Proposal for a Directive of the European Parliament and of the Council on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security {SEC(2007) 1598} {SEC(2007) 1599}
Date: 2007-12-05
Institutions: European Commission
Subjects: European defence policy, award of contract, public contract, public safety, services contract, supplies contract, works contract

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 5.12.2007 
COM(2007) 766 final 

2007/0280 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the coordination of procedures for the award of certain public works contracts, 
public supply contracts and public service contracts in the fields of defence and security 

(presented by the Commission) 

{SEC(2007) 1598} 
{SEC(2007) 1599} 

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EXPLANATORY MEMORANDUM 

1) 

BACKGROUND 

•  Grounds for and objectives of the proposal 

The creation of a European defence equipment market is a key factor in backing the 
European  Security  and  Defence  Policy  (ESDP).  In  the  field  of  public  procurement, 
this requires a new European legislative framework which is tailored to the award of 
sensitive public contracts in the fields of defence and security. This Directive seeks 
to  establish  such  a  framework,  by  filling  in  the  gaps  in  the  existing  legislation 
identified by the Commission after consulting all the parties concerned. 

Public  contracts  awarded  in  the  fields  of  defence  and  security  currently  fall  within 
the  scope  of  Directive  2004/18/EC1,  apart  from  the  exceptions  arising  in  the 
situations provided for by Articles 30, 45, 46, 55 and 296 of the Treaty. 

The  Court  of  Justice  has  consistently  ruled  in  its  case  law  that  recourse  to 
derogations  from  Community  law,  including  those  covered  by  Article  296  of  the 
Treaty, should be restricted to exceptional and clearly defined cases. As it is, in the 
fields of defence and security, Directive 2004/18/EC is rarely applied by the Member 
States, which invoke either the exemptions under Article 296 of the Treaty for public 
defence  contracts,  or  those  under  Article  14  of  the  Directive  for  public  security 
contracts. Thus, derogations which should be the exception according to the Treaty 
and Court of Justice case law are, in practice, the rule. 

As  a  result,  most  defence  and  security  equipment  is  purchased  on  the  basis  of 
uncoordinated national contract award procedures and rules. These provisions differ 
significantly  in  terms  of  publication,  tendering  procedures,  selection  and  award 
criteria,  etc.  This  lack  of  legal  uniformity  constitutes  a  major  obstacle  to  the 
establishment of a European defence equipment market and opens the door to non-
compliance  with  the  principles  of  the  Treaty,  in  particular  the  principles  of 
transparency,  non-discrimination  and  equal  treatment,  in  wide  sections  of  Europe's 
defence markets. 

The  extensive  use  of  these  derogations  is  largely  due  to  the  fact  that  Directive 
2004/18/EC, despite the improvements it made to the coordination rules previously 
in force, does not take sufficient account of the specific requirements that have to be 
met by certain purchases of goods and services in the fields of defence and security. 

It  is  therefore  the  Commission's  objective  to  circumscribe  the  use  of  exemptions 
from  the  Treaty  and  Directive  2004/18/EC  in  the  fields  of  defence  and  security  to 
exceptional cases, in accordance with Court of Justice case law, whilst respecting the 
security interests of the Member States. 

1 

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 (OJ L 134, 30.4.2004, p. 114). 

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This proposal thus aims to introduce a new legal instrument tailored to the specific 
nature  of  "sensitive"  purchases  for  which  specific  requirements  and  precautions 
govern the award of contracts, in these fields. The Member States will then have at 
their  disposal  a  common  framework  of  procurement  rules  that  not  only  ensure  the 
application of the principles of the EC Treaty but also take into account the particular 
requirements of these purchases, such as security of information, security of supply 
and the necessary flexibility of the procedures. 

•  General background 

In  1996  and  1997,  the  European  Commission  produced  two  Communications  on 
defence-related industries to encourage restructuring and the setting up of an efficient 
European  defence  equipment  market.  Concrete  proposals  and  measures  followed 
with respect to some of these issues. However, some Member States considered any 
action at European level on the most essential reforms to be premature. 

Following a period of transformation in this sector and in the institutional framework 
of the EU, including the beginnings of a real European Security and Defence Policy 
(ESDP),  the  European  Parliament,  in  a  Resolution  of  10  April  2002,  invited  the 
Commission to tackle the issue of armaments in a new Communication. 

In autumn 2002, the Convention on the Future of Europe set up a working party on 
defence  chaired  by  the  European  Commissioner,  Michel  Barnier.  The  working 
party's report2 stressed that the credibility of European defence policy depends on the 
existence and development of European defence capabilities and a strengthening of 
the  European  defence  industrial  and  technological  base.  To  this  end,  the  European 
Defence  Agency  (EDA),  which  was  initially  provided  for  in  the  draft  European 
Constitution,  was  set  up  in  July  2004  and  testifies  to  the  Member  States' 
determination to develop their defence capabilities. 

Alongside the efforts made by the Member States, the Commission, through its 2003 
Communication  entitled  "Towards  an  EU  Defence  Equipment  Policy"3,  launched 
seven initiatives to establish a more efficient European defence equipment market. In 
this communication, the Commission emphasised the need to initiate a reflection on 
how  to  optimise  defence  procurement  and  announced  the  adoption  of  an 
Interpretative  Communication  on  the  scope  of  Article  296  of  the  Treaty  and  the 
preparation of a Green Paper. The purpose of the latter was to serve as the basis for 
discussion with all parties concerned, on which rules to apply to the award of public 
defence  equipment  contracts,  in  accordance  with  the  level  of  sensitivity  of  the 
equipment. 

the  Commission  published 

the  Green  Paper  entitled  "Defence 
In  2004, 
procurement"4.  By  the  end  of  the  consultation,  the  Commission  had  received  forty 
contributions from sixteen Member States, organisations and enterprises. 

In  2005,  after  analysing  these  contributions  and  reflecting  on  its  dialogue  with  the 
parties concerned, it published a Communication "on the results of the consultation 

2 
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4 

Final report of working group 8 on Defence: CONV461/02 dated 16 December 2002. 
COM(2003) 113, 11.3.2003. 
COM(2004) 608, of 23.9.2004. 

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initiatives"5.  These  contributions  confirmed 

launched  by  the  Green  Paper  on  Defence  Procurement  and  on  the  future 
the  value  of  an 
Commission 
interpretative communication on the application of Article 296 of the Treaty – which 
was adopted in 20066 - and demonstrated the need for Community rules for defence 
procurement which take the specific characteristics of certain purchases in this sector 
into account. 

Further  consultations  with  the  parties  concerned  revealed  the  existence  of  similar 
requirements for non-military security purchases which call for a legislative response 
at  European  level  as  well.  Indeed,  as  the  European  Council  noted  in  the  European 
security  strategy  "A  secure  Europe  in  a  better  world"  in  2003,  the  emergence  of 
asymmetrical transnational threats, such as terrorism and organised crime, is blurring 
the boundary between external and internal, military and non-military  security, and 
calls  for  a  comprehensive  response.  Furthermore,  in  order  to  combat  these  threats, 
non-military security forces often use equipment which, technologically speaking, is 
comparable  to  defence  equipment.  As  a  result,  sensitivity  is  an  increasingly 
important feature of such security  procurement, particularly  in  terms  of complexity 
and confidentiality, which renders it similar to defence procurement. 

•  Existing provisions in the area covered by the proposal 

At  present,  the  contracts  covered  by  this  proposal  are  governed  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. 

•  Consistency with other policies 

The proposal forms part of the internal market policy and will enhance the ESDP and 
Europe's industrial policy. 

It  also  falls  within  the  framework  of  the  seven  policy  areas  identified  by  the 
Commission  in  2003  in  its  Communication  "Towards  an  EU  Defence  Equipment 
Policy" and complements other Commission initiatives relating to the defence market 
and industry. 

2) 

CONSULTATION  OF 
ASSESSMENT 

INTERESTED 

PARTIES  AND 

IMPACT 

•  Consultation of interested parties 

From the outset of its initiative on defence procurement in 2003, the Commission has 
engaged in in-depth discussions with all parties concerned, resulting in this proposal. 
Consultations  have  been  held  within  the  Advisory  Committee  for  Public  Contracts 
(ACPC),  through  the  EDA,  and  during  bilateral  meetings  with  the  Member  States 
and the European industry. There has also been regular contact with the members of 

5 
6 

COM(2005) 626, of 6.12.2005. 
"Interpretative  communication  on  the  application  of  Article  296  of  the  Treaty  in  the  field  of  defence 
procurement" - COM(2006) 779, 7.12.2006. 

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the  European  Parliament's  "Internal  Market  and  Consumer  Protection"  (IMCO) 
Committee. 

The  Green  Paper  on  "Defence  procurement"  was  drawn  up  on  the  basis  of  expert 
advice  from  both  the  Member  States  and  the  European  industry  (see  below).  It,  in 
turn,  gave  rise  to  a  broad  consultation  exercise,  with  replies  being  received  from 
forty  parties  (Member  States,  enterprises  and  other  parties).  The  results  of  this 
consultation were used by the Commission to continue its work. 

The  Member  States  played  an  active  part  in  compiling  the  interpretative 
communication  adopted  in  December  2006  and  were  asked  by  the  Commission  to 
comment on an initial version of the text distributed to them at the ACPC. Likewise, 
all the interested parties were closely involved in drawing up this proposal, through a 
large number of multilateral and bilateral meetings and by sending written replies to 
four  documents  addressed  to  the  members  of  the  ACPC.  In  addition,  governments 
and  enterprises  were  consulted  as  part  of  the  impact  assessment  conducted  through 
five  studies  commissioned  from  external  consultants  which  covered  all  aspects  of 
defence procurement (demand, supply, regulatory framework and products). 

•  Collection and use of expertise 

Between  January  and  April  2004,  the  Commission  organised  six  brainstorming 
sessions  with  groups  of  experts  from  the  Member  State  governments  and  the 
European industry in order to collect information on current practices in the field of 
defence  procurement.  These  sessions  dealt  with  "identifying  the  characteristics  and 
economic  dimensions  of  defence  markets",  "defence  procurement  rules  at  national, 
inter-governmental  and  Community  levels"  and  "the  course  of  action  for  a 
Community instrument on defence procurement". 

•  Impact assessment 

In  the  course  of  its  impact  assessment,  the  Commission  looked  at  three  options: 
taking  no  Community  action,  adopting  a  non-legislative  measure  and  adopting  a 
legislative measure. 

The non-legislative measures envisaged included an interpretative communication to 
clarify the application of Article 14 of Directive 2004/18/EC in the field of security, 
a  more  rigorous  policy  on  infringements  and  a  training  programme  for  the 
contracting  authorities  and  Commission  staff  on  how  to  act  on  the  interpretative 
communication on the application of Article 296 of the Treaty. 

The  legislative  measures  envisaged  included  a  regulation,  a  sectoral  directive 
applying to all contracting authorities in the fields of defence and security, a separate 
directive applying to sensitive defence and security contracts and, finally, a directive 
amending  directive  2004/18/EC  in  order  to  incorporate  new  rules  relating 
specifically to these contracts. 

The  Commission  very  quickly  dismissed  the  option  of  non-legislative  measures. 
Although useful, these would not, by themselves, be able to cut down on the use of 
derogations  based  on  Article  296  of  the  Treaty  and  Article  14  of  Directive 
2004/18/EC.  This  objective  can  only  be  achieved  if  the  Community  law  on  public 

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procurement contains rules that are tailored to the specific nature of sensitive public 
defence and security contracts. Given that such rules do not currently exist, they need 
to be created, which requires the adoption of a legislative measure. 

Similarly,  if  the  Commission  took  no  action  at  all,  the  extensive  application  of 
exemptions  for  public  defence  and  security  contracts  from  the  rules  of  the  internal 
market  would  doubtless  continue.  On  the  basis  of  the  current  legal  framework,  the 
majority of defence and security contracts would gain neither in transparency nor in 
openness. 

The reasons behind the Commission's choice of legislative instrument are explained 
in the relevant section ("choice of instruments"). 

Aside  from  the  issue  of  the  instrument,  the  Commission  considered  various  sub-
options relating to: 

° 

° 

the scope of the new rules; 

their content, particularly as regards security of supply, security of information 
and award procedures. 

The options relating to scope were assessed in the light of the objective to limit the 
use  of  derogations  from  Community  rules  to  exceptional  circumstances,  whilst 
respecting  the  right  of  the  Member  States  not  to  apply  Community  rules  on  the 
grounds of protecting their essential security interests. 

The various options concerning the content of the new rules, particularly as regards 
security of supply, security of information and the award procedures, were assessed 
with respect to the objective of ensuring the greatest possible degree of transparency, 
equal  treatment  and  non-discrimination  in  sensitive  defence  and  security  contracts. 
This objective should not, however, be detrimental to the legitimate security interests 
of the Member States. 

This  Directive  will  substantially  improve  the  regulatory  framework  for  public 
defence  and  security  procurement.  It  will  make  it  possible  to  coordinate  national 
legislation  in  this  field  and  ensure  compliance  with  the  principles  of  transparency, 
equal treatment and non-discrimination. 

The impact analysis also revealed a very limited effect on administrative costs for the 
contracting  authorities  and  businesses.  Any  increases  in  costs  relating  to  the  initial 
introduction of the new rules should be slight and lead in the medium or longer term 
to lower administrative costs for businesses and SMEs in particular. 

Making  defence  and  security  markets  more  open  should,  from  an  economic 
viewpoint,  improve  the  chances  of  businesses  winning  contracts  in  other  Member 
States, thus allowing the more competitive enterprises to achieve economies of scale 
and develop their activities. Unit production costs will be reduced, making European 
products more competitive on the global market. Purchases made by the contracting 
authorities  will  be  cheaper.  Finally,  more  efficient  use  will  be  made  of  taxpayers' 
money and EU citizens will be better protected from threats to their security. 

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The  provisions  of  this  proposal  will  not  alter  international,  and  specifically  trans-
Atlantic,  trade  relations  in  the  fields  of  defence  and  security.  These  relations  are 
governed  by  the  agreements  reached  within  the  World  Trade  Organization  (WTO), 
and particularly by the Government Procurement Agreement (GPA). Sensitive public 
contracts  awarded  by  contracting  authorities  operating  in  the  field  of  defence,  i.e. 
contracts  for  the  supply  of  arms,  munitions  or  war  material,  are  excluded  from  the 
scope of this agreement. Public security contracts may, for their part, be exempted on 
a  case-by-case  basis  from  the  application  of  this  agreement  on  the  basis  of  Article 
XXIII.  The  contracting  authorities  concerned  by  this  proposal  will  thus  retain  the 
right to decide whether or not to ask for tenders from economic operators from third 
countries. 

3) 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

This  proposal  for  a  directive  applies  to  sensitive  public  supply  contracts,  public 
service  contracts  and  public  works  contracts  in  the  fields  of  defence  and  security. 
The  application  thresholds  proposed  are  the  same  as  those  currently  applied  at 
Community level under Directive 2004/18/EC. 

This proposal is largely based on the design and rationale of Directive 2004/18/EC, 
but has a certain number of specific features which are tailored to the characteristics 
of sensitive public defence and security contracts. These features provide, on the one 
hand, for more flexibility for the contracting authorities and, on the other hand, for 
the safeguards required to guarantee the security of information and supply. The key 
provisions of this proposal cover: 

° 

° 

° 

the procedures: the negotiated procedure with publication of a contract notice 
is  authorised  without  the  need  for  specific  justification  in  order  to  allow  the 
flexibility  required  to  award  sensitive  defence  and  security  contracts.  The 
restricted procedure and the competitive dialogue may also be used. The open 
procedure,  however,  which  involves  distributing  the  specifications  to  any 
economic operator that wants to see them, was felt to be inappropriate in view 
of  the  confidentiality  and  security  of  information  requirements  attached  to 
these contracts. 

security  of  supply:  the  specific  needs  of  the  Member  States  with  respect  to 
security  of  supply  for  sensitive  public  contracts  in  the  fields  of  defence  and 
security  justify  specific  provisions,  in  terms  of  both  contractual  requirements 
and the criteria for selecting candidates. 

security  of  information:  similarly,  the  often  confidential  nature  of  the 
information relating to sensitive public defence and security contracts calls for 
safeguards  applying  to  the  award  procedure  itself,  the  criteria  for  selecting 
candidates  and  the  contractual  requirements  imposed  by  the  contracting 
authorities. 

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•  Legal basis 

The legal basis is formed by Articles 47(2), 55 and 95 of the EC Treaty, which are 
intended to ensure that the procedures used for the public procurement of goods and 
services comply with the principles of the free movement of goods, the freedom of 
establishment and the freedom to provide services. 

•  Subsidiarity principle 

In  accordance  with  the  results  of  the  consultations  conducted  in  recent  years,  the 
need  for  legislative  action  has  arisen  at  Community  level  in  order  to  introduce  a 
directive  to  coordinate  Community  contract  award  procedures  specifically  for 
sensitive purchases in the fields of defence and security. 

This objective could not be achieved either by failing to take action or through action 
by the Member States. 

A  legislative  initiative  is  thus  required  to  put  an  end  to  infringement  situations 
originating  from  the  lack  of  Community  provisions  to  coordinate  the  public 
procurement procedures that currently apply. 

•  Proportionality principle 

The  instrument  chosen  is  a  directive,  which  gives  Member  States  a  high  degree  of 
flexibility in terms of implementation. 

The provisions laid down mirror those of Directive 2004/18/EC as regards the fields 
covered by this proposal. Furthermore, the provisions which pay specific attention to 
features that are peculiar to the fields of defence and security give the Member States 
and contracting authorities considerable leeway as regards the choices to be made in 
awarding their contracts. 

As  long  as  the provisions of  the Directive are fully applied, their transposition into 
national law will allow each Member State to take into account the specific features 
and characteristics of the sensitive purchases they make in the fields of defence and 
security. 

•  Choice of instruments 

Given that the legal bases are Articles 47(2), 55 and 95 of the EC Treaty, the use of a 
Regulation for the provisions applying to both the public procurement of goods and 
the  public  procurement  of  services  would  not  be  permitted  by  the  Treaty.  The 
instrument proposed is therefore a Directive. 

Since the objective is to improve the operation of the internal market for purchases 
that  involve  specific  characteristics  whilst  retaining  the  recent  acquis  (Directive 
2004/18/EC)  and  the  case-law  acquis  for  purchases  that  do  not  have  the  same 
constraints  and  requirements,  the  proposal  for  a  separate  directive  seems  to  be  the 
best  approach.  It  also  ensures  that  the  provisions  are  clearer  and  easier  to  read  and 
understand. 

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When transposing the Directive, the Member States may, if they so desire, provide 
for  legislation  that  applies  to  all  their  public  procurement,  including  sensitive 
contracts from the fields of defence and security. 

4. 

BUDGETARY IMPLICATION 

YES 

This Directive will have a budgetary impact arising from several lines of action: 

- 

- 

- 

- 

the daily publication of notices in the Official Journal of the European Union, 

annual monitoring of the implementation of the Directive, 

medium-term assessment (not before five years) of the administrative impact of 
implementing the Directive by the contracting authorities and in businesses, 

long-term  assessment  (not  before  ten  years)  of  the  economic  impact  of  the 
Directive. 

The measures listed above in the field of monitoring and assessment may require the 
services, in part or in full, of external service providers, under a technical assistance 
contract,  an  existing  framework  contract  in  the  field  of  evaluation  or  through  an 
invitation to tender under the restricted or open procedure. 

A  financial  statement  attached  to  the  proposal  for  a  directive  details  the  subject-
matter and estimated cost of the measures with a budgetary impact. 

5. 

ADDITIONAL INFORMATION 

•  European Economic Area 

The  proposed  act  concerns  an  EEA  matter  and  should  therefore  apply  to  the 
European Economic Area. 

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2007/0280 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the coordination of procedures for the award of certain public works contracts, 
public supply contracts and public service contracts in the fields of defence and security 

(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 Article 55 and Article 95 thereof, 

Having regard to the proposal from the Commission7, 

Having regard to the opinion of the European Economic and Social Committee8, 

Having regard to the opinion of the Committee of the Regions9, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty10, 

Whereas: 

(1) 

(2) 

(3) 

The  gradual  establishment  of  a  European  defence  equipment  market  is  essential  for 
strengthening the defence industrial and technological base in Europe and developing 
the  military  capabilities  required  to  implement  the  European  Security  and  Defence 
Policy (ESDP). 

One  prerequisite  for  the  creation  of  a  European  defence  equipment  market  is  the 
establishment  of  an  appropriate  legislative  framework.  In  the  field  of  public 
procurement,  this  involves  the  coordination  of  procedures  for  the  award  of  public 
contracts to meet the security requirements of the Member States and the obligations 
arising from the Treaty. 

