes: research and development con-
than those where the benefits accrue
tracts other

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.

to

3
12

without

by
and

prejudice

created
93/38/EEC

the proliferation of specific arrangements
To forestall
the current special
applicable to certain sectors only,
of
Article
arrangements
Directive
of
Article
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 (1) govern-
ing entities exploiting a geographical area for the pur-
pose of exploring for or extracting oil, gas, coal or other
solid fuels should be replaced by the general procedure
allowing for exemption of sectors directly exposed to
competition. It has to be ensured, however, that this will
be
Commission
Decision 93/676/EEC of 10 December 1993 establishing
that the exploitation of geographical areas for the pur-
pose 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
considered in the Netherlands as operating under special
or exclusive rights within the meaning of Article 2(3)(b)
of the Directive (2), Commission Decision 97/367/EC of
30 May 1997 establishing that
the exploitation of
geographical areas for the purpose of exploring for or
extracting oil or gas does not
in the
United Kingdom an activity defined by Article 2(2)(b)(i)
of Council Directive 93/38/EEC and that entities carry-
ing 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 (3), Commission Decision 2002/205/EC of
4 March 2002 following a request by Austria applying
in Article 3 of
for
Directive
Commission
Decision 2004/73/EC on a request from Germany to
apply the special procedure laid down in Article 3 of
Directive 93/38/EEC (5).

the special regime provided for
93/38/EEC (4)
and

constitute

(39)

Employment and occupation are key elements in guar-
anteeing equal opportunities for all and contribute to
integration in society.
In this context, sheltered work-
shops and sheltered employment programmes contribute
efficiently towards the integration or reintegration of
people with disabilities in the labour market. However,
such workshops might not be able to obtain contracts
under normal conditions of competition. Consequently,
is appropriate to provide that Member States may
it
reserve the right to participate in award procedures for
contracts to such workshops or reserve performance of
contracts to the context of sheltered employment pro-
grammes.

(1) OJ L 164, 30.6.1994, p. 3.
(2) OJ L 316, 17.12.1993, p. 41.
(3) OJ L 156, 13.6.1997, p. 55.
(4) OJ L 68, 12.3.2002, p. 31.
(5) OJ L 16, 23.1.2004, p.57.

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(40)

to contracts in-
This Directive should apply neither
tended to permit the performance of an activity referred
to in Articles 3 to 7 nor to design contests organised
for the pursuit of such an activity if,
in the Member
State in which this activity is carried out, it is directly
exposed to competition on markets to which access is
It is therefore appropriate to introduce a
not limited.
procedure, applicable to all
sectors covered by this
Directive, that will enable the effects of current or future
opening up 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, ensuring, within short time limits, uni-
form application of Community law in this area.

(41) Direct exposure to competition should be assessed on
taking account of
the
the basis of objective criteria,
the sector concerned. The
specific characteristics of
implementation and application of appropriate Commu-
nity legislation 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 appropriate legislation should be identified in an
annex which can be updated by the Commission. When
updating, the Commission takes in particular into ac-
count
the possible adoption of measures entailing a
genuine opening up to competition of sectors other
than those for which a legislation is already mentioned
in Annex XI, such as that of railway transports. Where
free access to a given market does not result from the
implementation of appropriate Community legislation, it
should be demonstrated 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
up a given sector to competition,
to another sector,
such as the coal sector,
is a circumstance to be taken
into account for the purposes of Article 30.

(42)

it

The technical specifications drawn up by purchasers
should allow public procurement to be opened up to
competition. To this end,
should be possible to
submit tenders which reflect the diversity of technical
solutions. Accordingly, it should be possible to draw up
the technical specifications in terms of functional per-
formance and requirements and, where reference is
made to the European standard or,
in the absence
thereof, to the national standard, tenders based on other
equivalent arrangements which meet the requirements of
the contracting entities and are equivalent in terms of
safety should be considered by the contracting entities.
To demonstrate equivalence,
tenderers should be per-
mitted to use any form of evidence. Contracting entities
should be able to provide a reason for any decision that
equivalence 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, such as a
given production method, and/or specific environmental
effects of product groups or services. They may use, but
are not obliged to use appropriate specifications that are
defined in eco-labels, such as the European Eco-label,
(multi-) national eco-labels or any other eco-label pro-
vided that the requirements for the label are drawn up
and adopted on the basis of scientific information using
a procedure in which stakeholders, such as government
bodies, consumers, manufacturers, distributors and en-
vironmental organisations can participate, and provided
that the label is accessible and available to all interested
parties. Contracting entities should, whenever possible,
lay down technical specifications so as to take into
account accessibility criteria for people with disabilities
or design for all users. The technical
specifications
should be clearly indicated, so that all tenderers know
what
the requirements established by the contracting
entity cover.

(43)

In order to encourage the involvement of small and
medium-sized undertakings in the public contracts pro-
curement market, it is advisable to include provisions on
subcontracting.

(44)

for competition, or

Contract performance conditions are compatible with
the Directive provided that
they are not directly or
indirectly discriminatory and are indicated in the notice
in the
used to make the call
specifications. They may in particular be intended to
encourage on-site vocational training, the employment
of people experiencing particular difficulty in integra-
tion, the fight against unemployment or the protection
of the environment. For example, mention may be made
the requirements — applicable during the perfor-
of
long-term job-
mance of
seekers or
the
unemployed or for young persons, to comply in sub-
the basic International
stance with the provisions of
Labour Organisation (ILO) Conventions, assuming that
such
in
national law, and to recruit more handicapped persons
than are required under national legislation.

the contract — to recruit
to implement

been implemented

training measures

have not

provisions

for

(45)

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

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30.4.2004

posting of workers in the framework of the provision of
services (1)
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 contract.

(46)

(47)

and the

technology,

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

The use of electronic means leads to savings in time. As
a result, provision should be made for reducing the
minimum periods where electronic means are used,
subject, however, to the condition that they are compa-
tible with the specific mode of transmission 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.

the European Parliament and of

(48) Directive 1999/93/EC of the European Parliament and
of the Council of 13 December 1999 on a Community
framework for electronic signatures (2) and Directive
2000/31/EC of
the
Council of 8 June 2000 on certain legal aspects of
information society services,
in particular electronic
commerce, in the internal market (‘Directive on electro-
nic commerce’) (3) should, in the context of this Direc-
tive, apply to the transmission of information by elec-
tronic means. The public procurement procedures and
the rules applicable to service contests require a level of
security and confidentiality higher than that required by
these Directives. Accordingly, the devices for the electro-
nic receipt of offers, requests to participate and plans
and projects
should comply with specific additional
requirements. To this end, use of electronic signatures,
in particular advanced electronic signatures, should, as
far as possible, be encouraged. Moreover, the existence
of voluntary accreditation schemes could constitute a
favourable framework for enhancing the level of certifi-
cation service provision for these devices.

to award a contract or

to
framework agreement or
abandon the procedure within time limits
that are
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.

(50)

(51)

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 neces-
sarily imply weightings.

in the context of qualification systems,

It is important to take into account Court of
Justice
case-law in cases where an economic operator claims
the economic, financial or 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
it may require
the financial standing of another entity,
that that entity be held liable,
if necessary jointly and
severally.

Qualification systems should be operated in accordance
with objective rules and criteria, which, at the contract-
ing entities' choice, may concern the capacities of the
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 char-
acteristics of the works, supplies or services concerned,
in particular in terms of compatibility and safety.

the characteristics of

(52)

The relevant Community rules on mutual recognition of
diplomas, certificates or other evidence of formal quali-
fications apply when evidence of a particular qualifica-
required for participation in a procurement
tion is
procedure or a design contest.

(49)

is appropriate that

It
procedure are informed of decisions

the participants

(1) OJ L 18, 21.1.1997, p. 1.
(2) OJ L 13, 19.1.2000, p. 12.
(3) OJ L 178, 17.7.2000, p. 1.

in an award
to conclude a

(53)

In appropriate cases, in which the nature of the works
and/or services justifies applying environmental manage-
ment measures or schemes during the performance of a
contract, the application of such measures or schemes
may be required. Environmental management schemes,

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L 134/9

or

are

they

not
instruments

under
registered
whether
such as Regulation (EC)
Community
No 761/2001 (EMAS) (1), can demonstrate that
the
economic operator has the technical capability to per-
form the contract. Moreover, a description of the mea-
sures implemented by the economic operator to ensure
the same level of environmental protection should be
accepted as an alternative to environmental management
registration schemes as a form of evidence.

(54)

interests of

the financial

The award of public contracts to economic operators
who have participated in a criminal organisation or who
have been found guilty of corruption or of fraud to the
detriment of
the European
Communities or of money
laundering should be
avoided. Given that contracting entities, which are not
contracting authorities, might not have access to indis-
it is appropriate to leave
putable proof on the matter,
the choice of whether or not to apply the exclusion
criteria listed in Article 45(1) of Directive 2004/18/EC
to these contracting entities. The obligation to apply
Article 45(1) should therefore be limited only to con-
tracting entities that are contracting authorities. Where
appropriate,
the contracting entities should ask appli-
cants for qualification, candidates or tenderers to supply
relevant documents and, where they have doubts con-
cerning the personal situation of these economic opera-
tors, they may seek the cooperation of the competent
authorities of the Member State concerned. The exclu-
sion of such economic operators should take place as
soon as the contracting authority has knowledge of a
judgment concerning such offences rendered in accor-
dance with national
force of
res judicata.

law that has

the

equivalent effect may be considered an offence concern-
ing the professional conduct of the economic operator
concerned or grave misconduct.

(55)

Contracts 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 that tenders are assessed in condi-
tions of effective competition. As a result,
it is appro-
priate to allow the application of
two award criteria
‘the lowest price’ and ‘the most economically
only:
advantageous tender’.

To ensure compliance with the principle of equal treat-
ment 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 arrange-
ments which will be applied to identify the most
is therefore the
It
economically advantageous tender.
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
in particular on account of the
established in advance,
they must
complexity of
indicate the descending order of
the
criteria.

importance of

In such cases,

the contract.

If national
law contains provisions to this effect, non-
compliance with environmental legislation or legislation
on unlawful agreements in contracts which has been the
subject of a final judgment or a decision having equiva-
lent effect may be considered an offence concerning the
professional conduct of
the economic operator con-
cerned or grave misconduct.

Non-observance of national provisions implementing the
Council Directives 2000/78/EC (2) and 76/207/EEC (3)
concerning equal treatment of workers, which has been
judgment or a decision having
the subject of a final

(1) 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).

(2) Council Directive 2000/78/EC of 27 November 2000 establishing a
general framework for equal treatment in employment and occupa-
tion (OJ L 303, 2.12.2000, p. 16).

(3) Council Directive 76/207/EEC of 9 February 1976 on the imple-
mentation of the principle of equal treatment for men and women
as regards access to employment, vocational training and promo-
tion, and working conditions,
(OJ L 39 of 14.2.1976, p. 40).
Directive as amended by Directive 2002/73/EC of the European
Parliament and of the Council (OJ L 269, 5.10.2002, p. 15).

Where contracting entities choose to award a contract
to the most economically advantageous tender,
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
award of the contract must enable tenders to be com-
pared and assessed objectively.
If these conditions are
fulfilled, economic and qualitative criteria for the award
of the contract, such as meeting environmental require-
ments, may enable the contracting entity to meet the
the public concerned, as expressed in the
needs of
specifications of
the contract. Under the same condi-
tions, a contracting entity may use criteria aiming to
meet social requirements,
in particular in response to
the needs — defined in the specifications of the con-
tract — of particularly disadvantaged groups of people
to which those receiving/using the works, supplies or
services which are the object of the contract belong.

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(56)

(57)

(58)

The award criteria must not affect the application of
national provisions on the remuneration of certain
services, such as the services provided by architects,
engineers or lawyers.

(59)

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

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

This Directive should be without prejudice to the exist-
ing international obligations of the Community or of
the Member States and should not prejudice the applica-
tion of the provisions of the Treaty, in particular Arti-
cles 81 and 86 thereof.

(60)

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 for the exercise of implementing powers
conferred on the Commission, (2).

