Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on procurement by entities operating in the water, energy, transport and postal services sectors
Date: 2011-12-20
Institutions: European Commission
Subjects: award of contract, economic growth, energy demand, postal service, sustainable development, transport network, water supply

EUROPEAN COMMISSION 

Brussels, 20.12.2011 
COM(2011) 895 final 

2011/0439 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on procurement by entities operating in the water, energy, transport and postal services 
sectors 

(Text with EEA relevance) 

{SEC(2011) 1585} 
{SEC(2011) 1586} 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

The Europe 2020 strategy for smart, sustainable and inclusive growth [COM(2010) 2020] is 
based on three interlocking and mutually reinforcing priorities: developing an economy based 
on  knowledge  and  innovation;  promoting  a  low-carbon,  resource-efficient  and  competitive 
economy;  and  fostering  a  high-employment  economy  delivering  social  and  territorial 
cohesion. 

Public procurement plays a key role in the Europe 2020 strategy as one of the market-based 
instruments to be used to achieve those objectives by improving the business environment and 
conditions  for  business  to  innovate  and  by  encouraging  wider  use  of  green  procurement 
supporting the shift towards a resource efficient and low-carbon economy. At the same time, 
the  Europe  2020  strategy  stresses  that  public  procurement  policy  must  ensure  the  most 
efficient use of funds and that procurement markets must be kept open Union-wide. 

In the face of those challenges, the existing public procurement legislation needs to be revised 
and modernised in order to make it better suited to deal with the evolving political, social and 
economic context. This concerns not only procurement by the State and public authorities, but 
also contract awards by utilities operators which have their own specific procurement regime. 

In  its  communication  of  13  April  2011  on  “The  Single  Market  Act:  Twelve  levers  to  boost 
growth  and  confidence”,  the  European  Commission  included  among  its  twelve  key  priority 
actions to be adopted by the EU institutions before the end of 2012, a revised and modernised 
public procurement legislative framework to make the award of contracts more flexible and 
enable public contracts to be put to better use in support of other policies. 

This proposal has two complementary objectives: 

• 

• 

Increase  the  efficiency  of  spending  to  ensure  the  best  possible  procurement 
outcomes  in  terms  of  value  for  money.  This  implies  in  particular  a 
simplification  and  flexibilisation  of  the  existing  public  procurement  rules. 
Streamlined, more efficient procedures will benefit all economic operators and 
facilitate the participation of SMEs and cross-border bidders. 

Allow  procurers  to  make  better  use  of  procurement  in  support  of  common 
societal  goals  such  as  protection  of  the  environment,  higher  resource  and 
innovation, 
energy  efficiency,  combating  climate  change,  promoting 
employment and social inclusion and ensuring the best possible conditions for 
the provision of high quality social services. 

•  General context 

Public  procurement  plays  an  important  role  in  the  overall  economic  performance  of  the 
European Union. In Europe, public purchasers spend around 18% of GDP on supplies, works 
and services. Given the volume of purchases, public procurement can be used as a powerful 
lever for achieving a Single Market fostering smart, sustainable and inclusive growth. 

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The  current  generation  of  public  procurement  Directives  –  Directives  2004/17/EC1  and 
2004/18/EC2 – are the product of a long evolution that started in 1971 with the adoption of 
Directive 71/305/EEC. By guaranteeing transparent and non-discriminatory procedures, those 
Directives  principally  aim  to  ensure  that  economic  operators  from  across  the  Single  Market 
benefit fully from the basic freedoms in competing for public contracts. 

A  comprehensive  economic  evaluation  has  shown  that  the  procurement  Directives  have 
achieved their objectives to a considerable extent. They have resulted in greater transparency 
and higher levels of competition while achieving measurable savings through lower prices. 

Stakeholders  have  nevertheless  voiced  demand  for  a  review  of  the  public  procurement 
directives  to  simplify  the  rules,  increase  their  efficiency  and  effectiveness  and  make  them 
better  suited  to  deal  with  the  evolving  political,  social  and  economic  context.  Streamlined, 
more  efficient  procedures  will  increase  flexibility  for  contracting  authorities,  benefit  all 
economic  operators  and  facilitate  the  participation  of  SMEs  and  cross-border  bidders. 
Improved  procurement  rules  will  also  allow  contracting  entities  to  make  better  use  of 
procurement in support of common societal goals, such as the protection of the environment, 
higher  resource  and  energy  efficiency  and  combating  climate  change,  promoting  innovation 
and  social  inclusion,  and  ensuring  the  best  possible  conditions  for  the  provision  of  high 
quality social services. Those orientations were confirmed by the results of a consultation of 
stakeholders  conducted  by  the  European  Commission  in  spring  2011,  where  a  very  large 
majority of stakeholders supported the proposal to review the procurement Directives in order 
to adapt them better to the new challenges faced by procurers and economic operators alike. 

•  Existing provisions in the area of the proposal 

Together with the proposed new Directive on procurement by public authorities, the proposal 
will  replace  Directives  2004/17/EC  and  2004/18/EC  as  the  core  elements  of  the  European 
Union public procurement legislative framework. 

The Directive will be complemented by the further elements of that legislative framework: 

• 

• 

Directive  2009/81/EC3  sets  specific  rules  for  defence  and  sensitive  security 
procurement, 

Directive  92/13/EEC4  establishes  common  standards  for  national  review 
procedures to ensure that rapid and effective means of redress is available in all 
EU countries in cases where bidders consider that contracts have been awarded 
unfairly. 

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Directive  2004/17/EC  of  31  March  2004  coordinating  the  procurement  procedures  of  entities  in  the 
water, energy, transport and postal services sectors, OJ L 134, 30.4.2004, p. 1. 
Directive  2004/18/EC  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. 
Directive 2009/81/EC of 13 July 2009 on the coordination of procedures for the award of certain works 
contracts,  supply  contracts  and  service  contracts  by  contracting  authorities  or  entities  in  the  fields  of 
defence and security, and amending Directives 2004/17/EC and 2004/18/EC, OJ L 216, 20.8.2009, p. 
76. 
Directive  92/13/EEC  of  25  February  1992  coordinating  the  laws,  regulations  and  administrative 
provisions  relating  to  the  application  of  Community  rules  on  the  procurement  procedures  of  entities 
operating in the water, energy, transport and telecommunication sectors, OJ L 76, 23.3.1992, p. 14. 

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•  Consistency with the other policies and objectives of the Union 

This  initiative  implements  the  Europe  2020  strategy  for  smart,  sustainable  and  inclusive 
growth [COM(2010) 2020] and the Europe 2020 Flagship Initiatives on a Digital Agenda for 
Europe [COM(2010) 245], the Innovation Union [COM(2010) 546], an Integrated Industrial 
Policy  for  the  Globalisation  Era  [COM(2010)  614],  Energy  2020  [COM(2010)  639]  and  a 
Resource  Efficient  Europe  [COM(2011)  21].  It  also  implements  the  Single  Market  Act 
[COM(2011)  206],  in  particular  its  twelfth  key  action  “Revised  and  Modernised  Public 
Procurement Legislative Framework”. It is a CWP 2011 strategic initiative. 

2. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Consultation methods, main sectors targeted and general profile of respondents 

The  European  Commission  published  on  27  January  2011  a  Green  Paper  on  the 
modernisation  of  EU  public  procurement  policy  –  Towards  a  more  efficient  European 
Procurement Market5 launching a broad public consultation on options for legislative changes 
to make the award of contracts easier and more flexible and enable public contracts to be put 
to  better  use  in  support  of  other  policies.  The  purpose  of  the  Green  Paper  was  to  identify  a 
number  of  key  areas  for  reform  and  ask  for  stakeholders’  views  on  concrete  options  for 
legislative change. Among the issues covered were the needs for simplifying and flexibilising 
procedures, strategic use of public procurement to promote other policy objectives, improving 
access  for  SMEs  to  public  contracts  and  combating  favouritism,  corruption  and  conflicts  of 
interest. 

The public consultation closed on 18 April 2011 and met with a high response. In total, 623 
replies  were  received,  coming  from  a  wide  variety  of  stakeholder  groups  including  central 
Member  State  authorities,  local  and  regional  public  purchasers  and  their  associations, 
undertakings,  industry  associations,  academics,  civil  society  organisations  (including  trade 
unions) and individual citizens. The majority of replies originated from the United Kingdom, 
Germany,  France  and,  to  a  lesser  degree,  Belgium,  Italy,  the  Netherlands,  Austria,  Sweden, 
Spain and Denmark.  

The  results  of  the  consultation  were  summarised  in  a  synthesis  paper6  and  presented  and 
discussed at a public conference on 30 June 20117. 

Summary of responses and how they have been taken into account 

A very large majority of stakeholders appreciated the initiative of the European Commission 
to  review  the  current  procurement  policy.  Amongst  the  different  subjects  discussed  in  the 
Green  Paper,  stakeholders  put  a  particularly  strong  emphasis  on  the  need  to  simplify 
procedures  and  make  them  more  flexible.  There  was  also  consensus  among  all  stakeholder 

COM(2011) 15.  

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http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0015:FIN:EN:PDF 
6

http://ec.europa.eu/internal_market/consultations/docs/2011/public_procurement/synthesis_do

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cument_en.pdf 
http://ec.europa.eu/internal_market/publicprocurement/modernising_rules/conferences/index_en.htm 

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groups  that  the  rules  on  procurement  by  utilities  were  still  relevant.  A  clear  majority  of 
respondents agreed that there was still a need for a specific set of rules to be applied to public 
utilities operators and that the different rules applying to utilities operators adequately reflect 
the specific character of utilities procurement. 

In the same vein, a clear majority of respondents agree that the criteria used for defining the 
entities subject to the utilities rules (activities carried out by the entities concerned, their legal 
statute  and,  where  they  are  private,  the  existence  of  special  or  exclusive  rights)  are  still 
appropriate and should be maintained. Most respondents are also in agreement that the profit-
seeking  or  commercial  ethos  of  private  companies  cannot  be  regarded  as  sufficient  to 
guarantee  objective  and  fair  procurement,  if  those  companies  are  operating  on  the  basis  of 
special or exclusive rights. 

On the strategic use of public procurement to achieve the societal goals of the Europe 2020 
strategy,  stakeholders’  opinions  were  mixed.  Many  stakeholders,  especially  businesses, 
showed a general reluctance to the idea of using public procurement in support of other policy 
objectives. Other stakeholders, notably civil society organisations, were strongly in favour of 
such strategic use and advocated far-reaching changes to the very principles of the European 
Union public procurement policy. 

•  Collection and use of expertise 

In  addition  to  the  Green  Paper  consultation,  the  European  Commission  conducted  in 
2010/2011  a  comprehensive  evaluation  of  the  impact  and  effectiveness  of  EU  procurement 
legislation  drawing  on  an  extensive  body  of  evidence  and  new  independent  research.  The 
studies assessed mainly the cost and effectiveness of procurement procedures, issues of cross 
border  procurement,  SMEs’  access  to  procurement  markets  and  the  strategic  use  of 
procurement  in  Europe.  With  regard  to  utilities  procurement,  the  evaluation  examined 
whether the utilities sectors are now more exposed to competition than they were at the time 
of adoption of the procurement regime. 

The  findings  of  the  evaluation  showed  that  legislative  activity  to  liberalise  access  to  utility 
sectors  has  not  yet  translated  into  sustained  or  effective  competitive  pressure  on  incumbent 
operators. In many utility sectors, high levels of market concentration or anaemic competition 
continue to be observed. The evaluations concluded that conditions have  not evolved to the 
extent  that  competition  can  be  deemed  to  be  sufficiently  strong  on  a  sector  wide  basis  to 
permit  the  exclusion  of  sectors  from  the  scope  of  the  utilities  procurement  Directive.  The 
rationale  of  the  Directive  continues  to  apply  in  general  while  specific  exemptions  from  the 
application of the procurement rules may be justified on the basis of an in-depth, case by case 
analysis. 

•  Impact assessment 

The impact assessment and its executive summary give an overview of the different options 
for each of the five groups of basic problems (administrative organisation, scope, procedures, 
strategic  procurement  and  access  to  procurement  markets).  Based  on  an  analysis  of  the 
advantages  and  disadvantages  of  the  different  options,  a  package  of  preferred  options  was 
identified that should optimise the synergies between the different solutions allowing savings 
due to one type of action to neutralise related costs caused by another (e.g. possible increased 
procedural  requirements  caused  by  strategic  procurement  actions  could  partially  be 

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neutralised  by  savings  related  to  the  improved  design  of  procurement  procedures).  Those 
preferred options form the basis of the present proposal. 

The  draft  Impact  Assessment  report  was  scrutinised  by  the  Impact  Assessment  Board,  who 
asked for amendments concerning in particular the identification of the specific elements of 
the legislative framework to be addressed, the description of the options under discussion, a 
more  in-depth  cost-benefit  analysis  of  the  selected  headline  actions  and  the  systematic 
integration  of  stakeholder  views,  both  in  the  problem  definition  and  to  complement  the 
analysis  of  impacts.  Those  recommendations  for  improvement  were  integrated  in  the  final 
report. The opinion of the Impact Assessment Board on the report is published together with 
this proposal, as well as the final Impact Assessment report and its executive summary. 

3. LEGAL ELEMENTS OF THE PROPOSAL 

•  Legal basis 

The proposal is based on Articles 53(1), 62 and 114 of the Treaty on the Functioning of the 
European Union (TFEU). 

•  Subsidiarity principle 

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the  exclusive 
competence of the EU. 

The objectives of the proposal cannot be sufficiently achieved by the Member States for the 
following reason:  

The coordination of procurement procedures above certain thresholds has proven an important 
tool  for  the  achievement  of  the  Internal  Market  in  the  field  of  purchasing  by  utilities.  It 
ensures  effective  and  equal  access  to  contracts  for  economic  operators  across  the  Internal 
Market. Experience with Directives 2004/17/EC and 2004/18/EC and the earlier generations 
of  procurement  Directives  has  shown  that  European-wide  procurement  procedures  provide 
transparency  and  objectivity  in  procurement  resulting  in  considerable  savings  and  improved 
procurement  outcomes  that  benefit  utilities  operators,  their  customers  and,  ultimately,  the 
European taxpayer.  

This  objective  could  not  be  sufficiently  achieved  through  action  by  Member  States  which 
would inevitably result in divergent requirements and possibly conflicting procedural regimes 
increasing  regulatory  complexity  and  causing  unwarranted  obstacles  for  cross-border 
activities. 

The proposal therefore complies with the subsidiarity principle. 

•  Proportionality principle 

The proposal complies with the proportionality principle since it does not go beyond what is 
necessary in order to achieve the objective of ensuring the proper functioning of the Internal 
Market through a  set  of  European-wide coordinated procurement procedures. Moreover, the 
proposal is based on a “tool box” approach, allowing Member State a maximum of flexibility 
in adapting the procedures and tools to their specific situation.  

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Compared  to  the  current  procurement  Directives,  the  proposal  will  reduce  administrative 
burden  related  to  the  conduct  of  the  procedure  both  for  contracting  entities  and  economic 
operators;  where  new  requirements  are  foreseen  (for  instance,  in  the  context  of  strategic 
procurement), those will be compensated by the removal of constraints in other areas. 

•  Choice of instruments 

Since the proposal is based on Articles 53(1), 62 and 114 TFEU the use of a Regulation for 
the provisions applying both to the procurement of goods and services would not be permitted 
by the Treaty. The instrument proposed is therefore a Directive. 

During the impact assessment process, non-legislative options were discarded for reasons set 
out in detail in the impact assessment. 

4. BUDGETARY IMPLICATION 

The proposal has no budgetary implications. 

5. ADDITIONAL INFORMATION 

•  Repeal of existing legislation 

The  adoption  of  the  proposal  will  lead  to  the  repeal  of  existing  legislation  (Directive 
2004/17/EEC). 

•  Review/revision/sunset clause 

The  proposal  contains  a  review  clause  concerning  the  economic  effects  of  the  threshold 
amounts. 

• 

Transposition measures and explanatory documents 

The  proposal  concerns  an  area  where  Union  legislation  has  a  coordination  purpose,  with  a 
significant  impact  on  a  wide  range  of  national  legal  sectors.  Nothwithstanding  the 
coordination purpose, many provisions constitute full harmonisation and the proposal includes 
a  large  number  of  legal  obligations.  Member  States  supplement  Union  rules  with  national 
additional provisions so as the whole system becomes operational.  

In this context, the Commission has identified a number of factors which render explanations 
by Member States necessary both for the correct understanding of transposing measures and 
for the functioning of the whole picture of procurement rules at national level: 

– 

– 

– 

transposing  and  implementing  measures  are  adopted  at  different  institutional  levels 
(national / federal, regional, local); 

in addition to the different regulatory layers, in many Member States rules are also 
established according to the sector involved or the type of procurement concerned; 

administrative measures of general or specific nature complement and in some cases 
overlap the main legal framework. 

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Only Member States can explain how the different measures transpose the Union directives in 
the public procurement sector and how the same measures interact each with the others. 

For those reasons, the communication of documents explaining the relationship between the 
various parts of this directive and the corresponding parts of national transposition measures 
should  be  communicated  together  with  the  transposing  measures,  in  particular  concordance 
tables, which constitute an operational tool for the analysis of the national measures. 

•  European Economic Area 

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

•  Detailed explanation of the proposal 

1) Simplification and flexibilisation of procurement procedures 

The  proposed  Directive  provides  for  a  simplification  and  flexibilisation  of  the  procedural 
regime  set  by  the  current  public  procurement  Directives.  For  this  purpose,  it  contains  the 
following measures: 

Clarification of scope: The basic concept of “procurement” which appears also in the title of 
the proposed Directive has been newly introduced in order to better determine the scope and 
purpose of procurement law and to facilitate the application of the thresholds. The definitions 
of  certain  key  notions  determining  the  scope  of  the  Directive  (such  as  body  governed  by 
public law, public works and service contracts, mixed contracts) have been revised in the light 
of  the  case-law  of  the  Court  of  Justice.  At  the  same  time,  the  proposal  endeavours  to  keep 
continuity in the use of notions and concepts that have been developed over the years through 
the Court’s case-law and are well known to practitioners. In this context, it should be noted 
that minor deviations from the wording or presentation known from the previous Directives 
do not necessarily imply a change of substance, but may be due to simplification of texts. 

The  notion  of  special  or  exclusive  rights  is  central  to  the  definition  of  the  scope  of  this 
Directive,  since  entities  which  are  neither  contracting  authorities  not  public  undertakings 
within the meaning of this Directive are subject to this Directive only to the extent that they 
exercise one of the activities covered on the basis of such rights. It is therefore appropriate to 
clarify  that  rights  which  have  been  granted  by  means  of  a  procedure  in  which  adequate 
publicity  has  been  ensured  and  where  the  granting  of  those  rights  was  based  on  objective 
criteria, notably pursuant to Union legislation, do not constitute special or exclusive rights for 
the purposes of this Directive. 

The traditional distinction between so-called priority and non-priority services (“A” and “B” 
services)  will  be  abolished.  The  results  of  the  evaluation  have  shown  that  it  is  no  longer 
justified  to  restrict  the  full  application  of  procurement  law  to  a  limited  group  of  services. 
However,  it  became  also  clear  that  the  regular  procurement  regime  is  not  adapted  to  social 
services which need a specific set of rules (see below). 