At the same time, these rules should reflect the European Union's overall approach to 
security,  which  responds  to  changes  in  the  strategic  environment.  The  emergence  of 
asymmetrical  transnational  threats  has  increasingly  blurred  the  boundary  between 
external and internal, military and non-military security. 

7 
8 
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10 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Defence  and  security  equipment  is  vital  both  for  the  security  and  sovereignty  of  the 
Member States and for the autonomy of the European Union. As a result, purchases of 
goods and services in the defence and security sectors are often of a sensitive nature. 

This results in specific requirements, particularly in the fields of security of supply and 
security  of  information.  These  requirements  relate  especially  to  purchases  of  arms, 
munitions and war material for the armed forces (as well as services and work directly 
relating  to  these),  but  also  to  certain  particularly  sensitive  purchases  in  the  field  of 
non-military security. 

The  award  of  contracts  concluded  in  the  Member  States  on  behalf  of  the  State, 
regional or local authorities and other public law entities, is subject to compliance with 
the  principles  of  the  Treaty  and  in  particular  the  principles  of  the  free  movement  of 
goods, the freedom of establishment and the freedom to provide services, and with the 
principles  deriving  therefrom,  such  as  the  principles  of  equal  treatment,  non-
discrimination,  mutual  recognition,  proportionality  and  transparency.  For  public 
contracts  above  a  certain  value,  it  is  advisable  to  draw  up  provisions  for  the 
Community coordination of national procedures for the award of such contracts which 
are based on these principles so as to ensure the effects of these and to guarantee the 
effective  opening-up  of  public  procurement  to  competition.  These  coordinating 
provisions should therefore be interpreted in accordance with both the aforementioned 
rules and principles and with other rules of the Treaty. 

Articles 30, 45, 46, 55 and 296 of the Treaty make provision for specific exceptions to 
the  application  of  the  principles  set  out  in  the  Treaty  and,  consequently,  to  the 
application of law derived from these principles. It therefore follows that none of the 
provisions  in  this  directive  should  prevent  the  imposition  or  application  of  any 
measures considered necessary to safeguard interests recognised as legitimate by these 
provisions  of  the  Treaty.  Nevertheless,  in  accordance  with  ECJ  case-law,  the 
possibility of recourse to such exceptions should be interpreted in such a way that their 
effects do not extend beyond that which is strictly necessary for the protection of the 
legitimate  interests  that  these  Articles  of  the  Treaty  help  safeguard.  This  means  that 
non-application of the Directive should be proportionate to the aims pursued and cause 
as little disturbance as possible to the free movement of goods and/or the provision of 
services. 

Contracts  relating  to  arms,  munitions  and  war  material  awarded  by  contracting 
authorities  operating  in  the  field  of  defence  are  excluded  from  the  scope  of  the 
Government Procurement Agreement (hereinafter "the Agreement") concluded at the 
World  Trade  Organization.  With  respect  to  the  other  contracts  covered  by  this 
Directive, these may be exempted from the application of this agreement on the basis 
of Article XXIII thereof.  

A  contract  shall  be  deemed  to  be  a  public  works  contract  only  if  its  subject-matter 
specifically  covers  the  execution  of  activities  under  Division  45  of  the  "Common 
Procurement  Vocabulary"  laid  down  by  Regulation  (EC)  No  2195/2002  of  the 
European  Parliament  and  of  the  Council  of  5  November  2002  on  the  Common 

EN 

11 

   EN 

 
Procurement Vocabulary (CPV)11 (hereinafter the "CPV"), even if the contract covers 
the  provision  of  other  services  necessary  for  the  execution  of  such  activities.  Public 
service contracts may, in some cases, include works. However, insofar as such works 
are  incidental  to  the  principal  subject-matter  of  the  contract,  and  are  only  a  possible 
consequence thereof or a complement thereto, the fact that such works are included in 
the contract does not justify the qualification of the contract as a public works contract. 

(10)  Public  defence  and  security  contracts  often  contain  sensitive  information  which,  for 
security reasons, needs to be protected from unauthorised access. In the military field, 
the Member States have systems for classifying this information. The picture is more 
varied, however, when it comes to non-military security matters. The recommendation 
is,  therefore,  to  make  use  of  a  concept  which  takes  into  account  the  diversity  of 
practices in the Member States and can encompass both the military and non-military 
fields. At any rate, public procurement in these fields should not, where appropriate, 
affect 
from  Commission  Decision  2001/844/EC  of 
29 November  2001  amending  its  internal  Rules  of  Procedure12  or  Council  Decision 
2001/264/EC adopting the Council’s security regulations13. 

the  obligations  arising 

(11)  The  contracting  authorities  should  be  allowed  to  use  framework  agreements,  which 
makes it necessary to provide a definition of the framework agreements and specific 
rules.  Under  these  rules,  when  a  contracting  authority  enters  into  a  framework 
agreement in accordance with the provisions of this Directive relating, particularly, to 
advertising, time limits and conditions for the submission of tenders, it may enter into 
contracts  based  on  this  framework  agreement  during  its  term  of  validity  either  by 
applying the terms set forth in the framework agreement or, if not all terms have been 
fixed  in  advance,  by  reopening  competition  between  the  parties  to  the  framework 
agreement. The reopening of competition should comply with certain rules, the aim of 
which  is  to  guarantee  the  required  flexibility  and  to  guarantee  compliance  with  the 
general principles, in particular the principle of equal treatment. For the same reasons, 
the  term  of  the  framework  agreements  should  not  exceed  five  years,  except  in  cases 
duly justified by the contracting authorities. 

(12)  Contracting authorities may make use of electronic purchasing techniques, providing 
such use complies with the rules drawn up under this Directive and with the principles 
of equal treatment, non-discrimination and transparency. 

(13)  Multiplying  the  number  of  thresholds  for  applying  the  coordinating  provisions 
complicates matters for the contracting authorities. The application thresholds for this 
Directive  should  therefore  correspond  to  those  that  already  have  to  be  met  by  the 
contracting authorities in applying 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  contracts14.  To 

11 

12 

13 

14 

OJ L 340, 16.12.2002, p. 1. Regulation amended by Commission Regulation (EC) No 2151/2003 (OJ L 
349, 17.12.2003, p. 1). 
OJ  L  317,  3.12.2001,  p.  1.  Decision  last  amended  by  Decision  2006/548/EC,  Euratom  (OJ  L  215, 
5.8.2006, p. 38). 
OJ  L  101,  11.4.2001,  p.  1.  Decision  last  amended  by  Decision  2007/438/EC,  Euratom  (OJ  L  164, 
26.6.2007, p. 24). 
OJ L 134, 30.4.2004, p. 114. 

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12 

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this  end,  the  thresholds  should  be  aligned  with  those  of  Directive  2004/18/EC  when 
the latter are revised. 

(14)  For the implementation of the rules of this Directive and for monitoring purposes, the 
best  way  of  defining  the  field  of  services  is  to  sub-divide  it  into  categories 
corresponding to certain codes in the CPV. 

(15) 

(16) 

In  addition,  provision  should  be  made  for  cases  where  the  Directive  does  not  apply 
because  specific  rules  on  the  awarding  of  contracts  which  derive  from  international 
agreements or which are specific to international organisations are applicable. 

It  can  be  the  case  that  armed  forces  from  the  Member  States  conduct  military 
operations  beyond  the  borders  of  the  European  Union.  In  such  circumstances, 
authorisation  should  be  given  to  contracting  authorities  deployed  in  the  field  of 
operations not to apply the rules of this Directive when they award contracts to local 
economic operators. 

(17)  The  technical  specifications  drawn  up  by  public  purchasers  need  to  allow  public 
procurement to be opened up to competition. To this end, it must be possible to submit 
tenders  which  reflect  the  diversity  of  technical  solutions.  To  do  so,  technical 
specifications  should,  on  the  one  hand,  be  established  on  the  basis  of  performances 
and  functional  requirements.  On  the  other  hand,  where  reference  is  made  to  the 
European standard - or, in the absence thereof, to international or national standards, 
including  those  specific  to  the  field  of  defence  -  tenders  based  on  equivalent 
arrangements must be considered by contracting authorities. This equivalence can be 
assessed  in  particular  with  regard  to  interoperability  and  operational  efficiency 
requirements.  To  demonstrate  equivalence,  tenderers  should  be  permitted  to  use  any 
form  of  evidence.  Contracting  authorities  must  be  able  to  provide  a  reason  for  any 
decision  that  equivalence  does  not  exist  in a  given  case.  There  are  also  international 
agreements  on  standardisation  which  aim  to  ensure  the  interoperability  of  the  armed 
forces  and  which  can  have  force  of  law  in  the  Member  States.  Should  one  of  these 
agreements apply, the contracting authorities can demand that tenders comply with the 
standards described in these agreements. The technical specifications should be clearly 
indicated,  so  that  all  tenderers  know  what  the  requirements  established  by  the 
contracting authority cover. 

(18)  The detailed technical specifications and  additional information  concerning contracts 
must, as is customary in Member States, be given in the contract documents for each 
contract or in an equivalent document. 

(19)  Defence and security equipment is often intended to be integrated into more complex 
structures  (a  system,  or  system  of  systems).  In  this  case,  certain  technical 
specifications relating to this integration may not appear in the contract documents and 
may only be revealed to the successful tenderer on condition that the impact of these 
technical specifications on the tender is limited to explanations or clarifications which 
do not alter the subject-matter of the contract. In all cases, the contracting authorities 
provide  the  same  information  to  all  tenderers  and  ensure  that  they  are  all  treated 
equally. 

EN 

13 

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(20)  Contract performance conditions are compatible with this Directive provided that they 
are not directly or indirectly discriminatory and are indicated in the contract notice or 
in the contract documents. 

(21) 

In  particular,  the  conditions  of  performance  may  contain  requirements  by  the 
contracting authorities as regards security of information and security of supply. These 
requirements  are  particularly  important  given  the  sensitive  nature  of  the  equipment 
covered by this Directive and concern the whole of the supply chain. 

(22)  With respect to security of supply, the contracting authority's requirements as regards 
the organisation and location of the tenderer's supply chain include, for example, the 
business's  internal  rules  between  subsidiaries  and  the  parent  company  on  intellectual 
property rights. 

(23) 

In any case, no performance conditions may pertain to requirements other than those 
relating to the performance of the contract itself. 

(24)  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  performance  of  a  public  contract,  providing  that  such  rules,  and  their 
application,  comply  with  Community  law.  In  cross-border  situations,  where  workers 
from one Member State provide services in another Member State for the purpose of 
performing  a  public  contract,  Directive  96/71/EC  of  the  European  Parliament  and  of 
the Council of 16 December 1996 concerning the posting of workers in the framework 
of  the  provision  of  services15  lays  down  the  minimum  conditions  which  must  be 
observed  by  the  host  country  in  respect  of  such  posted  workers.  If  national  law 
contains  provisions  to  this  effect,  non-compliance  with  those  obligations  may  be 
considered to be grave misconduct or an offence concerning the professional conduct 
of the economic operator concerned, liable to lead to the exclusion of that economic 
operator from the procedure for the award of a public contract. 

(25)  The  public  contracts  covered  by  this  Directive  are  characterised  by  specific 
requirements  in  terms  of  complexity,  security  of  information  or  security  of  supply. 
Extensive  negotiation  is  often  required  to  satisfy  these  requirements  when  awarding 
the contract. As a result, the contracting authorities may use the negotiated procedure 
with  the  publication  of  a  contract  notice,  as  well  as  the  restricted  procedure,  for  the 
contracts covered by this Directive. 

(26)  Contracting  authorities  which  carry  out  particularly  complex  projects  may,  without 
this  being  due  to  any  fault  on  their  part,  find  it  objectively  impossible  to  define  the 
means of satisfying their needs or of assessing what the market can offer in the way of 
technical  solutions  and/or  financial/legal  solutions.  This  situation  may  arise  in 
particular  with  projects  requiring 
integration  or  combination  of  several 
technological or operational capabilities or projects involving complex and structured 
financing, the financial and legal make-up of which cannot be defined in advance. In 
this  case,  use  of  the  restricted  procedure  and  the  negotiated  procedure  with  the 
publication of a contract notice would not be feasible, as it would not be possible to 
define the contract with enough precision to allow candidates to draw up their offers. It 

the 

15 

OJ L 18, 21.1.1997, p. 1. 

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14 

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is  therefore  necessary  to  provide  for  a  flexible  procedure  which  guarantees 
competition  between  economic  operators  as  well  as  the  need  for  the  contracting 
authorities  to  discuss  all  aspects  of  the  contract  with  each  candidate.  However,  this 
procedure  must  not  be  used  in  such  a  way  as  to  restrict  or  distort  competition, 
particularly by altering any fundamental aspects of tenders, or by imposing substantial 
new requirements on the successful tenderer, or by involving any tenderer other than 
the one selected as the most economically advantageous. 

(27)  Use  of  the  negotiated  procedure  with  the  publication  of  a  contract  notice  could  be 
impossible  or  entirely  inappropriate  in  certain  exceptional  circumstances.  The 
contracting authorities should thus, in certain very specific cases and circumstances, be 
able to use the negotiated procedure without publication of a contract notice. 

(28)  Certain  circumstances  should  be  partly  the  same  as  those  provided  for  by  Directive 
2004/18/EC. In this respect, consideration should be given in particular to the fact that 
defence  and  security  equipment  is  often  technically  complex.  Consequently,  the 
incompatibility or disproportionate technical difficulties in operation and maintenance 
justifying the use of the negotiated procedure without publication of a contract notice 
in the case of supply contracts for additional deliveries should be judged in the light of 
interoperability  and 
this  complexity  and 
standardisation of the equipment. This is the case, for example, with the integration of 
new components into existing systems or the modernisation of these systems. 

the  associated 

requirements 

for 

(29)  The specific nature of the contracts subject to this Directive also demonstrates the need 
to  provide  for  new  circumstances  which  may  arise  in  the  fields  covered  by  the 
Directive. 

(30)  The armed forces of the Member States may, for example, be called on to intervene in 
crisis  situations  or  armed  conflicts.  At  the  launch,  or  during  the  course,  of  such  an 
intervention, the security of the Member States and their armed forces may necessitate 
the  award  of  certain  contracts  at  a  speed  which  is  incompatible  with  the  deadlines 
imposed  by  the  award  procedures  normally  laid  down  by  this  Directive.  Such 
emergencies could also arise for the security forces, e.g. in the case of a terrorist attack 
on EU territory. 

(31)  Stimulating research and technological development is a key way of strengthening the 
EU  defence  technological  and  industrial  base,  and  the  opening-up  of  public 
procurement helps achieve this objective. The importance of research in this specific 
field does, however, justify maximum flexibility when awarding contracts, particularly 
to encourage the Member States to pool their investments in future capabilities. 

(32)  Sales  of  arms,  munitions  and  war  material  between  governments  are  also  public 
contracts of a particular type that may be useful in improving interoperability. 

(33) 

In view of new developments in information and communications technology, and the 
simplifications  these  can  bring,  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 
other Member States. 

EN 

15 

   EN 

 
(34)  To  ensure  development  of  effective  competition  in  the  field  of  public  procurement 
covered  by  this  Directive,  it  is  necessary  that  contract  notices  drawn  up  by  the 
contracting  authorities  of  Member  States  be  advertised  throughout  the  Community. 
The  information  contained  in  these  notices  must  enable  economic  operators  in  the 
Community to determine whether the proposed contracts are of interest to them. For 
this  purpose,  they  must  be  given  adequate  information  on  the  subject-matter  of  the 
contract  and  the  conditions  attached  thereto.  Improved  visibility  should  therefore  be 
ensured  for  public  notices  by  means  of  appropriate  instruments,  such  as  standard 
contract  notice  forms  and  the  CPV,  which  is  the  reference  nomenclature  for  public 
contracts.  

(35)  Directive 1999/93/EC of the European Parliament and of the Council of 13 December 
1999  on  a  Community  framework  for  electronic  signatures16  and  Directive 
2000/31/EC of the European Parliament and 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  electronic  commerce")17  should,  in  the  context  of  this 
Directive,  apply  to  the  transmission  of  information  by  electronic  means.  The  public 
procurement procedures require a level of security and confidentiality higher than that 
required  by  these  Directives.  Accordingly,  the  devices  for  the  electronic  receipt  of 
offers and requests to participate should comply with specific additional requirements. 
To  this  end,  the  use  of  electronic  signatures,  in  particular  advanced  electronic 
signatures,  should  be  encouraged  as  far  as  possible.  Moreover,  the  existence  of 
voluntary  accreditation  schemes  could  constitute  a  favourable  framework  for 
enhancing the level of certification service provision for these devices. 

(36)  The transmission of contract notices by electronic means leads to savings in time. As a 
result, it should be possible to reduce the minimum time limit for receipt of requests to 
participate, subject however to the condition that they are compatible with the specific 
mode of transmission envisaged at Community level. 

(37)  Verification of the suitability and the selection of candidates should be carried out in 
transparent  conditions.  For  this  purpose,  non-discriminatory  criteria  should  be 
indicated  which  the  contracting  authorities  may  use  when  selecting  competitors  and 
the  means  which  economic  operators  may  use  to  prove  they  have  satisfied  those 
criteria.  In  the  same  spirit  of  transparency,  the  contracting  authority  should  be 
required,  as  soon  as  a  contract  is  put  out  to  competition,  to  indicate  the  selection 
criteria it will use and the level of specific competence it may or may not demand of 
the economic operators before admitting them to the procurement procedure. 

(38)  A  contracting  authority  may  limit  the  number  of  candidates  in  the  restricted  and 
negotiated  procedures  with  publication  of  a  contract  notice,  and  in  the  competitive 
dialogue. Any reduction in the number of candidates should be performed on the basis 
of objective criteria indicated in the contract notice. For criteria relating to the personal 
situation  of  economic  operators,  a  general  reference  in  the  contract  notice  to  the 
situations set out in Article 30 may suffice. 

16 
17 

OJ L 13, 19.1.2000, p. 12. 
OJ L 178, 17.7.2000, p. 1. 

EN 

16 

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(39) 

In  the  competitive dialogue and  negotiated procedures  with publication of a contract 
notice,  in  view  of  the  flexibility  which  may  be  required  and  the  high  level  of  costs 
associated  with  such  methods  of  procurement,  contracting  authorities  should  be 
entitled  to  make  provision  for  the  procedure  to  be  conducted  in  successive  stages  in 
order gradually to reduce, on the basis of previously indicated contract award criteria, 
the  number  of  tenders  which  they  will  go  on  to  discuss  or  negotiate.  This  reduction 
should, insofar as the number of appropriate solutions or candidates allows, ensure that 
there is genuine competition. 

(40)  The relevant Community rules on mutual recognition of diplomas, certificates or other 
evidence of formal qualifications apply when evidence of a particular qualification is 
required for participation in a procurement procedure. 

(41)  The  award  of  public  contracts  to  economic  operators  who  have  participated  in  a 
criminal  organisation  or  who  have  been  found  guilty  of  corruption  or  fraud  to  the 
detriment  of  the  financial  interests  of  the  European  Communities,  of  money 
laundering,  the  financing  of  terrorism  or  of  terrorist  and  terrorism-related  offences 
should  be  avoided.  Where  appropriate,  the  contracting  authorities  should  ask 
candidates  or  tenderers  to  supply  relevant  documents  and,  where  they  have  doubts 
concerning  the  personal  situation  of  a  candidate  or  tenderer,  they  may  seek  the 
cooperation  of  the  competent  authorities  of  the  Member  State  concerned.  Such 
economic  operators  should  be  excluded  as  soon  as  the  contracting  authority  has 
knowledge  of  a  judgment  concerning  such  offences  rendered  in  accordance  with 
national law that has the force of  res  judicata. If national law contains provisions to 
this  effect,  non-compliance  with  public  procurement  legislation  on  unlawful 
agreements,  which  has  been  the  subject  of  a  final  judgment  or  a  decision  having 
equivalent  effect,  may  be  considered  an offence concerning  the  professional conduct 
of the economic operator concerned or grave misconduct. 

(42)  Non-compliance  with  national  provisions 

implementing  Council  Directive 
2000/78/EC  of  27  November  2000  establishing  a  general  framework  for  equal 
treatment  in  employment  and  occupation18  and  Council  Directive  76/207/EEC  of  9 
February 1976 on the implementation of the principle of equal treatment for men and 
women  as  regards  access  to  employment,  vocational  training  and  promotion,  and 
working  conditions19,  which  has  been  the  subject  of  a  final  judgment  or  a  decision 
having  equivalent  effect,  may  be  considered  an  offence  concerning  the  professional 
conduct of the economic operator concerned or grave misconduct. 