HAVE ADOPTED THIS DIRECTIVE:

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

Entities

Article 2

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

Economic operators

Article 12

Conditions relating to Agreements concluded within the World Trade Organisation

Article 13

Confidentiality

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

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Article 14

Framework agreements

Article 15

Dynamic purchasing systems

Chapter II

Thresholds and exclusion provisions

Section 1

Thresholds

Article 16

Contract thresholds

Article 17

Methods of calculating the estimated value of contracts,
systems

framework agreements and dynamic

Section 2

Contracts and concessions and contracts subject to special arrangements

Sub section 1

Article 18

Works and service concessions

Sub sect io n 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

Article 20

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

Article 21

Contracts which are secret or require special security measures

Article 22

Contracts awarded pursuant to international rules

Article 23

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

to a joint venture or to a contracting entity

Sub sect io n 3

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

Article 24

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

Article 25

Service contracts awarded on the basis of an exclusive right

Sub sect io 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

Sub sect io 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

Contracts subject to special arrangements

Article 28

Reserved contracts

Article 29

Contracts and framework agreements awarded by central purchasing bodies

Article 30

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

Chapter III

Rules applicable to service contracts

Article 31

Service contracts listed in Annex XVII A

Article 32

Service contracts listed in Annex XVII B

Article 33

Mixed service contracts
Annex XVII B

including services

listed in Annex XVII A and services

listed in

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Chapter IV

Specific rules governing specifications and contract documents

Article 34

Technical specifications

Article 35

Communication of technical specifications

Article 36

Variants

Article 37

Subcontracting

Article 38

Conditions for performance of contracts

Article 39

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

Publication of notices

Article 41

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

Article 42

Notices used as a means of calling for competition

Article 43

Contract award notices

Article 44

Form and manner of publication of notices

Section 2

Time limits

Article 45

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

Article 46

Open procedures: specifications, additional documents and information

Article 47

Invitations to submit a tender or to negotiate

Section 3

Communication and information

Article 48

Rules applicable to communication

Article 49

Information to applicants for qualification, candidates and tenderers

Article 50

Information to be stored concerning awards

Chapter VII

Conduct of the procedure

Article 51

General provisions

Section 1

Qualification and qualitative selection

Article 52

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

Article 53

Qualification systems

Article 54

Criteria for qualitative selection

Section 2

Award of the contract

Article 55

Contract award criteria

Article 56

Use of electronic auctions

Article 57

Abnormally low tenders

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Section 3

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

Article 58

Tenders comprising products originating in third countries

Article 59

Relations with third countries as regards service contracts

TITLE III

Rules governing service design contests

Article 60

General provision

Article 61

Thresholds

Article 62

Design contests excluded

Article 63

Rules on advertising and transparency

Article 64

Means of communication

Article 65

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

Article 66

Decisions of the jury

TITLE IV

Statistical obligations, executory powers and final provisions

Article 67

Statistical obligations

Article 68

Advisory Committee

Article 69

Revision of the thresholds

Article 70

Amendments

Article 71

Implementation of the Directive

Article 72

Monitoring mechanisms

Article 73

Repeal

Article 74

Entry into force

Article 75

Addressees

Annex I

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

Annex II

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

Annex III

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

Annex IV

Contracting entities in the field of rail services

Annex V

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

Annex VI

Contracting entities in the postal services sector

Annex VII

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

Annex VIII

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

Annex IX

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

Annex X

Contracting entities in the field of airport installations

Annex XI

List of legislation referred to in Article 30(3)

Annex XII

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

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Annex XIII

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

International labour law provisions within the meaning of Article 59(4)

Annex XXIV

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 XXV

Time limits for transposition and implementation

Annex XXVI

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’ are contracts for
pecuniary interest concluded in writing between one or
more of
the contracting entities referred to in Arti-
cle 2(2), and one or more contractors, suppliers, or
service providers.

(b) ‘Works contracts’ are 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 require-
specified by the contracting entity. A ‘work’
ments
means the outcome of building or civil engineering
works taken as a whole which is sufficient of itself to
fulfil an economic or technical function.

(c) ‘Supply

contracts’

are

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

contracts other

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

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

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.

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3.

(a) A ‘works concession’ is a contract of the same type as a
works contract except for the fact that the 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;

(b) A ‘service concession’ is a contract of the same type as
a service contract except for the fact that the considera-
tion for the provision of services consists either solely in
the right to exploit the service or in that right together
with payment.

A ‘framework agreement’

4.
is 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
in particular with regard to price and, where
a given period,
appropriate, the quantities envisaged.

A ‘dynamic purchasing system’ is a completely electronic
5.
process for making commonly used purchases, the character-
istics of which, as generally available on the market, meet the
requirements of
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 specification.

An ‘electronic auction’ is a repetitive process involving an
6.
electronic device for the presentation of new prices, revised
downwards, and/or new values concerning certain elements of
tenders, which occurs after an initial
the
tenders, enabling them to be ranked using automatic evalua-
tion methods. Consequently, certain service contracts and
certain works contracts having as their subject-matter intellec-
tual performances, such as the design of works, may not be
the object of electronic auctions.

full evaluation of

The terms

‘contractor’,

‘supplier’ or

‘service provider’
7.
mean either a 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.

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

A ‘tenderer’
is 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.

within the meaning of Article 1(9) of Directive 2004/18/EC
which:

— acquires supplies and/or services intended for contracting

entities or

— awards public contracts or concludes framework agree-
ments for works, supplies or services intended for contract-
ing entities.

‘Open, restricted and negotiated procedures’ are the pro-
9.
curement procedures applied by contracting entities, 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 the economic operators of its choice and negoti-
ates the terms of the contract with one or more of these.

‘Design contests’ are those procedures which enable the
10.
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
11.
of words or figures that can be read, reproduced and subse-
quently communicated. It may include information transmitted
and stored by electronic means.

‘Electronic means’ means using electronic equipment for
12.
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.

‘Common Procurement Vocabulary (CPV)’ means the
13.
as
applicable
reference nomenclature
adopted by Regulation (EC) No 2195/2002 of 5 November
2002 of the European Parliament and of the Council on the
Common Procurement Vocabulary (CVP) (1) while ensuring
equivalence with the other existing nomenclatures.

to public

contracts

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
in
Annex XVII, the NACE or the CPC nomenclature respectively
shall take precedence.

version) nomenclatures

listed

A ‘central purchasing body’

is a contracting authority
8.
within the meaning of Article 2(1)(a) or a contracting authority

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

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CHAPTER II

Definition of the activities and entities covered

S e c t i o n 1

Entities

Article 2

Contracting entities

For the purposes of this Directive,

authorities’

‘Contracting
or
local authorities, bodies governed by public law, associa-
tions formed by one or several such authorities or one or
several of such bodies governed by public law.

regional

State,

are

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

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

in 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 autho-
rities, or by other bodies governed by public law;

a ‘public undertaking’ is any undertaking over which the
contracting authorities may exercise directly or indirectly a
dominant
it,
their financial participation therein, or the rules which
govern it.

influence by virtue of

their ownership of

1.

(a)

(b)

Member State by way of any legislative, regulatory or admi-
nistrative 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 ec t i on 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.

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) 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

exploitation of

(b) supply to the public network is aimed only at the econom-
ic
to
not more than 20 % of the entity's turnover having regard
to the average for the preceding three years, including the
current year.

such production and amounts

influence on the part of

A dominant
authorities
directly or indirectly, in relation to an undertaking:

the contracting
shall be presumed when these authorities,

— hold the majority of

the undertaking's

subscribed

capital, or

— control the majority of the votes attaching to shares

issued by the undertaking, or

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

nistrative, 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
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.

their activities any of

For the purposes of this Directive,

‘special or exclusive
3.
rights’ mean rights granted by a competent authority of a

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.

The supply of electricity to networks which provide a
4.
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:

(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
own consumption and has not exceeded 30% of
the
entity's total production of energy, having regard to the
average for the preceding three years, including the current
year.

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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,

irriga-
tion or land drainage, provided that the volume of water to
be used for
represents
more than 20 % of
the total volume of water made
available by such projects or irrigation or drainage installa-
tions, or

the supply of drinking water

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

The supply of drinking water to networks which provide
3.
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 carry-
ing out an activity other than those referred to in Articles 3
to 7; and

(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

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.

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.

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

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

For the purpose of this Directive and without prejudice

2.
to 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 addi-
tion to items of correspondence, such items also include
for
instance books, catalogues, newspapers, periodicals
and postal packages containing merchandise with or with-
out commercial value, irrespective of weight;

(b)

‘postal services’: means services consisting of
the clear-
ance, sorting, routing and delivery of postal items. These
services comprise:

— ‘reserved postal services’: postal services which are or
reserved on the basis of Article 7 of

may be
Directive 97/67/EC,

— ‘other postal services’: postal services which may not
of

of Article

basis

7

reserved

be
the
Directive 97/67/EC; and

on

(c)

‘other services than postal services’: means services pro-
vided in the following areas:

— mail service management services (services both pre-
ceding and subsequent to despatch, such as ‘mailroom
management services’),

— added-value services linked to and provided entirely by
electronic means (including the secure transmission of
coded documents by electronic means, address man-
agement services and transmission of registered elec-
tronic mail),

— 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
services within the meaning
which also provides postal
of point
the
conditions set out in Article 30(1) are not satisfied in respect
of the services falling within those indents.

first or second indent, and provided that

(b),

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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 exploita-
tion 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
facilities to carriers by air, sea or inland

other terminal
waterway.

Article 8

Lists of contracting entities

The non-exhaustive lists of contracting entities within the
meaning of this Directive are contained in Annexes I to X.
Member States shall notify the Commission periodically of any
changes to their lists.

Article 9

Contracts covering several activities

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 2004/18/EC.

from the scope of

If one of the activities for which the contract is intended
2.
is subject to this Directive and the other to the abovemen-
tioned Directive 2004/18/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 2004/18/EC.

this Directive

3.
If one of the activities for which the contract is intended
is subject to this Directive and the other is not subject to
abovementioned Directive
the
either
2004/18/EC, and if it is objectively impossible to determine
for which activity the contract
the
contract shall be awarded in accordance with this Directive.

is principally intended,

or

CHAPTER III

General principles

Article 10

Principles of awarding contracts

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

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

tenderers who, under

1.
the
Member State in which they are established, are entitled to
provide the relevant service, shall not be rejected solely on the
ground that, under the law of the Member State in which the
contract
they would be required to be either
natural or legal persons.

the law of

is awarded,

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

the staff

this change is necessary for the satisfactory performance of the
contract.

Article 12

Conditions relating to agreements concluded within the
World Trade Organisation

the award of contracts by contracting
For the purposes of
entities, Member States shall apply in their relations conditions
as favourable as those which they grant to economic operators
of third countries in implementation of the Agreement. Mem-
ber 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.

Article 13

Confidentiality

Groups of economic operators may submit

tenders or
2.
put 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

In the context of provision of technical specifications to
1.
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 avail-
able.

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2. Without prejudice to the provisions of this Directive, in
particular
those concerning the obligations relating to the
advertising of awarded contracts and to the information to
candidates and tenderers set out in Articles 43 and 49, and in
accordance with the national
law to which the contracting
entity is subject, the contracting authority shall not disclose
information forwarded to it by economic operators which they
have designated as confidential; such information includes,
in
particular, technical or trade secrets and the confidential as-
pects of tenders.

Article 14

Framework agreements

1.
Contracting entities may regard a framework agreement
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 Article 40(3)(i) when awarding contracts based
on that framework agreement.

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

Contracting entities may not misuse framework agree-

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

Article 15

Dynamic purchasing systems

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

this system. All

In order to set up a dynamic purchasing system, con-
2.
tracting entities shall follow the rules of the open procedure in
all its phases up to the award of the contracts to be concluded
under
tenderers who satisfy the selection
criteria and have submitted an indicative tender which com-
plies with the specification and any possible additional docu-
ments shall be admitted to the 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
that system,
system and to the award of contracts under
contracting entities shall use solely electronic means in accor-
dance with Article 48(2) to (5).

(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 pur-
chasing 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
indicate in the notice the internet address at which
shall
such documents may be consulted.

Contracting entities shall give any economic operator,
4.
throughout the entire period of the dynamic purchasing sys-
tem, 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 max-
imum of 15 days from the date of submission of the indicative
tender. However, they may extend the evaluation period pro-
vided that no invitation to tender is issued in the meantime.

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 rejec-
tion of its indicative tender.