Following the results of the evaluation, the scope in terms of sectors covered remains largely 
unchanged.  However,  procurement  made  for  the  purpose  of  exploring  oil  and  gas  has  been 
withdrawn  from  the  scope  as  that  sector  has  been  found  to  be  subject  to  such  competitive 
pressure that the procurement discipline brought about by the Directive is no longer needed. 

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The competitive situation in this sector of activity has been examined in the context of four 
different requests for exemption under the current Article 308. In all four cases, the relevant 
geographical  market  was  consistently  found  to  be  worldwide,  which  is  furthermore  in 
accordance with well-established practice in merger cases9. The conclusions have consistently 
been  that  the  exploration  market  is  not  highly  concentrated.  Apart  from  state  owned 
companies,  the  market  is  characterised  by  the  presence  of  three  international  vertically 
integrated private players named the super majors (BP, ExxonMobil and Shell) as well as a 
certain number of so-called ‘majors’ and the individual market share of even super majors is 
well  below  one  percent.  All  of  this  has  consistently  been  found  to  constitute  indications  of 
direct exposure to competition and access to the market is furthermore liberalised through the 
provisions of the Hydrocarbon Licensing Directive10. It therefore appropriate to simplify the 
legal situation and to lessen the administrative burden on all concerned (contracting entities, 
Member  States,  the  European  Commission,  the  European  Parliament  and  Council)  by 
avoiding the need to adopt individual Article 30 Decisions in respect of each of the remaining 
23 Member States. 

Toolbox  approach:  Member  State  systems  will  provide  the  three  basic  forms  of  procedure 
which  already  exist  under  current  Directives:  open  and  restricted  procedures  as  well  as 
negotiated procedures with prior call for competition. They may, in addition, foresee either as 
standard procedure or subject to certain conditions the innovation partnership, a new form of 
procedure for innovative procurement (see below).  

Contracting entities will furthermore have at their disposal a set of six specific procurement 
techniques  and  tools  intended  for  aggregated  and  electronic  procurement:  framework 
agreements,  dynamic  purchasing  systems,  electronic  auctions,  electronic  catalogues,  central 
purchasing  bodies  and  joint  procurement.  Compared  to  the  existing  Directive,  those  tools 
have been improved and clarified with a view to facilitating e-procurement. 

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10 

European Commission Implementing Decision 2011/481/EU of 28 July 2011exempting exploration for 
oil  and  gas  and  exploitation  of  oil  in  Denmark,  excluding  Greenland  and  the  Faroe  Islands,  from  the 
application  of  Directive  2004/17/EC  of  the  European  Parliament  and  of  the  Council  coordinating  the 
procurement procedures of entities operating in the water, energy, transport and postal services sectors, 
OJ L 197 of 29.7.2011, p. 20; European Commission Implementing Decision 2011/372/EU of 24 June 
2011  exempting  exploration  for  oil  and  gas  and  exploitation  of  oil  in  Italy  from  the  application  of 
Directive  2004/17/EC  of  the  European  Parliament  and  of  the  Council  coordinating  the  procurement 
procedures of entities operating in the water, energy, transport and postal services sectors, OJ L 166 of 
25.6.2011,  p.  28;  European  Commission  Decision  2010/192/EU  of  29 March  2010  exempting 
exploration for and exploitation of oil and gas in England, Scotland and Wales from the application of 
Directive  2004/17/EC  of  the  European  Parliament  and  of  the  Council  coordinating  the  procurement 
procedures of entities operating in the water, energy, transport and postal services sectors; OJ L 84 of 
31.03.2010, p. 52; European Commission Decision 2009/546/EC of 8 July 2009 exempting exploration 
for and exploitation of oil and gas in the Netherlands from the application of Directive 2004/17/EC of 
the  European  Parliament  and  of  the  Council  coordinating  the  procurement  procedures  of  entities 
operating in the water, energy, transport and postal services sectors, OJ L 181 of 14.07.2009, p. 53.  
See  in  particular  European  Commission  Decision  2004/284/EC  of  29  September  1999  declaring  a 
concentration compatible  with  the  common  market  and  the  EEA  Agreement  (Case  No  IV/M.1383 — 
Exxon/Mobil)  and  subsequent  decisions,  inter  alia,  European  Commission  Decision  of  03/05/2007 
declaring  a  concentration  to  be  compatible  with  the  common  market  (Case  No  COMP/M.4545  — 
STATOIL/HYDRO) according to Council Regulation (EEC) No 139/2004. 
Directive 94/22/EEC of the European Parliament and of the Council of 30 May 1994 on the conditions 
for granting and using authorizations for the prospection, exploration and production of hydrocarbons, 
OJ L 79 of 29.3.1996, p. 30. 

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Promotion  of  e-procurement:  The  use  of  electronic  communications  and  transaction 
processing by purchasers can deliver significant savings and improved procurement outcomes 
while reducing waste and error. The proposal aims at helping Member States to achieve the 
switchover to e-procurement enabling suppliers to take part in online procurement procedures 
across  the  Internal  Market.  For  this  purpose,  the  proposed  Directive  provides  for  the 
mandatory transmission of notices in electronic form, the mandatory electronic availability of 
the  procurement  documents  and  imposes  the  switch  to  fully  electronic  communication,  in 
particular e-submission, in all procurement procedures within a transition period of two years. 
It  streamlines  and  improves  Dynamic  Purchasing  Systems  and  electronic  catalogues,  fully 
electronic  procurement  tools  that  are  particularly  adapted  to  highly  aggregated  procurement 
done  by  Central  Purchasing  Bodies.  The  e-procurement  instrument  would  also  enable 
contracting  authorities  to  prevent,  detect  and  correct  errors  generally  due  to  wrong 
understanding or interpretation of public procurement rules. 

Modernisation  of  procedures:  The  proposal  provides  a  more  flexible  and  user-friendly 
approach  for  certain  important  features  of  procurement  procedures.  Time-limits  for 
participations and submission of offers have been  shortened, allowing for quicker and more 
streamlined  procurement.  The  distinction  between  selection  of  tenderers  and  award  of  the 
contract which is often a source of errors and misunderstandings has been made more flexible, 
allowing contracting entities to decide on the most practical sequencing by examining award 
criteria  before  selection  criteria  and  to  take  into  account  the  organisation  and  quality  of  the 
staff assigned to performing the contract as an award criterion. 

The  procedure  for  exemption  of  contracts  awarded  in  sufficiently  competitive  markets  (the 
current “Article 30 decisions”) has been simplified and streamlined. A number of exemptions, 
in  particular  the  intra-group  and  joint  venture  exemptions  which  are  important  in  practice 
have also been reviewed and clarified. 

The  modification  of  contracts  during  their  term  has  become  an  increasingly  relevant  and 
problematic issue for practitioners. A specific provision on modification of contracts takes up 
the basic solutions developed by case-law and provides a pragmatic solution for dealing with 
unforeseen circumstances requiring an adaption of a public contract during its term. 

2) Strategic use of public procurement in response to new challenges 

The proposed Directive is based on enabling approach providing contracting entities with the 
instruments  needed  to  contribute  to  the  achievement  of  the  Europe  2020  strategic  goals  by 
using their purchasing power to procure goods and services that foster innovation, respect the 
environment  and  combat  climate  change  while  improving  employment,  public  health  and 
social conditions.  

Life-cycle costing: The proposal gives purchasers the possibility to base their award decisions 
on life-cycle costs of the products, services or works to be purchased. The life cycle covers all 
stages  of  the  existence  of  a  product  or  works  or  provision  of  a  service,  from  raw  material 
acquisition or generation of resources until disposal, clearance and finalisation. The costs to 
be  taken  into  account  do  not  only  include  direct  monetary  expenses,  but  also  external 
environmental costs if they can be monetised and verified. Where a common European Union 
methodology  for  the  calculation  of  life-cycle  costs  has  been  developed,  contracting  entities 
are obliged to make use of it. 

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Production  process:  Contracting  entities  may  refer  to  all  factors  directly  linked  to  the 
production  process  in  the  technical  specifications  and  in  the  award  criteria,  as  long  as  they 
refer to aspects of the production process which are closely related to the specific production 
or provision of the good or service purchased. This excludes requirements that are not related 
to the process of producing the products, works or services covered by the procurement, such 
as a general corporate social responsibility requirement covering the whole operation of the 
contractor. 

Labels: Contracting entities may require that works, supplies or services bear specific labels 
certifying  environmental,  social  or  other  characteristics,  provided  that  they  accept  also 
equivalent labels. This applies for instance to European or (multi-)national eco-labels or labels 
certifying  that  a  product  is  free  of  child-labour.  The  certification  schemes  in  question  must 
concern  characteristics  linked  to  the  subject-matter  of  the  contract  and  be  drawn  up  on  the 
basis  of  scientific  information,  established  in  an  open  and  transparent  procedure  and 
accessible to all interested parties. 

Sanctioning violations of mandatory social, labour or environmental law: Under the proposed 
Directive,  a  contracting  entity  can  exclude  economic  operators  from  the  procedure,  if  it 
identifies infringements of obligations established by Union legislation in the field of social, 
labour or environmental law or of international labour law provisions. Moreover, contracting 
entities will be obliged to reject tenders if they have established that they are abnormally low 
because of violations of Union legislation in the field of social, labour or environmental law. 

Social  services:  The  evaluation  on  the  impact  and  effectiveness  of  EU  public  procurement 
legislation  has  shown  that  social,  health  and  education  services  have  specific  characteristics 
which make them inappropriate for the application of the regular procedures for the award of 
public service contracts. Those services are typically provided within a specific context that 
varies  widely  between  Member  States  due  to  different  administrative,  organisational  and 
cultural  circumstances.  The  services  have,  by  their  very  nature,  only  a  very  limited  cross-
border  dimension.  Member  States  should  therefore  have  large  discretion  to  organise  the 
choice of service providers. The proposal takes account of this by providing a specific regime 
for contracts for those services, with a higher threshold of EUR 1 000 000 and imposing only 
the respect of basic principles of transparency and equal treatment. A quantitative analysis of 
the values of contracts for the relevant services awarded to economic operators from abroad 
has  shown  that  contracts  below  this  value  have  typically  no  cross-border  interest  in  the 
particular context of procurement in the utilities' sectors. 

Innovation: Research and innovation play a central role in the Europe 2020 strategy for smart, 
sustainable  and  inclusive  growth.  Purchasers  should  be  enabled  to  buy  innovative  products 
and services promoting future growth and improving efficiency and quality of public services. 
The proposal provides for this purpose the innovation partnership, a new special procedure for 
the  development  and  subsequent  purchase  of  new,  innovative  products,  works  and  services, 
provided  they  can  be  delivered  to  agreed  performance  levels  and  costs.  In  addition,  the 
proposal  improves  and  simplifies  the  competitive  dialogue  procedure  and  facilitates  cross-
border joint procurement which is an important instrument for innovative purchasing. 

3) Better access to the market for SMEs and Start-ups 

Small  and  medium-sized  enterprises  (SMEs)  have  a  huge  potential  for  job  creation,  growth 
and innovation. Easy access to procurement markets can help them unlock this potential while 
allowing  contracting  entities  to  broaden  their  supplier  base,  with  positive  effects  of  higher 

EN 

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competition for public contracts. In order to make public contracts as accessible as possible to 
SMEs,  the  European  Commission  published  in  2008  the  “European  Code  of  Best  Practices 
facilitating  access  by  SMEs  to  public  procurement  contracts”11.  The  proposal  builds  on  this 
work and provides concrete measures to remove barriers for market access by SMEs. 

Simplification of information obligations: It is therefore foreseen that contracting entities may 
apply the selection criteria provided for in the proposed Directive on public procurement and 
that,  where  they  do,  they  are  then  obliged  to  apply  the  provisions  concerning  notably  the 
ceiling to requirements on minimum turnover as well as the provisions on in particular self-
certification. 

Better access to framework agreements: Under the current Directives, there is no limitation to 
the  duration  of  framework  agreements  concluded  in  the  utilities  sectors.  This  can  lead  to 
market  foreclosure.  The  proposal  limits  the  duration  to  four  years  (except  in  duly  justified 
circumstances),  improving  access  to  business  opportunities  and  enhancing  competition,  also 
to the benefit of SMEs. 

Direct payment of subcontractors: In addition, Member State can provide that subcontractors 
may  request  for  direct  payment  by  the  contracting  entity  of  supplies,  works  and  services 
provided  to  the  main  contractor  in  the  context  of  the  contract  performance.  This  offers 
subcontractors  which  are  often  SMEs  an  efficient  way  of  protecting  their  interest  in  being 
paid. 

4) Sound procedures 

The financial interests at stake and the interaction between the public and the private sector 
make  procurement  a  risk  area  for  unsound  business  practices  such  as  conflict  of  interest, 
favouritism and corruption. The proposal improves the existing safeguards against such risks 
and provides for additional protection. 

Conflicts  of  interest:  The  proposal  contains  a  specific  provision  on  conflicts  of  interest 
covering actual, potential or perceived conflict of interest situations affecting staff members 
of the contracting authority or of procurement service providers intervening in the procedure 
and members of the contracting authority's management who may influence the outcome of a 
procurement procedure even if they are not formally involved in it. Given the differences in 
the  decision-making  processes  of  respectively  contracting  authorities  and  undertakings,  it  is 
appropriate to limit such provisions to procurement carried out by the former. 

Illicit  conduct:  The  proposal  contains  a  specific  provision  against  illicit  behaviour  by 
candidates  and  tenderers,  such  as  attempts  to  improperly  influence  the  decision-making 
process or entering into agreements with other participants to manipulate the outcome of the 
procedure  have  to  be  excluded  from  the  procedure.  Such  illicit  activities  violate  basic 
principles of European Union law and can result in serious distortions of competition. 

Unfair  advantages:  Market  consultations  are  a  useful  instrument  for  contracting  entities  to 
obtain information on the structure, capability and capacity of a market while at the same time 
informing  market  actors  on  purchasers’  procurement  projects  and  requirements.  However, 
preliminary  contacts  with  market  participants  must  not  result  in  unfair  advantages  and 
distortions of competitions. The proposal contains therefore a specific provision on safeguards 

11 

European Commission Staff Working Document SEC(2008) 2193. 

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12 

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against undue preference in favour of participants who have advised the contracting entity or 
have been involved in the preparation of the procedure. 

5) Governance 

National  oversight  bodies:  The  evaluation  has  shown  that  not  all  Member  States  are 
consistently  and  systematically  monitoring  the  implementation  and  functioning  of  the 
procurement  rules.  This  compromises  the  efficient  and  uniform  application  of  European 
Union  law.  The  proposal  provides  therefore  that  Member  States  designate  a  single  national 
authority  in  charge  of  monitoring,  implementation  and  control  of  procurement  law.  Only  a 
single  body  with  overarching  tasks  will  ensure  an  overview  of  main  implementation 
difficulties  and  will  be  able  to  suggest  appropriate  remedies  to  more  structural  problems.  It 
will be in the position to provide immediate feedback on the functioning of the policy and the 
potential  weaknesses  in  national  legislation  and  practice,  thus  contributing  to  the  quick 
identification of solutions and the improvement of the procurement procedures. 

Knowledge centres: In many cases, contracting entities do not have the internal expertise to 
deal  with  complex  procurement  projects.  Appropriate  and  independent  professional  support 
by administrative structures could considerably improve procurement outcomes by expanding 
the knowledge base and the professionalism of public procurers and delivering assistance to 
businesses, notably SMEs. The proposal obliges therefore Member States to provide support 
structures offering legal and economic advice, guidance, training and assistance in preparing 
and  conducting  procurement  procedures.  Support  structures  or  mechanisms  exist  already  at 
national  level,  although  organised  in  very  different  manners  and  covering  different  areas  of 
interest  for  contracting  authorities  and  contracting  entities.  Member  states  will  therefore  be 
able  to  use  those  mechanisms,  build  on  their  expertise  and  promote  their  services  as  an 
appropriate and modern tool capable to provide appropriate support to contracting authorities, 
contracting  entities  and  economic  operators.  To  reinforce  the  fight  against  corruption  and 
favouritism, contracting authorities will be obliged to transmit the text of concluded contracts 
to  the  oversight  body,  which  will  thus  be  able  to  scrutinize  these  contracts  for  suspicious 
patterns, and give access to these documents to interested persons to the extent that legitimate 
public or private interests are not jeopardized. Because of the evident problems of protecting 
legitimate commercial interests and avoid distoriton of competition, this obligation should not 
be  extended  to  undertakings  (public  or  private)  operating  in  these  sectors.  Furthermore,  the 
creation of disproportionate administrative burden must be avoided; the obligation to transmit 
the  full  text  of  concluded  contracts  should  therefore  remain  limited  to  relatively  high  value 
contracts.  The  thresholds  proposed  would  strike  the  right  balance  between  increasing 
administrative burden and ensuring greater transparency: with a threshold of 1 000 000 EUR 
for supplies and services, and of 10 000 000 EUR, this obligation would apply to 10 - 20 % of 
all procurement published in the Official Journal. 

It is not foreseen that requirements concerning oversight bodies and knowledge centres will 
generate overall an additional financial burden for Member States. If some costs are expected 
to re-organise or fine tune the activities of existing mechanisms and structures, they will be 
neutralised by a reduction of litigation costs (both for contracting entities and business), costs 
related to delays in the attribution of contracts, due to misapplication of public procurement 
rules or to the bad preparation of the procurement procedures, as well as costs related to the 
fact  that  advice  to  contracting  entities  is  currently  provided  in  a  fragmented  and  inefficient 
manner. 

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13 

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Administrative  cooperation:  The  proposal  provides  also  for  effective  cooperation  allowing 
national oversight bodies to share information and best practices and to cooperate through the 
Internal Market Information System (IMI). 

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2011/0439 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on procurement by entities operating in the water, energy, transport and postal services 
sectors 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 53(1) and Article 62 and Article 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments12, 

Having regard to the opinion of the European Economic and Social Committee13, 

Having regard to the opinion of the Committee of the Regions14,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

In  the  light  of  the  results  of  the  Evaluation  on  the  Impact  and  Effectiveness  of  EU 
Public  Procurement  Legislation15  it  appears  appropriate  to  maintain  rules  on 
procurement  by  entities  operating  in  the  water,  energy,  transport  and  postal  services 
sectors,  since  national  authorities  continue  to  be  able  to  influence  the  behaviour  of 
those entities, including participation in their capital and representation in the entities' 
administrative,  managerial  or  supervisory  bodies.  Another  reason  to  continue  to 
regulate procurement in those sectors is the closed nature of the markets in which they 
operate,  due  to  the  existence  of  special  or  exclusive  rights  granted  by  the  Member 
States concerning the supply to, provision or operation of networks for providing the 
service concerned. 

