Proposal for a Council Regulation repealing Council Regulation (EEC) No 1461/93 concerning access to public contracts for tenderers from the United States of America
Date: 2006-02-15
Institutions: European Commission
Subjects: EU market, United States, agreement (EU), liberalisation of trade, market access, supplies contract, tendering

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 15.2.2006 
COM(2006) 60 final 

2006/15 (ACC) 

Proposal for a 

COUNCIL REGULATION 

repealing Council Regulation (EEC) No 1461/93 concerning access to public contracts 
for tenderers from the United States of America 

(presented by the Commission) 

EN 

   EN 

 
 
 
  
EXPLANATORY MEMORANDUM 

1) CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

This proposal seeks to repeal the countersanctions imposed in June 1993 by the EC in 
direct response to sanctions imposed in May 1993 by the US Government under Title 
VII  of  the  1988  Omnibus  Trade  and  Competitiveness  Act  against  most  EC  Member 
States. 

General context 

In  May  1993,  the  US  Government  imposed  sanctions  under  Title  VII  of  the  1988 
Omnibus  Trade  and  Competitiveness  Act  against  most  EC  Member  States  further  to 
the  adoption  of  Directive  93/38/EEC  (OJ  L  199,  9.8.93,  p.84-138,  hereinafter  the 
"Utilities  Directive").  The  Utilities  Directive  is  applicable  to,  inter  alia,  contracts 
awarded  by  EC  telecoms  operators.  The  US  felt,  in  particular,  that  Article  36  of  the 
Utilities  Directive  led  to  unwarranted  discrimination  against  US  telecom  equipment 
suppliers. Article 36 requires EC operators to give a three percent price preference to 
EC  suppliers  over  third  country  suppliers  (in  this  case  US  suppliers)  where  no 
reciprocal market access is granted to EC suppliers in that third country.  

In  direct  response  to  these  sanctions,  the  EC  imposed  equivalent  countermeasures  in 
June 1993 through Council Regulation (EEC) No 1461/93 (OJ L 146, 17.6.93, p.1). 

Since then, the EC telecommunications market has been liberalised. The new Directive 
2004/17/EC  of  the  European  Parliament  and  of  the  Council  coordinating  the 
procurement procedures of entities in the water, energy, transport and postal services 
sectors (Utilities Directive), specifically excludes telecom operators from its scope, due 
to the introduction of effective competition, both de jure and de facto. The Commission 
therefore considers that the justification for the US maintaining its Title VII sanctions 
no  longer  exists.  The  Commission  has  consequently  been  in  discussion  with  the  US 
Administration with a view to seeking a repeal of these sanctions. Exchanges of views 
led the US to agree to issue a determination to repeal the sanctions, signed by the US 
Trade Representative,  which  would become effective upon publication in the Federal 
Register on 28 February 2006. 

The  EC  countermeasures,  as  set  out  in  Council  Regulation  (EEC)  No  1461/93,  were 
imposed in direct response to the US sanctions. It follows that, when the US sanctions 
are  repealed,  Council  Regulation  (EEC)  No  1461/93  should  also  be  repealed.  As  the 
US  took  the  appropriate  measures  to  repeal  the  sanctions  imposed  under  Title  VII  of 
the  1988  Trade  Act,  the  Commission  therefore  hereby  submits  to  the  Council  a 
proposal for a Regulation which would repeal Council Regulation (EEC) No 1461/93. 
The Council is invited to adopt this Regulation. 

Existing provisions in the area of the proposal 

Council Regulation (EEC) No 1461/93. 

EN 

2 

   EN 

 
 
2) CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

Consultation of interested parties 

This  proposal  simply  repeals  an  earlier  regulation  which  was  imposed  as  a 
countermeasure in response to sanctions adopted in the United States. These sanctions 
now being repealed, it is necessary to also withdraw the E.U. countermeasures. 

Impact assessment 

This proposal does not require an impact assessment. 

No other regulatory approaches are conceivable. 

3) LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

This  proposal  simply  repeals  an  earlier  regulation  which  was  imposed  as  a 
countermeasure in response to sanctions adopted in the United States. These sanctions 
now being repealed, it is necessary to also withdraw the E.U. countermeasures. 

Legal basis 

Article 133 of the Treaty establishing the European Community. 

Choice of instrument and budgetary implication 

This proposal only repeals an earlier regulation. 

No burden will arise out of this proposal as it simply repeals the earlier regulation. 

A regulation is the only possible means to repeal the earlier regulation. 

EN 

3 

   EN 

 
 
2006/15 (ACC) 

Proposal for a 

COUNCIL REGULATION 

repealing Council Regulation (EEC) No 1461/93 concerning access to public contracts 
for tenderers from the United States of America 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
133 thereof, 

Having regard to the proposal from the Commission, 

Whereas: 

(1) 

Council Regulation (EEC) No 1461/931, as amended through Council Regulation (EC) 
No 1836/952, restricts access for United States tenderers in respect of certain contracts 
awarded  by  certain  public  authorities  in  response  to  certain  measures  taken  by  the 
United States under title VII of its 1988 Trade Act in respect of Community tenderers. 

(2) 

The  decision  of  the  United  States  of  America  to  repeal  the  sanctions  imposed  under 
Title VII of its 1988 Trade Act will take effect as of 1st March 2006. 

(3) 

Regulation (EEC) No 1461/93 should therefore be repealed, 

HAS ADOPTED THIS REGULATION: 

Council  Regulation  (EEC)  No  1461/93  concerning  access  to  public  contracts  for  tenderers 
from the United States of America is hereby repealed. 

Article 1 

1 
2 

OJ L 146,17.6.1993, p. 1. 
OJ L 183,2.8.1995, p. 4. 

EN 

4 

   EN 

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

Article 2 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels,  

For the Council 
The President 

EN 

5 

   EN