Proposal for a Directive of the European Parliament and of the Council correcting Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts
Date: 2005-05-26
Institutions: European Commission
Subjects: award of contract, public contract, services contract, supplies contract, works contract

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 26.5.2005 
COM(2005) 214 final 

2005/100 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

correcting Directive 2004/18/EC on the coordination of procedures for the award of 
public works contracts, public supply contracts and public service contracts. 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

When the Public Works Directives were amended by the adoption of 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 
contracts1, (hereinafter referred to as “the Directive”), the Commission intended to maintain 
the threshold applying to public service contracts subsidised by over 50%2. 

As  indicated  in  Article  8  of  the  Directive,  this  intention  was  confirmed  by  the  Community 
legislature.  Indeed,  the  threshold  for  these  subsidised  service  contracts,  established  in  point 
(b)  of  the  first  subparagraph  of  Article  8  of  the  Directive,  was  EUR  249 000.  It  was  thus 
identical  to  the  threshold  applying  to  service  contracts  awarded  by  contracting  authorities 
other than those referred to in Annex IV3 (in other words by contracting authorities that are 
not central governmental authorities). 

The  thresholds  of  the  Directive  are  expressed  in  euro  whereas  those  establishing  the 
international obligations of the EU under the WTO Agreement on Government Procurement 
are  expressed  in  Special  Drawing  Rights  (SDR).  In  Article  78,  the  Directive  provides  for  a 
mechanism allowing the Commission to check and revise the thresholds if necessary due to 
changes  in  the  SDR/Euro  exchange  rate.  In  the  event  of  a  revision,  the  thresholds  should 
essentially remain identical. The legislature did not wish to authorise the Commission to make 
any changes in substance4.  

However, due to a clerical error, Article 78(2)(b) states among other things that the threshold 
for service contracts subsidised by more than 50% shall be precisely aligned on “the revised 
threshold  applying  to  public  service  contracts  concluded  by  the  contracting  authorities 
referred to in Annex IV”, which significantly lowers the threshold. This error was discovered 
so  late  in  the  legislative  process  that  it  was  no  longer  possible  to  correct  it  by  tabling  an 
amendment.  A  legislative  correction  must  therefore  be  made  in  good  time  before  the  next 
revision of the thresholds which, pursuant to Article 78(4), shall be published at the beginning 
of November 2005.  

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2 

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OJ L 134, 30.4.2004, p.114. 
See Article 8 of the explanatory memorandum of the initial proposal, COM(2000)275 final of 10 May 
2000.  (“As  regards  service  contracts  subsidised  by  more  than  50%  by  contracting  authorities…the 
threshold remains unchanged.”) 
See the first indent of Article 7(b) of the Directive.  
Note the absence of any indication to the contrary in recital 17 of the Directive. 

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2005/100 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

correcting Directive 2004/18/EC on the coordination of procedures for the award of 
public works contracts, public supply contracts and public service contracts. 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the Commission5, 

Having regard to the opinion of the European Economic and Social Committee6, 

Having regard to the opinion of the Committee of the Regions7, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty8, 

Whereas: 

(1) 

(2) 

(3) 

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6 
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8 
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The threshold applying to contracts for certain services subsidised by more than 50% 
should  remain  aligned  on  the  threshold  applying  to  service  contracts  awarded  by 
contracting  authorities  other  than  the  central  governmental  authorities,  as  the 
legislature  had  provided  for  with  the  adoption  of  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 contracts9.  

This alignment should also be guaranteed within the framework of the revision of the 
thresholds provided for in Article 78 of Directive 2004/18/EC. 

Owing  to  a  clerical  error,  Article  78  of  Directive  2004/18/EC  does  not  currently 
guarantee the desired alignment. Points (b) and (c) of Article 78(2) must therefore be 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ  L  134,  30.04.2004,  p.  114.  Directive  as  last  amended  by  Commission  Regulation  (EC)  No 
1874/2004  of  28  October  2004  amending  Directives  2004/17/EC  and  2004/18/EC  of  the  European 
Parliament and of the Council in respect of their application thresholds for the procedures for the award 
of contracts (OJ L 326 of 29.10.2004, p.17.) 

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corrected by moving the reference to (b) of the first subparagraph of Article 8 from (b) 
to (c), 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

In Article 78(2) of Directive 2004/18/EC, points (b) and (c) are replaced with the following 
text: 

“b) 

c) 

the threshold established in Article 67(1)(a) on the revised threshold applying 
to public service contracts awarded by the contracting authorities referred to in 
Annex IV;  

the  thresholds  established  in  (b)  of  the  first  subparagraph  of  Article  8  and 
Article  67(1)  (b)  and  (c)  on  the  revised  threshold  applying  to  public  service 
contracts awarded by the contracting authorities not referred to in Annex IV.” 

Article 2 

The  Member  States  shall  implement  the  laws,  regulations  and  administrative  provisions 
needed in order to comply with this Directive by 31 January 2006 at the latest. 

When  the  Member  States  adopt  these  provisions,  they  shall  contain  a  reference  to  this 
Directive or be accompanied by such a reference on the occasion of their official publication. 
The Member States shall determine how such reference is to be made. 

Article 1 shall apply from [date of publication]. 

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

Article 3 

Article 4 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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