5.
Each specific contract shall be the subject of an invitation
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
from the date on which the
simplified notice was sent. Contracting entities may not pro-
ceed with tendering until they have completed evaluation of all
the indicative tenders received within that time limit.

than 15 days

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

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
if appropriate, be for-
purchasing system. Those criteria may,
mulated more precisely in the invitation referred to in the first
subparagraph.

establishment of

the

A dynamic purchasing system may not

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

last

for more

For the purposes of setting up the dynamic purchasing

3.
system, contracting entities shall:

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

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

purchasing system is involved;

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

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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
activity in question,
this Directive shall apply to contracts
which have a value excluding value‑added tax (VAT) estimated
to be no less than the following thresholds:

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

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

Article 17

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

1.
The calculation of the estimated value of a contract shall
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.

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.

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

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 performance 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
services from the scope of this Directive.

in removing the procurement of

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.

However, the contracting entities may waive such appli-
cation in respect of lots the estimated value of which,
is less than EUR 80 000 for services or
net of VAT,
EUR 1 million for works, provided that the aggregate
value of
the
aggregate value of the lots as a whole.

those lots does not exceed 20 % of

(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.

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.

However, the contracting entities may waive such appli-
cation 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
regular in nature or which are intended to be renewed within
a given period, the calculation of the estimated contract value
shall be based on the following:

same

(a) either the total actual value of the successive contracts of
type awarded during the preceding twelve
the
months or
to take
financial year adjusted,
account of the changes in quantity or value which would
occur in the course of the 12 months following the initial
contract;

if possible,

(b) or the total estimated value of

the successive contracts
awarded during the 12 months following the first delivery,
is longer than 12
or during the financial year if
months.

that

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
the siting and
installation operations.

include the value of

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 12 months, the total estimated value for the
if
term of
is
the total value including the
greater
estimated residual value;

the contract or,
than 12 months,

the term of

the contract

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

10.
For the purposes of calculating the estimated contract
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 remunera-
tion, in the case of banking and other financial services;

(c) fees, commissions payable and other forms of remunera-

tion, in the case of contracts involving design tasks.

11.
In the case of service contracts which do not indicate a
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

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.

SUBSECTION 2

for

information purposes,

they regard as excluded under paragraph 1. The Commission
may periodically publish in the Official Journal of the European
Union,
the categories of
products and 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 information.

lists of

Article 20

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

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

Journal of

The contracting entities shall notify the Commission at
2.
its request of any activities which they regard as excluded
under paragraph 1. The Commission may periodically publish
in the Official
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
the
contracting entities may point out when forwarding this in-
formation.

any sensitive

commercial

aspects

respect

that

Article 21

Contracts which are secret or require special security
measures

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

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

Article 22

Article 19

Contracts awarded pursuant to international rules

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.

The contracting entities shall notify the Commission at
2.
its request of all the categories of products or activities which

This Directive shall not apply to contracts governed by differ-
ent procedural rules and awarded:

(a) pursuant to an international agreement concluded in accor-
dance 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 implementation or
exploitation of a project by the signatory States; all agree-
ments shall be communicated to the Commission, which
may consult the Advisory Committee for Public Contracts
referred to in Article 68;

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(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;

provision of such supplies to undertakings with which it is
affiliated;

(c) pursuant

to the particular procedure of an international

organisation.

Article 23

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

the

the

Seventh

requirements

For the purposes of this Article,

‘affiliated undertaking’
1.
means any undertaking the annual accounts of which are
consolidated with those of the contracting entity in accordance
Council
of
with
Directive 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 which the contracting entity may exercise,
directly or indirectly, a dominant influence within the meaning
of Article 2(1)(b) hereof or which may exercise a dominant
influence over the contracting entity or which,
in common
with the contracting entity,
is subject to the dominant influ-
ence of another undertaking by virtue of ownership, financial
participation, or the rules which govern it.

Provided that the conditions in paragraph 3 are met, this

2.
Directive shall not apply to contracts awarded:

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

(b) by a joint venture,

formed exclusively by a number of
contracting entities for the purpose of carrying out activ-
ities within the meaning of Articles 3 to 7, to an under-
these contracting
taking which is affiliated with one of
entities.

3.

Paragraph 2 shall apply:

(a) to service contracts provided that at

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;

least 80 % of

(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

(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) Editorial Note: The title of the Directive has been adjusted to take
account 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.

the renumbering of

the Articles of

(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

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

the turnover

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

the total

4.

This Directive shall not apply to contracts awarded:

(a) by a joint venture,

formed exclusively by a number of
contracting entities for the purpose of carrying out activ-
ities 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.

5.
Contracting entities shall notify to the Commission, at its
request, the following information regarding the application of
paragraphs 2, 3 and 4:

(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 Commis-
sion that the relationship between the undertaking or joint
venture to which the contracts are awarded and the con-
this
tracting entity complies with the requirements of
Article.

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SUBSECTION 3

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

(a) to contracts for

if awarded by
the purchase of water
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

(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), Arti-
cle 3(3) or Article 7(a).

This Directive shall not apply to service contracts for:

SUBSECTION 5

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

nevertheless,

thereon;

rental,

rights

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

Article 27

(b) arbitration and conciliation services;

Contracts subject to special arrangements

(c) financial services in connection with the issue, sale, pur-
chase or transfer of securities or other financial
instru-
ments, in particular transactions by the contracting entities
to raise money or capital;

(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 contract-
ing 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,

Without prejudice to Article 30 the Kingdom of the Nether-
lands, the United Kingdom, the Republic of Austria and the
Federal Republic of Germany 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, 97/367/EEC, 2002/205/EC and 2004/73/EC:

(a) observes the principles of non‑discrimination and competi-
tive procurement in respect of the award of supplies, works
and service contracts, in particular as regards the informa-
tion which the entity makes available to economic opera-
tors concerning its procurement intentions;

(b) communicates to the Commission, under the conditions
defined in Commission Decision 93/327/EEC defining the
conditions under which contracting entities exploiting geo-
graphical areas for the purpose of exploring for or extract-
ing oil, gas, coal or other solid fuels must communicate to
the Commission information relating to the contracts they
award (1).

Article 28

Reserved contracts

SUBSECTION 4

Exclusions applicable to certain contracting entities only

Article 26

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

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

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

This Directive shall not apply:

(1) OJ L 129, 27.5.1993, p. 25.

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Article 29

— has not adopted a Decision concerning such applicability

within that period.

Contracts and framework agreements awarded by central
purchasing bodies

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

Contracting entities which purchase works, supplies an-
2.
d/or services from or through a central purchasing body 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
with
it
complied
Directive 2004/18/EC.

appropriate,

where

with

or,

Article 30

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

Contracts intended to enable an activity mentioned in
1.
Articles 3 to 7 to be carried out shall not be subject to this
Directive if, in the Member State in which it is performed, the
activity 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.

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
in the
activity concerned has established the applicability of paragraph
1, contracts intended to enable the activity concerned to be
carried out shall no longer be subject to this Directive if the
Commission has not established the inapplicability of para-
graph 1 by a Decision adopted in conformity with paragraph
6 and within the period it provides for.

is competent

5. When the legislation of
the Member State concerned
provides for it, the contracting entities may ask the Commis-
sion 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.

That Member State shall, taking account of paragraphs 2 and
3,
inform the Commission of all relevant facts, and in parti-
cular of any law, regulation, administrative provision or agree-
ment concerning compliance with the conditions set out in
paragraph 1, where appropriate together with the position
adopted by an independent national authority that is compe-
tent in the activity concerned.

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

In such a case,

For the purposes of paragraph 1, access to a market shall
3.
be deemed not
the Member State has
implemented and applied the provisions of Community legisla-
tion mentioned in Annex XI.

to be restricted if

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

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

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

is competent

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

6.
in
For the adoption of a Decision under this Article,
accordance with the procedure under Article 68(2), the Com-
mission shall be allowed a period of three months commen-
cing 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 there-
to is incomplete or inexact or if the facts as reported undergo
any substantive changes. This extension shall be limited to one
month where an independent national authority that is com-
petent in the activity concerned has established the applicabil-
ity 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
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.

this Article,

further

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

such as contract notices, contract documents or additional
documents. Whenever possible these technical specifications
should be defined so as to take into account accessibility
criteria for people with disabilities or design for all users.

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
to paragraphs 1

independent authority that
concerned, regarding questions relevant
and 2.

is competent

CHAPTER III

Rules applicable to service contracts

Article 31

Service contracts listed in Annex XVII A

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

their object

services

as

Article 32

Service contracts listed in Annex XVII B

Contracts which have
listed in
Annex XVII B shall be governed solely by Articles 34 and 43.

their object

services

as

Article 33

Mixed service

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 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 awarded in accordance with Articles 34 and 43.

CHAPTER IV

Specific rules governing specifications and contract docu-
ments

Article 34

Technical specifications

Technical

as defined in point 1 of
1.
Annex XXI shall be set out in the contract documentation,

specifications

2.
Technical specifications shall afford equal access for ten-
derers and not have the effect of creating unjustified obstacles
to the opening up of public procurement to competition.

3. Without prejudice to legally binding national
technical
rules, to the extent that they are compatible with Community
law, the technical specifications shall be formulated:

(a) either by reference to technical specifications defined in
in order of preference, to national stan-
Annex XXI and,
dards transposing European standards, European technical
approvals, common technical specifications,
international
standards, other technical reference systems established 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
products. Each reference shall be accompanied by the
words ‘or equivalent’;

the works and use of

(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
specifications mentioned in subparagraph (a) as a means
of presuming conformity with such performance or func-
tional requirements;

(d) or by

to the

referring

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

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 techni-
cal specifications.

An appropriate means might be constituted by a technical
dossier from the manufacturer or a test report from a recog-
nised body.

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5. Where a contracting entity uses the option provided for
in paragraph 3 of
laying down performance or functional
requirements, it may not reject a tender for products, services
or works which comply with a national standard transposing a
European standard, with a European technical approval, a
common technical specification, an international standard, or
a technical reference system established by a European standar-
disation body,
if these specifications address the performance
or functional requirements which it has laid down.

types or a specific origin or production with the effect of
favouring or eliminating certain undertakings or certain pro-
ducts. 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’.

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
contracting entity.

the performance or

requirements of

functional

An appropriate means might be constituted by a technical
dossier from the manufacturer or a test report from a recog-
nised body.

6. Where contracting entities lay down environmental char-
acteristics in terms of performance or functional 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:

— those specifications are appropriate to define the character-
istics 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
stakeholders, such as government bodies, consumers, man-
ufacturers, distributors and environmental organisations can
participate, and

— they are accessible to all interested parties.

Contracting entities may indicate that the products and services
bearing the eco-label are presumed to comply with the techni-
cal specifications laid down in 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.

‘Recognised bodies’, within the meaning of this Article,
7.
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.

Unless justified by the subject-matter of

8.
the contract,
technical specifications shall not refer to a specific make or
source, or to a particular process, or to trade marks, patents,

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
specifications
which they intend to apply to contracts covered by periodic
indicative notices within the meaning of Article 41(1).

service contracts, or

the technical

2. Where the technical specifications are based on docu-
ments available to interested economic operators, the inclusion
of a reference to those documents shall be sufficient.

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.

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

they authorise variants and,

so,

if

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

Article 37

Subcontracting

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

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Article 38

Conditions for performance of contracts

(a) when no tenders or no suitable tenders or no applications
have been submitted in response to a procedure with a
prior call for competition, provided that the initial condi-
tions of contract are not substantially altered;

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
in particular, concern social and environmental
contract may,
considerations.

Article 39

Obligations relating to taxes, environmental protection,
employment protection provisions and working condi-
tions

1.
A contracting entity may state in the contract documents,
or be required by a Member State so to state, the body or
bodies from which 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 con-
tract.

A contracting entity which supplies
request

the information
2.
the tenderers or
referred to in paragraph 1 shall
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
application of Article 57.

subparagraph shall be without prejudice to the

CHAPTER V

Procedures

Article 40

(b) where a contract

is purely for the purpose of research,
experiment, study or development, and not for the purpose
of securing a profit or of recovering research and develop-
ment costs, and insofar as the award of such contract does
not prejudice the competitive award of subsequent con-
tracts which do seek, in particular, those ends;

(c) when,

for

technical or artistic reasons, or

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

for

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

(e) 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
technical characteristics
acquire material having different
which would result in incompatibility or disproportionate
technical difficulties in operation and maintenance;

initially awarded or in the contract

(f) for additional works or services which were not included
first
in 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:

— when such additional works or services cannot be
technically or economically separated from the main
contract without
the
contracting entities, or

inconvenience

great

to

Use of open, restricted and negotiated procedures

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

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 accor-
dance with Article 42.