(43)  Given  the  sensitive  nature  of  the  defence  and  security  sectors,  the  reliability  of  the 
economic  operators  that  win  the  contracts  is  vital.  This  reliability  depends,  in 
particular, on their ability to respond to the requirements imposed by the contracting 
authority with respect to security of supply and security of information. 

(44)  Contracts  should  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 a transparent and objective 

18 
19 

OJ L 303, 2.12.2000, p. 16. 
OJ L 39, 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). 

EN 

17 

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manner  under  conditions  of  effective  competition.  As  a  result,  it  is  appropriate  to 
allow  the  application  of  two  award  criteria  only:  "the  lowest  price"  and  "the  most 
economically advantageous tender". 

(45)  To ensure compliance with the principle of equal treatment 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  arrangements  which  will  be  applied  to  identify  the  most  economically 
advantageous  tender.  It  is  therefore  the  responsibility  of  contracting  authorities  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  authorities  may  derogate  from  indicating  the 
weighting of the criteria for the award in duly justified cases for which they must be 
able  to  give  reasons,  where  the  weighting  cannot  be  established  in  advance,  in 
particular  on  account  of  the  complexity  of  the  contract.  In  such  cases,  they  must 
indicate the descending order of importance of the criteria. 

(46)  Where the contracting authorities choose to award a contract to the most economically 
advantageous  tender,  they  shall  assess  the  tenders  in  order  to  determine  which  one 
offers the best value for money. In order to do this, they shall determine the economic 
and  quality  criteria  which,  taken  as  a  whole,  must  make  it  possible  to  determine  the 
most  economically  advantageous 
the  contracting  authority.  The 
tender  for 
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. 

(47)  Certain technical conditions, and in particular those concerning notices and statistical 
reports,  as  well  as  the  nomenclature  used  and  the  conditions  of  reference  to  that 
nomenclature,  need  to  be  adopted  and  amended  in  the  light  of  changing  technical 
requirements. It is therefore appropriate to put in place a flexible and rapid adoption 
procedure for this purpose. 

(48)  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 Commission20, 

HAVE ADOPTED THIS DIRECTIVE:

20 

OJ L 184, 17.7.1999, p. 23. Decision amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11). 

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CONTENTS 

TITLE I 

SCOPE, DEFINITIONS AND GENERAL PRINCIPLES 

Article 1 - Scope 

Article 2 - Definitions 

Article 3 - Public procurement principles 

TITLE II 

RULES ON PUBLIC CONTRACTS 

CHAPTER I 

General provisions 

Article 4 - Economic operators 

Article 5 - Confidentiality 

CHAPTER II 

Scope: thresholds and exclusion provisions 

Section 1 – Thresholds 

Article 6 - Threshold amounts for public contracts 

Article 7 - Methods for calculating the estimated value of public contracts and of framework 
agreements 

Section 2 – Excluded contracts 

Article 8 - Contracts awarded pursuant to international rules 

Article 9 - Specific exclusions 

CHAPTER III 

Specific rules governing specifications and contract documents 

Annex 10 - Technical specifications 

Article 11 - Variants 

Article 12 - Subcontracting 

Article 13 - Conditions for performance of contracts 

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Article 14 - Security of information 

Article 15 - Security of supply 

Article  16  -  Obligations  relating  to  taxes,  environmental  protection,  employment  protection 
provisions and working conditions 

CHAPTER IV 

Procedures 

Article 17 - Procedures to be applied 

Article 18 - Negotiated procedure with publication of a contract notice 

Article 19 – Competitive dialogue 

Article 20 - Cases justifying use of the negotiated procedure without publication of a contract 
notice 

Article 21 – Framework agreements 

CHAPTER V 

Rules on advertising and transparency 

Section 1 – Publication of notices 

Article 22 - Notices 

Article 23 - Form and manner of publication of notices 

Section 2 - Time limits 

Article 24 - Time limits for receipt of requests to participate and for receipt of tenders 

Section 3 - Information content and means of transmission 

Article 25 - Invitation to tender, to negotiate or to participate in the dialogue 

Article 26 - Information for candidates and tenderers 

Section 4 - Communication 

Article 27 - Rules applying to communication 

Section 5 - Reports 

Article 28 - Content of reports 

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CHAPTER VI 

Conduct of the procedure 

Section 1 - General provisions 

Article 29 - Verification of suitability and choice of participants, award of contracts 

Section 2 - Criteria for qualitative selection 

Article 30 - Personal situation of the candidate 

Article 31 - Suitability to pursue the professional activity 

Article 32 - Economic and financial capacity 

Article 33 - Technical and/or professional capacity 

Article 34 - Quality assurance standards 

Article 35 - Environmental management standards 

Article 36 - Additional documentation and information 

Section 3 - Award of the contract 

Article 37 - Contract award criteria 

Article 38 - Abnormally low tenders 

TITLE III 

Statistical obligations, executory powers, and final provisions 

Article 39 - Statistical obligations 

Article 40 - Content of the statistical report 

Article 41 - Advisory Committee 

Article 42 - Revision of the thresholds 

Article 43 - Amendments 

Article 44 - Amendment of Directive 2004/18/EC 

Article 45 - Transposition 

Article 46 - Entry into force 

Article 47 - Addressees 

EN 

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Annex I - Services referred to in Article 1 

Annexes 

Annex II - Definition of certain technical specifications referred to in Article 10 

Annex III - Information to be included in the notices referred to in Article 22 (notice of the 
publication of a prior information notice on a buyer profile, prior information notice, contract 
notice, contract award notice) 

Annex IV - Features concerning publication 

Annex V- Registers 

Annex  VI  -  Requirements  relating  to  devices  for  the  electronic  receipt  of  requests  to 
participate and tenders 

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 TITLE I 

SCOPE, DEFINITIONS AND GENERAL PRINCIPLES 

Article 1 
Scope 

This  Directive  shall  apply  to  public  contracts  awarded  in  the  fields  of  defence  and  security 
for: 

a) 

b) 

c) 

d) 

the  supply  of  arms,  munitions  and/or  war  material,  referred  to  in  the  Council 
Decision  of  15  April  195821  and,  where  necessary,  public  works  and  services 
contracts strictly related to these supplies; 

the supply of parts, components and/or subassemblies for incorporation in or fitting 
to the goods referred to under a), or for the repair, refurbishment or maintenance of 
such goods; 

the  supply  of  all  products  intended  for  training  or  testing  of  the  goods  referred  to 
under a); 

works,  supplies  and/or  services  involving,  entailing  and/or  containing  sensitive 
information,  and  which  are  necessary  for  the  security  of  the  EU  and  its  Member 
States,  in  the  fields  of  protection  against  terrorism  or  organised  crime,  border 
protection and crisis management operations. 

This Directive shall apply without prejudice to Articles 30, 45, 46, 55 and 296 of the Treaty. 

1. 

For the purposes of this Directive the following definitions shall apply: 

Article 2 
Definitions 

1) 

2) 

3) 

"Common  Procurement  Vocabulary  (CPV)":  the  reference  nomenclature 
applicable to public contracts as adopted by Regulation (EC) No 2195/2002; 

"Public  contracts":  contracts  for  pecuniary  interest  concluded  in  writing 
between  one  or  more  economic  operators  and  one  or  more  contracting 
authorities  and  having  as  their  object  the  execution  of  works,  the  supply  of 
products or the provision of services within the meaning of this Directive; 

"Public  works  contracts":  works  contracts  covering  either  the  execution,  or 
both  the  execution  and  design,  of  works  related  to  one  of  the  activities 
mentioned  in  Division  45  of  the  CPV  or  of  a  work  or  the  realisation,  by 
whatever means, of a work corresponding to the requirements specified by the 
contracting authority; 

21 

Decision  defining  the  list  of  products  (arms,  munitions  and  war  material)  to  which  the  provisions  of 
Article 223(1b) – now Article 296 – of the Treaty apply. Minutes of 15 April 1958: 368/58.  

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4) 

5) 

6) 

7) 

8) 

"Work": the outcome of building or civil engineering works taken as a whole 
that is sufficient of itself to fulfil an economic or technical function; 

"Public  supply  contracts":  public  contracts  other  than  works  contracts  having 
as their object the purchase, lease, rental or hire-purchase, with or without the 
option to buy, of products; 

"Public service contracts": public contracts having as their object the provision 
of services mentioned in Annex I; 

"Sensitive  information":  any  information  (namely,  knowledge  that  can  be 
communicated  in  any  form)  or  material  determined  to  require  protection 
against unauthorised disclosure for security reasons; 

"Terrorism":  intentional  acts  which,  given  their  nature  or  their  context,  may 
seriously  damage  a  country  or  an  international  organisation  where  committed 
with  the  aim  of  seriously  intimidating  a  population,  or  unduly  compelling  a 
Government  or 
to  perform  or  abstain  from 
performing  any  act,  or  seriously  destabilising  or  destroying  the  fundamental 
political,  constitutional,  economic  or  social  structures  of  a  country  or  an 
international organisation: 

international  organisation 

a) 

attacks upon a person's life which may cause death; 

b) 

attacks upon the physical integrity of a person; 

c) 

d) 

kidnapping or hostage taking; 

causing  extensive  destruction  to  a  Government  or  public  facility,  a 
transport  system,  an  infrastructure  facility,  including  an  information 
system, a fixed platform located on the continental shelf, a public place 
or  private  property  likely  to  endanger  human  life  or  result  in  major 
economic loss; 

e) 

seizure of aircraft, ships or other means of public or goods transport; 

f)  manufacture,  possession,  acquisition, 

transport,  supply  or  use  of 
weapons,  explosives  or  of  nuclear,  biological  or  chemical  weapons,  as 
well  as  research  into,  and  development  of,  biological  and  chemical 
weapons; 

g) 

h) 

release  of  dangerous  substances,  or  causing  fires,  floods  or  explosions, 
the effect of which is to endanger human life; 

interfering  with  or  disrupting  the  supply  of  water,  power  or  any  other 
fundamental natural  resource, the effect of which is to endanger human 
life; 

i) 

threatening to commit any of the acts listed in (a) to (h); 

9) 

"Criminal organisation": a structured association, established over a period of 
time,  of  more  than  two  persons,  acting  in  concert  with  a  view  to  committing 

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offences which are punishable by deprivation of liberty or a detention order of 
a  maximum  of  at  least  four  years  or  a  more  serious  penalty,  whether  such 
offences  are  an  end  in  themselves  or  a  means  of  obtaining  material  benefits 
and,  where  appropriate,  of  improperly  influencing  the  operation  of  public 
authorities; 

10)  "Crisis": any man-made situation in a Member State or third country presenting 

a direct physical threat to persons or institutions in that country; 

11)  "Framework  agreement":  an  agreement  between  one  or  more  contracting 
authorities  and  one  or  more  economic  operators,  the  purpose  of  which  is  to 
establish the terms governing contracts to be awarded during a given period, in 
particular with regard to price and, where appropriate, the quantity envisaged; 

12)  "Contractor", "supplier" and "service provider": any natural or legal person or 
public entity or consortium of such persons and/or bodies which offers on the 
market to execute works, supply products and provide services respectively; 

13)  "Economic  operator":  a  contractor,  supplier  or  service  provider.  The  term 

"economic operator" is used merely in the interests of simplification; 

14)  "Candidate": an economic operator that has sought an invitation to take part in 

a restricted or negotiated procedure or a competitive dialogue; 

15)  "Tenderer": an economic operator that has submitted a tender under a restricted 

or negotiated procedure or a competitive dialogue; 

16)  "Contracting authorities": State, regional or local authorities, bodies governed 
by public law, associations formed by one or several such authorities or one or 
several of such bodies governed by public law;  

17)  "Body governed by public law": any body: 

a) 

established  for  the  specific  purpose  of  meeting  needs  in  the  general 
interest, not having an industrial or commercial character; 

b) 

having legal personality; and 

c)  whose  activities  are  mainly  financed  by  the  State,  regional  or  local 
authorities  or  other  bodies  governed  by  public  law,  or  are  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  authorities,  or  by  other  bodies 
governed by public law; 

18)  "restricted procedures": those procedures in which any economic operator may 
ask  to  participate  and  whereby  only  those  economic  operators  invited  by  the 
contracting authority may submit a tender; 

19)  "negotiated  procedures":  those  procedures  in  which  the  contracting  authority 
consults  the  economic  operators  of  its  choice  and  negotiates  the  terms  of  the 
contract with them; 

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20)  "competitive dialogue": a procedure in which any economic operator may ask 
to participate and whereby the contracting authority conducts a dialogue with 
the  candidates  admitted  to  that  procedure,  with  the  aim  of  developing  one  or 
more suitable alternatives capable of meeting its requirements, and on the basis 
of which the candidates chosen are invited to tender; 

21)  "Particularly complex contract": for the purposes of recourse to the competitive 

dialogue procedure, a public contract where the contracting authority: 

- 

- 

is not objectively able to define the technical means in accordance with 
Article  10  (3)(b),  (c)  or  (d),  capable  of  satisfying  their  needs  or 
objectives, and/or 

is not objectively able to specify the legal and/or financial make-up of a 
project; 

22)  "Written" or "in writing": any expression consisting of words or figures which 
can  be  read,  reproduced  and  subsequently  communicated.  It  may  include 
information which is transmitted and stored by electronic means; 

23)  "Electronic means":  any means using electronic equipment for  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. 

2. 

A public contract having as its object the supply of products and which also covers, 
as an incidental matter, siting and installation operations shall be deemed a "public 
supply contract". 

A public contract having as its object both products and services within the meaning 
of Annex I shall be deemed a "public service contract" if the value of the services in 
question exceeds that of the products included in the contract. 

A  public  contract  having  as  its  object  services  within  the  meaning  of  Annex  I  and 
including activities mentioned in Division 45 of the CPV that are only incidental to 
the principal object of the contract shall be deemed a public service contract. 

Article 3 
Public procurement principles 

Contracting  authorities  shall  treat  economic  operators  equally  and  non-discriminatorily  and 
shall act in a transparent way. 

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TITLE II 

Rules on public contracts 

CHAPTER I 

General provisions 

Article 4 
Economic operators 

1. 

2. 

Candidates or tenderers who, under the law of 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 is awarded, 
they would be required to be either natural or legal persons. 

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

Consortia  of  economic  operators  shall  be  authorised  to  be  candidates.  Contracting 
authorities may not demand that consortia must have a given legal form in order to 
be allowed to submit a tender or request to take part, but the consortium selected may 
be required to adopt a given legal form after it has been awarded the contract if this 
change is necessary for proper performance of the contract. 

Article 5 
Confidentiality 

Without  prejudice  to  the  provisions  of  this  Directive,  in  particular  those  concerning  the 
obligations relating to the information to candidates and tenderers set out in Articles 23(4) and 
27, and in accordance with the national law to which the contracting authority 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 aspects of tenders. 

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CHAPTER II 

Scope: thresholds and exclusion provisions 

SECTION 1 

Thresholds 

Article 6 
Threshold amounts for public contracts 

This Directive shall apply to public contracts which have a value excluding value-added tax 
(VAT) estimated to be no less than the following thresholds:  

a) 

EUR 137 000 for public supply and service contracts awarded by central government 
authorities other than those operating in the field of defence; 

b) 

EUR 211 000 for the following public contracts: 

- 

- 

for public supply and service contracts awarded by contracting authorities that 
are  not  central  government  authorities  and  by  central  government  authorities 
operating in the field of defence, 

for public service contracts awarded by any contracting authority in respect of 
the services listed in Category 8 of Annex I or Category 5 telecommunications 
services in that same Annex, the headings of which in the CPV are equivalent 
to CPV reference nos 64228000-0, 64221000-1 and 642228000-0; 

c) 

EUR 5 278 000 for public works contracts. 

Article 7 
Methods for calculating the estimated value of public contracts and of framework agreements 

1. 

2. 

3. 

The calculation of the estimated value of a public contract shall be based on the total 
amount  payable,  net  of  VAT,  as  estimated  by  the  contracting  authority.  This 
calculation  shall  take  account  of  the  estimated  total  amount,  including  any  form  of 
option and any renewals of the contract. 

Where  the  contracting  authority  provides  for  prizes  or  payments  to  candidates  or 
tenderers it shall take them into account when calculating the estimated value of the 
contract. 

This  estimate  must  be  valid  at  the  moment  at  which  the  contract  notice  is  sent,  as 
provided  for  in  Article  23(2),  or,  in  cases  where  such  notice  is  not  required,  at  the 
moment at which the contracting authority commences the contract award procedure. 

No  works  project  or  proposed  purchase  of  a  certain  quantity  of  supplies  and/or 
services may be subdivided to prevent its coming within the scope of this Directive. 

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4. 

5. 

With regard to public works contracts, calculation of the estimated value shall take 
account  of  both  the  cost  of  the  works  and  the  total  estimated  value  of  the  supplies 
necessary  for  executing  the  works  and  placed  at  the  contractor's  disposal  by  the 
contracting authorities. 

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  6,  this  Directive  shall  apply  to  the  awarding  of  each  lot.  

However, the contracting authorities may waive such application in respect of 
lots,  the  estimated  value  of  which,  net  of  VAT,  is  less  than  EUR  80  000  for 
services or EUR 1 million for works, provided that the aggregate value of those 
lots does not exceed 20% of the aggregate value of the lots as a whole; 

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  6(a) 
and (b). 

Where the aggregate value of the lots is equal to or exceeds the threshold laid 
down in Article 6, this Directive shall apply to the awarding of each lot. 

However, the contracting authorities may waive such application 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. 

6. 

With  regard  to  public  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 public contracts, if that term is less than or equal to 10 
years, the total estimated value for the term of the contract or, if the term of the 
contract  is  greater  than  10  years,  the  total  value  including  the  estimated 
residual value; 

b) 

in the case of public contracts without a fixed term or the term of which cannot 
be defined, the monthly value multiplied by 120. 

7. 

In the case of public 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: 

a) 

either the actual aggregate value of successive similar contracts concluded over 
the  previous  10  years  adjusted,  where  possible,  for  anticipated  changes  in 
quantity or value over the 10 years following the initial contract; 

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29 

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b) 

or the estimated aggregate value of the successive contracts awarded during the 
10  years  following  the  first  delivery  or  during  the  term  if  that  term  is  longer 
than 10 years. 

The choice of method used to calculate the estimated value of a public contract may 
not be made with the intention of excluding it from the scope of this Directive. 

8. 

With  regard  to  public  service  contracts,  the  value  to  be  taken  as  a  basis  for 
calculating the estimated contract value shall, where appropriate, be the following: 

a) 

for the following services: 

i) 

ii) 

insurance  services: 
remuneration; 

the  premium  payable  and  other 

forms  of 

banking and other financial services: the fees, commissions, interest and 
other forms of remuneration; 

iii)  design  contracts:  fees,  commission  payable  and  other  forms  of 

remuneration; 

b) 

for service contracts which do not indicate a total price: 

i) 

ii) 

in the case of fixed-term contracts, if that term is less than or equal to 120 
months: the total value for their full term; 

in the case of contracts without a fixed term or with a term greater than 
120 months: the monthly value multiplied by 120. 

9. 

With  regard  to  framework  agreements,  the  estimated  value  to  be  taken  into 
consideration shall be the maximum estimated value net of VAT of all the contracts 
envisaged for the total term of the agreement.  

SECTION 2 

Excluded contracts 

Article 8 
Contracts awarded pursuant to international rules 

This Directive shall not apply to public contracts governed by different procedural rules and 
awarded: 

a) 

pursuant  to  an  international  agreement  concluded  in  conformity  with  the  Treaty 
between  a  Member  State  and  one  or  more  third  countries  and  covering  supplies  or 
works  intended  for  the  joint  implementation  or  exploitation  of  a  work  by  the 
signatory States or services intended for the joint implementation or exploitation of a 
project  by  the  signatory  States.  All  agreements  shall  be  communicated  to  the 
Commission  which,  with  the  agreement  of  the  Member  State(s)  concerned,  may 
consult the Advisory Committee for Public Contracts referred to in Article 41; 

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b) 

pursuant to the particular procedure of an international organisation. 

Article 9 
Specific exclusions 

This Directive shall not apply to the following public contracts: 

a) 

b) 

service contracts for the acquisition or rental, under whatever financial arrangements, 
of  land,  existing  buildings,  or  other  immovable  property  or  concerning  rights  in 
respect thereof; 

contracts  awarded  in  a  third  country,  with  local  economic  operators,  for  the 
deployment of military forces, or to conduct or support a military operation outside 
the territory of the European Union. 

CHAPTER III 

Specific rules governing specifications and contract documents 

Article 10 
Technical specifications 

1. 

The technical specifications as defined in point 1 of Annex II shall be set out in the 
contract  documentation,  such  as  contract  notices,  contract  documents  or  additional 
documents. 