(2) 

In  order  to  guarantee  the  opening  up  to  competition  of  procurement  by  entities 
operating in the water, energy, transport and postal services sectors, provisions should 
be  drawn  up  coordinating  procurement  procedures  in  respect  of  contracts  above  a 

12 
13 
14 
15 

OJ C 
OJ C 
OJ C  
SEC(2011) 853 Final of 27.6.2011 

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15 

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certain value. Such coordination is needed to ensure the effect of the principles of the 
Treaty on the Functioning of the European Union and in particular the free movement 
of goods, the freedom of establishment and the freedom to provide services as well as 
the principles deriving therefrom, such as equal treatment, non-discrimination, mutual 
recognition,  proportionality  and  transparency.  In  view  of  the  nature  of  the  sectors 
affected by such coordination, the latter should, while safeguarding the application of 
those  principles,  establish  a  framework  for  sound  commercial  practice  and  should 
allow maximum flexibility. 

For  procurement  the  value  of  which  is  lower  than  the  thresholds  triggering  the 
application of the provisions of Union coordination, it is advisable to recall the case-
law developed by the Court of Justice according to which the rules and principles of 
the Treaty apply. 

Public  procurement  plays  a  key  role  in  the  Europe  2020  strategy16  as  one  of  the 
market-based  instruments  to  be  used  to  achieve  a  smart,  sustainable  and  inclusive 
growth  while  ensuring  the  most  efficient  use  of  public  funds.  For  that  purpose,  the 
current  public  procurement  rules  adopted  pursuant  to  Directive  2004/17/EC  of  the 
European  Parliament  and  of  the  Council  of  31  March  2004  coordinating  the 
procurement procedures of entities operating in the water, energy, transport and postal 
services  sectors17  and  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  contracts18  have  to  be 
revised  and  modernised  in  order  to  increase  the  efficiency  of  public  spending, 
facilitating  in  particular  the  participation  of  small  and  medium-sized  enterprises  in 
public procurement and to enable procurers to make better use of public procurement 
in support of common societal goals. There is also a need to clarify basic notions and 
concepts  to  ensure  better  legal  certainty  and  to  incorporate  certain  aspects  of  related 
well-established case-law of the Court of Justice of the European Union. 

Under  Article  11  of  the  Treaty  on  the  Functioning  of  the  European  Union, 
environmental  protection  requirements  must  be  integrated  into  the  definition  and 
implementation  of  the  Union  policies  and  activities,  in  particular  with  a  view  to 
promoting  sustainable  development.  This  Directive  clarifies  how  the  contracting 
entities  may  contribute  to  the  protection  of  the  environment  and  the  promotion  of 
sustainable development, whilst ensuring that they can obtain the best value for money 
for their contracts. 

It is appropriate that the notion of procurement or the definition of what constitutes a 
single procurement are as close as possible to those applied pursuant to Directive […] 
of the European Parliament and of the Council of […] on public procurement19, having 
due regard for the specificities of the sectors covered by this Directive. The concept of 
single procurement encompasses all supplies, works and services needed to carry out a 
particular project, for instance a works project or an entirety of works, supplies and/or 
services. Indications for the existence of one single project can for instance consist in 
overall  prior  planning  and  conception  by  the  contracting  entity,  the  fact  that  the 

(3) 

(4) 

(5) 

(6) 

16 
17 
18 
19 

COM(2010) 2020 final, 3.3-2010. 
OJ L 134, 30.4.2004, p. 1. 
OJ L 134, 30.4.2004, p. 114. 
See p. [ ] of this Official Journal. 

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(7) 

(8) 

different  elements  purchased  fulfil  a  single  economic  and  technical  function  or  that 
they are otherwise logically interlinked and carried out in a narrow time frame. 

To  ensure  a  real  opening  up  of  the  market  and  a  fair  balance  in  the  application  of 
procurement  rules  in  the  water,  energy,  transport  and  postal  services  sectors  it  is 
necessary  for  the  entities  covered  to  be  identified  on  a  basis  other  than  their  legal 
status. It should be ensured, therefore, that the equal treatment of contracting entities 
operating  in  the  public  sector  and  those  operating  in  the  private  sector  is  not 
prejudiced. It is also necessary to ensure, in keeping with Article 345 of the Treaty on 
the  Functioning  of  the  European  Union,  that  the  rules  governing  the  system  of 
property ownership in Member States are not prejudiced. 

The notion of special or exclusive rights is central to the definition of the scope of this 
Directive,  since  entities  which  are  neither  contracting  authorities  nor  public 
undertakings within the meaning of this Directive are subject to its provisions only to 
the extent that they exercise one of the activities covered on the basis of such rights. It 
is therefore appropriate to clarify that rights which have been granted by means of a 
procedure  based  on  objective  criteria,  notably  pursuant  to  Union  legislation,  and  for 
which adequate publicity has been ensured do not constitute special or exclusive rights 
for the purposes of this Directive. This legislation should include Directive 98/30/EC 
of the European Parliament and of the Council of 22 June 1998 concerning common 
rules  for  the  internal  market  in  natural  gas20,  Directive  96/92/EC  of  the  European 
Parliament and of the Council of 19 December 1996 concerning common rules for the 
internal market in electricity21, Directive 97/67/EC of the European Parliament and of 
the  Council  of  15  December  1997  on  common  rules  for  the  development  of  the 
internal  market  of  Community  postal  services  and  the  improvement  of  quality  of 
service22,  Directive  94/22/EC  of  the  European  Parliament  and  of  the  Council  of  20 
May 1994 on the conditions for granting and using authorisations for the prospection, 
exploration and production of hydrocarbons23 and Regulation (EC) No 1370/2007 of 
the European Parliament and of the Council of 23 October 2007 on public passenger 
transport  services  by  rail  and  by  road  and  repealing  Council  Regulations  (EEC) 
Nos 1191/69 and 1107/7024. 

(9) 

Contracting entities that operate in the drinking water sector may also deal with other 
activities  relating  to  water,  such  as  projects  in  the  field  of  hydraulic  engineering, 
irrigation,  land  drainage  or  the  disposal  and  treatment  of  sewage.  In  such  case, 
contracting entities should be able to apply the procurement procedures provided for in 
this Directive in respect of all their activities relating to water, whichever part of the 
"water  cycle"  is  concerned.  However,  procurement  rules  of  the  type  proposed  for 
supplies of goods are inappropriate for purchases of water, given the need to procure 
water from sources near the area in which it will be used. 

(10) 

It is appropriate to exclude procurement made for the purpose of exploring for oil and 
gas  as  that  sector  has  consistently  been  found  to  be  subject  to  such  competitive 

20 
21 
22 
23 
24 

OJ L 204, 21.7.1998, p. 1 
OJ L 27, 30.1.1997, p. 20. 
OJ L 15, 21.1.1998, p. 14. 
OJ L 164, 30.6.1994, p. 3. 
OJ L 315, 3.12.2007, p. 1. 

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17 

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pressure that the procurement discipline brought about by the EU procurement rules is 
no longer needed. 

(11)  Contracts  may  be  awarded  for  the  purpose  of  meeting  the  requirements  of  several 
activities,  possibly  subject  to  different  legal  regimes.  It  should  be  clarified  that  the 
legal regime applicable to a single contract intended to cover several activities should 
be  subject  to  the  rules  applicable  to  the  activity  for  which  it  is  principally  intended. 
Determination  of  the  activity  for  which  the  contract  is  principally  intended  may  be 
based  on  an  analysis  of  the  requirements  which  the  specific  contract  must  meet, 
carried out by the contracting entity for the purposes of estimating the contract value 
and drawing up the procurement documents. In certain cases, such as the purchase of a 
single piece of equipment for the pursuit of activities for which information allowing 
an  estimation  of  the  respective  rates  of  use  would  be  unavailable,  it  might  be 
objectively  impossible  to  determine  for  which  activity  the  contract  is  principally 
intended. The rules applicable to such cases should be indicated. 

(12)  Even if they do not necessarily lead to corrupt conduct, actual, potential or perceived 
conflicts of interest have a high potential to improperly influence public procurement 
decisions with the effect of distorting competition and jeopardising equal treatment of 
tenderers.  Effective  mechanisms  should  therefore  be  set  up  to  prevent,  identify  and 
remedy conflicts of interest. Given the differences in the decision-making processes of 
respectively  contracting  authorities  and  undertakings,  it  is  appropriate  to  limit  such 
provisions to procurement carried out by the former. 

(13) 

Illicit conduct by participants in a procurement procedure, such as attempts to unduly 
influence  the  decision-making  process  or  to  enter  into  agreements  with  other 
candidates to manipulate the outcome of the procedure can result in violations of the 
basic  principles  of  Union  law  and  in  serious  distortions  of  competition.  Economic 
operators should therefore be required to submit a declaration on honour that they do 
not  engage  in  such  illicit  activities  and  be  excluded  if  this  declaration  proves  to  be 
false. 

(14)  Council  Decision  94/800/EC  of  22  December  1994  concerning  the  conclusion  on 
behalf of the European Community, as regards matters within its competence, of the 
Agreements reached in the Uruguay Round multilateral negotiations (1986 to 1994)25, 
approved  in  particular  the  World  Trade  Organisation  Agreement  on  Government 
Procurement, hereinafter referred to as the "Agreement". The aim of the Agreement is 
to  establish  a  multilateral  framework  of  balanced  rights  and  obligations  relating  to 
public  contracts  with  a  view  to  achieving  the  liberalisation  and  expansion  of  world 
trade.  For  contracts  covered  by  the  Agreement,  as  well  as  by  other  relevant 
international  agreements  by  which  the  Union  is  bound,  contracting  entities  fulfil  the 
obligations under those agreements by applying this Directive to economic operators 
of third countries that are signatories to the agreements. 

(15)  The Agreement applies to contracts above certain thresholds, set in the Agreement and 
expressed as special drawing rights. The thresholds laid down by this Directive should 
be aligned to ensure that they correspond to the euro equivalents of the thresholds of 
the Agreement. Provision should also be made for periodic reviews of the thresholds 

25 

OJ L 336, 23.12.1994, p. 1. 

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18 

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expressed in euros so as to adjust them, by way of a purely mathematical operation, to 
possible variations in the value of the euro in relation to the special drawing right. To 
avoid a multiplication of thresholds it is furthermore appropriate, without prejudice to 
the international commitments of the Union, to continue to apply the same thresholds 
to all contracting entities, regardless of the sector in which they operate. 

(16)  The results of the Evaluation demonstrated that the exclusion of certain services from 
the  full  application  of  this  directive  should  be  reviewed.  As  a  result,  the  full 
application  of  the  Directive  is  extended  to  a  number  of  services  (such  as  hotel  and 
legal  services,  which  both  showed  a  particularly  high  percentage  of  cross-border 
trade). 

(17)  Other  categories  of  services  continue  by  their  very  nature  to  have  a  limited  cross-
border  dimension,  namely  what  are  known  as  services  to  the  person  such  as  certain 
social, health and educational services. Those services are provided within a particular 
context that varies widely amongst Member States, due to different cultural traditions. 
A specific regime should therefore be established for contracts for those services, with 
a higher threshold of EUR 1 000 000. In the particular context of procurement in those 
sectors, services to the person with values below this threshold will typically not be of 
interest to providers from other Member States unless there are concrete indications to 
the contrary, such as Union financing for transborder projects. Contracts for services 
to  the  person  above  this  threshold  should  be  subject  to  Union-wide  transparency. 
Given  the  importance  of  the  cultural  context  and  the  sensitivity  of  those  services, 
Member States should be given wide discretion to organise the choice of the service 
providers  in  the  way  they  consider  most  appropriate.  The  rules  of  this  directive  take 
account  of  that  imperative,  imposing  only  observance  of  basic  principles  of 
transparency and equal treatment and making sure that contracting entities are able to 
apply specific quality criteria for the choice of service providers, such as the criteria 
set  out  in  the  voluntary  European  Quality  Framework  for  Social  Services  of  the 
European  Union's  Social  Protection  Committee26.  Member  States  and/or  contracting 
entities remain free to provide those services themselves or to organise social services 
in a way that does not entail the conclusion of public contracts, for example through 
the  mere  financing  of  such  services  or  by  granting  licences  or  authorisations  to  all 
economic operators meeting the conditions established beforehand by the contracting 
entity,  without  any  limits  or  quotas,  provided  such  a  system  ensures  sufficient 
advertising and complies with the principles of transparency and non-discrimination. 

(18)  Being  addressed  to  Member  States,  this  directive  does  not  apply  to  procurement 
carried  out  by  international  organisations  on  their  own  behalf  and  for  their  own 
account.  There  is,  however,  a  need  to  clarify  to  what  extent  this  directive  should  be 
applied to procurement governed by specific international rules.  

(19)  There  is  considerable  legal  uncertainty  as  to  how  far  cooperation  between  public 
authorities  should  be  covered  by  public  procurement  rules.  The  relevant  case-law  of 
the Court of Justice of the European Union is interpreted divergently between Member 
States  and  even  between  contracting  authorities.  As  this  jurisprudence  would  be 
equally applicable to public authorities when operating in the sectors covered by this 

26 

SPC/2010/10/8 Final of 6.10.2010. 

EN 

19 

   EN 

 
                                                 
(20) 

directive, it is appropriate to ensure that the same rules apply in both this directive and 
Directive […/…/EU][on public procurement].  

It is appropriate to exclude certain service, supply and works contracts awarded to an 
affiliated  undertaking  having  as  its  principal  activity  the  provision  of  such  services, 
supply  or  works  to  the  group  of  which  it  is  part,  rather  than  offering  them  on  the 
market.  It  is  also  appropriate  to  exclude  certain  service,  supply  and  works  contracts 
awarded  by  a  contracting  entity  to  a  joint  venture  which  is  formed  by  a  number  of 
contracting entities for the purpose of carrying out activities covered by this Directive 
and of which that entity is part. However, it is appropriate to ensure that this exclusion 
does  not  give  rise  to  distortions  of  competition  to  the  benefit  of  the  undertakings  or 
joint  ventures  that  are  affiliated  with  the  contracting  entities;  it  is  appropriate  to 
provide  a  suitable  set  of  rules,  in  particular  as  regards  the  maximum  limits  within 
which the undertakings may obtain a part of their turnover from the market and above 
which  they  would  lose  the  possibility  of  being  awarded  contracts  without  calls  for 
competition, the composition of joint ventures and the stability of links between those 
joint ventures and the contracting entities of which they are composed. 

(21) 

It  is  also  appropriate  to  clarify  the  relations  between  the  provisions  on  cooperation 
between  public  authorities  and  the  provisions  on  the  award  of  contracts  to  affiliated 
undertakings or in the context of joint ventures. 

(22)  This Directive should apply neither to contracts intended to permit the performance of 
an  activity  referred  to  in  Articles  5  to  11  nor  to  design  contests  organised  for  the 
pursuit of such an activity if, in the Member State in which this activity is carried out, 
it  is  directly  exposed  to  competition  on  markets  to  which  access  is  not  limited.  It  is 
therefore  appropriate  to  maintain  the  procedure,  applicable  to  all  sectors  covered  by 
this  Directive  that  will  enable  the  effects  of  current  or  future  opening  up  to 
competition to be taken into account. Such a procedure should provide legal certainty 
for  the  entities  concerned,  as  well  as  an  appropriate  decision-making  process, 
ensuring, within short time limits, uniform application of Union law in this area. 

(23)  Direct  exposure  to  competition  should  be  assessed  on  the  basis  of  objective  criteria, 
taking account of the specific characteristics of the sector concerned. This assessment 
is, however, limited by the applicable short deadlines and by having to be based on the 
information  available  to  the  Commission  –  either  from  already  available  sources  or 
from the information obtained in the context of the application pursuant to Article 28 - 
which can not be supplemented by more time consuming methods, including notably 
public inquiries of economic operators concerned. The assessment of direct exposure 
to competition that can be carried out in the context of this directive is consequently 
without prejudice to the full-fledged application of competition law.  

(24)  The implementation and application of appropriate Union legislation opening a given 
sector,  or  a  part  of  it,  will  be  considered  to  provide  sufficient  grounds  for  assuming 
that there is free access to the market in question. Such appropriate legislation should 
be identified in an annex which can be updated by the Commission. It is appropriate 
that  this  annex  should  currently  refer  to  Directive  2009/73/EC  of  the  European 
Parliament  and  of  the  Council  of  13  July  2009  concerning  common  rules  for  the 

EN 

20 

   EN 

 
internal  market  in  natural  gas  and  repealing  Directive  2003/55/EC27,  Directive 
2009/72/EC  of  the  European  Parliament  and  of  the  Council  of  13  July  2009 
concerning common rules for the internal market in electricity and repealing Directive 
2003/54/EC28 and Directive 94/22/EC. 

(25)  Research  and  innovation,  including  eco-innovation  and  social  innovation,  are  among 
the main drivers of future growth and have been put at the centre of the Europe 2020 
strategy for smart, sustainable and inclusive growth. Contracting entities should make 
the  best  strategic  use  of  public  procurement  to  spur  innovation.  Buying  innovative 
goods and services plays a key role in improving the efficiency and quality of public 
services  while  addressing  major  societal  challenges.  It  contributes  to  achieving  best 
value  for  money  as  well  as  wider  economic,  environmental  and  societal  benefits  in 
terms of generating new ideas, translating them into innovative products and services 
and thus promoting sustainable economic growth. This directive should contribute to 
facilitating  procurement  of  innovation  and  help  Member  States  in  achieving  the 
Innovation  Union  targets.  A  specific  procurement  procedure  should  therefore  be 
provided  for  which  allows  contracting  entities  to  establish  a  long-term  innovation 
partnership  for  the  development  and  subsequent  purchase  of  a  new,  innovative 
product,  service  or  works  provided  it  can  be  delivered  to  agreed  performance  levels 
and costs. The partnership should be structured in such a way that it can provide the 
necessary  “market-pull”  incentivising  the  development  of  an  innovative  solution 
without foreclosing the market. 

(26) 

In view of the detrimental effects on competition, negotiated procedures without a call 
for competition should only be used in very exceptional circumstances. This exception 
should be limited to cases where publication is either not possible, for reasons of force 
majeure  in  line  with  the  standing  case-law  of  the  Court  of  Justice  of  the  European 
Union,  or  where  it  is  clear  from  the  outset  that  publication  would  not  trigger  more 
competition, not least because there is objectively only one economic operator that can 
perform the contract. Only situations of objective exclusivity can justify the use of the 
negotiated procedure without a call for competition, where the situation of exclusivity 
has  not  been  created  by  the  contracting  entity  itself  with  a  view  to  the  future 
procurement procedure, and where there are no adequate substitutes, the availability of 
which should be assessed thoroughly. 

(27)  Electronic  means  of  information  and  communication  can  greatly  simplify  the 
publication  of  contracts  and  increase  the  efficiency  and  transparency  of  procurement 
processes. They should become the standard means of communication and information 
exchange in procurement procedures. The use of electronic means also leads to time 
savings.  As  a  result,  provision  should  be  made  for  reducing  the  minimum  periods 
where  electronic  means  are  used,  subject,  however,  to  the  condition  that  they  are 
compatible  with  the  specific  mode  of  transmission  envisaged  at  Union  level. 
Moreover,  electronic  means  of  information  and  communication  including  adequate 
functionalities can enable contracting authorities to prevent, detect and correct errors 
that occur during procurement procedures.  