Contracting entities may use a procedure without prior

3.
call for competition in the following cases:

— when such additional works or services, although separ-
able from the performance of the original contract, are
strictly necessary to its later stages;

(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
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;

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(h) for

supplies quoted and purchased on a commodity

market;

(i) for contracts to be awarded on the basis of a framework
the condition referred to in

agreement, provided that
Article 14(2) is fulfilled;

(j) for bargain purchases, where it

is possible to procure
supplies by taking advantage of a particularly advantageous
time at a price
opportunity available for a very short
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;

(c) where works are concerned, the essential characteristics of
the works contracts or the framework agreements which
they intend to award over the following 12 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 subparagraphs (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 subparagraph (c) shall be sent to the
Commission or published on the buyer profile as soon as
the
possible after
works contracts or the framework agreements that the con-
tracting entities intend to award.

the decision approving the planning of

(l) when the service contract concerned is part of the follow-
up to a design contest organised in accordance with the
provisions of this Directive and shall,
in accordance with
the relevant rules, be awarded to the winner or to one of
the
the winners of
winners shall be invited to participate in the negotiations.

in the latter case, all

that contest;

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 themselves
on their
as described in point 2(b) of
Annex XX:

‘buyer profile’,

(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
provisions of Articles 16 and 17,
is equal to or greater
than EUR 750 000.

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

(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
than
Articles 16 and 17,
EUR 750 000;

greater

to or

equal

is

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

the publication of

transmit

for

The publication of the notices referred to in subparagraphs (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.

Contracting entities may, in particular, publish or arrange
2.
for
the Commission to publish periodic indicative notices
relating to major projects without repeating information pre-
viously 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 qualifica-
tion system in accordance with Article 53, the system shall be
the subject of a notice as referred to in Annex XIV, indicating
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.

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In the case of dynamic purchasing systems, the system's
2.
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.

Article 40(3)(b), they may limit to the reference ‘research and
development services’ the information to be provided in accor-
dance with Annex XVI concerning the nature and quantity of
the services provided.

3. When a call
periodic indicative notice, the notice shall:

for competition is made by means of a

(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
negotiated procedure without further publication of a no-
tice of
interested
economic operators to express their interest in writing; and

competition and invite

call

for

a

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

Article 43

Contract award notices

the contract or

1.
Contracting entities which have awarded a contract or a
framework agreement shall, within two months of the award
of
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 of the end of each quarter.

2.
The information provided in accordance with Annex XVI
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
the identity of
economic operators, or prices.

In this connection,

tenders received,

3. Where contracting entities award a research‑and‑develop-
ment service contract (‘R&D contract’) by way of a procedure
accordance with
competition
without

call

for

in

a

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 informa-
tion to be provided in accordance with Annex XVI concerning
the nature and quantity of the services supplied.

In such cases, contracting entities shall ensure that any infor-
mation published under this paragraph is no less detailed than
that contained in the notice of
for competition
published in accordance with Article 42(1).

the call

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).

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

4.
Annex XVII B,
notice whether they agree to publication.

the contracting entities shall

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

Article 44

Form and manner of publication of notices

shall

Notices

1.
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 Com-
mission in accordance with the procedure referred to in
Article 68(2).

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

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 procedures for transmission
indicated in point 3 of Annex XX, shall be published no
later than five days after they are sent.

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transmitted by electronic means in
Notices which are not
accordance with the format and procedures for transmission
indicated in point 3 of Annex XX shall be published not
in
later than 12 days after they are transmitted. However,
exceptional
in
to
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

referred

cases,

the

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

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

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.

(a) the time limit for the 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),
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
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;

the notice is sent

a general

rule, be

shall,

as

Notices and their contents may not be published at
level before the date on which they are sent to the

5.
national
Commission.

(b) the time limit for the 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;

Notices published at national level shall not contain informa-
tion 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.

(c) where it is not possible to reach agreement on the time
limit for the receipt of tenders, the contracting entity 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.

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

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

they are able to

7.
The Commission shall give the contracting entity con-
firmation of the publication of the information sent, mention-
ing the date of
that publication. Such confirmation shall
constitute proof of publication.

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

S e c t i o n 2

Time limits

Article 45

Time limits for the receipt of requests to participate and
for the 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

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 the 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
These reduced time limits are permitted, provided that
periodic indicative notice has included,
in addition to the
information required by Annex XV A, part I, all the informa-
tion required by Annex XV A, part II,
insofar as the latter
information is available at the time the notice is published, and
that the notice has been sent for publication between 52 days
and 12 months before the date on which the contract notice
referred to in Article 42(1)(c) is sent.

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

be

further

reduced

6.
Except in the case of a time limit set by mutual agree-
ment in accordance with paragraph 3(b), time limits for the
receipt of tenders in open, restricted and negotiated procedures
may
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.

days where

five

by

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In open procedures, the cumulative effect of the reduc-
7.
tions provided for in paragraphs 4, 5 and 6 may in no case
result in a time limit for the receipt of tenders of
less than
15 days from the date on which the contract notice is sent.

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
is 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 invita-
tion by the
contracting entities under Article 47(5), of
less than 15 days from the date on which the contract notice
or invitation is 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 accordance with paragraph 3(b), result in a time limit for
the receipt of tenders of less than 10 days from the date of
the invitation to tender.

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 inspec-
tion of the documents supporting the contract documents, the
time limits for the receipt of tenders shall be extended accord-
ingly, except in the case of a time‑limit set by mutual agree-
ment 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.

receipt of the request, provided that the request was made in
good time before the time limit for the submission of tenders.

Provided that it has been requested in good time, addi-
2.
information relating to the specifications shall be sup-
tional
plied by the contracting entities or competent departments
not
fixed for the
receipt of tenders.

later than six days before the time limit

Article 47

Invitations to submit a tender or to negotiate

1.
In restricted procedures and negotiated procedures, con-
tracting 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 the specifications and any supporting documents,

or

— a reference to accessing the specifications and the support-
ing documents indicated in the first indent, when they are
made directly available by electronic means in accordance
with Article 45(6).

2. Where the specifications and/or any supporting docu-
ments 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,
the closing date for
requesting such documents,
the sum payable for obtaining
them and any payment procedures. The competent department
shall
send that documentation to the economic operator
immediately upon receipt of the request.

if appropriate,

The additional

3.
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 the receipt of tenders, provided that it is
requested in good time.

A summary table of the time limits laid down in this

10.
Article is given in Annex XXII.

In addition,

4.
following:

the invitation shall

include at

least

the

Article 46

(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;

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;

1.
In open procedures, where contracting entities do not
offer unrestricted and full direct access by electronic means
in accordance with Article 45(6) to the specifications and any
supporting documents, the specifications and supporting docu-
ments shall be sent to economic operators within six days of

(c) a reference to any published contract notice;

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

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(e) the criteria for the award of the contract, where they are
not indicated in the notice on the existence of a qualifica-
tion system used as a means of calling for competition;

(f) the relative weighting of

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

for competition is made by means of a
5. When a call
periodic indicative notice, contracting entities
subse-
quently 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 negotia-
tions.

shall

This invitation shall include at least the following information:

(a) nature and quantity, including all options concerning com-
if possible, the estimated time
plementary contracts and,
available
for
for
renewable contracts, the nature and quantity and, if possi-
ble,
future notices of
competition for works, supplies or services to be put out
to tender;

the estimated publication dates of

exercising

options

these

(b) type of procedure: restricted or negotiated;

(c) where appropriate,

the date on which the delivery of
to

the execution of works or

services

is

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 the information necessary for obtaining the specifica-
tions and other documents;

(f) economic and technical conditions, financial guarantees and

information required from economic operators;

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

for obtaining tender documents;

(h) the form of

the contract which is the subject of

the
invitation to tender: purchase, lease, hire or hire‑purchase,
or any combination of these; and

(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
to
the specifications or
negotiate.

in the invitation to tender or

S ec t i on 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 para-
graph 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.

Communication and the exchange and storage of infor-
3.
mation 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 tenders and requests to participate only
after the time limit set for submitting them has expired.

4.
The tools to be used for communicating by electronic
means, as well as their technical characteristics, shall be non-
discriminatory, generally available and interoperable with the
information and communication technology products in gen-
eral use.

5.
the
The following rules are applicable to devices for
electronic transmission and receipt of tenders and to devices
for the electronic receipt of requests to participate:

(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 requests to participate shall conform to the require-
ments of Annex XXIV;

(b) Member States may,

in compliance with Article 5 of
Directive 1999/93/EC, require that electronic tenders be
accompanied by an advanced electronic signature in con-
formity with paragraph 1 thereof;

(c) Member States may introduce or maintain voluntary ac-
creditation schemes aiming at enhanced levels of certifica-
tion service provision for these devices;

(d) tenderers or candidates shall undertake to submit, before
expiry of the time limit laid down for the submission of
tenders or requests to participate, the documents, certifi-
cates and declarations mentioned in Articles 52(2), 52(3),
53 and 54 if they do not exist in electronic format.

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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;

enforcement or otherwise be contrary to the public interest or
would prejudice the legitimate commercial interests of a parti-
cular economic operator, public or private, including the inter-
ests of the economic operator to whom the contract has been
awarded, or might prejudice
competition between
economic operators.

fair

(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;

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

(c) contracting entities may require that requests for participa-
tion made by fax should be confirmed by post or by
electronic means, where this is necessary for the purposes
legal proof. Any such requirement, together with the
of
time
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).

confirmation

sending

limit

post

for

by

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, includ-
ing the grounds
a
framework agreement or award a contract for which there has
been a call for competition or to recommence the procedure,
or not
this
information shall be provided in writing if
the contracting
entities are requested to do so.

to implement a dynamic purchasing system;

any decision not

to conclude

for

If the decision will take longer than four 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.

4.
Applicants whose qualification is refused shall be in-
formed 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). Any 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

On request from the party concerned, contracting entities

2.
shall, as soon as possible, inform:

Information to be stored concerning awards

— any unsuccessful candidate of the reasons for the rejection

of his application,

— any unsuccessful tenderer of the reasons for the rejection of
including, for the cases referred to in Article
his tender,
34(4) and (5), the reasons for their decision of non-equiva-
lence or their decision that the works, supplies or services
do not meet the performance or functional requirements,

— 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
parties to the framework agreement.

the successful

tenderer or

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

the 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
the derogations provided for in Chapter II of

virtue of
Title I and in Chapter II of this Title.

The time taken to do so may under no circumstances exceed
15 days from receipt of the written enquiry.

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

However, contracting entities may decide that certain informa-
tion on the contract award or the conclusion of the frame-
dynamic
work
is to be
purchasing system, referred to in the paragraph 1,
withheld where release of such information would impede law

agreement

admission

on

or

to

a

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

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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 the call for competi-
tion, contracting entities shall:

(a) qualify economic operators in accordance with the provi-

sions of Article 53;

(b) apply to such qualified economic operators those provi-
to restricted or

sions of paragraph 1 that are relevant
negotiated procedures.

3.
Contracting entities shall verify that the tenders submitted
by the selected tenderers comply with the rules and require-
ments applicable to tenders and award the contract on the
basis of the criteria laid down in Articles 55 and 57.

S e c t i o n 1

Qualification and qualitative selection

2. Where they request the production of certificates drawn
up by independent bodies attesting the compliance of
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
series
bodies
concerning certification.

conforming

European

standards

the

to

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

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 abilities, an indication of the
environmental management measures which the economic
operator will be able to apply when carrying out the contract.
In such cases,
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 conforming to Community law or the relevant Euro-
pean or international standards concerning certification.

should the contracting entities

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

Article 53

Qualification systems

Contracting entities which so wish may establish and

1.
operate a system of qualification of economic operators.

Contracting entities which establish or operate a system of
qualification shall ensure that economic operators are at all
times able to request qualification.

Article 52

The system under paragraph 1 may involve different

2.
qualification stages.

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 be imposed
on others;

(b) require tests or evidence which would duplicate objective

evidence already available.