When a public contract contains sensitive technical specifications that may only be 
communicated  to  the  successful  tenderer,  these  must  not  be  set  out  in  the  contract 
notice, contract documents or additional documents provided that knowledge of such 
specifications is not required in order to prepare tenders. 

In  this  case,  these  technical  specifications  are  entered  in  the  reports  referred  to  in 
Article 28 before the contract documents are sent to the candidates. 

Such technical specifications may only deal with explanations or clarifications of the 
tender and have no significant technical or financial impact on the subject-matter of 
the public contract. 

After awarding the contract by applying the award criteria, the contracting authority 
shall send the successful tenderer the sensitive technical specifications that were not 
set  out  in  the  contract  documents  or  additional  documents  so  that  the  successful 
tenderer can adapt his bid accordingly. 

2. 

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

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3. 

The technical specifications shall be drawn up: 

a) 

b) 

c) 

d) 

either by reference to technical specifications defined in Annex II and, in order 
of preference, to national standards transposing European standards, European 
technical  approvals,  common  technical  specifications,  international  standards, 
other technical reference systems established by the  European standardisation 
bodies  or  -  where  these  do  not  exist  –  by  reference  to  national  standards, 
national technical approvals or national technical specifications relating to the 
design, calculation and execution of the works and use of the products, or by 
reference  to  the  defence  standards  defined  in  point  3  of  Annex  II.  Every 
reference shall be followed by the expression "or equivalent"; 

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 authorities to award the contract; 

or  in  terms  of  performance  or  functional  requirements  as  mentioned  in 
subparagraph  (b),  with  reference 
in 
to 
subparagraph (a) as a means of presuming conformity with such performance 
or functional requirements; 

the  specifications  mentioned 

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

If  the  technical  specifications  are  compatible  with  Community  law,  the  first 
subparagraph  shall  not  prejudice  the  compulsory  national  technical  rules  and 
technical  requirements  to  be  met  by  the  Member  States,  under  international 
agreements, in order to guarantee the interoperability required by these agreements. 

Where  a  contracting  authority  makes  use  of  the  option  of  referring  to  the 
specifications mentioned in paragraph 3(a), it cannot reject a tender on the grounds 
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  authority,  by  whatever  appropriate  means,  that  the  solutions  which  he 
proposes  satisfy  in  an  equivalent  manner  the  requirements  defined  by  the  technical 
specifications. 

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

Where a contracting authority uses the option laid down in paragraph 3 to prescribe 
performance-related or functional requirements, it may not reject a tender for works, 
products or services 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 
standardisation  body,  if  these  specifications  address  the  performance  or  functional 
requirements which it has laid down. 

4. 

5. 

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In his tender, the tenderer must prove to the satisfaction of the contracting authority 
and by any appropriate means that the work, product or service in compliance with 
the  standard  meets  the  performance  or  functional  requirements  of  the  contracting 
authority. 

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

6. 

Where  contracting  authorities  lay  down  environmental  characteristics  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  as  a  means  of  defining  the  characteristics 
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, manufacturers, distributors and environmental 
organisations, can participate, and 

- 

they are accessible to all interested parties. 

Contracting authorities may indicate that the products and services bearing the eco-
label  are  presumed  to  comply  with  the  technical  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,  are  test  and  calibration 
laboratories,  and  certification  and  inspection  bodies  which  comply  with  applicable 
European standards. 

Contracting authorities shall accept certificates from recognised bodies established in 
other Member States. 

Unless  justified  by  the  subject-matter  of  the  contract,  technical  specifications  shall 
not  refer  to  a  specific  make  or  source,  or  a  particular  process,  or  to  trade  marks, 
patents,  types  or  a  specific  origin  or  production  with  the  effect  of  favouring  or 
eliminating  certain  undertakings  or  certain  products.  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". 

7. 

8. 

Article 11 
Variants 

1. 

Where the criterion for award is that of the most economically advantageous tender, 
contracting authorities may authorise tenderers to submit variants. 

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2 

3. 

4. 

Contracting  authorities  shall  indicate  in  the  contract  notice  whether  or  not  they 
authorise variants: variants shall not be authorised without this indication.  

Contracting authorities authorising variants shall state in the contract documents the 
minimum requirements to be met by the variants and any specific requirements for 
their presentation. 

Only  variants  meeting  the  minimum  requirements  laid  down  by  these  contracting 
authorities shall be taken into consideration. 

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

Article 12 
Subcontracting 

In the contract documents, the contracting authority 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 may intend 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. 

Article 13 
Conditions for performance of contracts 

Contracting  authorities  may  lay  down  special  conditions  relating  to  the  performance  of  a 
contract,  provided  that  these  are  compatible  with  Community  law  and  are  indicated  in  the 
contract notice or in the specifications. These conditions may, in particular, seek to ensure the 
security  of  sensitive  information  and  the  security  of  supply  required  by  the  contracting 
authority or take environmental or social considerations into account. 

Article 14 
Security of information 

When the public contracts involve, entail and/or contain sensitive information, the contracting 
authority  shall  specify  in  the  contract  documents  all  measures  and  requirements  needed  to 
ensure the security of such information at the requisite level. 

To  this  end,  the  contracting  authority  may  require  of  the  tenderer  that  the  tender  submitted 
contain the following particulars: 

a) 

proof  that  the  subcontractors  already  identified  possess  the  capabilities  required  to 
protect the confidentiality of the sensitive information to which they have access or 
which they are required to produce when carrying out their subcontracting activities, 

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b) 

c) 

a  commitment  to  provide  the  same  proof  for  any  new  subcontractors  that  may  be 
involved during performance of the contract, 

a commitment to keep all sensitive information confidential for the entire duration of 
the contract and after termination or conclusion of the contract. 

Article 15 
Security of supply 

Provided  that  they  are  in  conformity  with  Community  law,  the  contracting  authority  may 
specify requirements to guarantee security of supply. 

To  this  end,  the  contracting  authority  may  require  of  the  tenderer  that  the  tender  submitted 
contain the following:  

a) 

b) 

c) 

d) 

e) 

f) 

evidence that  it  will  be able to  honour  its obligations regarding the export, transfer 
and  transit  of  goods  associated  with  the  contract,  including  by  means  of  a 
commitment from the Member State(s) concerned, 

evidence that the organisation and location of its supply chain will allow it to comply 
with  the  contracting  authority's  requirements  concerning  the  security  of  supply  set 
out in the specifications, 

a  commitment  to  meet  additional  needs  required  by  the  contracting  authority  as  a 
result of an emergency, crisis or armed conflict, 

a  commitment  from  its  national  authorities  not  to  obstruct  the  fulfilment  of  any 
additional needs required by the contracting authority as the result of an emergency, 
crisis or armed conflict, 

a  commitment  to  carry  out  the  maintenance,  modernisation  or  adaptation  of  the 
supplies covered by this contract, 

a  commitment  to  inform  the  contracting  authority  in  due  time  of  any  change  in  its 
organisation or its industrial strategy that may affect its obligations to that authority. 

The requirements shall be explained in the specifications or contract documents. 

Article 16 
Obligations relating to taxes, environmental protection, employment protection provisions 
and working conditions 

1. 

A  contracting  authority  may  state  in  the  contract  documents,  or  be  obliged  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  the  employment  protection  provisions  and  to  the 
working  conditions  which  are  in  force  in  the  Member  State,  region  or  locality  in 
which the works are to be carried out or 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 contract. 

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2. 

A  contracting  authority  which  supplies  the  information  referred  to  in  paragraph  1 
shall request the tenderers 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 works are to be carried 
out or the service is to be provided. 

The first subparagraph shall be without prejudice to the application of the provisions 
of Article 38 concerning the examination of abnormally low tenders. 

CHAPTER IV 

Procedures 

Article 17 
Procedures to be applied 

In awarding their public contracts, contracting authorities shall apply the national procedures 
adjusted for the purposes of this Directive. 

They  shall  award  public  contracts  by  applying  the  restricted  procedure,  the  negotiated 
procedure  with  publication  of  a  contract  notice  or,  under  the  circumstances  referred  to  in 
Article 19, the competitive dialogue. 

In  the  specific  cases  and  circumstances  referred  to  expressly  in  Article  20,  the  contracting 
authorities may apply a negotiated procedure without publication of the contract notice. 

Article 18 
Negotiated procedure with publication of a contract notice 

1. 

2. 

3. 

In negotiated procedures with publication of a contract notice, contracting authorities 
shall negotiate with tenderers the tenders submitted by them in order to adapt them to 
the requirements they have set in the contract notice, the specifications and additional 
documents, if any, and to seek out the best tender in accordance with Article 37. 

During the negotiations, contracting authorities shall ensure the equal treatment of all 
tenderers.  In  particular,  they  shall  not  provide  information  in  a  discriminatory 
manner which may give some tenderers an advantage over others. 

Contracting  authorities  may  provide  for  the  negotiated  procedure  to  take  place  in 
successive  stages  in  order  to  reduce  the  number  of  tenders  to  be  negotiated  by 
applying the award criteria in the contract notice or the specifications. The contract 
notice or the specifications shall indicate whether this option has been used. 

Article 19 
Competitive dialogue 

1. 

When a contract is particularly complex, the contracting authority, should it consider 
that recourse to the restricted procedure or the negotiated procedure with publication 

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2. 

3. 

4. 

5. 

6. 

of  a  contract  notice  will  not  enable  it  to  award  the  contract,  may  make  use  of  the 
competitive dialogue in accordance with this Article. 

A  public  contract  shall  be  awarded  on  the  sole  basis  of  the  award  criterion  for  the 
most economically advantageous tender. 

Contracting  authorities  shall  publish  a  contract  notice  setting  out  their  needs  and 
requirements, which they shall define in that notice and/or in a descriptive document. 

Contracting  authorities  shall  open,  with  the  candidates  selected  in  accordance  with 
the relevant provisions of Articles 29 to 36, a dialogue the aim of which shall be to 
identify and define the means best suited to satisfying their needs. They may discuss 
all aspects of the contract with the chosen candidates during this dialogue. 

During the dialogue, contracting authorities shall ensure equality of treatment among 
all  tenderers.  In  particular,  they  shall  not  provide  information  in  a  discriminatory 
manner which may give some tenderers an advantage over others. 

Contracting authorities may not reveal to the other participants solutions proposed or 
other  confidential  information  communicated  by  a  candidate  participating  in  the 
dialogue without his agreement. 

Contracting  authorities  may  provide  for  the  procedure  to  take  place  in  successive 
stages in order to reduce the number of solutions to be discussed during the dialogue 
stage  by  applying  the  award  criteria  in  the  contract  notice  or  the  descriptive 
document.  The  contract  notice  or  the  descriptive  document  shall  indicate  that 
recourse may be had to this option. 

The  contracting  authority  shall  continue  such  dialogue  until  it  can  identify  the 
solution or solutions, if necessary after comparing them, which are likely to meet its 
needs. 

Having  declared  that  the  dialogue  is  concluded  and  having  so  informed  the 
participants, contracting authorities shall ask them to submit their final tenders on the 
basis of the solution or solutions presented and specified during the dialogue. These 
tenders shall contain all the elements required and necessary for the performance of 
the project. 

These  tenders  may  be  clarified,  specified  and  fine-tuned  at  the  request  of  the 
contracting  authority.  However,  such  clarification,  specification,  fine-tuning  or 
additional information may not involve changes to the basic features of the tender or 
the  call  for  tender,  variations  in  which  are  likely  to  distort  competition  or  have  a 
discriminatory effect. 

7. 

Contracting  authorities  shall  assess  the  tenders  received  on  the  basis  of  the  award 
criteria laid down in the contract notice or the descriptive document and shall choose 
the most economically advantageous tender in accordance with Article 37. 

At  the  request  of  the  contracting  authority,  the  tenderer  identified  as  having 
submitted the tender offering best value for money may be asked to clarify aspects of 
the  tender  or  confirm  commitments  contained  in  the  tender,  provided  this  does  not 

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8. 

1. 

2. 

3. 

have the effect of modifying substantial aspects of the tender or of the call for tenders 
and does not risk distorting competition or causing discrimination. 

The contracting authorities may specify prices or payments to the participants in the 
dialogue. 

Article 20 
Cases justifying use of the negotiated procedure without publication of a contract notice 

Contracting  authorities  may  award  public  contracts  by  a  negotiated  procedure 
without prior publication of a contract notice in the cases set out in paragraphs 2 to 6 
below. 

The  provision  of  the  first  subparagraph  shall  also  apply  when  these  contracts  are 
awarded as part of a cooperative programme between two or more Member States. 

For public works contracts, public supply contracts and public service contracts, the 
negotiated procedure without prior publication of a contract notice may be applied in 
the following circumstances: 

a)  when  the  periods  laid  down  for  the  restricted  procedure  and  negotiated 
procedure  with  publication  of  a  contract  notice  are  incompatible  with  the 
urgency of a crisis or armed conflict; 

b)  when,  for  technical  reasons,  or  for  reasons  connected  with  the  protection  of 
exclusive  rights,  the  contract  may  be  awarded  only  to  a  particular  economic 
operator. 

For  public  service  contracts  and  public  supply  contracts,  the  negotiated  procedure 
without  prior  publication  of  a  contract  notice  may  be  applied  for  research  and 
development  services  and  for  products  manufactured  purely  for  the  purpose  of 
research,  experiment,  study  or  development,  with  the  exception  of  quantity 
production to establish commercial viability or to recover research and development 
costs. 

4. 

For public supply contracts, the negotiated procedure without prior publication of a 
contract notice may be applied for the following deliveries and supplies: 

a) 

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 
technical 
contracting  authority 
characteristics  which  would  result  in  incompatibility  or  disproportionate 
technical difficulties in operation and maintenance.   

to  acquire  material  having  different 

The length of such contracts as well as that of recurrent contracts may not, as a 
general rule, exceed five years; 

b) 

for the supply of arms, munitions and/or war material by the government of a 
Member State to the government of another Member State. 

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5. 

6. 

1. 

2. 

For  public  works  contracts  and  public  service  contracts,  the  negotiated  procedure 
without prior publication of a contract notice may be applied for additional works or 
services not included in the project initially considered or in the original contract but 
which  have, 
the 
performance of the works or services described therein, on condition that the award 
is made to the economic operator performing such works or services: 

through  unforeseen  circumstances,  become  necessary  for 

when such additional works or services cannot be technically or economically 
separated  from  the  original  contract  without  major  inconvenience  to  the 
contracting authorities, 

i) 

or 

ii)  when such works or services, although separable from the performance of the 

original contract, are strictly necessary for its completion. 

However, the aggregate value of contracts awarded for additional works or services 
may not exceed 50% of the amount of the original contract. 

The  negotiated  procedure  without  prior  publication  of  a  contract  notice  may  be 
applied  for  new  works  or  services  consisting  in  the  repetition  of  similar  works  or 
services entrusted to the economic operator to whom the same contracting authorities 
awarded an original contract, provided that such works or services are in conformity 
with  a  basic  project  for  which  the  original  contract  was  awarded  according  to  the 
restricted procedure, the negotiated procedure with publication of a contract notice or 
the competitive dialogue. 

As  soon  as  the  first  project  is  put  up  for  tender,  the  possible  use  of  this  procedure 
shall be disclosed and the total estimated cost of subsequent works or services shall 
be  taken  into  consideration  by  the  contracting  authorities  when  they  apply  the 
provisions of Article 6. 

This procedure may be used only during the five years following the conclusion of 
the original contract. 

Article 21 
Framework agreements 

Member  States  may  provide  that  contracting  authorities  may  conclude  framework 
agreements. 

For the purpose of concluding a framework agreement, contracting authorities shall 
follow  the  rules  of  procedure  referred  to  in  this  Directive  for  all  phases  up  to  the 
award of contracts based on that framework agreement. The parties to the framework 
agreement  shall  be  chosen  by  applying  the  award  criteria  set  in  accordance  with 
Article 37. 

Contracts based on a framework agreement shall be awarded in accordance with the 
procedures laid down in paragraphs 3 and 4. Those procedures may be applied only 

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3. 

4. 

between the contracting authorities and the economic operators originally party to the 
framework agreement. 

When awarding contracts based on a framework agreement, the parties may under no 
circumstances  make  substantial  amendments  to  the  terms  laid  down  in  that 
framework agreement, in particular in the case referred to in paragraph 3. 

The term of a framework agreement may not exceed five years, save in exceptional 
cases duly justified, in particular, by the subject of the framework agreement. 

Contracting authorities may not use framework agreements improperly or in such a 
way as to prevent, restrict or distort competition. 

Where  a  framework  agreement  is  concluded  with  a  single  economic  operator, 
contracts based on that agreement shall be awarded within the limits of the terms laid 
down in the framework agreement. 

For  the  award  of  those  contracts,  contracting  authorities  may  consult  the  operator 
party to the framework agreement in writing, requesting it to supplement its tender as 
necessary. 

Where  a  framework  agreement  is  concluded  with  several  economic  operators,  the 
latter  must  be  at  least  three  in  number,  insofar  as  there  is  a  sufficient  number  of 
economic operators that satisfy the selection criteria and/or of admissible tenders that 
meet the award criteria. 

Contracts  based  on  framework  agreements  concluded  with  several  economic 
operators  may  be  awarded  either  by  application  of  the  terms  laid  down  in  the 
framework agreement without reopening competition, or, where not all the terms are 
laid down in the framework agreement, when the parties are again in competition on 
the basis of the same and, if necessary, more precisely formulated terms, and, where 
appropriate, other terms referred to in the specifications of the framework agreement. 

In the latter case, the following procedure shall apply: 

a) 

b) 

c) 

d) 

for every contract to be awarded, contracting authorities shall consult in writing 
the economic operators capable of performing the contract; 

contracting authorities shall fix a time limit which is sufficiently long to allow 
tenders  for  each  specific  contract  to  be  submitted,  taking  into  account  factors 
such  as  the  complexity  of  the  subject-matter  of  the  contract  and  the  time 
needed to submit tenders; 

tenders  shall  be  submitted  in  writing,  and  their  content  shall  remain 
confidential until the stipulated time limit for reply has expired; 

contracting  authorities  shall  award  each  contract  to  the  tenderer  who  has 
submitted  the  best  tender  on  the  basis  of  the  award  criteria  set  out  in  the 
specifications of the framework agreement. 

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CHAPTER V 

Rules on advertising and transparency 

SECTION 1 

Publication of notices 

Article 22 
Notices 

1. 

Contracting  authorities  shall  make  known,  by  means  of  a  prior  information  notice 
published by the Commission or by themselves on their "buyer profile", as described 
in point 2 of Annex IV: 

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 
Articles 6 and 7, is equal to or greater than EUR 750 000. 

The  product  area  shall  be  established  by  the  contracting  authorities  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  I 
which  they  intend  to  award  over  the  following  12  months,  where  such 
estimated total value, taking into account the provisions of Articles 6 and 7, is 
equal to or greater than EUR 750 000; 

c)  where works are concerned, the essential characteristics of the contracts or the 
framework  agreements  which  they  intend  to  award,  the  estimated  value  of 
which is equal to or greater than the threshold specified in Article 6, taking into 
account Article 7. 

The notices referred to in subparagraphs (a) and (b) shall be sent to the Commission 
or published on the buyer profile at the earliest opportunity 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 at the earliest opportunity after the decision approving 
the planning of the works contracts or the framework agreements that the contracting 
authorities intend to award. 

Contracting authorities that publish a prior information notice on their buyer profiles 
shall  send  the  Commission,  electronically,  a  notice  of  publication  of  the  prior 
information  notice  on  a  buyer  profile,  in  accordance  with  the  format  and  detailed 
procedures for sending notices indicated in point 3 of Annex IV. 

This paragraph shall not apply to negotiated procedures without the prior publication 
of a contract notice. 

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2. 

3. 

4. 

1. 

2. 

3. 

Contracting  authorities  which  wish  to  award  a  public  contract  or  a  framework 
agreement  by  restricted  procedure,  negotiated  procedure  with  the  publication  of  a 
contract notice or a competitive dialogue, shall make known their intention by means 
of a contract notice.  

Contracting authorities may, in accordance with Article 23, publish notices of public 
contracts  that  are  not  subject  to  the  publication  requirement  laid  down  in  this 
Directive. 

Contracting  authorities  which  have  awarded  a  public  contract  or  concluded  a 
framework  agreement  shall  send  a  notice  of  the  results  of  the  award  procedure  no 
later than 48 days after the award of the contract or the conclusion of the framework 
agreement. 

In  the  case  of  framework  agreements  concluded  in  accordance  with  Article  21,  the 
contracting  authorities  are  not  bound  to  send  a  notice  of  the  results  of  the  award 
procedure for each contract based on that agreement. 