27 
28 

OJ L 211, 14.8.2009, p. 94  
OJ L 211, 14.8.2009, p. 55  

EN 

21 

   EN 

 
                                                 
(28)  There  is  a  strong  trend  emerging  across  Union  public  procurement  markets  towards 
the aggregation of demand by public purchasers, with a view to obtaining economies 
of  scale,  including  lower  prices  and  transaction  costs,  and  to  improving  and 
professionalising  procurement  management.  This  can  be  achieved  by  concentrating 
purchases  either  by  the  number  of  contracting  entities  involved  or  by  volume  and 
value over time. However, the aggregation and centralisation of purchases should be 
carefully monitored in order to avoid excessive concentration of purchasing power and 
collusion,  and  to  preserve  transparency  and  competition,  as  well  as  market  access 
opportunities for small and medium-sized enterprises.  

(29)  The  instrument  of  framework  agreements  can  be  an  efficient  procurement  technique 
throughout  Europe;  however,  there  is  a  need  to  enhance  competition  by  improving 
transparency  of  and  access  to  procurement  carried  out  by  means  of  framework 
agreements.  It  is  therefore  appropriate  to  revise  the  provisions  applicable  to  those 
agreements,  notably  by  providing  for  mini-competitions  for  the  award  of  specific 
contracts  based  on  the  agreement  and  by  limiting  the  duration  of  framework 
agreements. 

(30) 

(31) 

In view of the experience acquired, there is also a need to adjust the rules governing 
dynamic purchasing systems to enable contracting entities to take full advantage of the 
possibilities  afforded  by  this  instrument.  The  systems  need  to  be  simplified,  in 
particular by operating them in the form of a restricted procedure, hence eliminating 
the need for indicative tenders, which have been identified as one of the major burdens 
associated with those systems. Thus any economic operator who submits a request to 
participate  and  meets  the  selection  criteria  should  be  allowed  to  take  part  in 
procurement  procedures  carried  out  through  the  dynamic  purchasing  system.  This 
purchasing technique allows the contracting entity to have a particularly broad range 
of tenders and hence to ensure optimum use of funds through broad competition. 

In  addition,  new  electronic  purchasing  techniques  are  constantly  being  developed, 
such as electronic catalogues. They help to increase competition and streamline public 
purchasing, particularly  in  terms  of  savings  in  time  and  money.  Certain  rules  should 
however be laid down to ensure that such use complies with the rules of this Directive 
and  the  principles  of  equal  treatment,  non-discrimination  and  transparency.  In 
particular  where  competition  has  been  reopened  under  a  framework  agreement  or 
where a dynamic purchasing system is being used and where sufficient guarantees are 
offered  in  respect  of  ensuring  traceability,  equal  treatment  and  predictability, 
contracting  entities  should  be  allowed  to  generate  tenders  in  relation  to  specific 
purchases on the basis of previously transmitted electronic catalogues. In line with the 
requirements of the rules for electronic means of communication, contracting entities 
should  avoid  unjustified  obstacles  to  economic  operators'  access  to  procurement 
procedures  in  which  tenders  are  to  be  presented  in  the  form  of  electronic  catalogues 
and which guarantee compliance with the general principles of non-discrimination and 
equal treatment. 

(32)  Centralised  purchasing  techniques  are  increasingly  used  in  most  Member  States. 
Central  purchasing  bodies  are  responsible  for  making  acquisitions  or  awarding 
contracts/framework  agreements  for  other  contracting  authorities  or  for  contracting 
entities.  In  view  of  the  large  volumes  purchased,  such  techniques  help  increase 
competition and professionalise public purchasing. Provision should therefore be made 
for  a  Union  definition  of  central  purchasing  bodies  dedicated  to  contracting  entities, 

EN 

22 

   EN 

 
without  preventing  the  continuation  of  less  institutionalised  and  systematic  common 
purchasing  or  the  established  practice  of  having  recourse  to  service  providers  that 
prepare  and  manage  procurement  procedures  on  behalf  and  for  the  account  of  a 
contracting entity. Rules should also be laid down for allocating responsibility for the 
observance of the obligations pursuant to this Directive, also in the case of remedies, 
among  the  central  purchasing  body  and  the  contracting  entities  procuring  from  or 
through  the  central  purchasing  body.  Where  the  latter  has  sole  responsibility  for  the 
conduct  of  the  procurement  procedures,  it  should  also  be  solely  and  directly 
responsible  for  the  legality  of  the  procedures.  Where  a  contracting  entity  conducts 
certain  parts  of  the  procedure,  for  instance  the  reopening  of  competition  under  a 
framework  agreement  or  the  award  of  individual  contracts  based  on  a  dynamic 
purchasing system, it should continue to be responsible for the stages it conducts. 

(33)  Electronic means of communication are particularly well suited to support centralised 
purchasing  practices  and  tools  because  of  the  possibility  they  offer  to  re-use  and 
automatically process data and to minimise information and transaction costs. The use 
of  such  electronic  means  of  communication  should  therefore,  as  a  first  step,  be 
rendered compulsory for central purchasing bodies, while also facilitating converging 
practices  across  the  Union.  This  should  be  followed  by  a  general  obligation  to  use 
electronic  means  of  communication  in  all  procurement  procedures  after  a  transition 
period of two years. 

(34) 

Joint  awarding  of  contracts  by  contracting  entities  from  different  Member  States 
currently  encounters  specific  legal  difficulties,  with  special  reference  to  conflicts  of 
national laws. Despite the fact that Directive 2004/17/EC implicitly allowed for cross-
border  joint  public  procurement,  in  practice  several  national  legal  systems  have 
explicitly  or  implicitly  rendered  cross-border  joint  procurement  legally  uncertain  or 
impossible.  Contracting  entities  from  different  Member  States  may  be  interested  in 
cooperating and in jointly awarding contracts in order to derive maximum benefit from 
the  potential  of  the  internal  market  in  terms  of  economies  of  scale  and  risk-benefit 
sharing,  not  least  for  innovative  projects  involving  a  greater  amount  of  risk  than 
reasonably  bearable  by  a  single  contracting  entity.  Therefore  new  rules  on  cross-
border joint procurement designating the applicable law should be established in order 
to  facilitate  cooperation  between  contracting  entities  across  the  Single  Market.  In 
addition,  contracting  entities  from  different  Member  States  may  set  up  joint  legal 
bodies  established  under  national  or  Union  law.  Specific  rules  should  be  established 
for such form of joint procurement. 

(35)  The technical specifications drawn up by purchasers need to allow public procurement 
to  be  opened  up  to  competition.  To  that  end,  it  should  be  possible  to  submit  tenders 
that  reflect  the  diversity  of  technical  solutions  so  as  to  obtain  a  sufficient  level  of 
competition. Consequently, technical specifications should be drafted in such a way to 
avoid  artificially  narrowing  down  competition  through  requirements  that  favour  a 
specific economic operator by mirroring key characteristics of the supplies, services or 
works  habitually  offered  by  that  economic  operator.  Drawing  up  the  technical 
specifications  in  terms  of  functional  and  performance  requirements  generally  allows 
this objective to be achieved in the best way possible and favours innovation. Where 
reference  is  made  to  a  European  standard  or,  in  the  absence  thereof,  to  a  national 
standard, tenders based on other equivalent arrangements which meet the requirements 
of the contracting entities and are equivalent in terms of safety must be considered by 
the  contracting  entities.  To  demonstrate  equivalence,  tenderers  can  be  required  to 

EN 

23 

   EN 

 
provide third-party verified evidence; however, other appropriate means of proof such 
as a technical dossier of the manufacturer should also be allowed where the economic 
operator concerned has no access to such certificates or test reports, or no possibility 
of obtaining them within the relevant time limits.  

(36)  Contracting  entities  that  wish  to  purchase  works,  supplies  or  services  with  specific 
environmental,  social  or  other  characteristics  should  be  able  to  refer  to  particular 
labels, such as the European Eco-label, (multi-) national eco-labels or any other label 
provided  that  the  requirements  for  the  label  are  linked  to  the  subject-matter  of  the 
contract,  such  as  the  description  of  the  product  and  its  presentation,  including 
packaging requirements. It is furthermore essential that those requirements are drawn 
up  and  adopted  on  the  basis  of  objectively  verifiable  criteria,  using  a  procedure  in 
which  stakeholders,  such  as  government  bodies,  consumers,  manufacturers, 
distributors  and  environmental  organisations  can  participate,  and  that  the  label  is 
accessible and available to all interested parties.  

(37)  For all procurement intended for use by persons, whether general public or staff of the 
contracting  entity,  it  is  necessary  that  contracting  entities  lay  down  technical 
specifications  so  as  to  take  into  account  accessibility  criteria  for  people  with 
disabilities or design for all users except in duly justified cases. 

(38) 

(39) 

In order to encourage the involvement of small and medium-sized enterprises (SMEs) 
in  the  procurement  market,  it  should  be  provided  explicitly  that  contracts  may  be 
divided into lots, whether homogenous or heterogeneous. Where contracts are divided 
into lots, contracting entities may, for instance in order to preserve competition or to 
ensure  security  of  supply,  limit  the  number  of  lots  for  which  an  economic  operator 
may  tender;  they  may  also  limit  the  number of  lots  that  may  be  awarded  to  any  one 
tenderer. 

Insofar  as  compatible  with  the  need  to  ensure  the  objective  of  sound  commercial 
practice  while  allowing  for  maximum  flexibility,  it  is  appropriate  to  provide  for  the 
application  of  Directive  [2004/18/EC]  on  public  procurement 
in  respect  of 
requirements concerning economic and financial capacity and documentary evidence. 
It  is  therefore  foreseen  that  contracting  entities  may  apply  the  selection  criteria 
provided for in Directive [2004/18/EC] and that, where they do, they are then obliged 
to  apply  the  provisions  concerning  notably  the  ceiling  to  requirements  on  minimum 
turnover as well as on self-certification. 

(40)  Public contracts should not be awarded to economic operators that have participated in 
a criminal organisation or have been found guilty of corruption, fraud to the detriment 
of the Union’s financial interests or money laundering. Non-payment of taxes or social 
security contributions should also be sanctioned by mandatory exclusion at the level of 
the Union. Given that contracting entities, which are not contracting authorities, might 
not have access to indisputable proof on the matter, it is appropriate to leave the choice 
of whether or not to apply the exclusion criteria listed in Directive [2004/18] to such 
contracting  entities.  The  obligation  to  apply  Article  55(1)  and  (2)  of  Directive 
[2004/18]  should  therefore  be  limited  to  contracting  entities  that  are  contracting 
authorities. Furthermore, contracting entities should be given the possibility to exclude 
candidates or tenderers for violations of environmental or social obligations, including 
rules  on  accessibility  for  disabled  persons  or  other  forms  of  grave  professional 
misconduct, such as violations of competition rules or of intellectual property rights.  

EN 

24 

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(41)  Where contracting entities are obliged or choose to apply the just mentioned exclusion 
criteria,  they  should  apply  Directive  [2004/18]  concerning  the  possibility  that 
economic operators adopt compliance measures aimed at remedying the consequences 
of  any  criminal  offences  or  misconduct  and  at  effectively  preventing  further 
occurrences of the misbehaviour.  

(42)  Contracting entities may require that environmental management measures or schemes 
are  to  be  applied  during  the  performance  of  a  contract.  Environmental  management 
schemes,  whether  or  not  they  are  registered  under  Union  instruments  such  as 
Regulation (EC) No 1221/2009 of the European Parliament and of the Council of 25 
November 2009 on the voluntary participation by organisations in a Community eco-
management and audit scheme (EMAS)29, can demonstrate that the economic operator 
has  the  technical  capability  to  perform  the  contract.  A  description  of  the  measures 
implemented  by  the  economic  operator  to  ensure  the  same  level  of  environmental 
protection  should  be  accepted  as  an  alternative  to  environmental  management 
registration  schemes  as  a  form  of  evidence,  where  the  economic  operator  concerned 
has  no  access  to  such  environmental  management  registration  schemes  or  no 
possibility of obtaining them within the relevant time limits. 

(43)  Contracts should be awarded on the basis of objective criteria that ensure compliance 
with  the  principles  of  transparency,  non-discrimination  and  equal  treatment.  Those 
criteria  should  guarantee  that  tenders  are  assessed  in  conditions  of  effective 
competition,  also  where  contracting  entities  require  high-quality  works,  supplies  and 
services that are optimally suited to their needs. As a result, contracting entities should 
be  allowed  to  adopt  as  award  criteria  either  "the  most  economically  advantageous 
tender" or "the lowest cost", taking into account that in the latter case they are free to 
technical  specifications  or  contract 
set  adequate  quality  standards  by  using 
performance conditions. 

(44)  Where  contracting  entities  choose  to  award  a  contract  to  the  most  economically 
advantageous tender, they must determine the award criteria on the basis of which they 
will assess tenders in order to identify which one offers the best value for money. The 
determination of those criteria depends on the subject-matter of the contract, since they 
must allow the level of performance offered by each tender to be assessed in the light 
of the subject-matter of the contract, as defined in the technical specifications, and the 
value for money of each tender to be measured. Furthermore, the chosen award criteria 
should not confer an unrestricted freedom of choice on the contracting entity and they 
should  ensure  the  possibility  of  effective  competition  and  be  accompanied  by 
requirements  that  allow  the  information  provided  by  the  tenderers  to  be  effectively 
verified. 

(45) 

It  is  of  utmost  importance  to  fully  exploit  the  potential  of  public  procurement  to 
achieve the objectives of the Europe 2020 Strategy for sustainable growth. In view of 
the  important  differences  between  individual  sectors  and  markets,  it  would  however 
not be appropriate to set general mandatory requirements for environmental, social and 
innovation procurement. The Union legislature has already set mandatory procurement 
requirements  for  obtaining  specific  goals  in  the  sectors  of  road  transport  vehicles 
(Directive 2009/33/EC of the European Parliament and the Council of 23 April 2009 

29 

OJ L 342, 22.12.2009, p. 1.  

EN 

25 

   EN 

 
                                                 
on  the  promotion  of  clean  and  energy-efficient  road  transport  vehicles30)  and  office 
equipment (Regulation (EC) No 106/2008 of the European Parliament and the Council 
of 15 January 2008 on a Community energy-efficiency labelling programme for office 
equipment31).  In  addition,  the  definition  of  common  methodologies  for  life  cycle 
costing has significantly advanced. It therefore appears appropriate to continue on that 
path, leaving it to sector-specific legislation to set mandatory objectives and targets in 
function of the particular policies and conditions prevailing in the relevant sector and 
to promote the development and use of European approaches to life-cycle costing as a 
further  underpinning  for  the  use  of  public  procurement  in  support  of  sustainable 
growth.  

(46)  Those sector-specific measures must be complemented by an adaptation of the public 
procurement Directives empowering contracting entities to pursue the objectives of the 
Europe 2020 Strategy in their purchasing strategies. It should hence be made clear that 
contracting entities can determine the most economically advantageous tender and the 
lowest cost using a life-cycle costing approach, provided that the methodology to be 
used is established in an objective and non-discriminatory manner and accessible to all 
interested parties. The notion of life-cycle costing includes all costs over the life-cycle 
of  a  works,  supplies  or  services,  both  their  internal  costs  (such  as  development, 
production,  use,  maintenance  and  end-of-life  disposal  costs)  and  their  external  costs, 
provided  they  can  be  monetised  and  monitored.  Common  methodologies  should  be 
developed at the level of the Union for the calculation of life-cycle costs for specific 
categories of supplies or services; whenever such a methodology is developed its use 
should be made compulsory. 

(47)  Furthermore,  in  technical  specifications  and  in  award  criteria,  contracting  entities 
should  be  allowed  to  refer  to  a  specific  production  process,  a  specific  mode  of 
provision  of  services,  or  a  specific  process  for  any  other  stage  of  the  life-cycle  of  a 
product or service, provided that they are linked to the subject-matter of the contract. 
In order to better integrate social considerations in public procurement, procurers may 
also  be  allowed  to  include,  in  the  award  criterion  of  the  most  economically 
advantageous  tender  characteristics  related  to  the  working  conditions  of  the  persons 
directly  participating  in  the  process  of  production  or  provision  in  question.  Those 
characteristics  may  only  concern  the  protection  of  health  of  the  staff  involved  in  the 
production process or the favouring of social integration of disadvantaged persons or 
members  of  vulnerable  groups  amongst  the  persons  assigned  to  performing  the 
contract, including accessibility for persons with disabilities. Any award criteria which 
include those characteristics should in any event remain limited to characteristics that 
have  immediate consequences  on staff members in their working  environment. They 
should be applied in accordance with 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  services32  and  in  a  way  that  does  not  discriminate 
directly  or  indirectly  against  economic  operators  from  other  Member  States  or  from 
third  countries  parties  to  the  Agreement  or  to  Free  Trade  Agreements  to  which  the 
Union is party. 

30 
31 
32 

OJ L 120, 15.5.2009, p. 5. 
OJ L 39, 13.2.2008, p. 1. 
OJ L 18, 21.1.1997, p.1. 

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26 

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(48)  For  service  contracts  and  for  contracts  involving  the  design  of  works,  contracting 
entities  should  also  be  allowed  to  use  as  an  award  criterion  the  organisation 
qualification  and  experience  of  the  staff  assigned  to  performing  the  contract  in 
question, as this may affect the quality of the contract performance and, as a result, the 
economic value of the tender. 

(49)  Tenders  that  appear  abnormally  low  in  relation  to  the  works,  supplies  or  services 
might  be  based  on  technically,  economically  or  legally  unsound  assumptions  or 
practices.  In  order  to  prevent  possible  disadvantages  during  contract  performance, 
contracting  entities  should  be  obliged  to  ask  for  an  explanation  of  the  price  charged 
where a tender significantly undercuts the prices demanded by other tenderers. Where 
the  tenderer  cannot  provide  a  sufficient  explanation,  the  contracting  entity  should  be 
entitled  to  reject  the  tender.  Rejection  should  be  mandatory  in  cases  where  the 
contracting  entity  has  established  that  the  abnormally  low  price  results  from  non-
compliance  with  mandatory  Union  legislation  in  the  fields  of  social,  labour  or 
environmental law or international labour law provisions. 

(50)  Contract performance conditions are compatible with this Directive provided that they 
are  not  directly  or  indirectly  discriminatory,  are  linked  to  the  subject-matter  of  the 
contract and are indicated in the notice used to make the call for competition, or in the 
procurement  documents.  They  may,  in  particular,  be  intended  to  favour  on-site 
vocational  training,  the  employment  of  people  experiencing  particular  difficulty  in 
achieving integration, the fight against unemployment, protection of the environment 
or animal welfare. For example, mention may be made of the requirements applicable 
during  the  performance  of  the  contract  to  recruit  long-term  job-seekers  or  to 
implement training measures for the unemployed or for young persons, to comply in 
substance  with  fundamental  International  Labour  Organisation  (ILO)  Conventions, 
even  where  such  Conventions  have  not  been  implemented  in  national  law,  and  to 
recruit more disadvantaged persons than are required under national legislation. 