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 Arti-
cle 45 of Directive 2004/18/EC on the terms and conditions
set out therein.

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Where the contracting entity is a contracting authority within
the meaning of Article 2(1)(a), those criteria and rules shall
include
listed in Article 45(1) of
the
Directive 2004/18/EC.

exclusion criteria

means of a notice on the existence of a qualification system as
well as the provisions of Article 52 on mutual recognition
concerning administrative,
financial conditions,
certificates, tests and evidence.

technical or

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
for
example by producing an undertaking by those entities to
that effect.

the qualification system,

the validity of

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

the economic operator,

5. Where the criteria and rules for qualification referred to
in paragraph 2 include requirements relating to the technical
and/or professional abilities of
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
qualification system, for example by producing an undertaking
by those entities to make the necessary resources available to
the economic operator.

the validity of

Under the same conditions, a group of economic operators
referred to in Article 11 may rely on the abilities of partici-
pants in the group or of other entities.

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

Where a contracting entity considers that
the qualification
system of certain other entities or bodies meets its require-
ments, it shall communicate to interested economic operators
the names of such other entities or bodies.

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.

8. When establishing or operating a qualification system,
in particular observe the provisions
contracting entities shall
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 selec-
tion of participants when a call for competition is made by

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.

Article 54

Criteria for qualitative selection

Contracting entities which establish selection criteria in
1.
an open procedure shall do so in accordance with objective
rules
interested
and
economic operators.

criteria which

available

are

to

2.
Contracting entities which select candidates for restricted
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 to balance the particular characteristics of the procure-
ment procedure with the resources required to conduct it. The
number of candidates selected shall, however, take account of
the need to ensure adequate competition.

The criteria set out in paragraphs 1 and 2 may include
4.
the
of
exclusion
listed
Directive 2004/18/EC on the terms and conditions set out
therein.

criteria

Article

45

in

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 exclu-
sion criteria listed in Article 45(1) of Directive 2004/18/EC.

the economic operator,

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

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

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6. Where the criteria referred to in paragraphs 1 and 2
include requirements relating to the technical and/or profes-
sional abilities of the economic operator, the latter may where
necessary and for a particular contract rely on the abilities of
other entities, whatever the legal nature of the link between
In this case the economic operator
itself and those entities.
must prove to the contracting entity that for the performance
of
for
example by delivering an undertaking by those entities to
make the necessary resources available to the economic opera-
tor.

those resources will be available to it,

the contract

Under the same conditions, a group of economic operators as
referred to in Article 11 may rely on the abilities of partici-
pants in the group or of other entities.

S e c t i o n 2

Award of the contract

Article 55

Contract award criteria

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

(a) where the contract is awarded on the basis of the most
economically advantageous tender from the point of view
of the contracting entity, be various criteria linked to the
subject‑matter of the contract in question, such as delivery
or completion date, running costs, cost‑effectiveness, qual-
ity, aesthetic and functional characteristics, environmental
characteristics,
and
technical assistance, commitments with regard to parts,
security of supply, and price or otherwise

technical merit,

after‑sales

service

(b) the lowest price only.

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

Those weightings 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 reasons, the contracting entity
shall indicate the criteria in descending order of importance.

Article 56

Use of electronic auctions

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

2.
In open, restricted or negotiated procedures with a 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.

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.

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.

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.

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;

(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;

(d) the relevant information concerning the electronic auction

process;

(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) the relevant information concerning the electronic equip-
ment used and the arrangements and technical specifica-
tions for connection.

The relative weighting or order of importance shall be speci-
fied, as appropriate, in the notice used as a means of calling
in the invitation to confirm the interest
for competition,
in the invitation to tender or to
referred to in Article 47(5),
negotiate, or in the specifications.

Before proceeding with the electronic auction, contracting
4.
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.

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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
the
time
electronic auction may take place in a number of successive
phases. The electronic auction may not start sooner than two
working days after the date on which invitations are sent out.

electronic

auction.

start

the

of

of

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

arrangements

down

laid

the

8.
After closing an electronic auction the contracting entities
shall award the contract in accordance 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 a full evaluation of
the
relevant tender carried out in accordance with the weighting
provided for in the first subparagraph of Article 55(2).

9.
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 sub-
ject-matter of the contract, as defined in the notice used as a
means of calling for competition and in the specification.

The invitation shall also state the mathematical formula to be
used in the electronic auction to determine automatic rerank-
ings 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.

Article 57

Abnormally low tenders

If, for a given contract, tenders appear to be abnormally
1.
low in relation to the goods, works or services, the contracting
request
entity shall, before
in writing details of
the tender
which it considers relevant.

it may reject
the constituent elements of

tenders,

those

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

Those details may relate in particular to:

Throughout each phase of an electronic auction the
6.
instantaneously communicate to all
contracting entities shall
information to enable them to ascertain
tenderers sufficient
their relative rankings at any moment. They may also commu-
nicate other information concerning other prices or values
submitted, provided that
is stated in the specifications.
They may also at any time announce the number of partici-
pants 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.

that

(a) the economics of the manufacturing process, of the ser-

vices provided and of the construction method;

(b) the technical solutions chosen and/or any exceptionally
favourable conditions available to the tenderer
the
supply of the goods or services or for the execution of
the work;

for

(c) the originality of the supplies, services or work proposed

by the tenderer;

Contracting entities shall close an electronic auction in

7.
one or more of the following manners:

(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.

(a) in the invitation to take part

in the auction they shall

indicate the date and time fixed in advance;

(b) when they receive no more new prices or new values
which meet the requirements concerning minimum differ-
ences. In that event, the contracting entities shall 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.

The contracting entity shall verify those constituent ele-
the

2.
ments by consulting the tenderer,
evidence supplied.

taking account of

3. Where a contracting entity establishes that a tender is
abnormally low because the tenderer has obtained State aid,
the tender can be rejected on that ground alone only 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
it
contracting entity rejects a tender in these circumstances,
shall inform the Commission of that fact.

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S e c t i o n 3

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

Tenders

comprising

Article 58

products
countries

originating

in

third

1.
This Article shall apply to tenders covering products
originating in third countries with which the Community has
not concluded, whether multilaterally or bilaterally, an agree-
ment 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.

2.
Any tender submitted for the award of a supply contract
may be rejected where the proportion of the products originat-
ing in third countries, as determined in accordance with
Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code (1), exceeds 50 %
of the total value of the products constituting the tender. For
the purposes of this Article, software used in telecommunica-
tions 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 char-
acteristics different from those of existing equipment, resulting
in incompatibility, technical difficulties in operation and main-
tenance, or disproportionate costs.

4.
For the purposes of this Article, those third countries to
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 propor-
tion, 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

(1) OJ L 302, 19.10.1992, p. 1. Regulation as

amended
by Regulation (EC) No 2700/2000 of the European Parliament and
of the Council (OJ L 311, 12.12.2000, p. 17).

last

such negotiations may have achieved, and on the implementa-
tion in practice of all the agreements which have been con-
cluded.

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.

Article 59

Relations with third countries as regards works, supplies
and service contracts

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

report

The Commission shall

2.
to the Council before
31 December 2005, 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 para-
in the context of the
graph 2 or of other information, that,
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

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

(c) grants undertakings from other third countries more fa-

vourable treatment than Community undertakings.

inform the Commission of any
4. Member States shall
difficulties,
in law or in fact, encountered and reported by
their undertakings and which are due to the non-observance of
the international
labour law provisions listed in Annex XXIII
when these undertakings have tried to secure the award of
contracts in third countries.

5.
In the circumstances referred to in paragraphs 3 and 4,
the 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;

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(b) undertakings affiliated to the undertakings

specified in
point (a) and having their registered office in the Commu-
nity but having no direct and effective link with the
economy of a Member State;

(c) undertakings submitting tenders which have as their sub-
ject-matter services originating in the third country in
question.

The Council
possible.

shall act, by qualified majority, as

soon as

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

6.
This Article shall be without prejudice to the commit-
ments of the Community in relation to third countries ensuing
from international agreements on public procurement, particu-
larly within the framework of the WTO.

TITLE III

RULES GOVERNING SERVICE DESIGN CONTESTS

Article 60

General provision

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.

Article 61

Thresholds

This Title shall apply to design contests organised as part
services whose estimated
is equal to or greater than EUR 499 000.
‘threshold’ means the
including

1.
of a procurement procedure for
value, net of VAT,
For
estimated value net of VAT of the service contract,
any possible prizes and/or payments to participants.

the purposes of

this paragraph,

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.

of

the

prizes

For the purposes of this paragraph, ‘threshold’ means the total
amount
the
and
estimated value net of VAT of the service contract which might
subsequently be concluded under Article 40(3) if the contract-
ing entity does not exclude such an award in the contest
notice.

payments,

including

(1) contests which are organised in the same cases as referred

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

(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 pur-
suant to paragraph 4, second or third subparagraph, or to
paragraph 5, fourth subparagraph, of that Article.

Article 63

Rules on advertising and transparency

1.
Contracting entities which wish to organise a design
contest shall call for competition by means of a contest 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 of 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 Arti-
cle 68(2).

The notice of 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 62

Design contests excluded

Article 64

Means of communication

This Title shall not apply to:

Article 48(1), (2) and (4) shall apply to all communica-

1.
tions relating to contests.

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Communications, exchanges and the storage of informa-
2.
tion shall be such as to ensure that
the integrity and the
confidentiality of all information communicated by the partici-
pants 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.

The following rules shall apply to the devices for the

3.
electronic receipt of plans and projects:

(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 XXIV;

(b) Member States may introduce or maintain voluntary ac-
creditation schemes aiming at enhanced levels of certifica-
tion service provision for such devices.

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.

of candidates invited to participate shall be sufficient to ensure
genuine competition.

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

Article 66

Decisions of the jury

The
1.
opinions.

jury shall be autonomous

in its decisions or

2.
It shall examine the plans and projects submitted by the
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.

Anonymity must be observed until the jury has reached

4.
its opinion or decision.

Candidates may be invited,

5.
if need be, to answer ques-
tions which the jury has recorded in the minutes to clarify any
aspects of the projects.

2. Where design contests are restricted to a limited number
of participants, contracting entities shall establish clear and
non‑discriminatory selection criteria. In any event, the number

Complete minutes shall be drawn up of

6.
between jury members and candidates.

the dialogue

TITLE IV

STATISTICAL OBLIGATIONS, EXECUTORY POWERS AND FINAL PROVISIONS

Article 67

Statistical obligations

information required to verify the proper application of the
Agreement.

shall ensure,

1. Member States
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.

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 telecommu-
nications services listed in category 5 of Annex XVII A whose
CPV positions are equivalent to the CPC reference numbers
7524, 7525 and 7526, or
listed in
Annex XVII B.

services

the

for

The arrangements under paragraphs 1 and 2 shall be laid

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

2.
As regards the categories of activity to which Annexes II,
IX and X refer, Member States shall ensure that the
III, V,
Commission receives a statistical report on contracts awarded
no later than 31 October 2004 for the previous year, and
before 31 October of each year thereafter, in accordance with
arrangements to be laid down under the procedure provided
for in Article 68(2). The statistical report shall contain the

(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.

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Article 68

Committee procedure

Article 70

Amendments

The

Commission

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

assisted

by

be

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.

Article 69

Revision of the thresholds

1.
The Commission shall verify the thresholds established in
Article 16 every two years from 30 April 2004, 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 preced-
ing the revision with effect from 1 January. The value of 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.

At

2.
the same time as performing the revision under
in accordance with the
paragraph 1, the Commission shall,
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.

3.
The revised thresholds referred to in paragraph 1, their
values in national currencies and the aligned thresholds re-
ferred 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.

(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).

The Commission may amend,
dure provided for in Article 68(2):

in accordance with the proce-

(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 re-

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

(c) the procedures for specific references to particular positions

in the CPV nomenclature in the notices;

(d) the reference numbers in the nomenclature set out

in
Annex XVII, in so far 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) the reference numbers in the nomenclature set out

in
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;

(f) Annex XI;

(g) the procedure for sending and publishing data referred to
technical progress or for

in Annex XX, on grounds of
administrative reasons;

(h) the technical details and characteristics of the devices for
(f) and (g) of

electronic receipt referred to in points (a),
Annex XXIV;

(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 distri-
bution 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 71

Implementation of the Directive

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 31 January 2006 at the latest. They shall forth-
with inform the Commission thereof.