Certain  information  on  the  contract  award  or  the  conclusion  of  the  framework 
agreement  may  be  withheld  from  publication  where  release  of  such  information 
would impede law enforcement or otherwise be contrary to the public interest, would 
harm the legitimate commercial interests of economic operators, public or private, or 
might prejudice fair competition between them. 

Article 23 
Form and manner of publication of notices 

Notices shall include the information mentioned in Annex III and, where appropriate, 
any  other  information  deemed  useful  by  the  contracting  authority  in  the  format  of 
standard  forms  adopted  by  the  Commission  in  accordance  with  the  procedure 
referred to in Article 41(2). 

Notices  sent  by  contracting  authorities  to  the  Commission  shall  be  sent  either  by 
electronic  means  in  accordance  with  the  format  and  procedures  for  transmission 
indicated in Annex IV, paragraph 3, or by other means. In the event of recourse to 
the accelerated procedure set out in Article 24(4), notices must be sent either by fax 
or  by  electronic  means,  in  accordance  with  the  format  and  procedures  for 
transmission indicated in point 3 of Annex IV. 

Notices  shall  be  published  in  accordance  with  the  technical  characteristics  for 
publication set out in point 1(a) and (b) of Annex IV. 

Notices drawn up and transmitted by electronic means in accordance with the format 
and procedures for transmission indicated in point 3 of Annex IV, shall be published 
no later than five days after they are sent. 

Notices which are not transmitted by electronic means in accordance with the format 
and procedures for transmission indicated in point 3 of Annex IV, shall be published 
not later than 12 days after they are sent, or in the case of the accelerated procedure 
referred to in Article 24(4), not later than five days after they are sent. 

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4. 

Contract notices shall be published in full in an official language of the Community 
as chosen by the contracting authority, this original language version constituting the 
sole  authentic  text.  A  summary  of  the  important  elements  of  each  notice  shall  be 
published in the other official languages. 

The  costs  of  publication  of  such  notices  by  the  Commission  shall  be  borne  by  the 
Community. 

5. 

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

6. 

7. 

8. 

1. 

2. 

3. 

Notices  published  at  national  level  shall  not  contain  information  other  than  that 
contained in the notices dispatched to the Commission and shall mention the date of 
dispatch of the notice to the Commission. 

The  content  of  notices  not  sent  by  electronic  means  in  accordance  with  the  format 
and procedures for transmission indicated in point 3 of Annex IV, shall be limited to 
approximately 650 words. 

Contracting authorities must be able to supply proof of the dates on which notices are 
dispatched. 

The Commission shall give the contracting authority confirmation of the publication 
of  the  information  sent,  mentioning  the  date  of  that  publication.  Such  confirmation 
shall constitute proof of publication. 

SECTION 2 

Time limits 

Article 24 
Time limits for receipt of requests to participate and for receipt of tenders 

When  fixing  the  time  limits  for  receipt  of  requests  to  participate  and  tenders, 
contracting entities shall 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. 

In  restricted  procedures,  negotiated  procedures  with  the  publication  of  a  contract 
notice and the use of a competitive dialogue, the time limit for receipt of requests to 
participate shall be no less than 37 days from the date on which the contract notice is 
dispatched. 

In the case of restricted procedures, the minimum time limit for the receipt of tenders 
shall be 40 days from the date on which the invitation is sent. 

Where notices are drawn up and transmitted by electronic means in accordance with 
the format and procedure for sending notices indicated in point 3 of Annex IV, the 
time  limit  for  the  receipt  of  the  requests  to  participate  referred  to  in  the  first 
subparagraph of paragraph 2, may be shortened by seven days.  

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4. 

In the case of restricted procedures and negotiated procedures with publication of a 
contract  notice,  where  urgency  renders  impracticable  the  minimum  time  limits  laid 
down in this Article, contracting authorities may fix: 

- 

- 

a time limit for the receipt of requests to participate which may not be less than 
15  days  from  the  date  on  which  the  contract  notice  was  sent,  or  less  than  10 
days if the notice was sent by electronic means, in accordance with the format 
and procedure for sending notices indicated in point 3 of Annex IV; 

and, in the case of restricted procedures, a time limit for the receipt of tenders 
which shall be not less than 10 days from the date of the invitation to tender. 

SECTION 3 

Information content and means of transmission 

Article 25 
Invitations to tender, to negotiate or to participate in the dialogue 

1. 

2. 

3. 

4. 

5. 

In  restricted  procedures,  negotiated  procedures  with  the  publication  of  a  contract 
notice  and 
the  contracting  authorities  shall 
simultaneously and in writing invite the selected candidates. 

the  competitive  dialogue, 

in 

The invitation to the candidates shall be accompanied by a copy of the specifications 
or of the descriptive document and any supporting documents. 

Where the specifications and/or any supporting documents are held by an entity other 
than  the  contracting  authority  responsible  for  the  award  procedure,  the  invitation 
shall  state  the  address  from  which  those  specifications  and  documents  may  be 
requested  and,  if  appropriate,  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  without  delay 
upon receipt of a request. 

The  additional  information  on  the  specifications,  the  descriptive  document  or  the 
supporting  documents  shall  be  sent  by  the  contracting  authority  or  the  competent 
department not less than six days before the deadline fixed for the receipt of tenders, 
provided that it is requested in good time. In the event of an accelerated procedure, 
that period shall be four days. 

In addition to the particulars provided for in paragraphs 2, 3 and 4, the invitation to 
negotiate shall contain at least: 

a) 

b) 

c) 

a reference to the contract notice published; 

the  deadline  for  the  receipt  of  the  tenders,  the  address  to  which  the  tenders 
must be sent and the language or languages in which the tenders must be drawn 
up; 

in the case of the competitive dialogue, the date and the address set for the start 
of the consultation stage and the language or languages used; 

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d) 

e) 

an indication of any documents to be annexed, either to support the verifiable 
statements  provided  by  the  candidate  in  accordance  with  Article  29,  or  to 
supplement  the  information  provided  for  in  that  Article  under  the  same 
conditions as those laid down in Articles 32 and 33; 

the  relative  weighting  of  criteria  for  the  award  of  the  contract  or,  where 
appropriate,  the  descending  order  of  importance  of  the  criteria  used  to  define 
the  economically  most  advantageous  tender,  if  they  are  not  given  in  the 
contract notice, the specifications or the descriptive document. 

Article 26 
Information for candidates and tenderers 

The contracting authorities shall, at their earliest opportunity, inform candidates and 
tenderers of decisions reached concerning the award of a contract or the conclusion 
of  a  framework  agreement,  including  the  grounds  for  any  decision  not  to  award  a 
contract  or  conclude  a  framework  agreement  for  which  there  has  been  competitive 
tendering  and  to  recommence  the  procedure;  that  information  shall  be  given  in 
writing upon request to the contracting authorities. 

Upon  request  from  the  party  concerned,  the  contracting  authority  shall,  subject  to 
paragraph 3, at its earliest opportunity and at the latest within fifteen days of receipt 
of the written request for information, inform the parties as follows: 

a) 

b) 

c) 

any unsuccessful candidate of the reasons for the rejection of his application, 

any  unsuccessful  tenderer  of  the  reasons  for  the  rejection  of  his  tender, 
including,  for  the  cases  referred  to  in  Article  10,  paragraphs  4  and  5,  the 
reasons  for  its  decision  of  non-equivalence  or  its  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 successful 
tenderer or the parties to the framework agreement. 

Contracting  authorities  may  decide  to  withhold  certain  information  on  the  contract 
award or the conclusion of the framework agreements, referred to in subparagraph 1, 
where  release  of  such  information  would  impede  law  enforcement  or  otherwise  be 
contrary to the public interest or would prejudice the legitimate commercial interests 
of economic operators, public or private, or might prejudice fair competition between 
them. 

1. 

2. 

3. 

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SECTION 4 

Communication 

Article 27 
Rules applicable to communication 

1. 

2. 

3. 

4. 

5. 

All  communication  and  information  exchange  referred  to  in  this  Title  may  be  by 
post,  by  fax,  by  electronic  means  in  accordance  with  paragraphs  4  and  5,  by 
telephone  in  the  cases  and  circumstances  referred  to  in  paragraph  6,  or  by  a 
combination of those means, according to the choice of the contracting authority. 

The  means  of  communication  chosen  must  be  generally  available  and  thus  not 
restrict economic operators' access to the tendering procedure. 

Communication and the exchange and storage of information 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 authorities examine 
the  content  of  tenders  and  requests  to  participate  only  after  the  time  limit  set  for 
submitting them has expired. 

The  tools  to  be  used  for  communicating  by  electronic  means,  as  well  as  their 
technical  characteristics,  must  be  non-discriminatory,  generally  available  and 
compatible with the information and communication technology products in general 
use. 

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

a) 

the  specifications  necessary  for 

the  electronic 
information  regarding 
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  requirements  of 
Annex VI; 

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 conformity with paragraph 1 thereof; 

c) 

d) 

the  Member  States  may  introduce  or  maintain  voluntary  arrangements  for 
accreditation intended to improve the level of the certification service provided 
for such devices; 

tenderers  or  candidates  shall  undertake  to  submit,  before  expiry  of  the  time 
limit  laid  down  for  submission  of  tenders  or  requests  to  participate,  the 
documents, certificates and declarations referred to in Articles 30 to 35 if they 
do not exist in electronic format. 

EN 

46 

   EN 

 
6. 

The following rules shall apply to the transmission of requests to participate: 

a) 

requests to participate in procedures for the award of public contracts may be 
made in writing or by telephone; 

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; 

c) 

contracting authorities may require that requests for participation made by fax 
must be confirmed by post or by electronic means, where this is necessary for 
the purposes of legal proof. Any such requirement, together with the time limit 
by  which  it  must  be  met,  must  be  stated  by  the  contracting  authority  in  the 
contract notice. 

SECTION 5 

Reports 

Article 28 
Content of reports 

1. 

For every public contract and framework agreement, the contracting authorities shall 
draw up a written report which shall include at least the following: 

a) 

the name and address of the contracting authority, the subject and value of the 
contract or framework agreement; 

b) 

the award procedure chosen; 

c) 

d) 

e) 

f) 

g) 

h) 

i) 

in  the  case  of  a  negotiated  procedure  without  prior  publication  of  a  contract 
notice,  the  circumstances  referred  to  in  Article  20  which  justify  use  of  this 
procedure; 

if appropriate, the reasons for the framework agreement lasting more than five 
years; 

if  appropriate,  sensitive 
communicated to the successful tenderer and the reasons for this restriction; 

technical  specifications  which  can  only  be 

the name of the candidates chosen and the reason for this choice; 

the name of the candidates excluded and the reasons for their rejection; 

the reasons for the rejection of tenders found to be abnormally low; 

the  name  of  the  successful  tenderer  and  the  reasons  why  his  tender  was 
selected  and,  if  known,  the  share  of  the  contract  or  framework  agreement 
which  the  successful  tenderer  intends,  or  will  have,  to  subcontract  to  third 
parties; 

EN 

47 

   EN 

 
2. 

3. 

1. 

j) 

if  necessary,  the  reasons  why  the  contracting  authority  has  decided  not  to 
award a contract or framework agreement. 

The contracting authorities shall take appropriate steps to document the progress of 
award procedures conducted by electronic means. 

The report, or the main features of it, shall be communicated to the Commission if it 
so requests. 

CHAPTER VI 

Conduct of the procedure 

SECTION 1 

General provisions 

Article 29 
Verification of suitability and choice of participants and award of contracts 

Contracts shall be awarded on the basis of the criteria laid down in Articles 37 and 
38, taking into account Article 11, after the suitability of the economic operators not 
excluded  under  Articles  30  and  31  has  been  checked  by  contracting  authorities  in 
accordance with the criteria of economic and financial standing, of professional and 
technical  knowledge  or  ability  referred  to  in  Articles  32  to  36,  and,  where 
appropriate, with the non-discriminatory rules and criteria referred to in paragraph 3. 

2. 

The contracting authorities may require candidates and tenderers to meet minimum 
capacity levels in accordance with Articles 32 and 33. 

The  extent  of  the  information  referred  to  in  Articles  32  and  33  and  the  minimum 
levels of ability required for a specific contract must be related and proportionate to 
the subject-matter of the contract. 

These minimum levels shall be indicated in the contract notice. 

3. 

In restricted procedures, negotiated procedures with publication of a contract notice, 
and  in  the  competitive  dialogue  procedure,  contracting  authorities  may  limit  the 
number of suitable candidates they will invite to tender or to conduct a dialogue with. 
This number shall not be lower than 3. 

The contracting authorities shall indicate in the contract notice the objective and non-
discriminatory  criteria  or  rules  they  intend  to  apply,  the  minimum  number  of 
candidates they intend to invite and, where appropriate, the maximum number. 

In any event, the number of candidates invited shall be sufficient to ensure genuine 
competition. 

The contracting authorities shall invite a number of candidates at least equal to the 
minimum  number  set  in  advance.  Where  the  number  of  candidates  meeting  the 
selection criteria and the minimum levels of ability is below the minimum number, 

EN 

48 

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the  contracting  authority  may  continue  the  procedure  by  inviting  the  candidate(s) 
with the required capabilities. In the context of this same procedure, the contracting 
authority  may  not  include  other  economic  operators  who  did  not  request  to 
participate, or candidates who do not have the required capabilities. 

4. 

Where  the  contracting  authorities  exercise  the  option  of  reducing  the  number  of 
solutions  to  be  discussed  or  of  tenders  to  be  negotiated,  as  provided  for  in 
Articles 18(3) and 19(4), they shall do so by applying the award criteria stated in the 
contract notice or in the specifications. In the final stage, the number arrived at shall 
make  for  genuine  competition  insofar  as  there  are  enough  solutions  or  suitable 
candidates. 

SECTION 2 

Criteria for qualitative selection 

Article 30 
Personal situation of the candidate 

1. 

Any  candidate  or  tenderer  who  has  been  the  subject  of  a  conviction  by  final 
judgment of which the contracting authority is aware for one or more of the reasons 
listed below shall be excluded from participation in a public contract: 

a) 

b) 

c) 

d) 

participation  in  a  criminal  organisation,  as  defined  in  Article  2(1)  of  Council 
Joint Action 98/733/JHA22; 

corruption,  as  defined  in  Article  3  of  the  Council  Act  of  26  May  199723  and 
Article 3(1) of Council Joint Action 98/742/JHA24 respectively; 

fraud  within  the  meaning  of  Article  1  of  the  Convention  relating  to  the 
protection of the financial interests of the European Communities25; 

terrorist offences, offences linked to terrorist activities, as defined in Articles 1 
and  3  of  the  Council  Framework  Decision  (2002/475/JHA)26  respectively  or 
inciting, aiding or abetting or attempting an offence, as referred to in Article 4 
of that framework decision; 

e)  money  laundering  and  terrorist  financing  as  defined  in  Article  1  of  Directive 

2005/60/EC of the European Parliament and of the Council27. 

Member States shall specify, in accordance with their national law and having regard 
for Community law, the implementing conditions for this paragraph. 

22 
23 
24 
25 
26 
27 

OJ L 351, 29.1.1998, p. 1. 
OJ C 195, 25.6.1997, p. 1. 
OJ L 358, 31.12.1998, p. 2. 
OJ C 316, 27.11.1995, p. 48. 
OJ L 164, 22.6.2002, p. 3. 
OJ L 309, 25.10.2005, p. 15.  

EN 

49 

   EN 

 
                                                 
They  may  provide  for  a  derogation  from  the  requirement  referred  to  in  the  first 
subparagraph for overriding requirements in the general interest. 

For  the  purposes  of  this  paragraph,  the  contracting  authorities  shall,  where 
appropriate,  ask  candidates  or  tenderers  to  supply  the  documents  referred  to  in 
paragraph  3  and  may,  where  they  have  doubts  concerning  the  personal  situation  of 
such  candidates  or  tenderers,  also  apply  to  the  competent  authorities  to  obtain  any 
information  they  consider  necessary  on  the  personal  situation  of  the  candidates  or 
tenderers  concerned.  Where  the  information  concerns  a  candidate  or  tenderer 
established  in  a  State  other  than  that  of  the  contracting  authority,  the  contracting 
authority may seek the cooperation of the competent authorities. Having regard for 
the  national  laws  of  the  Member  State  where  the  candidates  or  tenderers  are 
established,  such  requests  shall  relate  to  legal  and/or  natural  persons,  including,  if 
appropriate,  company  directors  and  any  person  having  powers  of  representation, 
decision or control in respect of the candidate or tenderer. 

2. 

Any economic operator may be excluded from participation in a contract where that 
economic operator: 

a) 

b) 

c) 

d) 

e) 

f) 

is bankrupt or is being wound up, where his affairs are being administered by 
the  court,  where  he  has  entered  into  an  arrangement  with  creditors,  where  he 
has suspended business activities or is in any analogous situation arising from a 
similar procedure under national laws and regulations; 

is the subject of proceedings for a declaration of bankruptcy, for an order for 
compulsory  winding  up  or  administration  by  the  court  or  of  an  arrangement 
with  creditors  or  of  any  other  similar  proceedings  under  national  laws  and 
regulations; 

has  been  convicted  by  a  judgment  which  has  the  force  of  res  judicata  in 
accordance with the legal provisions of the country of any offence concerning 
his professional conduct; 

has been guilty of grave professional misconduct proven by any means which 
the  contracting  authority  can  justify  such  as,  for  example,  the  breach  of  his 
obligations regarding security of information during a previous public contract; 

has  not  fulfilled  obligations  relating  to  the  payment  of  social  security 
contributions  in  accordance  with  the  legal  provisions  of  the  country  in  which 
he is established or with those of the country of the contracting authority; 

has not fulfilled obligations relating to the payment of taxes in accordance with 
the legal provisions of the country in which he is established or with those of 
the country of the contracting authority; 

g) 

is  guilty  of  serious  misrepresentation  in  supplying  the  information  required 
under this Section or has not supplied such information. 

Member States shall specify, in accordance with their national law and having regard 
for Community law, the implementing conditions for this paragraph. 

EN 

50 

   EN 

 
3. 

Contracting authorities shall accept the following as sufficient evidence that none of 
the cases specified in paragraphs 1 or 2(a), (b), (c), (e) or (f) applies to the economic 
operator: 

a) 

as regards paragraphs 1 and 2(a), (b) and (c), the production of an extract from 
the  "judicial  record"  or,  failing  that,  of  an  equivalent  document  issued  by  a 
competent  judicial  or  administrative  authority  in  the  country  of  origin  or 
provenance, showing that these requirements have been met; 

b) 

as  regards  paragraph  2(e)  and  (f),  a  certificate  issued  by  the  competent 
authority in the Member State concerned. 

Where  the  country  in  question  does  not  issue  such  documents  or  certificates,  or 
where these do not cover all the cases specified in paragraphs 1 and 2(a), (b) and (c), 
they may be replaced by a declaration on oath or, in Member States where there is no 
provision  for  declarations  on  oath,  by  a  solemn  declaration  made  by  the  person 
concerned  before  a  competent  judicial  or  administrative  authority,  a  notary  or  a 
competent professional or trade body, in the country of origin or provenance. 

4. 

Member  States  shall  designate  the  authorities  and  bodies  competent  to  issue  the 
documents, certificates or declarations referred to in paragraph 3 and shall inform the 
Commission thereof. Such notification shall be without prejudice to data protection 
law. 

Article 31 
Suitability to pursue the professional activity 

Any economic operator wishing to take part in a public contract may be requested to prove its 
enrolment, as prescribed in its Member State of establishment, on one of the professional or 
trade registers or to provide a declaration on oath or a certificate as described in Annex V A 
for public works contracts, in Annex V B for public supply contracts and in Annex V C for 
public service contracts. 

In procedures for the award of public service contracts, insofar as candidates or tenderers have 
to possess a particular authorisation or to be members of a particular organisation in order to 
be able to perform the service concerned in their country of origin, the contracting authority 
may require them to prove that they hold such authorisation or membership. 

Article 32 
Economic and financial capacity 

1. 

Proof of the economic operator's economic and financial standing may, as a general 
rule, be furnished by one or more of the following references: 

a) 

b) 

appropriate  statements  from  banks  or,  where  appropriate,  evidence  of 
professional risk indemnity insurance; 

the  presentation  of  balance-sheets  or  extracts  from  the  balance-sheets,  where 
publication  of  the  balance-sheet  is  required  under  the  law  of  the  country  in 
which the economic operator is established; 

EN 

51 

   EN 

 
2. 

3. 

4. 

5. 

1. 

2. 

c) 

a  statement  of  the  undertaking's  overall  turnover  and,  where  appropriate,  of 
turnover  in  the  area  covered  by  the  contract  for  a  maximum  of  the  last  three 
financial years available, depending on the date on which the undertaking was 
set  up  or  the  economic  operator  started  trading,  insofar as  the information  on 
these turnovers is available. 