(51)  The laws, regulations and collective agreements, at both national and Union level, that 
are in force in the areas of employment conditions and safety at work apply during the 
performance of a contract, provided that such rules, and their application, comply with 
Union law. In cross-border situations where workers from one Member State provide 
services in another Member State for the purpose of performing a contract, Directive 
96/71/EC  of  the  European  Parliament  and  of  the  Council  of  16  December  1996 
concerning the posting of workers in the framework of the provision of services33 lays 
down the minimum conditions that must be observed by the host country in respect of 
such  posted  workers.  Where  national  law  contains  provisions  to  this  effect,  non-
compliance with those obligations may be considered to be grave misconduct on the 
part  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. 

(52)  Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules 
applicable  to  periods,  dates  and  time  limits34  should  apply  to  the  calculation  of  the 
time limits contained in this Directive. 

33 
34 

OJ L 18, 21.1.1997, p. 1. 
OJ L 124, 8.6.1971, p. 1. 

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(53) 

It is necessary to clarify the conditions under which modifications of a contract during 
its performance require a new procurement procedure, taking into account the relevant 
case-law of the Court of Justice of the European Union. A new procurement procedure 
is required in case of material changes to the initial contract, in particular to the scope 
and  content  of  the  mutual  rights  and  obligations  of  the  parties,  including  the 
distribution  of  intellectual  property  rights.  Such  changes  demonstrate  the  parties' 
intention to renegotiate essential terms or conditions of that contract. This is the case 
in particular if the amended conditions would have had an influence on the outcome of 
the procedure, had they been part of the initial procedure. 

(54)  Contracting  entities  can  be  faced  with  external  circumstances  that  they  could  not 
foresee when they awarded the contract. In this case, a certain degree of flexibility is 
needed  to  adapt  the  contract  to  those  circumstances  without  a  new  procurement 
procedure.  The  notion  of  unforeseeable  circumstances  refers  to  circumstances  that 
could  not  have  been  predicted  despite  reasonably  diligent  preparation  of  the  initial 
award by the contracting entity, taking into account its available means, the nature and 
characteristics  of  the  specific  project,  good  practice  in  the  field  in  question  and  the 
need to ensure an appropriate relationship between the resources spent in preparing the 
award  and  its  foreseeable  value.  However,  this  cannot  apply  in  cases  where  a 
modification  results  in  an  alteration  of  the  nature  of  the  overall  procurement,  for 
instance  by  replacing  the  works,  supplies  or  services  to  be  procured  by  something 
different  or  by  fundamentally  changing  the  type  of  procurement  since,  in  such  a 
situation, a hypothetical influence on the outcome may be assumed. 

(55) 

In line with the principles of equal treatment and transparency, the successful tenderer 
should not be replaced by another economic operator without reopening the contract to 
competition.  However,  the  successful  tenderer  performing  the  contract  may  undergo 
certain  structural  changes  during  the  performance  of  the  contract,  such  as  purely 
internal  reorganisations,  mergers  and  acquisitions  or  insolvency.  Such  structural 
changes should not automatically require new procurement procedures for all contracts 
performed by that undertaking.  

(56)  Contracting entities should, in the individual contracts themselves, have the possibility 
to  provide  for  modifications  by  way  of  review  clauses,  but  such  clauses  should  not 
give them unlimited discretion. This directive should therefore set out to what extent 
modifications may be provided for in the initial contract.  

(57)  The evaluation has shown that Member States do not consistently and systematically 
monitor the implementation and the functioning of public procurement rules. This has 
a  negative  impact  on  the  correct  implementation  of  provisions  stemming  from  those 
directives,  which  is  a  major  source  of  cost  and  uncertainty.  Several  Member  States 
have appointed a national central body dealing with public procurement issues, but the 
functions  that  such  bodies  are  empowered  with  vary  considerably  across  Member 
States. Clearer, more consistent and authoritative monitoring and control mechanisms 
would increase knowledge of the functioning of procurement rules, legal certainty for 
businesses  and  contracting  entities,  and  contribute  to  establish  a  level  playing  field. 
Such mechanisms could serve as tools for detection and early resolution of problems, 
especially with regard to projects cofunded by the Union, and for the identification of 
structural  deficiencies.  There  is  in  particular  a  strong  need  to  coordinate  those 
mechanisms  to  ensure  consistent  application,  controls  and  monitoring  of  public 

EN 

28 

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procurement policy, as well as systematic assessment of the outcomes of procurement 
policy across the Union. 

(58)  Member  States  should  designate  a  single  national  authority  in  charge  of  monitoring, 
implementation  and  control  of  public  procurement.  Such  a  central  body  should  have 
first  hand  and  timely  information  particularly  in  relation  to  different  problems 
affecting the implementation of public procurement law. It should be able to provide 
immediate  feedback  on  the  functioning  of  the  policy,  the  potential  weaknesses  in 
national legislation and practice and contribute to the quick identification of solutions. 
In view of efficiently fighting corrupion and fraud, this central body and the general 
public  should  also  have  the  possibility  to  inspect  the  texts  of  concluded  contracts. 
High-value  contracts  should  hence  be  transmitted  to  the  oversight  body  with  a 
possibility of interested persons to have access to these documents, to the extent that 
legitimate public or private interests are not jeopardized. 

(59)  Not all contracting entities may have the internal expertise to deal with economically 
or  technically  complex  contracts.  Against  this  background,  appropriate  professional 
support would be an effective complement to monitoring and control activities. On the 
one  hand,  this  objective  can  be  achieved  by  knowledge  sharing  tools  (knowledge 
centres)  offering  technical  assistance  to  contracting  entities;  on  the  other  hand, 
business, not least SMEs, should benefit from administrative assistance, in particular 
when participating in procurement procedures on a cross-border basis.  

(60)  Monitoring, oversight and support structures or mechanisms exist already at national 
level and can of course be used to ensure monitoring, implementation and control of 
public  procurement  and  to  provide  the  required  support  to  contracting  entities  and 
economic operators. 

(61)  Effective cooperation is necessary to ensure consistent advice and practice within each 
Member  State  and  across 
for  monitoring, 
implementation,  control  and  technical  assistance  should  be  able  to  share  information 
and cooperate; in the same context, the national authority designated by each Member 
State  should  act  as  the  preferred  contact  point  with  the  Commission  services  for  the 
purpose of collecting data, exchanging information and monitoring the implementation 
of Union public procurement law. 

the  Union.  Bodies  designated 

(62) 

In order to adapt to rapid technical, economic and regulatory developments, the power 
to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the 
European  Union  should  be  delegated  to  the  Commission  in  respect  of  a  number  of 
non-essential  elements  of  this  Directive.  In  fact,  due  to  the  need  to  comply  with 
international  agreements,  the  Commission  should  be  empowered  to  modify  the 
technical  procedures  for  the  calculation  methods  concerning  thresholds  as  well  as  to 
periodically  revise  the  thresholds  themselves;  references  to  the  CPV  nomenclature 
may  undergo  regulatory  changes  at  EU  level  and  it  is  necessary  to  reflect  those 
changes into the text of this Directive; the technical details and characteristics of the 
devices  for  electronic  receipt  should  be  kept  up  to  date  with  technological 
developments  and  administrative  needs;  it  is  also  necessary  to  empower  the 
Commission 
for  electronic 
communication  to  ensure  the  interoperability  of  technical  formats,  processes  and 
messaging 
in  procurement  procedures  conducted  using  electronic  means  of 
communication  taking  into  account  technological  developments  and  administrative 

to  make  mandatory  certain 

technical  standards 

EN 

29 

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(63) 

(64) 

needs; the Commission should also be empowered to adapt the mandatory content of 
the information to be included in notices to reflect administrative needs and regulatory 
changes  at  both  national  and  EU  level;  the  list  of  legislative  acts  of  the  Union 
establishing common methodologies for the calculation of life-cycle costs, referred to 
in  article  77(3);  the  list  of  International  Social  and  Environmental  Conventions 
referred to in Articles 70 And 79 and the list of Union legislation referred to in article 
27(3) whose implementation creates a presumption of free access to a given market as 
well as Annex II, referred to in Article 4(4), setting out a list of legislative acts to be 
taken into account when assessing the existence of special or exclusive rights should 
be quickly adapted to incorporate the measures adopted on a sectoral basis. In order to 
satisfy this need, the Commission should be empowered to keep the lists up-to date.  

It is of particular importance that the Commission carry out appropriate consultations 
during its preparatory work, including at expert level. When preparing and drawing up 
delegated  acts,  the  Commission  should  ensure  simultaneous,  timely  and  appropriate 
transmission of relevant documents to the European Parliament and the Council. 

In order to ensure uniform conditions for the implementation of this Directive, as for 
the  procedure  for  sending  and  publishing  data  referred  to  in  Annex  IX  and  the 
procedures  for  drawing  up  and  transmitting  notices,  the  standard  forms  for  the 
publication of notices as well as of process and messaging standards and the common 
template  to  be  used  by  the  oversight  bodies  for  drawing  up  the  implementation  and 
statistical report, implementing powers should be conferred on the Commission. Those 
powers should be exercised in accordance with Regulation (EU) No. 182/2011 of the 
European  Parliament  and  of  the  Council  of  16  February  2011  laying  down  the  rules 
and general principles concerning mechanisms for control by the Member States of the 
Commission's exercise  of  implementing powers35. The  advisory procedure  should be 
used for the adoption of those implementing acts, which do not have any impact either 
from the financial point of views or on the nature and scope of obligations stemming 
from  this  Directive.  On  the  contrary,  those  acts  are  characterised  by  a  mere 
administrative  purpose  and  serve  to  facilitate  the  application  of  the  rules  set  by  this 
Directive.  Furthermore,  decisions  to  establish  whether  a  given  activity  is  directly 
exposed  to  competition  on  markets  to  which  access  is  free  should  be  adopted  under 
conditions  ensuring  uniform  conditions 
that  provision. 
Implementing powers should therefore be conferred on the Commission also in respect 
of the detailed provisions for the implementation of the procedure, provided for under 
Article 28, for  establishing  whether Article 27 is applicable as well as the Decisions 
themselves.  Those  powers  should  be  exercised  in  accordance  with  Regulation  (EU) 
182/2011 of the European Parliament and of the Council of 16 February 2011 laying 
down  the  rules  and  general  principles  concerning  mechanisms  for  control  by  the 
Member States of the Commission's exercise of implementing powers36. The advisory 
procedure should be used for the adoption of those implementing acts.  

implementing 

for 

(65)  Since the objective of this Directive, namely the coordination of laws, regulations and 
administrative provisions of the Member States applying to certain public procurement 
procedures, cannot be sufficiently achieved by the Member States and can therefore be 
better achieved at Union level, the Union may adopt measures, in accordance with the 

35 
36 

OJ L 55, 28.2.2011, p. 13. 
OJ L 55, 28.2.2011, p. 13. 

EN 

30 

   EN 

 
                                                 
principle  of  subsidiarity  as  set  out  in  Article 5  of  the  Treaty  on  European  Union.  In 
accordance  with  the  principle  of  proportionality,  as  set  out  in  that  Article,  this 
Directive does not go beyond what is necessary in order to achieve that objective. 

(66)  Directive 2004/17/EC should therefore be repealed. 

(67) 

In  accordance  with  the  Joint  Political  Declaration  of  Member  States  and  the 
Commission on explanatory documents of [date], Member States have undertaken to 
accompany, in justified cases, the notification of their transposition measures with one 
or more documents explaining the relationship between the components of a directive 
and the corresponding parts of national transposition instruments. With regard to this 
Directive, the legislator considers the transmission of such documents to be justified, 

HAVE ADOPTED THIS DIRECTIVE: 

TITLE I: SCOPE, DEFINITIONS AND GENERAL PRINCIPLES 

CHAPTER I Subject-matter and definitions 

Article 1: Subject-matter and scope 

Article 2: Definitions 

Article 3: Mixed procurement and procurement covering several activities 

CHAPTER II: Personal scope: definition of the activities and entities covered 

SECTION 1: ENTITIES 

Article 4: Contracting entities 

SECTION 2: ACTIVITIES 

Article 5: Gas and heat 

Article 6: Electricity 

Article 7: Water 

Article 8: Transport services 

Article 9: Ports and airports 

Article 10: Postal services 

Article 11: Extraction of oil and gas and exploration for, or extraction of, coal or other solid 
fuels 

CHAPTER III: Material scope 

SECTION 1: THRESHOLDS 

Article 12: Thresholds 

EN 

31 

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Article 13: Methods for calculating the estimated value of procurement 

Article 14: Revision of the thresholds 

SECTION 2: EXCLUDED CONTRACTS AND DESIGN CONTESTS 

Subsection 1: Exclusions applicable to all contracting entities and special exclusions for the 
water and energy sectors 

Article 15: Contracts awarded for purposes of resale or lease to third parties 

Article  16:  Contracts  and  design  contests  awarded  or  organised  for  purposes  other  than  the 
pursuit of a covered activity or for the pursuit of such an activity in a third country 

Article 17: Defence and security 

Article 18: Contracts awarded and design contest organised pursuant to international rules 

Article 19: Specific exclusions for service contracts 

Article 20: Contracts awarded by certain contracting entities for the purchase of water and for 
the supply of energy or of fuels for the production of energy 

Subsection  2:  Special  relations  (Controlled  entities,  cooperation,  affiliated  undertakings  and 
joint ventures) 

Article 21: Relations between public authorities 

Article 22: Contracts awarded to an affiliated undertaking 

Article 23: Contracts awarded to a joint venture or to a contracting entity forming part of a 
joint venture 

Article 24: Notification of information 

Subsection 3 : Specific situations 

Article 25: Research and development services 

Article 26: Contracts subject to special arrangements 

Subsection  4:  Activities  directly  exposed  to  competition  and  procedural  provisions  relating 
thereto 

Article 27: Activities directly exposed to competition 

Article 28: Procedure for establishing whether Article 27 is applicable 

CHAPTER IV: General principles 

Article 29: Principles of procurement 

Article 30: Economic operators 

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32 

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Article 31: Reserved contracts 

Article 32: Confidentiality 

Article 33: Rules applicable to communication 

Article 34: General obligation to use electronic means of communication 

Article 35: Nomenclatures 

Article 36: Conflicts of interests 

Article 37: Illicit conduct 

TITLE II: RULES APPLICABLE TO CONTRACTS 

CHAPTER I: Procedures 

Article  38:  Conditions  relating  to  the  Government  Procurement  Agreement  and  other 
international agreements 

Article 39: Choice of procedures 

Article 40: Open procedure 

Article 41: Restricted procedure 

Article 42: Negotiated procedure with prior call for competition 

Article 43: Innovation Partnership 

Article 44: Use of the negotiated procedure without prior call for competition 

CHAPTER II: Techniques and instruments for electronic and aggregated procurement 

Article 45 Framework agreements 

Article 46: Dynamic purchasing systems 

Article 47: Electronic auctions 

Article 48: Electronic catalogues 

Article 49: Centralised purchasing activities and central purchasing bodies 

Article 50: Ancillary purchasing activities 

Article 51: Occasional joint procurement 

Article 52: Joint procurement between contracting entities from different Member States 

CHAPTER III: Conduct of the procedure 

SECTION 1 PREPARATION  

EN 

33 

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Article 53: Preliminary market consultations 

Article 54: Technical specifications 

Article 55: Labels 

Article 56: Test reports, certification and other means of proof 

Article 57: Communication of technical specifications 

Article 58: Variants 

Article 59: Division of contracts into lots 

Article 60: Setting time limits 

SECTION 2: PUBLICATION AND TRANSPARENCY 

Article 61: Periodic indicative notices 

Article 62: Notices on the existence of a qualification system 

Article 63: Contract notices 

Article 64: Contract award notices 

Article 65: Form and manner of publication of notices 

Article 66: Publication at national level 

Article 67: Electronic availability of procurement documents 

Article 68: Invitations to submit a tender or to negotiate; invitations to confirm interest 

Article 69: Informing applicants for qualification, candidates and tenderers 

SECTION 3: CHOICE OF PARTICIPANTS AND AWARD OF CONTRACTS 

Article 70: General principles 

Subsection 1: Qualification and qualitative selection 

Article 71: Qualification systems 

Article 72: Criteria for qualitative selection 

Article 73: Reliance on the capacities of other entities 

Article 74: Use of exclusion and selection criteria provided for under [Directive 2004/18] 

Article 75: Quality assurance standards and environmental management standards 

Subsection 2: Award of the contract 

EN 

34 

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Article 76: Contract award criteria 

Article 77 Life-cycle costing 

Article 78: Impediments to award  

Article 79: Abnormally low tenders 

Chapter IV: Contract performance 

Article 80: Conditions for performance of contracts 

Article 81: Subcontracting 

Article 82: Modification of contracts during their term 

Article 83: Termination of contracts 

TITLE III: PARTICULAR PROCUREMENT REGIMES 

CHAPTER I: Social and other specific services 

Article 84: Award of contracts for social and other specific services 

Article 85: Publication of notices 

Article 86: Principles of awarding contracts 

CHAPTER II: Rules governing service design contests 

Article 87: General provisions 

Article 88: Scope 

Article 89: Notices 

Article 90: Rules on the organisation of design contests, the selection of participants and the 
jury 

Article 91: Decisions of the jury 

TITLE IV: GOVERNANCE 

Article 92: Enforcement 

Article 93: Public oversight 

Article 94: Individual reports on procedures for the award of contracts 

Article 95: National reporting 

Article 96: Assistance to contracting entities and businesses 

Article 97: Administrative cooperation 

EN 

35 

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TITLE  V:  DELEGATED  POWERS,  IMPLEMENTING  POWERS  AND  FINAL 
PROVISIONS 

Article 98: Exercise of the delegation 

Article 99: Urgency procedure 

Article 100: Committee procedure 

Article 101: Transposition 

Article 102: Repeal 

Article 103: Review 

Article 104: Entry into force 

Article 105: Addressees 

ANNEXES 

ANNEX I: List of activities as set out in point 8(a) of Article 2 

ANNEX II: List of Union legislation referred to in Article 4(2) 

ANNEX III: List of Union legislation referred to in Article 27(3) 

ANNEX IV: Requirements relating to devices for the electronic receipt of tenders, requests to 
participate, applications for qualification as well as plans and projects in contests 

Annex V: List of International Agreements referred to in Articles 38 

ANNEX VI Part A: Information to be included in the periodic indicative notice (as referred to 
in Article 61) 

ANNEX  VI  Part  B:  Information  to  be  included  in  notices  of  publication  of  a  periodic 
indicative notice on a buyer profile not used as a means of calling for competition (as referred 
to in Article 61(1)) 

ANNEX VII: Information to be included in the specifications in electronic auctions (Article 
47(4)) 

ANNEX VIII: Definition of certain technical specifications 

ANNEX IX: Features concerning publication 

ANNEX X: Information to be included in the notice on the existence of a qualification system 
(as referred to in point (b) of Article 39(2) and in Article 62) 

ANNEX XI: Information to be included in contract notices (as referred to in Article 63) 

ANNEX XII: Information to be included in the contract award notice (as referred to in Article 
64) 

EN 

36 

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ANNEX  XIII:  Contents  of  the  invitations  to  submit  a  tender,  to  negotiate  or  to  confirm 
interest provided for under Article 68 

ANNEX  XIV:  List  of  International  Social  and  Environmental  Conventions  referred  to  in 
Articles 70 And 79 

ANNEX XV: List of EU legislation referred to in Article 77(3) 

ANNEX XVI: Information to be included in notices of modifications of a contract during its 
term (as referred to in Article 82(6)) 

ANNEX XVII: Services referred to in article 84 

ANNEX  XVIII:  Information  to  be  included  in  notices  concerning  contracts  for  social  and 
other specific services (as referred to in Article 85) 

ANNEX XIX: Information to be included in the design contest notice (as referred to in Article 
89(1)) 

ANNEX XX: Information to be included in the results of design contest notices (as referred to 
in Article 89(1)) 

ANNEX XXI: Correlation table 

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TITLE I 
SCOPE, DEFINITIONS AND GENERAL PRINCIPLES 

CHAPTER I 
Subject-matter and definitions 

Article 1 
Subject-matter and scope 

1. 