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Article 73

Repeal

Directive 93/38/EEC is hereby repealed, without prejudice to
the Member States concerning the time
the obligations of
in
for
limits
Annex XXV.

transposition into national

law set out

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 XXVI.

Article 74

Entry into force

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

Article 75

Addressees

This Directive is addressed to the Member States.

Done at Strasbourg, 31 March 2004.

For the European Parliament

The President

P. COX

For the Council

The President

D. ROCHE

Member States may avail themselves of an additional period of
up to 35 months after expiry of the time limit provided for in
the first subparagraph for the application of
the provisions
necessary to comply with Article 6 of this Directive.

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 30 April
2004.

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.

Article 72

Monitoring mechanisms

In conformity with Council Directive 92/13/EEC of 25 Febru-
ary 1992 coordinating the laws, regulations and administrative
provisions relating to the application of Community rules on
the procurement procedures of entities operating in the water,
energy, transport and telecommunications sectors (1), Member
States shall ensure implementation of this Directive by effec-
tive, available and transparent mechanisms.

For this purpose they may, among other things, appoint or
establish an independent body.

(1) OJ L 76, 23.03.1992, p. 14. Directive amended by the 1994 Act of

Accession (OJ 241, 29.8.1994, p. 228).

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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

— ‘Δημόσια Επιχείρηση Αερίου (Δ.ΕΠ.Α.) Α.Ε.’, 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, S.A.

— Bahía de Bizkaia Gas, S.L.

— Gasoducto Al Andalus, S.A.

— Gasoducto de Extremadura, S.A.

— Infraestructuras Gasistas de Navarra, S.A.

— Regasificadora del Noroeste, S.A.

— Sociedad de Gas de Euskadi, S.A

— Transportista Regional de Gas, S.A.

— Unión Fenosa de Gas, S.A.

— Bilbogas, S.A.

— Compañía Española de Gas, S.A.

— Distribución y Comercialización de Gas de Extramadura, S.A.

— Distribuidora Regional de Gas, S.A.

— Donostigas, S.A.

— Gas Alicante, S.A.

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Official Journal of the European Union

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— Gas Andalucía, S.A.

— Gas Aragón, S.A.

— Gas Asturias, S.A.

— Gas Castilla – La Mancha, S.A.

— Gas Directo, S.A.

— Gas Figueres, S.A.

— Gas Galicia SDG, S.A.

— Gas Hernani, S.A.

— Gas Natural de Cantabria, S.A.

— Gas Natural de Castilla y León, S.A.

— Gas Natural SDG, S.A.

— Gas Natural de Alava, S.A.

— Gas Natural de La Coruña, S.A.

— Gas Natural de Murcia SDG, S.A.

— Gas Navarra, S.A.

— Gas Pasaia, S.A.

— Gas Rioja, S.A.

— Gas y Servicios Mérida, S.L.

— Gesa Gas, S.A.

— Meridional de Gas, S.A.U.

— Sociedad del Gas Euskadi, S.A.

— Tolosa Gas, S.A.

France

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

— Gaz de France, set up and operated pursuant to loi n° 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 n° 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 s.p.a., 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
l'esercizio di centrali elettriche

lo sviluppo delle fonti rinnovabili di energia,

contenimento dei consumi energici,
alimentate con combustibili dagli idrocarburi.

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

Luxembourg

— Société de transport de gaz SOTEG S.A.

— Gaswierk Esch-Uelzecht S.A.

— 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 Provincie-

wet.

— 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 Gaswirtschaftgesetz, 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,
to
networks.

transporting or distributing heat or providing heat

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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ANNEX II

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

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

Consolidation 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

— ‘Δημόσια Επιχείρηση Ηλεκτρισμού Α.Ε.’, set up by Law No 1468/1950 περί
accordance with Law No 2773/1999 and Presidential Decree No 333/1999.

ιδρύσεως της ΔΕΗ and operates in

— The company ‘ΔΙΑΧΕΙΡΙΣΤΗΣ ΕΛΛΗΝΙΚΟΥ ΣΥΣΤΗΜΑΤΟΣ ΜΕΤΑΦΟΡΑΣ ΗΛΕΚΤΡΙΚΗΣ ΕΝΕΡΓΕΙΑΣ Α.Ε.’ known as
to Article 14 of Law No 2773/1999 and

‘ΔΙΑΧΕΙΡΙΣΤΗΣ ΤΟΥ ΣΥΣΤΗΜΑΤΟΣ ή ΔΕΣΜΗΕ’, set up pursuant
Presidential Decree No 328/2000 (Greek Official Gazette 268).

Spain

— Red Eléctrica de España, S.A.

— Endesa, S.A.

— Iberdrola, S.A.

— Unión Fenosa, S.A.

— Hidroeléctrica del Cantábrico, S.A.

— Electra del Viesgo, S.A.

— 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 n° 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 n° 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 Organisa-
tionsgesetz, 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
amended by Decree-Law No 56/97 of 14 March 1997.

to Decree‑Law No 182/95 of 27 July 1995, as

— 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 Decree-Law
No 56/97 of 14 March 1997, and pursuant to Decree-Law No 344‑B/82 of 1 September 1982, as amended by
Decree-Law No.297/86 of 19 September 1986 and by Decree-Law No 341/90 of 30 October 1990 and Decree-
Law No 17/92 of 5 February 1992.

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 sähkömarkkinalakisähkömarkkinalaki/ 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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ANNEX III

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

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 Kommanditge-
sellschaft (limited partnership), producing or distributing water on the basis of a special contract with regional or
local authorities.

Greece

— ‘Εταιρεία Υδρεύσεως και Αποχετεύσεως Πρωτευούσης Α.Ε.’

(‘Ε.Υ.Δ.Α.Π.’ or ‘Ε.Υ.Δ.Α.Π. Α.Ε.’). 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 Α.Ε.’

(‘Ε.Υ.Α.Θ. Α.Ε.’) governed by the provisions of Law No

2937/2001 (Greek Official Gazette 169 Α΄) and of Law No 2651/1998 (Greek Official Gazette 248 Α΄).

— ‘Δημοτική Επιχείρηση Ύδρευσης και Αποχέτευσης Μείζονος Περιοχής Βόλου’ (‘ΔΕΥΑΜΒ’), which operates pursuant to

Law No 890/1979.

— ‘Δημοτικές 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 Κώδικoς

Δήμων και Κοινοτήτων.

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

Δήμων 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 share-
holding, 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.

— Ørestadsselskabet I/S.

Germany

— Deutsche Bahn AG.

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

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

Greece

— ‘Oργανισμός Σιδηροδρόμων Ελλάδος Α.Ε.’ (‘Ο.Σ.Ε. Α.Ε.’), pursuant to Law No 2671/98.

— ‘ΕΡΓΟΣΕ Α.Ε.’ 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 S. p. A.

— Trenitalia S. p. A.

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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, E.P., pursuant to Decree-Law No 109/77 of 23 March 1977.

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

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

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

— Metro do Porto, S.A., 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, S.A., 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, S.A., pursuant to Decree-Law No 15/95 of 8 February 1995.

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

— Metro Transportes do Sul, S.A., 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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ANNEX V

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

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–Luxembourg,
TEC Brabant wallon, TEC Charleroi, TEC Hainaut)/ Société régionale wallonne du Transport en haar exploitatie-
maatschappijen (TEC Liège–Verviers, TEC Namur–Luxembourg, TEC Brabant wallon, TEC Charleroi, TEC Hainaut)

— 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.

— Ørestadsselskabet I/S.

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 Α.Ε.’ (‘Η.Λ.Π.Α.Π. Α.Ε.’), established and operating pursuant to

Legislative Decree No 768/1970 (Α΄273), Law No 588/1977 (Α΄148) and Law No 2669/1998 (Α΄283).

— ‘Ηλεκτρικοί Σιδηρόδρομοι Αθηνών – Πειραιώς’
352/1976 (Α΄ 147) and 2669/1998 (Α΄283).

(‘Η.Σ.Α.Π. Α.Ε.’), established and operating pursuant

to Laws Nos

— ‘Οργανισμός Αστικών Συγκοινωνιών Αθηνών Α.Ε.’
2175/1993 (Α΄211) and 2669/1998 (Α΄283).

(‘Ο.Α.ΣΑ. Α.Ε.’), established and operating pursuant to Laws Nos

— ‘Εταιρεία Θερμικών Λεωφορείων Α.Ε.’ (‘Ε.Θ.Ε.Λ. Α.Ε.’), established and operating pursuant to Laws Nos 2175/1993

(Α΄211) and 2669/1998 (Α΄283).

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

— ‘Οργανισμός Αστικών Συγκοινωνιών Θεσσαλονίκης’

(‘Ο.Α.Σ.Θ.’), established and operating pursuant

to Decree No

3721/1957, Legislative Decree No 716/1970 and Laws Nos 66/79 and 2898/2001 (Α΄71).

— ‘Κοινό Ταμείο Είσπραξης Λεωφορείων’ (‘Κ.Τ.Ε.Λ.’), operating pursuant to Law No 2963/2001 (Α΄268).

— ‘Δημοτικές Επιχειρήσεις Λεωφορείων Ρόδου και Κω’, otherwise known as ‘ΡΟΔΑ’ and ‘ΔΕΑΣ ΚΩ’ respectively, operating

pursuant to Law No 2963/2001 (Α΄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 n° 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
linea (autolinee per viaggiatori, bagagli e
in regime di concessione all'industria privata) — Article 1, as amended by Article 45 of the

No 1822 of 28 September 1939 — Disciplina degli autoservizi di
pacchi agricoli
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

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.

to Article 113 of

— 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

Personenvervoer.

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, E.P., 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
Automóveis (Decree No 37272 of 31 December 1948).

to Article 98 of

the Regulamento de Transportes em

— 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
luvanvaraisesta 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 ΕΛ.ΤΑ established by Legislative Decree No 496/70 and operating pursuant to Law No 2668/98
(ELTA)

SPAIN

Correos y Telégrafos, S.A.

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 Α.Ε.’, pursuant to Law No 2593/98 για την αναδιοργάνωση της Δ.Ε.Π. Α.Ε. και των θυγατρικών της

εταιρειών, το καταστατικό αυτής και άλλες διατάξεις.

Spain

— BG International Limited Quanum, Asesores & Consultores, S.A.

— Cambria Europe, Inc.

— CNWL oil (España), S.A.

— Compañía de investigación y explotaciones petrolíferas, S.A.

— Conoco limited.

— Eastern España, S.A.

— Enagas, S.A.

— España Canadá resources Inc.

— Fugro – Geoteam, S.A.

— Galioil, S.A.

— Hope petróleos, S.A.

— Locs oil compay of Spain, S.A.

— Medusa oil Ltd.

— Muphy Spain oil company

— Onempm España, S.A.

— Petroleum oil & gas España, S.A.

— Repsol Investigaciones petrolíferas, S.A.

— Sociedad de hidrocarburos de Euskadi, S.A.

— Taurus petroleum, AN.

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— Teredo oil limited

— Unión Fenosa gas exploración y producción, S.A.

— Wintersahll, AG

— YCI España, L.C.

— 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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ANNEX VIII

CONTRACTING ENTITIES IN THE SECTORS OF EXPLORATION FOR AND EXTRACTION OF COAL AND
OTHER SOLID FUELS

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

— ‘Δημόσια 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, S.A.

— Antracitas de Arlanza, S.A.

— Antracitas de Gillon, S.A.

— Antracitas de La Granja, S.A.

— Antracitas de Tineo, S.A.

— Campomanes Hermanos, S.A.

— Carbones de Arlanza, S.A.

— Carbones de Linares, S.A.

— Carbones de Pedraforca, S.A.

— Carbones del Puerto, S.A.

— Carbones el Túnel, S.L.

— Carbones San Isidro y María, S.A.

— Carbonifera del Narcea, S.A.

— Compañia Minera Jove, S.A.

— Compañía General Minera de Teruel, S.A.

— Coto minero del Narcea, S.A.

— Coto minero del Sil, S.A.

— Empresa Nacional Carbonífera del Sur, S.A.

— Endesa, S.A.

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— Gonzalez y Diez, S.A.

— Hijos de Baldomero García, S.A.

— Hullas del Coto Cortés, S.A.