An economic operator may, where appropriate and for a particular contract, rely on 
the capacities of other entities, regardless of the legal nature of the links which it has 
with them. It must in that case prove to the contracting authority that it will have at 
its  disposal  the  resources  necessary,  for  example,  by  producing  an  undertaking  by 
those entities to that effect. 

Under  the  same  conditions,  a  consortium  of  economic  operators  as  referred  to  in 
Article  4  may  rely  on  the  capacities  of  participants  in  the  consortium  or  of  other 
entities. 

Contracting  authorities  shall  specify,  in  the  contract  notice  or  in  the  invitation  to 
tender, which reference or references mentioned in paragraph 1 they have chosen and 
which other references must be provided. 

If,  for  any  valid  reason,  the  economic  operator  is  unable  to  provide  the  references 
requested  by  the  contracting  authority,  he  may  prove  his  economic  and  financial 
standing  by  any  other  document  which  the  contracting  authority  considers 
appropriate. 

Article 33 
Technical and/or professional capacity 

The  technical  and/or  professional  capacity  of  the  economic  operators  shall  be 
assessed and examined in accordance with paragraphs 2 and 3. 

Evidence  of  the  economic  operators' technical  abilities may be furnished by one or 
more of the following means according to the nature, quantity or importance, and use 
of the works, supplies or services: 

a) 

i) 

a list of the works carried out over the past five years, accompanied  by 
certificates of satisfactory execution for the most important works. These 
certificates  shall  indicate  the  value,  date  and  location  of  the  works  and 
shall specify whether they were carried out according to the rules of the 
trade  and  properly  completed.  Where  appropriate,  the  competent 
authority  shall  submit  these  certificates  to  the  contracting  authority 
directly; 

ii) 

a list of the principal deliveries effected or the main services provided in 
the past three years, with the sums, dates and recipients, whether public 
or private, involved. Evidence of delivery and services provided shall be 
given: 

- 

where  the  recipient  was  a  contracting  authority,  in  the  form  of 
certificates issued or countersigned by the competent authority, 

EN 

52 

   EN 

 
b) 

c) 

d) 

e) 

f) 

g) 

h) 

i) 

j) 

- 

where  the  recipient  was  a  private  purchaser,  by  the  purchaser's 
certification  or,  failing  this,  simply  by  a  declaration  by  the 
economic operator; 

an  indication  of  the  technicians  or  technical  bodies  involved,  whether  or  not 
belonging  directly  to  the  economic  operator's  undertaking,  especially  those 
responsible for quality control and, in the case of public works contracts, those 
upon whom the contractor can call in order to carry out the work; 

a  description  of  the  technical  facilities  and  measures  used  by  the  supplier  or 
service provider for ensuring quality and the undertaking's study and research 
facilities; 

a  check  carried  out  by  the  contracting  authorities  or  on  their  behalf  by  a 
competent official body of the country in which the supplier or service provider 
is established, subject to that body's agreement, on the production capacities of 
the supplier or the technical capacity of the service provider and, if necessary, 
on  the  means  of  study  and  research  which  are  available  to  it  and  the  quality 
control measures it will operate; 

the  educational  and  professional  qualifications  of  the  service  provider  or 
contractor and/or those of the undertaking's managerial staff and, in particular, 
those  of  the  person  or  persons  responsible  for  providing  the  services  or 
managing the work; 

for  public  works  contracts  and  public  services  contracts,  and  only  in 
appropriate  cases,  an  indication  of  the  environmental  management  measures 
that the economic operator will be able to apply when performing the contract; 

a  statement  of  the  average  annual  manpower  of  the  service  provider  or 
contractor and the number of managerial staff for the last three years; 

a description of the tools, material and technical equipment, staff numbers and 
know-how and/or sources of supply at the disposal of the economic operator to 
carry  out  the  contract,  cope  with  any  additional  needs  required  by  the 
contracting authority as a result of an emergency, crisis or armed conflict or to 
carry out the maintenance, modernisation or adaptation of the supplies covered 
by this contract; 

an indication of the proportion of the contract which the service provider may 
intend to subcontract; 

with  regard  to  the  products  to  be  supplied,  provision  of  the  following 
information: 

i) 

ii) 

samples, descriptions and/or photographs, the authenticity of which must 
be certified if the contracting authority so requests; 

certificates drawn up by official quality control institutes or agencies of 
recognised  competence  attesting  the  conformity  of  products  clearly 
identified by references to specifications or standards; 

EN 

53 

   EN 

 
k) 

in the case of public contracts involving, entailing and/or containing sensitive 
information,  proof  justifying  the  capacity  to  process,  store  and  transmit 
sensitive  information  at  the  level  of  security  required  by  the  contracting 
authority. 

If appropriate, the contracting authority may ask the national security authority 
of  the  candidate's  Member  State  or  the  security  authority  designated  by  this 
Member State to check the conformity of the premises and facilities that may 
be used, the industrial and administrative procedures that will be followed, the 
methods  for  managing  information  and/or  the  situation  of  staff  likely  to  be 
employed to carry out the contract. 

If  appropriate,  the  contracting  authority  may  ask  the  candidate  to  produce  an 
undertaking  to  guarantee,  at  the  requisite  level  of  security,  the  confidentiality 
of the  sensitive  information that will be contained in the specifications or the 
descriptive document, of which he becomes aware in the course of the award 
procedure. 

3. 

4 

5. 

6. 

An economic operator may, where appropriate and for a particular contract, rely on 
the capacities of other entities, regardless of the legal nature of the links which it has 
with them. It must in that case prove to the contracting authority that it will have at 
its disposal the resources necessary for the execution of the contract, for example, by 
producing  an  undertaking  by  those  entities  to  place  the  necessary  resources  at  the 
disposal of the economic operator. 

Under the same conditions, a group of economic operators as referred to in Article 4 
may rely on the abilities of participants in the group or of other entities. 

In procedures for awarding public contracts having as their object supplies requiring 
siting  or installation work, the provision of services and/or the execution of  works, 
the ability of economic operators to provide the service or to execute the installation 
or  the  work  may  be  evaluated  in  particular  with  regard  to  their  skills,  efficiency, 
experience and reliability. 

The  contracting  authority  shall  specify,  in  the  notice  or  in  the  invitation  to  tender, 
which references under paragraph 2 it wishes to receive. 

Article 34 
Quality assurance standards 

Should  they  require  the  production  of  certificates  drawn  up  by  independent  bodies  attesting 
the compliance of the economic operator with certain quality assurance standards, contracting 
authorities shall refer to quality assurance systems based on the relevant European standards 
series  certified  by  bodies  conforming  to  the  European  standards  series  concerning 
certification.  They  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. 

EN 

54 

   EN 

 
 
 
 
 
Article 35 
Environmental management standards 

Should  contracting  authorities,  in  the  cases  referred  to  in  Article  33(2)(f),  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 
Community Eco-Management and Audit Scheme (EMAS) or to environmental management 
standards  based  on  the  relevant  European  or  international  standards  certified  by  bodies 
conforming to Community law or the relevant European or international standards concerning 
certification.  They  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 36 
Additional documentation and information 

The  contracting  authority  may  invite  economic  operators  to  supplement  or  clarify  the 
certificates and documents submitted pursuant to Articles 30 to 35. 

SECTION 3 

Award of the contract 

Article 37 
Contract award criteria 

1. 

Without  prejudice  to  national  laws,  regulations  or  administrative  provisions 
concerning the remuneration of certain services, the criteria on which the contracting 
authorities shall base the award of public contracts shall be either: 

a)  when  the  award  is  made  to  the  most  economically  advantageous  tender  from 
the  point  of  view  of  the  contracting  authority,  various  criteria  linked  to  the 
subject  matter  of  the  public  contract  in  question:  for  example,  quality,  price, 
technical  merit,  functional  characteristics,  environmental  characteristics, 
running  costs,  lifecycle  costs,  cost-effectiveness,  after-sales  service  and 
technical assistance, delivery date and delivery period or period of completion, 
security of supply, and interoperability; or 

b) 

the lowest price only. 

2. 

Without prejudice to the provisions of the third subparagraph, in the case referred to 
in paragraph 1(a) the contracting authority shall specify in the contract notice or in 
the  contract  documents  or,  in  the  case  of  a  competitive  dialogue,  in  the  descriptive 
document,  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. 

EN 

55 

   EN 

 
Where,  in  the  opinion  of  the  contracting  authority,  weighting  is  not  possible  for 
demonstrable  reasons,  the  contracting  authority  shall  indicate  in  the  contract  notice 
or  contract  documents  or,  in  the  case  of  a  competitive  dialogue,  in  the  descriptive 
document, the criteria in descending order of importance. 

Article 38 
Abnormally low tenders 

1. 

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

Those details may relate in particular to: 

a) 

b) 

c) 

d) 

the  economics  of  the  construction  method,  the  manufacturing  process  or  the 
services provided; 

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

the originality of the work, supplies or services proposed by the tenderer; 

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. 

2. 

3. 

The  contracting  authority  shall  verify  those  constituent  elements  by  consulting  the 
tenderer, taking account of the evidence supplied. 

Where a contracting authority 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 authority, that the  aid in question was 
granted  legally.  Where  the  contracting  authority  rejects  a  tender  in  these 
circumstances, it shall inform the Commission of that fact. 

EN 

56 

   EN 

 
TITLE III 

Statistical obligations, executory powers and final provisions 

Article 39 
Statistical obligations 

In  order  to  permit  assessment  of  the  results  of  applying  this  Directive,  Member  States  shall 
forward  to  the  Commission  a  statistical  report,  prepared  in  accordance  with  Article  40, 
addressing  public  supply,  services  and  works  contracts  awarded  by  contracting  authorities 
during the preceding year, by no later than 31 October of each year.  

Article 40 
Content of the statistical report 

1. 

2. 

3. 

4. 

The  statistical  report  shall  address,  separately,  public  supply,  services  and  works 
contracts. 

For  each  contracting  authority  that  is  a  central  government  authority  and  for  each 
category of other contracting authorities, the statistical report shall specify at least the 
number and value of contracts awarded which are covered by this Directive. 

As far as possible, the data referred to in the first subparagraph shall be broken down 
by: 

a) 

the  award  procedure  chosen  and,  for  each  of  these  procedures,  the  works, 
products  and  services  as  given  in  Annex  I  identified  by  category  of  the  CPV 
nomenclature; 

b) 

the nationality of the economic operator to which the contract was awarded. 

Where  the  contracts  have  been  concluded  according  to  the  negotiated  procedure 
without publication of a contract notice, the data referred to in the first subparagraph 
shall  also  be  broken  down  according  to  the  circumstances  referred  to  in  Article  20 
and  shall  specify  the  number  and  value  of  contracts  awarded,  by  Member  State  or 
third country of the successful tenderer. 

The statistical report shall set out any other statistical information which is required 
under the Agreement. 

The  content  of  the  statistical  report  shall  be  determined  in  accordance  with  the 
procedure referred to in Article 41. 

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1. 

2. 

3. 

4. 

1. 

Article 41 
Advisory Committee 

The Commission shall be assisted by the Advisory Committee for Public Contracts 
set  up  by  Article  1  of  Decision  71/306/EEC28  (hereinafter  referred  to  as  "the 
Committee"). 

Where  reference  is  made  to  this  paragraph,  Articles  3  and  7  of  Decision 
1999/468/EC shall apply, in compliance with the provisions of Article 8 thereof. 

Where  reference  is  made  to  this  paragraph,  Article  5a,  paragraphs  (1)  to  (4),  and 
Article 7 of Decision 1999/468/EC shall apply. 

With regard to the revision of the thresholds laid down in Article 6, the time limits 
laid  down  in  Article  5a,  paragraphs  (3c),  (4b)  and  (4e)  of  Decision  1999/468/EC 
shall  be  set  at  two  weeks,  in  view  of  the  time  constraints  resulting  from  the 
calculation and publication methods laid down in the second subparagraph of Article 
78(1) and Article 78(4) of Directive 2004/18/EC. 

Where  reference  is  made  to  this  paragraph,  Article  5a,  paragraphs  (1),  (2),  (4)  and 
(6), and Article 7 of Decision 1999/468/EC shall apply. 

Article 42 
Revision of the thresholds 

At the same time as the revision of the thresholds in Directive 2004/18/EC, referred 
to in Article 78 thereof, the Commission shall also revise the thresholds laid down in 
Article 6 of this Directive, by aligning the following thresholds: 

a) 

b) 

c) 

the  threshold  established  in  Article  6(a)  to  the  revised  threshold  laid  down  in 
Article 7(a) of Directive 2004/18/EC, 

the threshold established in Article 6(b) to the revised threshold laid down in 
Article 7(b) of Directive 2004/18/EC, 

the  threshold  established  in  Article  6(c)  to  the  revised  threshold  laid  down  in 
Article 7(c) of Directive 2004/18/EC. 

The  Commission  shall  carry  out  the  revision  and  alignment  in  accordance  with  the 
regulatory  procedure  with  scrutiny  laid  down  in  Article  41(3).  On  imperative 
grounds of urgency, the Commission may follow the emergency procedure referred 
to in Article 41(4). 

2. 

The value of the thresholds set pursuant to paragraph 1 in the national currencies of 
the  Member  States  which  do  not  participate  in  the  euro  shall  be  aligned  to  the 
respective  values  of  the  thresholds  in  Directive  2004/18/EC  referred  to  in 
paragraph 1, calculated in accordance with Article 78(3) of Directive 2004/18/EC. 

28 

OJ L 185, 16.8.1971, p. 15. Decision as amended by Decision 77/63/EEC (OJ L 13, 15.1.1977, p. 15). 

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3. 

The revised thresholds referred to in paragraph 1 and their corresponding values in 
the national currencies shall be published by the Commission in the Official Journal 
of the European Union at the beginning of the November following their revision. 

Article 43 
Amendments 

1. 

In accordance with the procedure referred to in Article 41(2), the Commission may 
amend: 

a) 

b) 

the procedures for the drawing-up, transmission, receipt, translation, collection 
and  distribution  of  the  notices  referred  to  in  Article  22  and  of  the  statistical 
reports provided for in Article 39; 

the procedure for sending and publishing the data referred to in Annex IV, on 
grounds of technical progress or for administrative reasons; 

2. 

The  Commission  may  amend  the  non-essential  provisions  of  this  Directive  listed 
below,  in  accordance  with  the  regulatory  procedure  with  scrutiny  laid  down  in 
Article 41(3): 

a) 

the reference numbers in the CPV nomenclature set out in Annex I, insofar as 
this does not change the material scope of this Directive, and the procedures for 
reference in the notices to particular headings in the CPV within the categories 
of services listed in that Annex; 

b) 

the  technical  details  and  characteristics  of  the  devices  for  electronic  receipt 
referred to in points (a), (f) and (g) of Annex VI. 

On  imperative  grounds  of  urgency,  the  Commission  may  follow  the  emergency 
procedure referred to in Article 41(4). 

Article 44 
Amendment of Directive 2004/18/EC 

Article 10 of Directive 2004/18/EC29 is amended as follows: 

"Article 10 
Contracts in the fields of defence and security 

This  Directive  shall  apply  to  public  contracts  awarded  in  the  fields  of  defence  and  security 
with the exception of contracts to which Directive XXXX/X/EC30 applies. It shall not apply to 
public contracts excluded from the scope of Directive XXXX/X/EC pursuant to Articles 8 and 
9 thereof." 

29 

30 

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 (OJ L 134, 30.4.2004, p. 114). 
The references of this Directive. 

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Article 45 
Transposition 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  […].  They  shall  forthwith 
communicate to the Commission the text of those provisions and a correlation table 
between those provisions and this Directive. 

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

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the fields covered by this Directive. 

Article 46 
Entry into force 

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

Article 47 
Addressees 

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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ANNEX I 

SERVICES REFERRED TO IN ARTICLE 1 

Category 

Description of services 

CPV Reference Nos 

1 

2 

3 

4 

5 

6 

7 

8 

9 

Maintenance 
services 

and 

repair 

transport 

services31, 
Land 
including 
car 
services  and  courier  services, 
except transport of mail 

armoured 

From 50100000-6 to 50884000-5 (except from 
50310000-1  to  50324200-4  and  50116510-9, 
50190000-3,  50229000-6,  50243000-0)  and 
from 51000000-9 to 51900000-1 

From  60110000-2  to  60183000-4  (except 
60160000-7, 
from 
60161000-4), 
64120000-3 to 64121200-2 

and 

transport 

Air 
services  of 
passengers  and  freight,  except 
transport of mail  

From  60410000-5  to  60424120-3  (except 
60411000-2, 60421000-5), and 60500000-3 

Transport  of  mail  by  land32 
and by air 

60160000-7, 
60421000-5  

60161000-4, 

60411000-2, 

Telecommunications services 

From  64200000-8  to  64228200-2,  72318000-
7, and from 72700000-7 to 72720000-3 

Financial services 

From 66100000-1 to 66720000-3 5 

a) Insurance services 

b) Banking and investment 
services33 

Computer and related services  From  50310000-1 

to  50324200-4, 

from 
72000000-5 to 72920000-5 (except 72318000-
7  and  from  72700000-7  to  72720000-3), 
79342311-6 

R&D services34 

From  73000000-2  to  73436000-7  (except 
73200000-4, 73210000-7, 7322000-0)  

Accounting, 
book-keeping services 

auditing 

and 

From 79210000-9 to 79212500-8 

10 

consulting 
Management 
services35 and related services 

from 
From  73200000-4 
79400000-8  to  79421200-3  and  79342000-3, 

to  73220000-0, 

31 
32 
33 

34 

Except for rail transport services covered by Category 18. 
Except for rail transport services covered by Category 18. 
Except  contracts  for  financial  services  in  connection  with  the  issue,  purchase,  sale  or  transfer  of 
securities or other financial instruments, and central bank services. 
Also excluded are services for the acquisition or rental, by whatever financial means, of land, existing 
buildings, or other immovable property or concerning rights in respect thereof; nevertheless, financial 
services provided at the same time as, before or after the contract of acquisition or rental, in whatever 
form, shall be subject to this Directive. 
Excluding 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. 

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11 

12 

13 

79342100-4, 
79342321-9, 
98362000-8 

79342300-6, 
79910000-6, 

79342320-2, 
79991000-7, 

From  71000000-8  to  71900000-7  (except 
71550000-8) and 79994000-8 

From  70300000-4  to  70340000-6,  and  from 
90900000-6 to 90924000-0 

services 

services; 
Architectural 
and 
engineering 
engineering 
integrated 
services;  urban  planning  and 
landscape 
architectural 
services; related  scientific  and 
technical  consulting  services; 
technical  testing  and  analysis 
services 

Building-cleaning 
services 
and  property  management 
services 

Sewage  and  refuse  disposal 
services; sanitation and similar 
services  

From  90400000-1  to  90743200-9  (except 
90712200-3),  and  50190000-3,  50229000-6, 
50243000-0 

35 

Except arbitration and conciliation services. 

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ANNEX II 

DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS REFERRED TO IN 
ARTICLE 10 

For the purposes of this Directive, the following definitions shall apply: 

1) 

a) 

"Technical specifications", in the case of public works contracts: 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  authority.  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 and production processes and methods. They 
shall also include rules relating to design and costing, the test, inspection and 
acceptance conditions for works and methods or techniques of construction and 
all other technical conditions which the contracting authority 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; 

b) 

"Technical  specification",  in  the  case  of  public  supply  or  service  contracts:  a 
specification in a document defining the required characteristics of a product or 
service,  such  as  quality  and  environmental  performance  levels,  design  for  all 
requirements  (including  accessibility  for  disabled  people),  and  conformity 
assessment,  performance,  use  of  the  product,  its  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  methods  and 
procedures, as well as conformity assessment procedures;  

(2) 

"Standard":  a  technical  specification  approved  by  a  recognized  standardising  body 
for  repeated  or  continuous  application,  compliance  with  which  is  not  compulsory, 
from 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) 

"Defence  standard":  a  technical  specification  the  observance  of  which  is  not 
compulsory  and  which  is  approved  by  an  international,  regional  or  national 
standardising  body  specialising  in  the  production  of  technical  specifications  for 
repeated or continuous application in the field of defence; 

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63 

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4) 

5) 

6) 

"European  technical  approval":  a  favourable  technical  assessment  of  the  fitness  for 
use  of  a  product  for  a  specific  purpose,  based  on  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 specification": 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.

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ANNEX III 

INFORMATION TO BE INCLUDED IN THE NOTICES  
REFERRED TO IN ARTICLE 22 

NOTICE  OF  PUBLICATION  OF  A  PRIOR  INFORMATION  NOTICE  ON  A  BUYER 
PROFILE 

1. 

2. 

3. 