2. 

This  Directive  establishes  rules  on  the  procedures  for  procurement  by  contracting 
entities  as  defined  in  Article  4  with  respect  to  contracts  as  well  as  design  contests, 
whose value is estimated to be not less than the thresholds defined in Article 12. 

Procurement within the meaning of this Directive is the purchase or other forms of 
acquisition  of  works,  supplies  or  services  by  one  or  more  contracting  entities  from 
economic  operators  chosen  by  those  contracting  entities,  provided  that  the  works, 
supplies or services are intended for the pursuit of one of the activities referred to in 
Articles 5 to 11. 

An  entirety  of  works,  supplies  and/or  services,  even  if  purchased  through  different 
contracts,  constitutes  a  single  procurement  within  the  meaning  of  this  Directive,  if 
the contracts are part of one single project.  

Article 2 
Definitions 

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

(1) 

(2) 

(3) 

(4) 

"contracting authorities" means State, regional or local authorities, bodies governed 
by public law, associations formed by one or more such authorities or one or more 
such bodies governed by public law; 

"regional authorities" include all authorities of the administrative units falling under 
NUTS  1  and  2,  as  referred  to  by  Regulation  (EC)  No.  1059/2003  of  the  European 
Parliament and of the Council37; 

"local  authorities"  include  all  authorities  of  the  administrative  units  falling  under 
NUTS  3  and  smaller  administrative  units,  as  referred  to  by  Regulation  (EC)  No. 
1059/2003; 

a  "body  governed  by  public  law"  means  any  body  that  has  all  of  the  following 
characteristics: 

37 

OJ L 154, 21.6.2003, p. 1 

EN 

38 

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(a) 

It is established for or has the specific purpose of meeting needs in the general 
interest,  not  having  an  industrial  or  commercial  character;  for  that  purpose,  a 
body which operates in normal market conditions, aims to make a profit, and 
bears  the  losses  resulting  from  the  exercise  of  its  activity  does  not  have  the 
purpose  of  meeting  needs  in  the  general  interest,  not  having  an  industrial  or 
commercial character; 

(b) 

it has legal personality; 

(c) 

it  is  financed,  for  the  most  part,  by  the  State,  regional  or  local  authorities,  or 
other bodies governed by public law; or subject to management supervision by 
those bodies; or has 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; 

a "public undertaking" means any undertaking over which the contracting authorities 
may exercise directly or indirectly a dominant influence by virtue of their ownership 
of it, their financial participation therein, or the rules which govern it; 

"special  or  exclusive  rights"  mean  rights  granted  by  a  competent  authority  of  a 
Member  State  by  way  of  any  legislative,  regulatory  or  administrative  provision  the 
effect of which is to limit the exercise of activities defined in Articles 5 to 11 to one 
or more entities, and which substantially affects the ability of other entities to carry 
out such activity; 

"supply,  works  and  service  contracts"  means  contracts  for  pecuniary  interest 
concluded  in  writing  between  one  or  more  of  the  contracting  entities  referred  to  in 
Article  4(3),  and  one  or  more  economic  operators  and  having  as  their  object  the 
execution  of  works,  the  supply  of  products  or  the  provision  of  services  within  the 
meaning of this Directive; 

(5) 

(6) 

(7) 

(8) 

"works contracts" means contracts having as their object one of the following: 

(a) 

the execution, or both the design and execution, of works related to one of the 
activities within the meaning of Annex I;  

(b) 

the execution, or both the design and execution, of a work;  

(c) 

the realisation by whatever means of a work corresponding to the requirements 
specified by the contracting entity exercising a decisive influence on the type 
or design of the work; 

(9) 

(10) 

"a work" means the outcome of building or civil engineering works taken as a whole 
which is sufficient in itself to fulfil an economic or technical function; 

"supply contracts" means contracts having as their object the purchase, lease, rental 
or  hire-purchase,  with  or  without  an  option  to  buy,  of  products.  A  supply  contract 
may include, as an incidental matter, siting and installation operations; 

(11) 

"service  contracts"  means  contracts  having  as  their  object  the  provision  of  services 
other than those referred to in paragraph 8; 

EN 

39 

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(12) 

"economic operator" means any natural or legal person, or a contracting entity, or a 
group  of  such  persons  and/or  entities  which  offers  the  execution  of  works  and/or  a 
work, the supply of products or the provision of services on the market; 

(13) 

"tenderer" means an economic operator that has submitted a tender;  

(14) 

(15) 

"candidate"  means  an  economic  operator  that  has  sought  an  invitation  or  has  been 
invited  to  take  part  in  a  restricted  or  negotiated  procedure  or  in  an  innovation 
partnership; 

'procurement  documents'  means  all  documents  produced  or  referred  to  by  the 
contracting  entity  to  describe  or  determine  elements  of  the  procurement  or  the 
procedure,  including  the  contract  notice,  the  prior  information  notice  or  the  notices 
on the existence of a qualification system where they are used a means of calling for 
competition, the technical specifications, proposed conditions of contract, formats for 
the presentation of documents by candidates and tenderers, information on generally 
applicable obligations and any additional documents; 

(16) 

"centralised purchasing activities" means activities conducted on a permanent basis, 
in one of the following forms: 

(a) 

the acquisition of supplies and/or services intended for contracting entities, 

(b) 

the award of contracts or the conclusion of framework agreements for works, 
supplies or services intended for contracting entities; 

(17) 

"ancillary  purchasing  activities"  means  activities  consisting  in  the  provision  of 
support to purchasing activities, in particular in the following forms: 

(a) 

technical infrastructure enabling contracting entities to award public contracts 
or to conclude framework agreements for works, supplies or services;  

(b) 

advice on the conduct or design of procurement procedures; 

(18) 

(19) 

(20) 

(21) 

(c)  preparation and management of procurement procedures on behalf and for the 

account of the contracting entity concerned; 

"central purchasing body" means a contracting authority within the meaning of point 
1 of Article 2 or a contracting authority within the meaning of point 1 of Article 2 of 
Directive  [2004/18/EC]  providing  centralised  purchasing  activities  and,  possibly, 
ancillary purchasing activities; 

"procurement  service  provider"  means  a  public  or  private  body,  which  offers 
ancillary purchasing activities on the market; 

"written" or "in writing" means any expression consisting of words or figures which 
can  be  read,  reproduced  and  subsequently  communicated,  including  information 
transmitted and stored by electronic means; 

"electronic means" means 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; 

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(22) 

(23) 

‘life  cycle’  means  all  consecutive  and/or  interlinked  stages,  including  production, 
transport, use and maintenance, throughout the existence of a product or a works or 
the provision of a service, from raw material acquisition or generation of resources to 
disposal, clearance and finalisation; 

"Design  contests"  means  those  procedures  which  enable  the  contracting  entity  to 
acquire, mainly in the fields of town and country planning, architecture, engineering 
or  data  processing,  a  plan  or  design  selected  by  a  jury  after  being  put  out  to 
competition with or without the award of prizes.  

Article 3 
Mixed procurement and procurement covering several activities 

1. 

Contracts  which  have  as  their  subject  two  or  more  types  of  procurement  (works, 
services or supplies) shall be awarded in accordance with the provisions applicable to 
the  type  of  procurement  that  characterises  the  main  subject  of  the  contract  in 
question. 

In the case of mixed contracts consisting of services within the meaning of Chapter I 
of  Title  III  and  other  services  or  of  services  and  supplies,  the  main  object  shall  be 
determined by a comparison of the values of the respective services or supplies. 

In  the  case  of  mixed  contracts  containing  elements  of  supply,  works  and  service 
contracts  and  of  concessions,  the  part  of  the  contract  which  constitutes  a  contract 
covered by this Directive shall be awarded in accordance with the provisions of this 
Directive.  

Where the different parts of the contract in question are objectively not separable, the 
application of this Directive shall be determined on the basis of the main subject of 
that contract. 

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

However, the choice between awarding a single contract and awarding a number of 
separate contracts shall not be made with the objective of excluding it from the scope 
of this Directive or, where applicable, [2004/18/EC]. 

If one of the activities for which the contract is intended is subject to this Directive 
and the other to the abovementioned [2004/18] and if it is objectively impossible to 
determine for which activity the contract is principally intended, the contract shall be 
awarded in accordance with the abovementioned Directive [2004/18]. 

If one of the activities for which the contract is intended is subject to this Directive 
and  the  other  is  not  subject  to  either  this  Directive  or  to  Directive  [2004/18]  or 
Directive  2009/81/EC  of  the  European  Parliament  and  of  the  Council38,  and  if  it  is 
objectively  impossible  to  determine  for  which  activity  the  contract  is  principally 
intended, the contract shall be awarded in accordance with this Directive. 

2. 

3. 

4. 

38 

OJ L 217, 20.8.2009, p. 76. 

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CHAPTER II 
Personal scope: definition of the activities and entities covered 

SECTION 1 
ENTITIES 

Article 4 
Contracting entities  

1. 

A dominant influence within the meaning of point 5 of Article 2 on the part of the 
contracting  authorities  shall  be  presumed  in  any  of  the  following  cases  in  which 
those authorities, directly or indirectly: 

(a)  hold the majority of the undertaking's subscribed capital; 

(b) 

control the majority of the votes attaching to shares issued by the undertaking,  

(c) 

can appoint more than half of the undertaking's administrative, management or 
supervisory body.  

2. 

Rights which have been granted by means of a procedure in which adequate publicity 
has  been  ensured  and  where  the  granting  of  those  rights  was  based  on  objective 
criteria shall not constitute "special or exclusive rights" within the meaning of point 6 
of Article 2. 

This includes: 

(a)  procurement  procedures  with  a  prior  call  for  competition  in  conformity  with 

Directive [2004/18/EC], [Directive … (concessions)] or this Directive; 

(b)  procedures  pursuant  to  other  legislative  acts  of  the  Union  listed  in  Annex  II, 
ensuring adequate prior transparency for granting authorisations on the basis of 
objective criteria. 

3. 

This Directive shall apply to contracting entities: 

(a)  which are contracting authorities or public undertakings and which pursue one 

of the activities referred to in Articles 5 to 11; 

(b)  which, when they are not contracting authorities or public undertakings, have 
as one of their activities any of the activities referred to in Articles 5 to 11, or 
any combination thereof and operate on the basis of special or exclusive rights 
granted by a competent authority of a Member State. 

4. 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 98 concerning the amendmentmodification of the list of Union legislation set 
out  in  Annex  II,  when  on  the  basis  of  the  adoption  of  new  legislation,  repeal  or 
modification of such legislation, such amendments prove necessary. 

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SECTION 2 
ACTIVITIES 

Article 5 
Gas and heat 

1. 

As  far  as  gas  and  heat  are  concerned,  this  Directive  shall  apply  to  the  following 
activities: 

(a) 

the  provision  or  operation  of  fixed  networks  intended  to  provide  a  service  to 
the public in connection with the production, transport or distribution of gas or 
heat;  

(b) 

the supply of gas or heat to such networks. 

2. 

The  supply  of  gas  or  heat  to  networks  which  provide  a  service  to  the  public  by  a 
contracting entity other than a contracting authority shall not be considered a relevant 
activity within the meaning of paragraph 1 where all of the following conditions are 
met: 

(a) 

(b) 

the  production  of  gas  or  heat  by  the  entity  concerned  is  the  unavoidable 
consequence  of  carrying  out  an  activity  other  than  those  referred  to  in 
paragraph 1 or in Articles 6 to 8; 

the supply to the public network is aimed only at the economic exploitation of 
such production and amounts to not more than 20 % of the entity's turnover on 
the  basis  of  the  average  for  the  preceding  three  years,  including  the  current 
year. 

Article 6 
Electricity 

1. 

As  far  as  electricity  is  concerned,  this  Directive  shall  apply  to  the  following 
activities: 

(a) 

the  provision  or  operation  of  fixed  networks  intended  to  provide  a  service  to 
the  public  in  connection  with  the  production,  transport  or  distribution  of 
electricity;  

(b) 

the supply of electricity to such networks. 

For  the  purposes  of  this  Directive,  supply  of  electricity  includes  generation 
(production) and wholesale of electricity. 

2. 

The  supply  of  electricity  to  networks  which  provide  a  service  to  the  public  by  a 
contracting entity other than a contracting authority shall not be considered a relevant 
activity within the meaning of paragraph 1 where all of the following conditions are 
met: 

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(a) 

(b) 

the  production  of  electricity  by  the  entity  concerned  takes  place  because  its 
consumption is necessary for carrying out an activity other than those referred 
to in paragraph 1 or in Articles 5 and 7 to 8; 

supply to the public network depends only on the entity's own consumption and 
has not exceeded 30% of the entity's total production of energy, on the basis of 
the average for the preceding three years, including the current year. 

Article 7 
Water 

1. 

This Directive shall apply to the following activities: 

(a) 

the  provision  or  operation  of  fixed  networks  intended  to  provide  a  service  to 
the  public  in  connection  with  the  production,  transport  or  distribution  of 
drinking water;  

(b) 

the supply of drinking water to such networks. 

2. 

This Directive shall also apply to contracts or design contests awarded or organised 
by  entities  which  pursue  an  activity  referred  to  in  paragraph  1  and  which  are 
connected with one of the following: 

(a)  hydraulic  engineering  projects,  irrigation  or  land  drainage,  provided  that  the 
volume  of  water  to  be  used  for  the  supply  of  drinking  water  represents  more 
than  20  %  of  the  total  volume  of  water  made  available  by  such  projects  or 
irrigation or drainage installations,  

(b) 

the disposal or treatment of sewage. 

3. 

The supply of drinking water to networks which provide a service to the public by a 
contracting entity other than a contracting authority shall not be considered a relevant 
activity within the meaning of paragraph 1 where all of the following conditions are 
met: 

(a) 

(b) 

the production of drinking water by the entity concerned takes place because its 
consumption is necessary for carrying out an activity other than those referred 
to in Articles 5 to 8;  

the supply to the public network depends only on the entity's own consumption 
and has not exceeded 30 % of the entity's total production of drinking water, on 
the  basis  of  the  average  for  the  preceding  three  years,  including  the  current 
year. 

Article 8 
Transport services 

This  Directive  shall  apply  to  activities  relating  to  the  provision  or  operation  of  networks 
providing  a  service  to  the  public  in  the  field  of  transport  by  railway,  automated  systems, 
tramway, trolley bus, bus or cable. 

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As  regards  transport  services,  a  network  shall  be  considered  to  exist  where  the  service  is 
provided under operating conditions laid down by a competent authority of a Member State, 
such  as  conditions  on  the  routes  to  be  served,  the  capacity  to  be  made  available  or  the 
frequency of the service. 

Article 9 
Ports and airports 

This Directive shall apply to activities relating to the exploitation of a geographical area for 
the  purpose  of  the  provision  of  airports  and  maritime  or  inland  ports  or  other  terminal 
facilities to carriers by air, sea or inland waterway. 

Article 10 
Postal services 

1. 

This Directive shall apply to activities relating to the provision of:  

(a)  postal services; 

(b)  other services than postal services, on condition that such services are provided 
by an entity which also provides postal services within the meaning of point (b) 
of paragraph 2 and provided that the conditions set out in Article 27(1) are not 
satisfied in respect of the services falling within point (b) of paragraph 2. 

2. 

For the purpose of this Directive and without prejudice to Directive 97/67/EC: 

(a) 

(b) 

"postal  item":  means  an  item  addressed  in  the  final  form  in  which  it  is  to  be 
carried,  irrespective  of  weight.  In  addition  to  items  of  correspondence,  such 
items also include for instance books, catalogues, newspapers, periodicals and 
postal  packages  containing  merchandise  with  or  without  commercial  value, 
irrespective of weight; 

"postal  services":  means  services  consisting  of  the  clearance,  sorting,  routing 
and delivery of postal items. This shall include both services falling within as 
well  as  services  falling  outside  the  scope  of  the  universal  service  set  up  in 
conformity with Directive 97/67/EC; 

(c) 

"other services than postal services": means services provided in the following 
areas: 

(i)  mail  service  management  services  (services  both  preceding  and 
subsequent to despatch, including "mailroom management services"); 

(ii) 

added-value services linked to and provided entirely by electronic means 
(including  the  secure  transmission  of  coded  documents  by  electronic 
means,  address  management  services  and  transmission  of  registered 
electronic mail); 

(iii)  services concerning postal items not included in point (a), such as direct 

mail bearing no address; 

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(iv)  financial  services,  as  defined  in  the  CPV  under  the  reference  numbers 
from  66100000-1  to  66720000-3  and  in  Article  19(c)  and  including  in 
particular postal money orders and postal giro transfers; 

(v)  philatelic services; 

(vi) 

logistics  services 
warehousing with other non-postal functions). 

(services  combining  physical  delivery  and/or 

Article 11 
Extraction of oil and gas and exploration for, or extraction of, coal or other solid fuels 

This Directive shall apply to activities relating to the exploitation of a geographical area for 
the purpose of: 

(a) 

(b) 

extracting oil or gas;  

exploring for or extracting coal or other solid fuels. 

Chapter III: Material scope 

SECTION 1 
THRESHOLDS 

Article 12 
Thresholds  

Save where they are ruled out by the exclusions in Articles 15 to 20 or pursuant to Article 27, 
concerning the pursuit of the activity in question, this Directive shall apply to procurements 
with a value exclusive of value-added tax (VAT) estimated to be no less than the following 
thresholds: 

(a) 

(b) 

(c) 

1. 

EUR 400 000 for supply and service contracts as well as for design contests; 

EUR 5 000 000 for works contracts;  

EUR 1 000 000  for  contracts  for  social  and  other  specific  services  listed  in  Annex 
XVII.  

Article 13 
Methods for calculating the estimated value of procurement 

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

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2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

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

The  choice  of  the  method  used  to  calculate  the  estimated  value  of  a  procurement 
shall not be made with the intention of excluding it from the scope of this Directive. 
A single procurement shall therefore not be subdivided with the effect of preventing 
it  from  falling  within  the  scope  of  this  Directive,  unless  justified  by  objective 
reasons. 

This estimate shall be valid at the moment at which the call for competition is sent 
or, in cases where such notice is not foreseen, at the moment at which the contracting 
entity commences the contract procurement procedure, in particular by defining the 
essential characteristics of the intended procurement. 

With regard to framework agreements and dynamic purchasing systems, the 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 or system. 

In the case of innovation partnerships, the value to be taken into consideration shall 
be  the  maximum  estimated  value  net  of  VAT  of  the  research  and  development 
activities to take place during the all stages of the envisaged partnership as well as of 
the  supplies,  services  or  works  to  be  developed  and  procured  at  the  end  of  the 
envisaged partnership. 