— Hullera Vasco–leonesa, S.A.

— Hulleras del Norte, S.A.

— Industrial y Comercial Minera, S.A.

— La Carbonífera del Ebro, S.A.

— Lignitos de Meirama, S.A.

— Malaba, S.A.

— Mina Adelina, S.A.

— Mina Escobal, S.A.

— Mina La Camocha, S.A.

— Mina La Sierra, S.A.

— Mina Los Compadres, S.A.

— Minas de Navaleo, S.A.

— Minas del Principado, S.A.

— Minas de Valdeloso, S.A.

— Minas Escucha, S.A.

— Mina Mora primera bis, S.A.

— Minas y explotaciones industriales, S.A.

— Minas y ferrocarriles de Utrillas, S.A.

— Minera del Bajo Segre, S.A.

— Minera Martín Aznar, S.A.

— Minero Siderúrgica de Ponferrada, S.A.

— Muñoz Sole hermanos, S.A.

— Promotora de Minas de carbón, S.A.

— Sociedad Anónima Minera Catalano–aragonesa.

— Sociedad minera Santa Bárbara, S.A.

— Unión Minera del Norte, S.A.

— Union Minera Ebro Segre, S.A.

— Viloria Hermanos, S.A.

— Virgilio Riesco, S.A.

— 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 S.p.A.

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 (...).

Sweden

— Entities benefiting 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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ANNEX IX

CONTRACTING ENTITIES IN THE FIELD OF MARITIME OR INLAND PORT OR OTHER TERMINAL
FACILITIES

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’ (‘Ο.Λ.Π. Α.Ε.’), pursuant to Law No 2688/99.

— ‘Οργανισμός Λιμένος Θεσσαλονίκης Aνώνυμη Εταιρία’ (‘Ο.Λ.Θ. Α.Ε.’), pursuant to Law No 2688/99.

— ‘Οργανισμός Λιμένος Αλεξανδρούπολης Ανώνυμη Εταιρεία’ (‘Ο.Λ.Α. Α.Ε.’), pursuant to Law No 2932/01.

— ‘Οργανισμός Λιμένος Βόλου Ανώνυμη Εταιρεία’ (‘Ο.Λ.Β. Α.Ε.’), pursuant to Law No 2932/01.

— ‘Οργανισμός Λιμένος Ελευσίνας Ανώνυμη Εταιρεία’ (‘Ο.Λ.Ε. Α.Ε.’), pursuant to Law No 2932/01.

— ‘Οργανισμός Λιμένος Ηγουμενίτσας Ανώνυμη Εταιρεία’ (‘Ο.Λ.ΗΓ. Α.Ε.’), pursuant to Law No 2932/01.

— ‘Οργανισμός Λιμένος Ηρακλείου Ανώνυμη Εταιρεία’ (‘Ο.Λ.Η. Α.Ε.’), pursuant to Law No 2932/01.

— ‘Οργανισμός Λιμένος Καβάλας Ανώνυμη Εταιρεία’ (‘Ο.Λ.Κ. Α.Ε.’), pursuant to Law No 2932/01.

— ‘Οργανισμός Λιμένος Κέρκυρας Ανώνυμη Εταιρεία’ (‘Ο.Λ.ΚΕ. Α.Ε.’), pursuant to Law No 2932/01.

— ‘Οργανισμός Λιμένος Πατρών Ανώνυμη Εταιρεία’ (‘Ο.Λ.ΠΑ. Α.Ε.’), pursuant to Law No 2932/01

— ‘Οργανισμός Λιμένος Λαυρίου Ανώνυμη Εταιρεία’ (‘Ο.Λ.Λ. Α.Ε.’), pursuant to Law No 2932/01.

— ‘Οργανισμός Λιμένος Ραφήνας Ανώνυμη Εταιρεία’ (‘Ο.Λ.Ρ. Α.Ε’), 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 n° 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 n°
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, S.A., pursuant to Decree-Law No 335/98 of 3 November

1998.

— APL — Administração do Porto de Lisboa, S.A., pursuant to Decree-Law No 336/98 of 3 November 1998.

— APS — Administração do Porto de Sines, S.A., pursuant to Decree-Law No 337/98 of 3 November 1998.

— APSS — Administração dos Portos de Setúbal e Sesimbra, S.A., pursuant to Decree-Law No 338/98 of 3 November

1998.

— APA — Administração do Porto de Aveiro, S.A., 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 hoitokunt/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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ANNEX X

CONTRACTING ENTITIES IN THE FIELD OF AIRPORT INSTALLATIONS

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 ‘Διεθνής Αερολιμένας Αθηνών’ at Spata operating pursuant to Legislative Decree No 2338/95 Κύρωση
‘ίδρυση της εταιρείας “Διεθνής

Σύμβασης Ανάπτυξης του Νέου Διεθνούς Αεροδρομίου της Αθήνας στα Σπάτα,
Αερολιμένας Αθηνών Α.Ε.” έγκριση περιβαλλοντικών όρων και άλλες διατάξεις’).

— ‘Φορείς Διαχείρισης’

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 Α 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.

— R.A.I. 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, S.A., set up pursuant to Decree-Law No 404/98 of 18 December 1998.

— NAV — Empresa Pública de Navegação Aérea de Portugal, E. P., set up pursuant to Decree‑Law No 404/98 of 18

December 1998.

— ANAM — Aeroportos e Navegação Aérea da Madeira, S. A., 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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ANNEX XI

LIST OF COMMUNITY LEGISLATION REFERRED TO IN ARTICLE 30(3)

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

CONSTRUCTION

NACE (1)

Group

Class

Subject

Notes

CPV Code

Construction

This division includes:

45000000

construction of new buildings and works,
restoring and common repairs

Divi-
sion

45

45.1

Site preparation

45.11

Demolition and wreck-
ing of buildings; earth
moving

This class includes:
— demolition of buildings

structures

and other

— clearing of building sites
— earth moving: excavation,

le-
velling and grading of construction
sites,
rock removal,
blasting, etc.

trench digging,

landfill,

— site preparation for mining:

overburden removal and other develop-
ment and preparation of mineral prop-
erties and sites

This class also includes:
— building site drainage
— drainage of agricultural or forestry land

45.12

Test drilling and boring

This class includes:
— test drilling, test boring and core sam-
geophysical,
construction,

pling
geological or similar purposes

for

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, geophysi-
cal, geological and seismic surveying,
see 74.20

45.2

Building
complete
of
constructions or parts
thereof; civil engineer-
ing

(1)

In the event of any difference of interpretation between the CPV and the NACE, the NACE nomenclature will apply.

45100000

45110000

45120000

45200000

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NACE (1)

SECTION F

CONSTRUCTION

Divi-
sion

Group

Class

Subject

Notes

CPV Code

45.21

General construction of
buildings and civil engi-
neering works

This class includes:

45210000

construction of all types of buildings

construction of civil engineering construc-
tions

bridges, including those for elevated high-
ways, viaducts, tunnels and subways

long-distance
and power lines

pipelines,

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-
from self-manufactured parts
structions
not of concrete,
see divisions 20, 26
and 28

stadiums,

construction work, other than buildings,
swimming pools, gymna-
for
siums,
tennis courts, golf courses and
other sports installations, see 45.23

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-
airfields
roads,
ways,
and sport facilities

This class includes:

45230000

construction of highways, streets,
other vehicular and pedestrian ways

roads,

construction of railways

construction of airfield runways

stadiums,

construction work, other than buildings,
swimming pools, gymna-
for
siums,
tennis courts, golf courses and
other sports installations

painting of markings on road surfaces and
car parks

This class excludes:

preliminary earth moving, see 45.11

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NACE (1)

SECTION F

CONSTRUCTION

Divi-
sion

Group

Class

Subject

Notes

CPV Code

45.24

Construction of water
projects

This class includes construction of:

45240000

waterways, harbour and river works, plea-
sure ports (marinas), locks, etc.

dams and dykes dredging

subsurface work

45.25

construction
Other
work involving special
trades

This class includes:

45250000

construction activities specialising in one
aspect common to different kinds of struc-
tures, requiring specialised skill or equip-
ment:

construction of foundations, including pile
driving

water well drilling and construction, shaft
sinking

erection of non-self-manufactured steel ele-
ments

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

45300000

45.31

Installation of electrical
wiring and fittings

This class includes:

45310000

installation in buildings or other construc-
tion projects of:

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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NACE (1)

SECTION F

CONSTRUCTION

Divi-
sion

Group

Class

Subject

Notes

CPV Code

45.32

Insulation work activ-
ities

This class includes:

45320000

installation in buildings or other construc-
tion projects of thermal, sound or vibra-
tion insulation

This class excludes:

waterproofing, see 45.22

45.33

Plumbing

This class includes:

45330000

installation in buildings or other construc-
tion 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 installa-
tion

This class includes:

45340000

installation of
illumination and signalling
systems for roads, railways, airports and
harbours

installation in buildings or other construc-
tion projects of fittings and fixtures n.e.c.

45.4

Building completion

45400000

45.41

Plastering

This class includes:

45410000

45.42

Joinery installation

application in buildings or other construc-
tion projects of interior and exterior plas-
ter or
including related lathing
materials

stucco,

This class includes:
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 completion such as ceilings, woo-
den wall coverings, movable partitions, etc.

This class excludes:

laying of parquet and other wood floor
coverings, see 45.43

45420000

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NACE (1)

SECTION F

CONSTRUCTION

Divi-
sion

Group

Class

Subject

Notes

CPV Code

45.43

Floor and wall covering

This class includes:

45430000

laying, tiling, hanging or fitting in build-
ings or other construction projects of:

ceramic, concrete or cut stone wall or
floor tiles

parquet and other wood floor coverings
carpets and linoleum floor coverings,
in-
cluding of rubber or plastic

terrazzo, marble, granite or slate floor or
wall coverings

wallpaper

45.44

Painting and glazing

This class includes:

45440000

45.45

Other building comple-
tion

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

45.5

Renting of construction
equip-
demolition
or
ment with operator

45500000

45.50

Renting of construction
equip-
demolition
or
ment with operator

This class excludes:

45500000

renting of construction or demolition ma-
chinery and equipment without operators,
see 71.32

(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 (EEC) No 761/93 (OJ L 83,
3.4.1993, p. 1).

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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 performance 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,
combination of these.

lease, rental or hire purchase or any

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
different lots and the possibility of tendering for one, for several or for all the lots;

lots, the order of size of the

(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 performance 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 performance 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 Journal of 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.

20. Name and address of

information concerning time limits for lodging appeals, or,
fax number and e‑mail address of the department from which this information may be obtained.

the body responsible for appeal and, where appropriate, mediation procedures. Precise
if need be, the name, address, telephone number,

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 performance 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,
combination of these.

lease, rental or hire purchase or any

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
different lots and the possibility of tendering for one, for several or for all the lots;

lots, the order of size of the

(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.
if possible, an estimate of the timing of the subsequent calls for
In the case of recurring contracts, also,
competition for the services to be procured;

(b) Indication of whether the performance 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 performance 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

‘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.

‘lowest price’ or

award of

contract:

the

16. Where appropriate, particular conditions to which performance of the contract is subject.

17. Where appropriate, the reference to publication in the Official

the periodic
information notice or of the notice of the publication of this notice on the buyer profile to which the contract
refers.

the European Union of

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 performance 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,
combination of these.

lease, rental or hire purchase or any

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
different lots and the possibility of tendering for one, for several or for all the lots;

lots, the order of size of the

(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 performance 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 performance 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

‘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.

‘lowest price’ or

award of

contract:

the

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 periodic
information notice or of the notice of the publication of this notice on the buyer profile to which the contract
refers.

the European Union of

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 performance is

reserved in the context of sheltered employment programmes.

3. Purpose of

the qualification system (description of
procured through the system — nomenclature reference No(s)).

the goods, services or works or categories thereof

to be

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

information concerning time‑limits for lodging appeals, or,
fax number and e‑mail address of the service from which this information may be obtained.

the body responsible for appeal and, where appropriate, mediation procedures. Precise
if need be, the name, address, telephone number,

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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ANNEX XV A

A INFORMATION TO BE INCLUDED IN THE PERIODIC INDICATIVE NOTICE

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 performance 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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Official Journal of the European Union

30.4.2004

15. Where appropriate, particular conditions to which performance of the contract is subject.

16. Name and address of

information concerning time limits for lodging appeals, or,
fax number and e‑mail address of the service from which this information may be obtained.

the body responsible for appeal and, where appropriate, mediation procedures. Precise
if need be, the name, address, telephone number,

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.