4. 

Country of the contracting authority 

Name of the contracting authority 

Internet address of the "buyer profile" (URL) 

CPV Nomenclature reference no(s) 

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 PRIOR INFORMATION NOTICE 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

The name, address, fax number and email address of the contracting authority and, if 
different, of the service from which additional information may be obtained and, in 
the  case  of  services  and  works  contracts,  of  the  departments,  e.g.  the  relevant 
governmental  internet  site,  from  which information can be obtained  concerning the 
general  regulatory  framework  for  taxes,  environmental  protection,  employment 
protection and working conditions applicable in the place where the contract is to be 
performed. 

In  the  case  of  public  works  contracts:  the  nature  and  extent  of  the  works  and  the 
place  of  execution;  if  the  work  is  to  be  subdivided  into  several  lots,  the  essential 
characteristics of those lots by reference to the work; if available, an estimate of the 
range of the cost of the proposed works; CPV nomenclature reference no(s). 

In  the  case  of  public  supply  contracts:  the  nature  and  quantity  or  value  of  the 
products to be supplied, CPV nomenclature reference no(s). 

In the case of public services contracts: the total value of the proposed purchases in 
each of the service categories in Annex I, CPV nomenclature reference no(s). 

Estimated  date  for  initiating  the  award  procedures  in  respect  of  the  contract  or 
contracts, in the case of public service contracts by category. 

Where appropriate, indicate whether a framework agreement is involved. 

Where appropriate, other information. 

Date of dispatch of the notice or of dispatch of the notice of publication of the prior 
information notice on the buyer profile. 

Indication whether the procurement is covered by the Agreement. 

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 CONTRACT NOTICE 

Restricted  procedures,  negotiated  procedures  with  publication  of  a  contract  notice  and 
competitive dialogues: 

1. 

2. 

3. 

4. 

5. 

Name, address, telephone and fax number, email address of the contracting authority. 

a) 

The award procedure chosen; 

b)  Where  appropriate,  the  reasons  for  use  of  the  accelerated  procedure  (in 

restricted and negotiated procedures); 

c)  Where appropriate, indicate whether a framework agreement is involved. 

Form of the contract. 

Place  of  execution/performance  of  the  works,  for  delivery  of  products  or  of  the 
provision of services. 

a) 

Public works contracts: 

- 

- 

- 

nature  and  extent  of  the  works  and  general  nature  of  the  work.  Indication  in 
particular  of  options  concerning  supplementary  works,  and,  if  known,  the 
provisional  timetable  for  recourse  to  these  options  as  well  as  the  number  of 
possible renewals, if any. If the work or the contract is subdivided into several 
lots, the size of the different lots; CPV nomenclature reference no(s), 

information concerning the purpose of the work or the contract where the latter 
also involves the drawing up of projects, 

in the case of a framework agreement, indication also of the planned duration 
of  the  framework  agreement,  the  estimated  total  value  of  the  works  for  the 
entire  duration  of  the  framework  agreement  and,  as  far  as  possible,  the  value 
and the frequency of the contracts to be awarded. 

b) 

Public supply contracts: 

- 

- 

- 

nature  of  the  products  to  be  supplied,  indicating  in  particular  whether 
tenders  are  requested  with  a  view  to  purchase,  lease  rental,  hire  or  hire 
purchase  or  a  combination  of  these,  nomenclature  reference  number. 
Quantity  of  products  to  be  supplied,  indicating  in  particular  options 
concerning  supplementary  purchases  and,  if  known,  the  provisional 
timetable for recourse to these options as well as the number of renewals, 
if any; CPV nomenclature reference no(s), 

in the case of regular or renewable contracts during the course of a given 
period,  indication  also,  if  known,  of  the  timetable  for  subsequent 
contracts for intended purchases of supplies, 

in  the  case  of  a  framework  agreement,  indication  also  of  the  planned 
duration  of  the  framework  agreement,  the  estimated  total  value  of  the 

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supplies for the entire duration of the framework agreement and, as far as 
possible, the value and the frequency of the contracts to be awarded. 

c) 

Public service contracts: 

- 

- 

- 

category  and  description  of  the  service.  CPV  nomenclature  reference 
number(s). Quantity of services to be provided. Indication in particular of 
options  concerning  supplementary  purchases  and, 
the 
provisional timetable for recourse to these options as well as the number 
of  renewals,  if  any.  In  the  case  of  renewable  contracts  over  a  given 
period,  an  estimate  of  the  time  frame,  if  known,  for  subsequent  public 
contracts for intended purchases of services. 

if  known, 

In  the  case  of  a  framework  agreement,  indication  also  of  the  planned 
duration  of  the  framework  agreement,  the  estimated  total  value  of  the 
services for the entire duration of the framework agreement and, as far as 
possible, the value and the frequency of the contracts to be awarded, 

indication  of  whether  the  execution  of  the  service  is  reserved  by  law, 
regulation or administrative provision to a particular profession. 

Reference to the law, regulation or administrative provision, 

indication  of  whether  legal  persons  should  indicate  the  names  and 
professional qualifications of the staff to be responsible for the execution 
of the service. 

6. 

7. 

8. 

9. 

If  the  contracts  are  subdivided  into  lots,  indication  of  the  possibility  for  economic 
operators of tendering for one, for several and/or for all the lots. 

Admission or prohibition of variants. 

Time 
the 
limit  for  completion  of  works/supplies/services  or  duration  of 
works/supply/services  contract.  Where  possible,  time  limit  by  which  works  will 
begin or time limit by which delivery of supplies or services will begin. 

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

10. 

a) 

The final date for the receipt of requests to participate; 

b) 

address to which they must be sent; 

c) 

the language or languages in which they must be drawn up. 

Where applicable, any deposits and guarantees required. 

Main terms concerning financing and payment and/or references to the texts in which 
these are contained. 

Where applicable, the legal form to be taken by the grouping of economic operators 
to whom the contract is to be awarded. 

11. 

12. 

13. 

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14. 

15. 

16. 

17. 

18. 

19. 

20. 

Selection  criteria  regarding  the  personal  situation  of  economic  operators  that  may 
lead to their exclusion, and information required proving that they do not fall within 
the  cases  justifying  exclusion.  Selection  criteria  and  information  concerning  the 
economic operators' personal situation, information and any necessary formalities for 
assessment  of  the  minimum  economic  and  technical  standards  required  of  the 
economic operator. Minimum level(s) of standards possibly required. 

In the case of framework agreements: the number and, where appropriate, proposed 
maximum number of economic operators who will be members of it, the duration of 
the framework agreement. 

In the case of a competitive dialogue or a negotiated procedure with the publication 
of  a  contract  notice,  indication,  if  appropriate,  of  recourse  to  a  staged  procedure  in 
order  gradually  to  reduce  the  number  of  solutions  to  be  discussed  or  tenders  to  be 
negotiated. 

When  recourse  is  had  to  the  option  of  reducing  the  number  of  candidates  to  be 
invited  to  submit  tenders,  to  engage  in  dialogue  or  to  negotiate:  minimum  and,  if 
appropriate,  proposed  maximum  number  of  candidates  and  objective  criteria  to  be 
used to choose that number of candidates.  

Criteria referred to in Article 37 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  shall  be  mentioned 
where  they  do  not  appear  in  the  specifications  or,  in  the  event  of  a  competitive 
dialogue, in the descriptive document. 

Date of dispatch of the notice. 

Indication of whether the contract is covered by the Agreement. 

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 CONTRACT AWARD NOTICE 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

Name and address of the contracting authority. 

Award  procedure  chosen.  In  the  case  of  a  negotiated  procedure  without  prior 
publication of a contract notice (Article 20), justification. 

Public works contracts: nature and extent of the services. 

Public supply contracts: nature and quantity of products supplied, where appropriate, 
by the supplier; CPV nomenclature reference number. 

Public service contracts: category and description of the service; CPV nomenclature 
reference number; quantity of services purchased. 

Date of contract award. 

Contract award criteria. 

Number of tenders received. 

Name and address of the successful economic operators. 

Price or range of prices (minimum/maximum) paid. 

Value of the tender (tenders) retained or the highest tender and lowest tender taken 
into consideration for the contract award. 

Where  appropriate,  value  and  proportion  of  contract  likely  to  be  subcontracted  to 
third parties. 

Date  of  publication  of  the  tender  notice  in  accordance  with  the  technical 
specifications for publication in Annex IV. 

12. 

Date of dispatch of the notice. 

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ANNEX IV 

FEATURES OF PUBLICATION 

1. 

Publication of notices 

a) 

The notices referred to in Article 22 must be sent by the contracting authorities 
to  the  Office  for  Official  Publications  of  the  European  Communities  in  the 
format  referred  to  in  Article  23.  The  prior  information  notices  referred  to  in 
Article 22(1), first subparagraph, published on a buyer  profile as  described in 
point 2, must also use that format, as must the notice of such publication. 

The  notices  referred  to  in  Article  22  must  be  published  by  the  Office  for 
Official  Publications  of  the  European  Communities  or  by  the  contracting 
authorities  in  the  case  of  a  prior  information  notice  published  on  a  buyer 
profile.  

In addition, contracting authorities may publish this information on the Internet 
on a "buyer profile" as referred to in point 2; 

b) 

the Office for Official Publications of the European Communities shall give the 
contracting  authority 
in 
Article 23(8). 

the  confirmation  of  publication 

referred 

to 

2. 

Publication of supplementary information 

The  buyer  profile  may  include  prior  information  notices  as  referred  to  in 
Article 22(1),  first  subparagraph,  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  fax  number,  a  postal 
address and an e-mail address. 

3. 

Format and procedures for sending notices electronically 

The  format  and  procedure  for  sending  notices  electronically  are  accessible  at  the 
Internet address "http://simap.europa.eu". 

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ANNEX V 

REGISTERS36 

PART A 

PUBLIC WORKS CONTRACTS 

The  professional  registers  and  corresponding  declarations  and  certificates  for  each  Member 
State are:  

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

36 

in Belgium the "Registre du Commerce"/"Handelsregister", 

in Bulgaria, the "Търговски регистър", 

in the Czech Republic, the "obchodní rejstřík", 

in Denmark, the "Erhvers- og Selskabsstyrelsen", 

in Germany, the "Handelsregister" and the "Handwerksrolle", 

in Estonia, the "Keskäriregister", 

in Ireland, the contractor may be requested to provide a certificate from the Registrar 
of  Companies  or  the  Registrar  of  Friendly  Societies  or,  if  he  is  not  so  certified,  a 
certificate stating that the person concerned has declared on oath that he is engaged 
in the profession in question in the country in which he is established, in a specific 
place under a given business name, 

in Greece, the "Μητρώο Εργοληπτικών Επιχειρήσεων - MEEΠ" of the Ministry for 
Environment, Town and Country Planning and Public Works (Υ.ΠΕ.ΧΩ.Δ.Ε), 

in  Spain,  the  "Registro  Oficial  de  Empresas  Clasificadas  del  Ministerio  de 
Hacienda", 

in  France,  the  "Registre  du  commerce  et  des  sociétés"  and  the  "Répertoire  des 
métiers", 

in  Italy,  the  "Registro  della  Camera  di  commercio,  industria,  agricoltura  e 
artigianato", 

in Cyprus, the contractor may be requested to provide a certificate from the "Council 
for  the  Registration  and  Audit  of  Civil  Engineering  and  Building  Contractors 
(Συμβούλιο Εγγραφήςκαι Ελέγχου Εργοληπτών Οικοδομικών και Τεχνικών Έργων)" 
in  accordance  with  the  Registration  and  Audit  of  Civil  Engineering  and  Building 
Contractors Law, 

in Latvia, the "Uzņēmumu reģistrs", 

For the purposes of Article 31, "registers" means those listed in this Annex and, where changes have 
been made at national level, the registers which have replaced them. 

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- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

in Lithuania, the "Juridinių asmenų registras", 

in Luxembourg, the "Registre aux firmes" and the "Rôle de la Chambre des métiers", 

in Hungary, the "Cégnyilvántartás", the "egyéni vállalkozók jegyzői nyilvántartása", 

in  Malta,  the  contractor  obtains  his  "numru  ta’  registrazzjoni  tat-  Taxxa  tal-  Valur 
Miżjud (VAT) u n- numru tal-licenzja ta’ kummerc", and, in the case of a partnership 
or  company,  the  relevant  registration  number  as  issued  by  the  Malta  Financial 
Services Authority, 

in the Netherlands, the "Handelsregister", 

in  Austria,  the  "Firmenbuch",  the  "Gewerberegister",  the  "Mitgliederverzeichnisse 
der Landeskammern", 

in Poland, the "Krajowy Rejestr Sądowy", 

in  Portugal,  the  "Instituto  dos  Mercados  de  Obras  Públicas  e  Particulares  e  do 
Imobiliário" (IMOPPI), 

in Romania, the "Registrul Comerţului", 

in Slovenia, the "Sodni register" and the "obrtni register", 

in Slovakia, the "Obchodný register", 

in Finland, the "Kaupparekisteri" and "Handelsregistret", 

in Sweden, the "aktiebolags-, handels- eller föreningsregistren", 

in the United Kingdom, the contractor may be requested to provide a certificate from 
the Registrar of Companies or, if he is not so certified, a certificate stating that the 
person  concerned  has  declared  on  oath  that  he  is  engaged  in  the  profession  in 
question in the country in which he is established in a specific place under a given 
business name. 

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PART B 

PUBLIC SUPPLY CONTRACTS 

The relevant professional and trade registers and declarations and certificates are: 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

in Belgium the "Registre du Commerce"/"Handelsregister", 

in Bulgaria, the "Търговски регистър", 

in the Czech Republic, the "obchodní rejstřík", 

in Denmark, the "Erhvers- og Selskabsstyrelsen", 

in Germany, the "Handelsregister" and the "Handwerksrolle", 

in Estonia, the "Keskäriregister", 

in Greece, the "Βιοτεχνικό ή Εμπορικό ή Βιομηχανικό Επιμελητήριο", 

in  Spain,  the  "Registro  Mercantil"  or,  in  the  case  of  non-registered  individuals,  a 
certificate stating that the person concerned has declared on oath that he is engaged 
in the profession in question, 

in  France,  the  "Registre  du  commerce  et  des  sociétés"  and  the  "Répertoire  des 
métiers", 

in Ireland, the supplier may be requested to provide a certificate from the Registrar of 
Companies or the Registrar of Friendly Societies that he is certified as incorporated 
or registered or, if he is not so certified, a certificate stating that the person concerned 
has declared on oath that he is engaged in the profession in question in the country in 
which he is established, in a specific place under a given business name, 

in  Italy,  the  "Registro  della  Camera  di  commercio,  industria,  agricoltura  e 
artigianato", and the "Registro delle commissioni provinciali per l'artigianato", 

in Cyprus, the supplier may be requested to provide a certificate from the "Registrar 
of Companies and Official Receiver" (Έφορος Εταιρειών και ΕπίσημοςΠαραλήπτης) 
or, if this is not the case, a certificate stating that the person concerned has declared 
on oath that he is engaged in the profession in question in the country in which he is 
established, in a specific place and under a given business name, 

in Latvia, the "Uzņēmumu reģistrs", 

in Lithuania, the "Juridinių asmenų registras", 

in Luxembourg, the "Registre aux firmes" and the "Rôle de la Chambre des métiers", 

in Hungary, the "Cégnyilvántartás", the "egyéni vállalkozók jegyzői nyilvántartása", 

in  Malta:  the  supplier  obtains  his  "numru  ta’  registrazzjoni  tat-  Taxxa  tal-  Valur 
Miżjud (VAT) u n- numru tal-licenzja ta’ kummerc", and, in the case of a partnership 

EN 

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- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

or  company,  the  relevant  registration  number  as  issued  by  the  Malta  Financial 
Services Authority, 

in the Netherlands, the "Handelsregister", 

in  Austria,  the  "Firmenbuch",  the  "Gewerberegister",  the  "Mitgliederverzeichnisse 
der Landeskammern", 

in Poland, the "Krajowy Rejestr Sądowy", 

in Portugal, the "Registro Nacional das Pessoas Colectivas", 

in Romania, the "Registrul Comerţului", 

in Slovenia, the "Sodni register" and the "obrtni register", 

in Slovakia, the "Obchodný register", 

in Finland, the "Kaupparekisteri" and "Handelsregistret", 

in Sweden, the "aktiebolags-, handels- eller föreningsregistren", 

in the United Kingdom, the supplier may be requested to provide a certificate from 
the  Registrar  of  Companies  stating  that  he  is  certified  as  incorporated  or  registered 
or, if he is not so certified, a certificate stating that the person concerned has declared 
on oath that he is engaged in the profession in a specific place under a given business 
name. 

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PART C 

PUBLIC SERVICE CONTRACTS 

The relevant professional and trade registers and declarations and certificates are: 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

in  Belgium, 
professionels/Beroepsorden", 

the  "Registre  du  commerce/Handelsregister"  and 

the  "Ordres 

in Bulgaria, the "Търговски регистър", 

in the Czech Republic, the "obchodní rejstřík", 

in Denmark, the "Erhvers- og Selskabsstyrelsen", 

in Germany, the "Handelsregister", the "Handwerksrolle", the "Vereinsregister", the 
"Partnerschaftsregister"  and  the  "Mitgliedsverzeichnisse  der  Berufskammern  der 
Länder", 

in Estonia, the "Keskäriregister", 

in  Ireland,  the  service  provider  may  be  requested  to  provide  a  certificate  from  the 
Registrar  of  Companies  or  the  Registrar  of  Friendly  Societies  or,  if  he  is  not  so 
certified, a certificate stating that the person concerned has declared on oath that he is 
engaged in the profession in question in the country in which he is established, in a 
specific place under a given business name, 

in Greece, the service provider may be asked to provide a declaration on the exercise 
of the profession concerned made on oath before a notary; in the cases provided for 
by existing national legislation, for the provision of research services as mentioned in 
Annex  II  A,  the  professional  register  "Μητρώο  Μελετητών"  and  the  "Μητρώο 
Γραφείων Μελετών", 

in  Spain,  the  "Registro  Oficial  de  Empresas  Clasificadas  del  Ministerio  de 
Hacienda", 

in  France,  the  "Registre  du  commerce  et  des  sociétés"  and  the  "Répertoire  des 
métiers", 

in  Italy,  the  "Registro  della  Camera  di  commercio,  industria,  agricoltura  e 
artigianato",  the  "Registro  delle  commissioni  provinciali  per  l'artigianato"  or  the 
"Consiglio nazionale degli ordini professionali", 

in  Cyprus,  the  service  provider  may  be  requested  to  provide  a  certificate  from  the 
"Registrar  of  Companies  and  Official  Receiver" 
(Έφορος  Εταιρειών  και 
ΕπίσημοςΠαραλήπτης) or, if this is not the case, a certificate stating that the person 
concerned has declared on oath that he is engaged in the profession in question in the 
country  in  which  he  is  established,  in  a  specific  place  and  under  a  given  business 
name, 

- 

in Latvia, the "Uzņēmumu reģistrs", 

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- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

in Lithuania, the "Juridinių asmenų registras", 

in Luxembourg, the "Registre aux firmes" and the "Rôle de la Chambre des métiers", 

in Hungary, the "Cégnyilvántartás", the "egyéni vállalkozók jegyzői nyilvántartása", 
some  "szakmai  kamarák  nyilvántartása"  or,  in  the  case  of  some  activities,  a 
certificate  stating  that  the  person  concerned  is  authorised  to  be  engaged  in  the 
commercial activity or profession in question, 

in Malta: the service provider can obtain his "numru ta’ registrazzjoni tat- Taxxa tal- 
Valur  Miżjud  (VAT)  u  n-  numru  tal-licenzja  ta’  kummerc",  and,  in  the  case  of  a 
partnership  or  company,  the  relevant  registration  number  as  issued  by  the  Malta 
Financial Services Authority, 

in the Netherlands, the "Handelsregister", 

in  Austria,  the  "Firmenbuch",  the  "Gewerberegister",  the  "Mitgliederverzeichnisse 
der Landeskammern", 

in Poland, the "Krajowy Rejestr Sądowy", 

in Portugal, the "Registro Nacional das Pessoas Colectivas", 

in Romania, the "Registrul Comerţului", 

in Slovenia, the "Sodni register" and the "obrtni register", 

in Slovakia, the "Obchodný register", 

in Finland, the "Kaupparekisteri" and "Handelsregistret", 

in Sweden, the "aktiebolags-, handels- eller föreningsregistren", 

in the United Kingdom, the service provider may be requested to provide a certificate 
from the Registrar of Companies or, if he is not so certified, a certificate stating that 
he has declared on oath that he is engaged in the profession in question in a specific 
place under a given business name. 