For  the  purposes  of  Article  12,  contracting  entities  shall  include  in  the  estimated 
value of a works contract both the cost of the works and the total estimated value of 
any supplies or services that are made available to the contractor by the contracting 
entities provided that they are necessary for the execution of the works. 

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

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 12. 

Where the aggregate value of the lots is equal to or exceeds the threshold laid down 
in Article 12, this Directive shall apply to the awarding of each lot. 

Contracting  entities  may  award  contracts  for  individual  lots  without  applying  the 
procedures provided for under this Directive, provided that the estimated value net of 
VAT of the lot concerned is less than EUR 80 000 for supplies or services or EUR 1 
million  for  works.  However,  the  aggregate  value  of  the  lots  thus  awarded  without 
applying this Directive shall not exceed 20 % of the aggregate value of all the lots 
into  which  the  proposed  work,  the  proposed  acquisition  of  similar  supplies  or  the 
proposed purchase of services has been divided. 

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10. 

In  the  case  of  supply  or  service  contracts  which  are  regular  in  nature  or  which  are 
intended  to  be  renewed  within  a  given  period,  the  calculation  of  the  estimated 
contract value shall be based on the following: 

(a) 

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

(b)  or the total estimated value of the successive contracts awarded during the 12 
months following the first  delivery,  or  during the financial year  where that is 
longer than 12 months. 

11. 

With regard to supply contracts relating to the leasing, hire, rental or hire purchase of 
products, the value to be taken as a basis for calculating the estimated contract value 
shall be as follows: 

(a) 

in  the  case  of  fixed-term  contracts,  if  that  term  is  less  than  or  equal  to  12 
months, the total estimated value for the term of the contract or, where the term 
of the contract is greater than 12 months, the total value including the estimated 
residual value; 

(b) 

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

12. 

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

(a) 

insurance services: the premium payable, and other forms of remuneration; 

(b)  banking and other financial services: the fees, commissions, interest and other 

forms of remuneration; 

(c)  design contracts: fees, commission payable and other forms of remuneration. 

13. 

With  regard  to  service  contracts  which  do  not  indicate  a  total  price,  the  basis  for 
calculating the estimated contract value shall be the following: 

(a) 

(b) 

in the case of fixed-term contracts, where that term is less than or equal to 48 
months: the total value for their full term; 

in  the  case  of  contracts  without  a  fixed  term  or  with  a  term  greater  than  48 
months: the monthly value multiplied by 48. 

Article 14 
Revision of the thresholds 

1. 

Every two years from 30 June 2014, the Commission shall verify that the thresholds 
set out in points (a) and (b) of Article 12 correspond to the thresholds established in 
the Government Procurement Agreement, and shall, where necessary, revise them. 

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In  accordance  with  the  calculation  method  set  out  in  the  Government  Procurement 
Agreement, the Commission shall calculate the value of those thresholds on the basis 
of the average daily value of the euro in terms of the special drawing rights (SDRs), 
over  a  period  of  24  months  terminating  on  the  last  day  of  August  preceding  the 
revision  with  effect  from  1  January.  The  value  of  the  thresholds  thus  revised  shall, 
where necessary, be rounded down to the nearest thousand euros so as to ensure that 
the  thresholds  in  force  provided  for  by  the  Agreement,  expressed  in  SDR,  are 
observed. 

2. 

Every two years from 1 January 2014, the Commission shall determine the values, in 
the national currencies of Member States not participating in Monetary Union, of the 
thresholds  referred  to  in  points  (a)  and  (b)  of  Article  12,  revised  pursuant  to 
paragraph 1 of this Article. 

At  the  same  time,  the  Commission  shall  determine  the  value,  in  the  national 
currencies  of  the  Member  States  which  are  not  participating  in  monetary  union,  of 
the threshold referred to in point (c) of Article 12. 

In  accordance  with  the  calculation  method  set  out  in  the  Government  Procurement 
Agreement,  the  determination  of  such  values  shall  be  based  on  the  average  daily 
values  of  those  currencies,  corresponding  to  the  applicable  threshold  expressed  in 
euros  over  the  24  months  terminating  on  the  last  day  of  August  preceding  the 
revision with effect from 1 January.  

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

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 98 to adapt the methodology set out in the second subparagraph of paragraph 
1  to  any  change  in  the  methodology  provided  in  the  Government  Procurement 
Agreement  for  the  revision  of  the  thresholds  referred  to  in  points  (a)  and  (b)  of 
Article 12 and for the determination of the thresholds in the national currencies of the 
Member States not participating in monetary union, as referred to in paragraph 2 of 
this Article. 

It shall also be empowered to adopt delegated acts in accordance with Article 98 to 
revise the thresholds referred to in points (a) and (b) of Article 12 when necessary. 

Where  it  is  necessary  to  revise  the  thresholds  referred  to  in  points  (a)  and  (b)  of 
Article 12 and time constraints prevent the use of the procedure set in article 98 and 
therefore  imperative  grounds  of  urgency  so  require,  the  procedure  provided  for  in 
Article 99 shall apply to delegated acts adopted pursuant to the second subparagraph 
of paragraph 4 of this Article. 

3. 

4. 

5. 

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SECTION 2 
EXCLUDED CONTRACTS AND DESIGN CONTESTS 

Subsection 1 
Exclusions applicable to all contracting entities and special exclusions for the water and 
energy sectors 

Article 15 
Contracts awarded for purposes of resale or lease to third parties 

1. 

2. 

This Directive shall not apply to contracts awarded for purposes of resale or lease to 
third parties, provided that the contracting entity enjoys no special or exclusive right 
to sell or lease the subject of such contracts, and other entities are free to sell or lease 
it under the same conditions as the contracting entity. 

The contracting entities shall notify the Commission or the national oversight body at 
their  request  of  all  the  categories  of  products  or  activities  which  they  regard  as 
excluded  under  paragraph  1.  The  Commission  may  periodically  publish  in  the 
Official  Journal  of  the  European  Union,  for  information  purposes,  lists  of  the 
categories  of  products  and  activities  which  it  considers  to  be  covered  by  this 
exclusion.  In  so  doing,  the  Commission  shall  respect  any  sensitive  commercial 
aspects that the contracting entities may point out when forwarding information. 

Article 16 
Contracts and design contests awarded or organised for purposes other than the pursuit of a 
covered activity or for the pursuit of such an activity in a third country 

1. 

2. 

This  Directive  shall  not  apply  to  contracts  which  the  contracting  entities  award  for 
purposes other than the pursuit of their activities as described in Articles 5 to 11 or 
for  the  pursuit  of  such  activities  in  a  third  country,  in  conditions  not  involving  the 
physical use of a network or geographical area within the Union nor shall it apply to 
design contests organised for such purposes. 

The contracting entities shall notify the Commission or the national oversight body at 
their request of any activities which they regard as excluded under paragraph 1. The 
Commission may periodically publish in the Official Journal of the European Union 
for information purposes, lists of the categories of activities which it considers to be 
covered  by  this  exclusion.  In  so  doing,  the  Commission  shall  respect  any  sensitive 
commercial aspects that the contracting entities may point out when forwarding this 
information. 

Article 17 
Defence and security 

1. 

In respect of contracts awarded and design contests organised in the fields of defence 
and security, this Directive shall not apply to: 

(a) 

contracts to which Directive 2009/81/EC applies; 

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(b) 

contracts to which Directive 2009/81/EC does not apply pursuant to Articles 8, 
12 and 13 thereof. 

2. 

This  Directive  shall  not  apply  to  contracts  and  design  contests  other  than  those 
mentioned  in  the  first  paragraph  to  the  extent  that  the  protection  of  the  essential 
security  interests  of  a  Member  State  cannot  be  guaranteed  in  an  procurement 
procedure as provided for in Article 39(1). 

Article 18 
Contracts awarded and design contests organised pursuant to international rules 

This Directive shall not apply to contracts or design contests which the contracting entity is 
obliged to award or organise in accordance with procurement procedures different from those 
of this Directive established by any of the following: 

(a) 

(b) 

(c) 

(d) 

an  international  agreement  concluded  in  accordance  with  the  Treaty  between  a 
Member  State  and  one  or  more  third  countries  and  covering  works,  supplies  or 
services  intended  for  the  joint  implementation  or  exploitation  of  a  project  by  the 
signatory States.; 

an  international  agreement  relating  to  the  stationing  of  troops  and  concerning  the 
undertakings of a Member State or a third country; 

a particular procedure of an international organisation; 

procurement  rules  provided  by  an  international  organisation  or  international 
financing  institution  for  contracts  or  design  contests  fully  financed  by  this 
organisation or institution; in the case of contracts or design contests co-financed to a 
considerable  extent  by  an  international  organisation  or  international  financing 
institution the parties shall agree on applicable procurement procedures, which shall 
be in conformity with the Treaty. 

All  agreements  referred  to  in  point  (a)  of  the  first  subparagraph  shall  be 
communicated to the Commission, which may consult the Advisory Committee for 
Public Contracts referred to in Article 100. 

Article 19 
Specific exclusions for service contracts 

This Directive shall not apply to service contracts for: 

(a) 

(b) 

(c) 

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

arbitration and conciliation services; 

financial services in connection with the issue, sale, purchase or transfer of securities 
or  other  financial  instruments  within  the  meaning  of  Directive  2004/39/EC  of  the 

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European  Parliament  and  of  the  Council39  and  operations  conducted  with  the 
European Financial Stability Facility; 

(d) 

(e) 

(f) 

employment contracts; 

public passenger transport services by rail or metro; 

contracts for broadcasting time that are awarded to broadcasters. 

The broadcasting referred to in point (f) of the first paragraph shall include any transmission 
and distribution using any form of electronic network. 

Article 20 
Contracts awarded by certain contracting entities for the purchase of water and for the 
supply of energy or of fuels for the production of energy 

This Directive shall not apply: 

(a) 

(b) 

to contracts for the purchase of water if awarded by contracting entities engaged in 
one or both of the activities relating to drinking water referred to in Article 7(1).  

to  contracts  awarded  by  contracting  entities  themselves  being  active  in  the  energy 
sector  by  being  engaged  in  an  activity  referred  to  in  Article  5(1),  Article  6(1)  or 
Article 11 for the supply:  

(i) 

of energy;  

(ii)  of fuels for the production of energy. 

Subsection 2 
Special relations (Controlled entities, cooperation, affiliated undertakings and joint ventures) 

Article 21 
Relations between public authorities 

1. 

A  contract  awarded  by  a  contracting  authority  to  another  legal  person  shall  fall 
outside  the  scope  of  this  Directive  where  the  following  cumulative  conditions  are 
fulfilled: 

(a) 

(b) 

the  contracting  authority  exercises  over  the  legal  person  concerned  a  control 
which is similar to that which it exercises over its own departments. 

at  least  90  %  of  the  activities  of  that  legal  person  are  carried  out  for  the 
controlling  contracting  authority  or  for  other  legal  persons  controlled  by  that 
contracting authority; 

(c) 

there is no private participation in the controlled legal person. 

39 

OJ L 145, 30.04.2004, p. 1. 

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2. 

3. 

A  contracting  authority  shall  be  deemed  to  exercise  over  a  legal  person  a  control 
similar  to  that  which  it  exercises  over  its  own  departments  within  the  meaning  of 
point (a) of the first subparagraph where it exercises a decisive influence over both 
strategic objectives and significant decisions of the controlled legal person. 

Paragraph  1  also  applies  where  a  controlled  entity  which  is  a  contracting  authority 
awards a contract to its controlling entity, or to another legal person controlled by the 
same contracting authority, provided that there is no private participation in the legal 
person being awarded the public contract. 

A contracting authority, which does not exercise over a legal person control within 
the meaning of paragraph 1, may nevertheless award a contract without applying this 
Directive to a legal person which it controls jointly with other contracting authorities, 
where the following conditions are fulfilled:  

(a) 

(b) 

the  contracting  authorities  exercise  jointly  over  the  legal  person  a  control 
which is similar to that which they exercise over their own departments.  

at  least  90  %  of  the  activities  of  that  legal  person  are  carried  out  for  the 
controlling contracting authorities or other legal persons controlled by the same 
contracting authorities; 

(c) 

there is no private participation in the controlled legal person. 

For  the  purposes  of  point  (a)  contracting  authorities  shall  be  deemed  to  jointly 
control a legal person where the following cumulative conditions are fulfilled:  

(a) 

(b) 

(c) 

(d) 

the  decision-making  bodies  of  the  controlled  legal  person  are  composed  of 
representatives of all participating contracting authorities; 

those contracting authorities are able to jointly exert decisive influence over the 
strategic objectives and significant decisions of the controlled legal person; 

the  controlled  legal  person  does  not  pursue  any  interests  which  are  distinct 
from that of the public authorities affiliated to it; 

the  controlled  legal  person  does  not  draw  any  gains  other  than  the 
reimbursement  of  actual  costs  from  the  public  contracts  with  the  contracting 
authorities.  

4. 

An  agreement  concluded  between  two  or  more  contracting  authorities  shall  not  be 
deemed to be a “works, supply or service contract” within the meaning of point 7 of 
Article 2 of this Directive, where the following cumulative conditions are met: 

(a) 

the  agreement  establishes  a  genuine  co-operation  between  the  participating 
contracting  authorities  aimed  at  carrying  out  jointly  their  public  service  tasks 
and involving mutual rights and obligations of the parties; 

(b) 

the agreement is governed only by considerations relating to the public interest; 

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(c) 

(d) 

the  participating  contracting  authorities  do  not  perform  on  the  open  market 
more than 10 % in terms of turnover of the activities which are relevant in the 
context of the agreement; 

the  agreement  does  not  involve  financial  transfers  between  the  participating 
contracting authorities, other than those corresponding to the reimbursement of 
actual costs of the works, services or supplies; 

(e) 

there is no private participation in any of the contracting authorities involved.  

5. 

The absence of private participation referred to in paragraphs 1 to 4 shall be verified 
at the time of the award of the contract or of the conclusion of the agreement.  

The  exclusions  provided  for  in  paragraphs  1  to  4  shall  cease  to  apply  from  the 
moment any private participation takes place, with the effect that ongoing contracts 
need to be opened to competition through regular procurement procedures. 

Article 22 
Contracts awarded to an affiliated undertaking 

1. 

2. 

For the purposes of this Article, "affiliated undertaking" means any undertaking the 
annual  accounts  of  which  are  consolidated  with  those  of  the  contracting  entity  in 
accordance with the requirements of the Seventh Council Directive 83/349/EEC40 . 

In  the  case  of  entities  not  subject  to  that  Directive,  "affiliated  undertaking"  shall 
mean any undertaking that: 

(a)  may  be,  directly  or  indirectly,  subject  to  a  dominant  influence  by  the 
contracting entity within the meaning of point (5) of Article 2 and Article 4(1) 
of this Directive; 

(b)  may exercise a dominant influence over the contracting entity;  

(c) 

in common with the contracting entity, is subject to the dominant influence of 
another undertaking by virtue of ownership, financial participation, or the rules 
which govern it. 

3. 

Article 21 notwithstanding and provided that the conditions in paragraph 4 are met, 
this Directive shall not apply to contracts awarded: 

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

(b)  by a joint venture, formed exclusively by a number of contracting entities for 
the purpose of carrying out activities within the meaning of Articles 5 to 11, to 
an undertaking which is affiliated with one of those contracting entities. 

4. 

Paragraph 3 shall apply: 

40 

OJ  L  193,  18.7.1983,  p.  1.  Directive  as  last  amended  by  Directive  2001/65/EC  of  the  European 
Parliament and of the Council (OJ L 283, 27.10.2001, p. 28). 

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(a) 

(b) 

(c) 

to service contracts provided that at least 80 % of the average total turnover of 
the affiliated undertaking with respect to services in general for the preceding 
three years derives from the provision of services to undertakings with which it 
is affiliated; 

to supply contracts provided that at least 80 % of the average total turnover of 
the affiliated undertaking with respect to supplies in general for the preceding 
three years derives from the provision of supplies to undertakings with which it 
is affiliated; 

to works contracts provided that at least 80 % of the average total turnover of 
the  affiliated  undertaking  with  respect  to  works  in  general  for  the  preceding 
three years derives from the provision of works to undertakings with which it is 
affiliated. 

5. 

When,  because  of  the  date  on  which  an  affiliated  undertaking  was  created  or 
commenced activities, the turnover is not available for the preceding three years, it 
will be sufficient for that undertaking to show that the turnover referred to in points 
(a),  (b)  or  (c)  of  paragraph  4  is  credible,  particularly  by  means  of  business 
projections. 

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

Article 23 
Contracts awarded to a joint venture or to a contracting entity forming part of a joint venture 

Article  21  notwithstanding  and  provided  that  the  joint  venture  has  been  set  up  in  order  to 
carry out the activity concerned over a period of at least three years and that the instrument 
setting up the joint venture stipulates that the contracting entities, which form it, will be part 
thereof for at least the same period, this Directive shall not apply to contracts awarded by any 
of the following: 

(a) 

by  a  joint  venture,  formed  exclusively  by  a  number  of  contracting  entities  for  the 
purpose of carrying out activities within the meaning of Articles 5 to 11, to one of 
those contracting entities, or 

(b) 

by a contracting entity to such a joint venture of which it forms part.  

Article 24 
Notification of information  

Contracting  entities  shall  notify  to  the  Commission  or  the  national  oversight  body,  at  their 
request, the following information regarding the application of Article 22, paragraphs 2, 3 and 
Article 23: 

(a) 

the names of the undertakings or joint ventures concerned, 

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(b) 

(c) 

the nature and value of the contracts involved, 

proof deemed necessary by the Commission or the national oversight body that the 
relationship  between  the  undertaking  or  joint  venture  to  which  the  contracts  are 
awarded and the contracting entity complies with the requirements of Articles 22 or 
23. 

Subsection 3 
Specific situations 

Article 25 
Research and development services 

1. 

This Directive shall apply to service contracts for research and development services 
with  CPV  reference  numbers  73000000-2  to  73436000-7,  except  73200000-4, 
73210000-7 or 73220000-0, provided that the following conditions are both fulfilled: 

(a) 

the  benefits  accrue  exclusively  to  the  contracting  entity  for  its  use  in  the 
conduct of its own affairs, 

(b) 

the service provided is wholly remunerated by the contracting entity.  

This  Directive  shall  not  apply  to  service  contracts  for  research  and  development 
services with CPV reference numbers 73000000-2 to 73436000-7, except 73200000-
4, 73210000-7 or 73220000-0 where one of the conditions referred to in points (a) or 
(b) of the first subparagraph is not met. 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 98 to amend the CPV reference numbers referred to in paragraph 1 to reflect 
changes  in  the  CPV  nomenclature  provided  that  such  amendments  do  not  imply  a 
modification of the scope of this Directive. 

Article 26 
Contracts subject to special arrangements 

Without prejudice to Article 27 the Republic of Austria and the Federal Republic of 
Germany shall ensure, by way of the conditions of authorisation or other appropriate 
measures,  that  any  entity  operating  in  the  sectors  mentioned  in  Decisions 
2002/205/EC and 2004/73/EC: 

(a)  observes the principles of non-discrimination  and competitive procurement in 
respect of the award of supplies, works and service contracts, in particular as 
regards the information which the entity makes available to economic operators 
concerning its procurement intentions; 

2. 