30.4.2004

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Official Journal of the European Union

L 134/89

ANNEX XV B

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

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).

L 134/90

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Official Journal of the European Union

30.4.2004

ANNEX XVI

INFORMATION TO BE INCLUDED IN THE CONTRACT AWARD NOTICE

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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Official Journal of the European Union

L 134/91

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)).

L 134/92

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Official Journal of the European Union

30.4.2004

ANNEX XVII A (1)

SERVICES WITHIN THE MEANING OF ARTICLE 31

Category
No

Subject

CPC Reference No (1)

CPV Reference No

1

Maintenance and repair services

6112, 6122, 633,
886

From 50100000 to 50982000
(except
to
50310000
50190000-3, 50229000-6, 50243000-0)

50324200

for

and

50116510-9,

2

3

4

5

Land transport services (2),
including ar-
moured car services, and courier ser-
vices, except transport of mail

712 (except
71235), 7512,
87304

From 60112000-6 to 60129300-1
(except 60121000 to 60121600, 60122200-1, 60122230-0),
and from 64120000-3 to 64121200-2

Air transport services of passengers and
freight, except transport of mail

73 (except 7321)

From 62100000-3 to 62300000-5
(except 62121000-6, 62221000-7)

Transport of mail by land (2) and by air

71235, 7321

60122200-1, 60122230-0
62121000-6, 62221000-7

Telecommunications services

752

From 64200000-8 to 64228200-2,
72318000-7,
and from 72530000-9 to 72532000-3

6

Financial services:

ex 81, 812, 814

(a) Insurances services

(b) Banking and investment services (3)

From 66100000-1 to 66430000-3 and
From 67110000-1 to 67262000-1 (3)

7

Computer and related services

84

From 50300000-8 to 50324200-4,
From 72100000-6 to 72591000-4
(except 72318000-7 and from 72530000-9 to 72532000-3)

8

9

10

11

Research and development services (4)

85

From 73000000-2 to 73300000-5
(except 73200000-4, 73210000-7, 7322000-0)

Accounting, auditing and bookkeeping
services

862

From 74121000-3 to 74121250-0

Market research and public opinion poll-
ing services

864

From 74130000-9 to 74133000-0, and
74423100-1, 74423110-4

Management consulting services (5) and
related services

865, 866

From 73200000-4 to 73220000-0,
From 74140000-2 to 74150000-5
(except 74142200-8), and
74420000-9, 74421000-6,
74423000-0, 74423200-2,
74423210-5, 74871000-5,
93620000-0

(1)

In the event of any difference of interpretation between the CPV and the CPC, the CPC nomenclature will apply.

30.4.2004

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Official Journal of the European Union

L 134/93

Category
No

12

Subject

CPC Reference No (1)

CPV Reference No

Architectural
services; engineering ser-
vices and integrated engineering services;
urban planning and landscape engineer-
ing services; related scientific and techni-
cal consulting services; technical testing
and analysis services

867

From 74200000-1 to 74276400-8, and
From 74310000-5 to 74323100-0, and 74874000-6

13

Advertising services

871

From 74400000-3 to 74422000-3
(except 74420000-9 and 74421000-6)

14

15

16

Building-cleaning services and property
management services

874, 82201 to
82206

From 70300000-4 to 70340000-6, and
From 74710000-9 to 74760000-4

Publishing and printing services on a fee
or contract basis

88442

From 78000000-7 to 78400000-1

Sewage
and refuse disposal
sanitation and similar services

services;

94

From 90100000-8 to 90320000-6, and
50190000-3, 50229000-6,
50243000-0

(1) CPC Nomenclature (provisional version), used to define the scope of Directive 93/38/EEC.
(2) Except for rail transport services covered by category 18.
(3) Except financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments, and central bank services. Also excluded:
services involving the acquisition or rental, by whatever financial procedures, of land, existing buildings, or other immovable property or concerning rights thereon;
nevertheless, financial services supplied 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 research and development services other than those where the benefits accrue exclusively to the contracting authority for its use in the conduct of its own

affairs on condition that the service provided is wholly remunerated by the contracting authority.

(5) Except arbitration and conciliation services.

L 134/94

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Official Journal of the European Union

30.4.2004

ANNEX XVII B

SERVICES WITHIN THE MEANING OF ARTICLE 32

Category
No

Subject

CPC Reference No

CPV Reference No

17

Hotel and restaurant services

18

Rail transport services

19

Water transport services

64

711

72

20

Supporting
services

and

auxiliary

transport

74

From 55000000-0 to 55524000-9, and
From 93400000-2 to 93411000-2

60111000-9, and
from 60121000-2 to 60121600-8

From 61000000-5 to 61530000-9, and
From 63370000-3 to 63372000-7

62400000-6, 62440000-8,
62441000-5, 62450000-1,
From 63000000-9 to 63600000-5
(except 63370000-3, 63371000-0,
63372000-7), and
74322000-2, 93610000-7

21

22

23

24

Legal services

861

From 74110000-3 to 74114000-1

Personnel
services (1)

placement

and

supply

872

From 74500000-4 to 74540000-6
(except 74511000-4), and
from 95000000-2 to 95140000-5

Investigation and security services, except
armoured car services

873 (except
87304)

From 74600000-5 to 74620000-1

Education
services

and

vocational

education

92

From 80100000-5 to 80430000-7

25

Health and social services

93

74511000-4, and
from 85000000-9 to 85323000-9 (except 85321000-5 and
85322000-2)

26

Recreational,
services

cultural

and

sporting

96

From 74875000-3 to 74875200-5, and
From 92000000-1 to 92622000-7
(except 92230000-2)

27

Other services

(1) Except employment contracts.

30.4.2004

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Official Journal of the European Union

L 134/95

ANNEX XVIII

INFORMATION TO BE INCLUDED IN THE DESIGN CONTEST NOTICE

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

L 134/96

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Official Journal of the European Union

30.4.2004

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.

30.4.2004

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Official Journal of the European Union

L 134/97

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
confirmation referred to in Article 44(7).

the European Communities will give the contracting authority the

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 procedures 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.

L 134/98

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Official Journal of the European Union

30.4.2004

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
inspection and acceptance
methods. They shall also include rules relating to design and costing,
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;

the test,

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;

3.

4.

5.

‘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.

30.4.2004

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Official Journal of the European Union

L 134/99

ANNEX XXII

SUMMARY TABLE OF THE TIME-LIMITS LAID DOWN IN ARTICLE 45

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

Contract
documents
available
electronically

Electronic
transmission plus
‘electronic’
contract
documents

Effect on first
subparagraph of
paragraph 8

Effect on second
subparagraph of
paragraph 8

37

30

Not applicable
(n.a.)

n.a.

none

n.a.

L 134/100

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Official Journal of the European Union

30.4.2004

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

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.

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.

The period of
5 days is
extended to
10 days

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

Effect on second
subparagraph of
paragraph 8

n.a.

n.a.

n.a.

n.a.

n.a.

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Official Journal of the European Union

L 134/101

ANNEX XXIII

INTERNATIONAL LABOUR LAW PROVISIONS WITHIN THE MEANING OF ARTICLE 59(4)

— Convention 87 on Freedom of Association and the Protection of the Right to Organise;

— Convention 98 on the Right to Organise and Collective Bargaining;

— Convention 29 on Forced Labour;

— Convention 105 on the Abolition of Forced Labour;

— Convention 138 on Minimum Age;

— Convention 111 on Discrimination (Employment and Occupation);

— Convention 100 on Equal Remuneration;

— Convention 182 on Worst Forms of Child Labour.

L 134/102

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Official Journal of the European Union

30.4.2004

ANNEX XXIV

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 a Community framework for electronic signatures (OJ L 13,

19.1.2000, p. 12).

30.4.2004

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Official Journal of the European Union

L 134/103

ANNEX XXV

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

L 134/104

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Official Journal of the European Union

30.4.2004

ANNEX XXVI

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’.

30.4.2004

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Official Journal of the European Union

L 134/105

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 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 11(1), 1st subparagraph

Article 33(2)

Article 11(1), 2nd subparagraph

Article 33(3)

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 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

L 134/106

EN

Official Journal of the European Union

30.4.2004

This Directive

Directive 93/38/EEC

Article 17(5)

Article 14(12)

Article 17(6)(a), 1st subparagraph

Article 14(10), 3rd sentence

Adapted

Amended

Article 17(6)(a), 2nd subparagraph

Article 14(10), 2nd subparagraph, 2nd sen-
tence

Adapted

Article 17(6)(a), 3rd subparagraph

Article
3rd sentence

14(10),

2nd

subparagraph,

Amended

Article 17(6)(b), 1st subparagraph

Article 14(10), 2nd subparagraph, 1st sen-
tence

Amended

Article 17(6)(b), 2nd subparagraph

Article 14(10), 2nd subparagraph, 2nd sen-
tence

Adapted

Article 17(6)(b), 3rd subparagraph

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 14(7)

Article 14(8)

Article 14(4)

Article 14(3)

Article 14(5)

Article 7

New

Amended

Amended

Amended

New

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 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

30.4.2004

EN

Official Journal of the European Union

L 134/107

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

L 134/108

EN

Official Journal of the European Union

30.4.2004

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), 1st to 3rd sentences

Article 24(3), 4th sentence

Article 24(4)

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

Adapted

New

New

New

Amended

Adapted

Amended

Amended

New

New

Deleted

New

30.4.2004

EN

Official Journal of the European Union

L 134/109

This Directive

Directive 93/38/EEC

Article 26(2)

Adapted

Article 26(1), 2nd and 3rd sentences

Adapted

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

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

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(6), 1st and 2nd sentences and
1st indent

Amended

New

Article 28(6), 2nd and 4th indent

Amended

Article 28(5)

Article 41(3)

Article 49(2), 1st subparagraph

Article 41(4), 1st subparagraph

Article 49(2), 2nd subparagraph

Article 41(2), 2nd subparagraph

Adapted

Article 49(3)

Article 30(4)

New

Amended

New

Amended

Amended

New

Amended

New

Amended

Adapted

Deleted

Amended

New

Adapted

New

New

New

Amended

Amended

Amended

L 134/110

EN

Official Journal of the European Union

30.4.2004

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 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 54(4), 1st subparagraph

Article 31(2)

Article 54(4), 2nd subparagraph

Article 54(5)

Article 54(6)

Article 55(1)

Article 55(2)

Article 56

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

30.4.2004

EN

Official Journal of the European Union

L 134/111

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(1), (2), (3), (5) and (6)

Article 37

Article 59(4)

Article 60(1)

Article 60(2)

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

new

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)

Article 23(6), 1st subparagraph

Article 23(6), 2nd subparagraph

Article 42

Article 39

Article 40(5)

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

Amended

New

Adapted

Amended

Amended

Deleted

Amended

New

New

Amended

Amended

New

Article 69(2), 2nd subparagraph

Article 14(14), 1st and 2nd sentences

Amended

Article 69(3)

Article
3rd sentence

14(14),

3rd

sentence

and

(15),

Adapted

Article 70(1), point a

Article 40(1)

Amended

L 134/112

EN

Official Journal of the European Union

30.4.2004

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

Article 14(16)

Article 40(4)

Article 43 and Article 44

Article 71

Article 72

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

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

Adapted

Amended

Amended

New

New

Adapted

Adapted

Deleted

Deleted

New

new

Adapted

Adapted

Adapted

Adapted

Adapted

New

Adapted

Adapted

Adapted

Adapted

New

Adapted

Amended

New

Amended

Amended

New

Amended

Amended

Adapted

30.4.2004

EN

Official Journal of the European Union

L 134/113

This Directive

Directive 93/38/EEC

Annexes XVIII and XIX

Annexes XVII and XVIII

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)

Annex XXI, point 2, 3rd indent

Annex XXI, point 3

Annex XXI, point 4

Article 1(12)

Article 1(11)

Article 1(13)

Annex XXII

Annex XXIII

Annex XXIV

Annex XXV

Annex XXVI

Amended

New

Amended

New

New

Amended

Adapted

New

Amended

New

Amended

Deleted

New

New

New

New