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ANNEX VI 

REQUIREMENTS RELATING TO DEVICES FOR THE ELECTRONIC RECEIPT 
OF REQUESTS TO PARTICIPATE AND TENDERS 

Devices  for  the  electronic  receipt  of  requests  for  participation  and  tenders  must  at  least 
guarantee, through appropriate technical means and procedures, that: 

a) 

b) 

c) 

d) 

e) 

f) 

g) 

h) 

electronic  signatures  relating  to  requests  to  participate  and  tenders  comply  with 
national provisions adopted pursuant to Directive 1999/93/EC; 

the  exact  time  and  date  of  the  receipt  of  requests  to  participate  and  tenders  can  be 
determined precisely; 

it may be reasonably ensured that, before the time limits laid down, no-one can have 
access to data transmitted under these requirements; 

if  that  access  prohibition  is  infringed,  it  may  be  reasonably  ensured  that  the 
infringement is clearly detectable; 

only authorised persons may set or change the dates for opening data received; 

during  the  various  stages  of  the  contract  award  procedure,  access  to  all  data 
submitted, or to part thereof, must be possible only through simultaneous action by 
authorised persons; 

simultaneous action by authorised persons must give access to data transmitted only 
after the prescribed date; 

data  received  and  opened  in  accordance  with  these  requirements  must  remain 
accessible only to persons authorised to acquaint themselves therewith. 

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LEGISLATIVE FINANCIAL STATEMENT 

1. 

NAME OF THE PROPOSAL 

Proposal for a Directive of the European Parliament and of the Council on the coordination of 
procedures for the award of certain public works contracts, public supply contracts and public 
service contracts in the fields of defence and security. 

2. 

ABM/ABB  FRAMEWORK  (ACTIVITY-BASED  MANAGEMENT/ACTIVITY-BASED 
BUDGETING) 

Policy area(s) concerned and associated activity/activities: 

•  Policy area: 

12-81: Public procurement 

•  Associated activities: 

12-81.C3-10 
procurement legislation  

(C3): 

formulation,  monitoring  and 

implementation  of  public 

Proposal for a Directive on the award of public contracts in the fields of defence 
and security. 

To be done. 

Interpretative Communication on the application of Article 296 TEC in the field of 
defence procurement 

12-81.C3-10.02 
Interpretative  Communication  on 
Article 296 of the Treaty in the field of defence procurement. 

(C3): 

the  application  of 

12-81.C3-10.30-02  (C3):  Interpretative  Communication  on  the  application  of 
Article 296 of the Treaty in the field of defence procurement. 

Green Paper on Defence Procurement 

12-81.C3-10.30-01 (C3): Communication on the results of the consultation launched 
by  the  Green  Paper  on  Defence  Procurement  and  on  the  future  Commission 
initiatives 

12-81.C3-10.25-01 (C3): Green Paper on Defence Procurement – CWP 2004 

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3. 

BUDGET LINES 

3.1. 

Budget  lines  (operational  lines  and  related  technical  and  administrative 
assistance lines (ex-B.A. lines)), including headings: 

Budget line 

Heading 

Measures 

12.010201.00.20 

Technical assistance 

Technical assistance contract 

12.020100.01 

Implementation  and  development  of 
the Internal Market 

Studies outsourced 

26.02.01 

for 

Procedures 
and 
advertising public supply, works and 
service contracts 

awarding 

Publication of notices 

3.2 

Duration of the action and of the financial impact: 

The Directive relating to public procurement in the fields of defence and security is a 
legislative  act  adopted  for  an  unlimited  period  starting  from  the  date  it  enters  into 
force. 

The financial impact relates to both recurrent and non-recurrent expenditure: 

- 

- 

the  recurrent  expenditure  is  linked  to  the  use  of  the  Directive  (publication  of 
notices, processing cases of infringement), 

the non-recurrent expenditure is linked to the implementation of the Directive, 
and particularly to evaluation work to be subcontracted (over a time frame of 
five to ten years after the entry into force of the Directive). 

3.3 

Budgetary characteristics: 

Budget line 

Type of 
expenditure 

New 

EFTA 
contribution 

Contributions 
from applicant 
countries 

Heading in 
financial 
perspective 

12.010201.0
0.20 

NCE 

Non-
diff. 

None 

None 

12.020100.0
1 

NCE 

Diff. 

None 

YES 

None 

None 

5 

1a 

26.02.01 

NCE 

Diff. 

None 

None 

None 

1.1 (1.1 OTH) 

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4. 

SUMMARY OF RESOURCES 

4.1. 

Financial resources 

4.1.1. 

Summary of commitment appropriations (CA) and payment appropriations (PA) 

€ million (to 3 decimal places) 

Type of expenditure 

Section 
No 

Year 
n 

n + 1 N + 

n + 3 n + 4 

2 

n + 5 
and 
later  

Total 

Operational expenditure37 

Commitment  appropriations 
(CA) 

8.1 

Payment 
(PA) 

appropriations 

a 

b 

0.006 

0.012 

0.018 

0.024 

0.030 

0.180 

0.270 

0.006 

0.012 

0.018 

0.024 

0.030 

0.180 

0.270 

Administrative expenditure within reference amount38 

Technical 
and 
administrative  assistance 
(Non-diff.) 

8.2.4 

c 

0.000 

0.000 

0.000 

0.000 

0.000 

0.000  0.000 

TOTAL REFERENCE AMOUNT 

Commitment 
appropriations 

a+c  0.006 

0.012 

0.018 

0.024 

0.030 

0.180 

0.270 

Payment appropriations 

b+c  0.006 

0.012 

0.018 

0.024 

0.030 

0.180 

0.270 

Administrative expenditure not included in reference amount 

8.2.5 

d 

0.060 

0.060 

0.060 

0.060 

0.060 

0.060 

0.360 

8.2.6 

e 

0.000 

0.000 

0.000 

0.000 

0.000 

0.000 

0.000 

Human 
associated 
(Non-diff.) 

resources 

and 
expenditure 

Administrative  costs  other 
than  human  resources  and 
associated expenditure, not 
included 
reference 
in 
amount (Non-diff.) 

Total indicative financial cost of intervention 

TOTAL  CA 
cost of human resources 

including 

TOTAL  PA 
cost of human resources 

including 

a+c+d
+e 

b+c+d
+e 

0.066 

0.072 

0.078 

0.084 

0.090 

0.240 

0.630 

0.066 

0.072 

0.078 

0.084 

0.090 

0.240 

0.630 

37 
38 

Expenditure that does not fall under Chapter xx 01 of the Title xx concerned. 
Expenditure within Article xx 01 04 of Title xx. 

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Co-financing details 

This initiative does not give rise to co-financing. 

4.1.2.  Compatibility with financial programming 

Not applicable. 

(cid:133) 

(cid:133) 

(cid:133) 

Proposal is compatible with existing financial programming. 

Proposal  will  entail  reprogramming  of  the  relevant  heading  in  the  financial 
perspective. 

Proposal  may  require  application  of  the  provisions  of  the  Interinstitutional 
Agreement39 (i.e. flexibility instrument or revision of the financial perspective). 

4.1.3.  Financial implications on revenue 

(cid:58) 

(cid:133) 

Proposal has no financial implications on revenue 

Financial impact - the effect on revenue is as follows: 

€ million (to 1 decimal place) 

Situation following action 

 [n + 
1] 

 [n + 
2] 

 [n + 
3] 

 [n + 
4] 

 [n + 
5]40 

Prior 
to 
action 
(Year 
n – 1)

[Yea
r n] 

Budget line 

Revenue 

a)  Revenue  in  absolute 
terms 

b) Change in revenue 

 Δ 

0 

0 

0 

0 

0 

0 

4.2. 

Human  resources  in  FTE  (including  officials,  temporary  and  external  staff)  – 
see details under point 8.2.1. 

Annual requirements 

Year n 

n + 1 

n + 2 

n + 3 

n + 4 

n + 5 
and 
later  

Total  number  of  human 
resources 

2 

2 

2 

2 

2 

2 

39 
40 

See points 19 and 24 of the Interinstitutional Agreement. 
Additional columns should be added if necessary i.e. if the duration of the action exceeds 6 years. 

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5. 

CHARACTERISTICS AND OBJECTIVES 

5.1 

Need to be met in the short or long term 

It  is  generally  recognised  that  the  high  level  of  fragmentation  in  defence  markets 
impairs the efficiency of public procurement and the operation of the internal market. 

The parties concerned (Member States, industries, think tanks, European Parliament) 
have  asked  the  Commission  to  take  action  to  overcome  this  fragmentation  and 
intensify competition on defence markets. 

•  Short term 

The  Commission,  as  the  guardian  of  the  Treaties,  has  provided  some  legal 
clarification  by  means  of  its  Interpretative  Communication  on  the  application  of 
Article 296 of the Treaty in the field of defence procurement, which was adopted in 
December 2006. Simple clarification is not, however, sufficient. 

•  In the medium to long-term 

The Commission considers that in the medium to longer term a specific Directive on 
public  procurement  in  the  fields  of  defence  and  security  is  the  most  appropriate 
instrument to address the problems identified. 

5.2. 

Value-added  of  Community  involvement  and  coherence  of  the  proposal  with 
other financial instruments and possible synergy 

The  initiative  on  defence  procurement  is  part  of  an  overall  initiative  to  open  up 
defence  markets  by  bringing  more  transparency  and  competition  to  these  markets. 
The  current  fragmentation  of  the  markets  has  a  negative  impact  not  just  on  the 
efficiency  of  public  expenditure  but  also  on  the  military  capacity  of  the  Member 
States.  It  is  also  an  obstacle  to  the  growth  and  competitiveness  of  the  European 
defence industry. 

Alongside the efforts made by the Member States, the Commission has launched an 
initiative  to  encourage  the  establishment  of  a  European  defence  equipment  market 
(EDEM).  In  its  March  2003  Communication  entitled  "Towards  an  EU  Defence 
Equipment  Policy",  the  Commission  presented  a  series  of  proposals  for  action  in 
fields relating to defence industries and markets (standardisation, observation, intra-
Community transfers, public procurement, exports of dual-use goods, research). This 
Communication was thus the point of departure for the Commission's initiative in the 
field of public procurement. 

5.3. 

Objectives, expected results and related indicators of the proposal in the context 
of the ABM framework 

•  Objectives 

- 

The  Commission's  general  objective  is  to  establish  an  open  and  competitive 
European  defence  equipment  market.  This  market  will  cover  both  military 
goods  (arms,  munitions  and  war  material)  and  sensitive  non-military  goods 
(security). 

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- 

- 

The  specific  objective  of  the  policy  on  defence  procurement  is  to  establish  a 
regulatory  framework  to  allow  the  effective  operation  of  these  markets.  This 
specifically implies the effective implementation of the principles in the Treaty 
for the internal market. 

The  operational  objective  of  this  Directive  is  to  provide  a  regulatory 
framework  which  is  tailored  to  the  specific  characteristics  of  the  defence  and 
security markets, in compliance with the principles of the Treaty and reducing 
the need for recourse to the exemptions laid down in Article 296 of the Treaty 
and Article 14 of Directive 2004/18/EC. 

•  Target results 

The expected results are: 

- 

- 

- 

more transparent and more open defence and security procurement, 

more efficient public spending, 

more  competitiveness  and  greater  growth  in  defence  industries,  helping  to 
strengthen the European defence technological and industrial base. 

•  Connected indicators 

Two indicators will be calculated: 

- 

- 

the publication rate (ratio between the value of the contracts published and the 
value of the defence markets) as an indicator of transparency, 

the penetration rate (ratio between the value of intra-Community transfers and 
the value of the defence markets) as an indicator of openness. 

5.4 

Method of implementation (indicative) 

(cid:58) Centralised Management 

(cid:58) 

directly by the Commission 

(cid:133) 

indirectly by delegation to: 

(cid:133) 

executive agencies, 

(cid:133) 

bodies set up by the Communities as referred to in Article 185 of 
the Financial Regulation 

(cid:133) 

national public-sector bodies/bodies with a public-service mission 

(cid:133) 

Shared or decentralised management 

(cid:133)  with Member States 

(cid:133)  with third countries 

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(cid:133) 

Joint management with international organisations (please specify) 

6. 

MONITORING AND EVALUATION 

6.1.  Monitoring system 

The  Commission  departments  responsible  for  this  dossier  will  pay  particular 
attention to the development of case-law in the field of defence procurement. 

Two indicators: 

- 

- 

the publication rate (as an indicator of transparency), 

the penetration rate (as an indicator of openness), 

will be calculated annually on the basis of the data available. 

6.2. 

Evaluation 

6.2.1.  Ex ante evaluation 

A preliminary impact study, including an ex ante evaluation, is enclosed as an Annex 
with the draft Directive. 

6.2.2.  Measures taken following an intermediate/ex-post evaluation (lessons learned from 

similar experience in the past) 

The specific Directive is the first legislative act proposed by the Commission in the 
field  of  defence  procurement.  The  interpretative  communication  is  still  too  recent 
(adopted in December 2006) for an effective evaluation to be carried out. 

6.2.3.  Terms and frequency of future evaluation 

•  Regular evaluation 

An evaluation of the effects of the new Directive will be carried out regularly by the 
Commission from the third year following its implementation by the Member States. 
It  will  look  at  the  impact  of  the  new  Directive  on  public  procurement  practices, 
particularly as regards publication, the competition  procedure  for providers and  the 
opening of markets to providers from other Member States. 

•  Medium-term: interim evaluation  

Following  the  legislative  process  for  the  adoption  of  the  Directive  and  its 
transposition by the Member States, an initial evaluation of the administrative impact 
of  the  implementation  of  the  new  Directive,  first  of  all  on  the  Member  States,  and 
then on businesses, should be carried out within five years. 

•  Long term: overall evaluation 

Given  the  long  lifecycles  of  defence  equipment  (and  related  services,  especially 
maintenance),  an  evaluation of  the overall – and particularly economic – impact of 

EN 

85 

   EN 

 
the Directive may only reasonably be expected in the longer term (i.e. not before ten 
years after its entry into force). 

7. 

ANTI-FRAUD MEASURES 

This initiative makes no provision for any specific anti-fraud measures. 

EN 

86 

   EN 

 
8. 

DETAILS OF RESOURCES 

8.1 

Objectives of the proposal in terms of their financial cost 

Commitment appropriations in EUR million (to 3 decimal places) 

(Headings of objectives, measures 
and outputs should be provided) 

Type of 
output 

Average 
unit cost 

Year n 

Year n+1 

Year n+2 

Year n+3 

Year n+4 

Year n+5 
and later 

TOTAL 

   No 

Tot 

No 

Tot 

No 

Tot 

No 

Tot 

No 

Tot 

No 

Tot 

No 

Tot 

EUR 
mil 

EUR 
mil 

EUR 
mil 

EUR 
mil 

EUR 
mil 

EUR 
mil 

EUR 
mil 

OPERATIONAL OBJECTIVE  
No. 1 

Increase  the  transparency  of  defence 
procurement 

Measure No 1 

Encourage  the  publication  of  public 
defence contracts 

Output No 1  

Increase  the  number  of  notices  of 
public  defence  contracts  published  in 
the Official Journal  

Public-
ation 
notices 

of 

OPERATIONAL OBJECTIVE 
No. 2 

Intensify 
defence products 

the 

free  movement  of 

30€ 

200 

0.006 

400 

0.012 

600 

0.018 

800 

0.024 

0.030 

100
0 

100
0 

0.030 

4000 

0.120 

n/a 

0.000 

0.000 

0.000 

0.000 

0.000 

0.000 

0.000 

ASSESSMENT 

Medium-term administrative impact 

n/a 

TOTAL COST 

0.000 

0.006 

0.000 

0.012 

0.000 

0.018 

0.000 

0.024 

0.000 

0.030 

0.150 

0.180 

0.150 

0.270 

EN 

87 

EN 

 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
8.2 

Administrative expenditure 

8.2.1.  Number and type of human resources 

Types of post 

Staff to be assigned to management of the action using existing and/or additional 
resources (number of posts/FTEs) 

Year n 

Year n + 
1 

Year n+ 2 Year n+ 3 Year n+ 4  Year n+ 5

Officials or 
temporary 
staff 
(12 01 01) 

A*/
AD 

B*, 
C*/
AST 

Staff  financed41  under 
Art. 12 01 02 

Other  staff  financed 
under  Art.  12  01 
04/05 

TOTAL 

2 

0 

0 

0 

2 

2 

0 

0 

0 

2 

2 

0 

0 

0 

2 

2 

0 

0 

0 

2 

8.2.2.  Description of tasks deriving from the measure 

2 

0 

0 

0 

2 

2 

0 

0 

0 

2 

Once  the  Directive  has  entered  into  force,  two  types  of  tasks  will  need  to  be 
implemented: 

•  Infringement proceedings 

These will be handled by specialist rapporteurs already at the Commission who work 
by  geographical  area  and  not  by  sector  of  activity  (so  there  will  be  no  specialist 
rapporteur for defence procurement). 

•  Observation and evaluation 

This  will  be  done  either  within  the  Unit  by  an  administrator  with  a  background  in 
economics, or by the Unit specialising in economic aspects at the public procurement 
Directorate,  or  by  the  specialist  Unit  dealing  with  "impact  assessment  and 
evaluation" at the Directorate-General. 

In all cases, the posts already exist and there are no plans to create new ones. 

8.2.3. 

Sources of human resources (statutory) 

(cid:58) 

Posts currently allocated to the management of the programme to be replaced 
or extended 

41 

Cost of which is NOT covered by the reference amount. 

EN 

88 

   EN 

 
 
 
 
                                                 
(cid:133) 

(cid:133) 

(cid:58) 

(cid:133) 

Posts pre-allocated within the APS/PDB exercise for year n 

Posts to be requested in the next APS/PDB procedure 

Posts  to  be  redeployed  using  existing  resources  within  the  service  concerned 
(internal redeployment) 

Posts  required  for  year  n  although  not  foreseen  in  the  APS/PDB  exercise  for 
the year in question 

 8.2.4.  Other administrative expenditure included in the reference amount 

Budget line (number and heading)  Year n 

EUR million (to 3 decimal places) 

Year 
n+1 

Year 
n+2 

Year 
n+3 

Year 
n+4 

TOTAL 

Year 
n+5 and 
later 

1  Technical  and  administrative 
assistance  (including  related  staff 
costs) 

Executive agencies 

Other  technical  and  administrative 
assistance 

- intra muros  

- extra muros 

12.01.04  -  Support  expenditure  for 
operations  in  the  Internal  Market 
policy area 

Total  technical  and  administrative 
assistance 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

8.2.5.  Financial cost of human resources and associated costs not included in the reference 

amount 

EUR million (to 3 decimal places) 

Type of human resources 

Year 
n 

Year 
n+1 

Year 
n+2 

Year 
n+3 

Year 
n+4 

TOTAL 

Year 
n+5 
and 
later 

Expenditure related to staff in 
active  employment 
the 
Internal Market policy area 

in 

Article  12  (01)-( 
01) 

0.000  0.000  0.000  0.000  0.000  0.000 

0.000 

External staff -  
Technical assistance 
contract 

Pst. 12 01 02 01 

0.060  0.060  0.060  0.060  0.060  0.060 

0.360 

EN 

89 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
of 

cost 

Total 
human 
resources  and  associated 
costs  (NOT  included  in  the 
reference amount) 

0.060  0.060  0.060  0.060  0.060  0.060 

0.360 

* 

Calculation – Officials and Temporary agents (Article 12 01 01) 

The implementation of the new Directive does not require the creation of any additional posts 
(the legislative drafter, rapporteur and economist posts already exist) 

* 

Calculation – External staff (Art. 12 01 02) 

The use of external human resources within the framework of the technical assistance contract 
(budget line 12.010201.00.02.20) might be necessary to annually monitor the implementation 
of the new Directive 

8.2.6.  Other administrative expenditure not included in the reference amount 

EUR million (to 3 decimal places) 

Year 
n 

Year 
n+1 

Year 
n+2 

Year 
n+3 

Year 
n+4 

TOTAL 

Year 
n+5 
and 
later 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

- Missions 

12 01 02 11 01 

- Meetings and conferences 

12 01 02 11 02 

- Committees 

12 01 02 11 03 

- Studies and consultation 

12 01 02 11 04 

- Information systems 

12 01 02 11 05 

2  Total  other  management 
expenditure 

12 01 02 11 

3  Other  expenditure  of  an 
administrative nature (specify 
including  reference  to  budget 
line) 

Total 
expenditure, 
human 
associated 
included 
amount) 

administrative 
than 
and 
(NOT 
reference 

other 
resources 
costs 
in 

* 

EN 

90 

   EN 

 
  
  
  
  
  
  
Calculation - Other administrative expenditure not included in the reference amount 

None 

EN 

91 

   EN