1. 

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56 

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2. 

3. 

1. 

2. 

(b) 

communicates to the Commission, under the conditions defined in Commission 
Decision 93/327/EEC41, information relating to the contracts they award. 

Without  prejudice  to  Article  27,  the  United  Kingdom  shall  ensure,  by  way  of  the 
conditions of authorisation or other appropriate measures, that any entity operating in 
the  sectors  mentioned  in  Decision  97/367/EEC  applies  points  (a)  and  (b)  of 
paragraph  1  in  respect  of  contracts  awarded  for  the  pursuit  of  said  activity  in 
Northern Ireland. 

Paragraphs 1 and 2 shall not apply to contracts awarded for the purpose of exploring 
for oil or gas. 

Subsection 4 
Activities directly exposed to competition and procedural provisions relating thereto 

Article 27 
Activities directly exposed to competition 

Contracts intended to enable an activity mentioned in Articles 5 to 11 to be carried 
out  shall  not  be  subject  to  this  Directive  if  the  Member  State  or  the  contracting 
entities having introduced the request pursuant to Article 28 can demonstrate that, in 
the  Member  State  in  which  it  is  performed,  the  activity  is  directly  exposed  to 
competition  on  markets  to  which  access  is  not  restricted;  nor  shall  design  contests 
that  are  organised  for  the  pursuit  of  such  an  activity  in  that  geographic  area  be 
subject  to  this  Directive.  Such  competition  assessment,  which  will  be  made  in  the 
light  of  the  information  available  to  the  Commission  and  for  the  purposes  of  this 
Directive, is without prejudice to the application of competition law. 

For  the  purposes  of  paragraph  1,  the  question  of  whether  an  activity  is  directly 
exposed to competition shall be decided on the basis of criteria that are in conformity 
with  the  provisions  on  competition  of  the  Treaty;  those  may  include  the 
characteristics of the goods or services concerned, the existence of alternative goods 
or services, the prices and the actual or potential presence of more than one supplier 
of the goods or provider of the services in question. 

The geographical reference market, on the basis of which exposure to competition is 
assessed, shall consist of the area in which the undertakings concerned are involved 
in  the  supply  and  demand  of  products  or  services,  in  which  the  conditions  of 
competition  are  sufficiently  homogeneous  and  which  can  be  distinguished  from 
neighbouring areas because, in particular, conditions of competition are appreciably 
different in those areas. This assessment shall take account in particular of the nature 
and  characteristics  of  the  products  or  services  concerned,  of  the  existence  of  entry 
barriers  or  of  consumer  preferences,  of appreciable differences of the undertakings' 

41 

European  Commission  Decision  of  13  May  1993  defining  the  conditions  under  which  contracting 
entities  exploiting  geographical  areas  for  the  purpose  of  exploring  for  or  extracting  oil,  gas,  coal  or 
other solid fuels must communicate to the European Commission information relating to the contracts 
they award, OJ L 129, 27.5.1993, p. 25. 

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57 

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market  shares  between  the  area  concerned  and neighbouring  areas  or  of  substantial 
price differences. 

3. 

For  the  purposes  of  paragraph  1,  access  to  a  market  shall  be  deemed  not  to  be 
restricted  if  the  Member  State  has  implemented  and  applied  the  Union  legislation 
listed in Annex III. 

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

1. 

2. 

Article 28 
Procedure for establishing whether Article 27 is applicable 

Where  a  Member  State  or,  where  the  legislation  of  the  Member  State  concerned 
provides for it, a contracting entity considers that, on the basis of the criteria set out 
in  Article  27(2)  and  (3),  a  given  activity  is  directly  exposed  to  competition  on 
markets to which access is not restricted, it may submit a request to establish that this 
Directive  does  not  apply  to  the  award  of  contracts  or  the  organisation  of  desing 
contests for the pursuit of that activity. 

Requests shall be accompanied by a reasoned and substantiated position adopted by 
an  independent  national  authority  that  is  competent  in  relation  to  the  activity 
concerned.  This  position  shall  thoroughly  analyse  the  conditions  for  the  possible 
applicability  of  Article  27(1)  to  the  activity  concerned  in  accordance  with  its 
paragraphs 2 and 3. 

The  Member  State  or  contracting  entity  concerned  shall  inform  the  Commission  of 
all relevant facts, and in particular of any law, regulation, administrative provision or 
agreement concerning compliance with the conditions set out in Article 27(1). 

Upon  request  submitted  in  accordance  with  paragraph  1  of  this  Article,  the 
Commission  may,  by  way  of  an  implementing  decision  adopted  within  the  periods 
set  out  in  paragraph  4  of  this  Article,  establish  whether  an  activity  referred  to  in 
Articles 5 to 11 is directly exposed to competition on the basis of the criteria set out 
in Article 27. Those implementing decisions shall be adopted in accordance with the 
advisory procedure referred to in Article 100(2) . 

Contracts  intended  to  enable  the  activity  concerned  to  be  carried  out  and  design 
contests that are organised for the pursuit of such an activity shall cease to be subject 
to this Directive in any of the following cases: 

(a)  The Commission has adopted the implementing decision referred to in the first 
subparagraph  of  this  paragraph  establishing  the  applicability  of  Article  27(1) 
within the period provided for in paragraph 3 of this Article; 

(b)  has not adopted the implementing decision referred to in the first subparagraph 

of this paragraph within the period provided for in paragraph 3 of this Article. 

3. 

The  implementing  decisions  referred  to  in  paragraph  2  shall  be  adopted  within  the 
following periods: 

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(a)  90 working days where free access to a given market is presumed on the basis 

of the first subparagraph of Article 27(3);  

(b)  130 working days in cases other than those referred to in point (a). 

Those  deadlines  shall  commence  on  the  first  working  day  following  the  date  on 
which the Commission receives the request referred to in paragraph 1 or, where the 
information  to  be  supplied  with  the  request  is  incomplete,  on  the  working  day 
following the receipt of the complete information.  

The  periods  set  out  in  the  first  subparagraph  may  be  extended  by  the  Commission 
with  the  agreement  of  the  Member  State  or  contracting  entity  which  has  presented 
the request.  

The Commission may require the Member State or the contracting entity concerned 
or the independent national authority referred to under paragraph 1 of this Article or 
any  other  competent  national  authority,  including  the  oversight  body  referred  to  in 
Article  93,  to  provide  all  necessary  information  or  to  supplement  or  clarify 
information given within an appropriate time limit. In the event of late or incomplete 
answers,  the  periods  set  out  in  the  first  subparagraph  shall  be  suspended  for  the 
period between the expiry of the time limit set in the request for information, and the 
receipt of the complete and correct information. 

Where  an  activity  in  a  given  Member  State  is  already  the  subject  of  a  procedure 
under  paragraphs  1,  2  and  3,  further  requests  concerning  the  same  activity  in  the 
same  Member  State  before  the  expiry  of  the  period  opened  in  respect  of  the  first 
request shall not be considered as new procedures and shall be treated in the context 
of the first request. 

The Commission shall adopt an implementing act establishing detailed rules for the 
application of paragraphs 1 to 4. That implementing act hall include at least: 

(a)  Thosethe  publication  in  the  Official  Journal  of  the  European  Union,  for 
information, of the date on which the period set out in the first subparagraph of 
paragraph 3 begins and ends, including prolongations or suspensions of those 
periods, if any, as provided for in paragraph 3 of this Article; 

(b)  publication  of  the  possible  applicability  of  Article  27(1)  in  accordance  with 

point b of the second subparagraph of paragraph 2 of this Article; 

(c) 

implementing  provisions  concerning  the  form,  content  and  other  details  of 
requests pursuant to paragraph 1 of this Article;  

(d) 

rules concerning the periods set out in paragraph 3 of this Article.  

Those implementing acts shall be adopted in accordance with the advisory procedure 
referred to in Article 100(2).  

4. 

5. 

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CHAPTER IV 
General principles 

Article 29 
Principles of procurement 

Contracting  entities  shall  treat  economic  operators  equally  and  without  discrimination  and 
shall act in a transparent and proportionate way.  

The design of the procurement shall not be made with the objective of excluding it from the 
scope of this Directive or of artificially narrowing competition. 

Article 30 
Economic operators 

1. 

2. 

Economic  operators  that,  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  service  and  works  contracts  as  well  as  supply  contracts 
covering in addition services 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 responsible for the performance of the 
contract in question. 

Groups  of  economic  operators  may  submit  tenders  or  put  themselves  forward  as 
candidates.  Contracting  entities  shall  not  establish  specific  conditions  for 
participation  of  such  groups  in  procurement  procedures  which  are  not  imposed  on 
individual  candidates.  In  order  to  submit  a  tender  or  a  request  to  participate,  those 
groups  shall  not  be  required  by  the  contracting  entities  to  assume  a  specific  legal 
form.  

Contracting  entities  may  establish  specific  conditions  for  the  performance  of  the 
contract by a group, provided that those conditions are justified by objective reasons 
and proportionate. Those conditions may require a group to assume a specific legal 
form once it has been awarded the contract, to the extent that this change is necessary 
for the satisfactory performance of the contract. 

Article 31 
Reserved contracts 

Member  States  may  reserve  the  right  to  participate  in  procurement  procedures  to  sheltered 
workshops and economic operators whose main aim is the social and professional integration 
of disabled and disadvantaged workers or provide for such contracts to be performed in the 
context of sheltered employment programmes, provided that more than 30% of the employees 

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of  those  workshops,  economic  operators  or  programmes  are  disabled  or  disadvantaged 
workers. 

The call for competition shall make reference to this Article.  

1. 

2. 

1. 

Article 32 
Confidentiality 

Contracting  entities  may  impose  on  economic  operators  requirements  aimed  at 
protecting the confidential nature of information which the contracting entities make 
available  throughout  the  procurement  procedure,  including  information  made 
available in connection with the operation of a qualification system, whether or not 
this has been the subject of a notice on the existence of a qualification system used as 
a means of calling for competition. 

Unless otherwise provided in this Directive or in the national law concerning access 
to information, and without prejudice to the obligations relating to the advertising of 
awarded  contracts  and  to  the  information  to  candidates  and  tenderers  set  out  in 
Articles  64  and  69  of  this  directive  the  contracting  entity  shall  not  disclose 
information  forwarded  to  it  by  economic  operators  which  they  have  designated  as 
confidential,  including,  but  not  limited  to,  technical  or  trade  secrets  and  the 
confidential aspects of tenders. 

Article 33 
Rules applicable to communication 

Except where use of electronic means is mandatory pursuant to Articles 46, 47, 48, 
49(4),  65(2)  or  67  of  this  Directive  contracting  entities  may  choose  between  the 
following  means  of  communication  for  all  communication  and  information 
exchange: 

(a) 

electronic means in accordance with paragraphs 3, 4 and 5; 

(b)  post or fax; 

(c) 

telephone in the cases and circumstances referred to in paragraph 6;  

(d) 

a combination of those means.  

Member States may make mandatory the use of electronic means of communication 
in other situations than those provided for in Articles 46, 47, 48, 49(4), 65(2) or 67 of 
this Directive.  

2. 

The  means  of  communication  chosen  shall  be  generally  available  and  not  restrict 
economic operators' access to the procurement procedure. 

In all communication, exchange and storage of information, contracting entities shall 
ensure  that  the  integrity  of  data  and  the  confidentiality  of  tenders  and  requests  to 
participate are preserved. They shall examine the content of tenders and requests to 
participate only after the time limit set for submitting them has expired. 

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3. 

The  tools  to  be  used  for  communicating  by  electronic  means,  as  well  as  their 
technical  characteristics,  shall  be  non-discriminatory,  generally  available  and 
interoperable  with  the  information  and  communication  technology  products  in 
general  use  and  shall  not  restrict  economic  operators'  access  to  the  procurement 
procedure. The technical details and characteristics of the devices for the electronic 
receipts to be deemed in compliance with the first subparagraph of this paragraph are 
set out in Annex IV. 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 98 to amend the technical details and characteristics set out in Annex IV due 
to technical developments or administrative reasons. 

To  ensure  the  interoperability  of  technical  formats  as  well  as  of  process  and 
messaging standards, especially in a cross-border context, the Commission shall be 
empowered  to  adopt  delegated  acts  in  accordance  with  Article  98  to  establish  the 
mandatory  use  of  certain  technical  standards,  at  least  with  regard  to  the  use  of  e-
submission, electronic catalogues and means for electronic authentication. 

4. 

Contracting  entities  may,  where  necessary,  require  the  use  of  tools  which  are  not 
generally available, provided that they offer alternative means of access. 

Contracting entities shall be deemed to offer suitable alternative means of access in 
any of the following situations: 

(a) 

they offer unrestricted and full direct access by electronic means to those tools 
from the date of publication of the notice in accordance with Annex IX or from 
the  date  on  which  the  invitation  to  confirm  interest  is  sent.  The  text  of  the 
notice or the invitation to confirm interest shall specify the internet address at 
which those tools are accessible; 

(b) 

they  ensure  that  tenderers  established  in  other  Member  States  than  the 
contracting entity's  may access  the  procurement procedure through the use of 
provisional tokens made available online at no extra cost; 

(c) 

they support an alternative channel for electronic submission of tenders. 

5. 

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

(a) 

(b) 

(c) 

information  on  specifications  for  the  electronic  submission  of  tenders  and 
requests  to  participate,  including  encryption  and  time-stamping,  shall  be 
available to interested parties; 

the devices, methods for authentication and electronic signatures shall comply 
with the requirements of Annex IV; 

contracting entities shall specify the level of security required for the electronic 
means  of  communication  to  be  used  in  the  various  stages  of  the  specific 
procurement procedure; the level shall be proportionate to the risks attached; 

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(d)  where  advanced  Electronic  Signatures  as  defined  by  Directive  1999/93/EC42 
are required, contracting entities shall, as long as the signature is valid, accept 
signatures  supported  by  a  qualified  electronic  certificate  referred  to  in  the 
Trusted  List  as  provided  for  in  the  Commission  Decision  2009/767/EC43, 
created  with  or  without  a  secure  signature  creation  device,  subject  to 
compliance with the following conditions: 

(i) 

they must establish the required advanced signature format on the basis 
of formats established in Commission Decision 2011/130/EU44 and shall 
put  in  place  necessary  measures  to  be  able  to  process  those  formats 
technically; 

(ii)  where a tender is signed with the support of a qualified certificate that is 
included in the Trusted list, they must not apply additional requirements 
that may hinder the use of those signatures by tenderers. 

6. 

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

(a) 

(b) 

requests to participate in procedures for the award of contracts may be made in 
writing or by telephone; in the latter case, a written confirmation must be sent 
before expiry of the time limit set for their receipt; 

contracting  entities  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.  

For the purposes of point (b) the contracting entity shall indicate in the notice used as 
a  means  of  calling  for  competition  or  in  the  invitation  to  confirm  interest  that  it 
requires requests to participate made by fax to be confirmed by post or by electronic 
means and the time limit for sending such confirmation. 

7. 

Contracting entities may use the data processed electronically for public procurement 
procedures  in  order  to  prevent,  detect  and  correct  errors  occuring  at  each  stage  by 
developing appropriate tools.  

Article 34 
General obligation to use electronic means of communication 

Member  States  shall  ensure  that,  at  the  latest  2  years  after  the  date  provided  for  in  Article 
101(1), all procurement procedures under this Directive are performed using electronic means 
of  communication,  in  particular  e-submission,  in  accordance  with  the  requirements  of  this 
Article. 

This obligation shall  not apply where the  use of electronic means would require specialised 
tools  or  file  formats  that  are  not  generally  available  in  all  the  Member  States  within  the 

42 

43 
44 

Directive  1999/93/EC  of  the  European  Parliament  and  of  the  Council  of  13  December  1999  on  a 
Community framework for electronic signatures, OJ L 13, 19.1.2000, p. 12. 
OJ L 274, 20.10.2009, p. 36. 
OJ L 53, 26.2.2011, p. 66. 

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meaning of paragraph 3. It is the responsibility of the contracting entities using other means of 
communication for submission of tenders to demonstrate in the procurement documents that 
the use of electronic means, due to the particular nature of the information to be exchanged 
with  the  economic  operators,  would  require  specialised  tools  or  file  formats  that  are  not 
generally available in all the Member States. 

Contracting  entities  shall  be  deemed  to  have  legitimate  reasons  not  to  request  electronic 
means of communication in the submission process where the following apply: 

(a) 

(b) 

(c) 

1. 

2. 

1. 

the  description  of  the  technical  specifications,  due  to  the  specialised  nature  of  the 
procurement,  cannot  be  rendered  using  file  formats  that  are  generally  supported  by 
commonly used applications; 

the  applications  supporting  file  formats  that  are  suitable  for  the  description  of  the 
technical specifications are under a proprietary licensing schema and cannot be made 
available for downloading or remote use by the contracting entity; 

the  applications  supporting  file  formats  that  are  suitable  for  the  description  of  the 
technical specifications use file formats that cannot be handled by any other open or 
downloadable applications. 

Article 35 
Nomenclatures 

Any references to nomenclatures in the context of public procurement shall be made 
using the "Common Procurement Vocabulary (CPV)" as adopted by Regulation (EC) 
No 2195/200245. 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article  98  to  adapt  the  reference  numbers  used  in  Annex  II  and  XVI,  whenever 
changes in the CPV nomenclature have to be reflected in this Directive and they do 
not imply a modification of the scope of this Directive. 

Article 36 
Conflicts of interests 

Member States shall, in respect of contracting authorities within the meaning of point 
1  of  Article  2,  provide  for  rules  to  effectively  prevent,  identify  and  immediately 
remedy  conflicts  of  interests  arising  in  the  conduct  of  procurement  procedures  that 
are subject to this Directive, including the design and preparation of the procedure, 
the  drawing-up  of  the  procurement  documents,  the  selection  of  candidates  and 
tenderers and the award of the contract, so as to avoid any distortion of competition 
and ensure equal treatment of all tenderers. 

The  notion  of  conflict  of  interests  shall  at  least  cover  any  situation  where  the 
categories of persons referred to in paragraph 2 have, directly or indirectly, a private 

45 

OJ L 340, 16.12.2002, p. 1. 

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interest  in  the  outcome  of  the  procurement  procedure,  which  may  be  perceived  to 
impair the impartial and objective performance of their duties.  

For the purposes of this Article, "private interests" means any family, emotional life, 
economic,  political  or  other  shared  interests  with  the  candidates  or  the  tenderers, 
including conflicting professional interests. 

2. 

The rules referred to in paragraph 1 shall apply to conflicts of interests involving at 
least the following categories of persons: 

(a) 

(b) 

staff  members  of  the  contracting  authority,  procurement  service  providers  or 
staff members of other service providers who are involved in the conduct of the 
procurement procedure;  

the  chairperson  of  the  contracting  authority  and  members  of  decision-making 
bodies of the contracting authority who, without necessarily being involved in 
the  conduct  of  the  procurement  procedure,  may  nevertheless  influence  the 
outcome of that procedure. 

3. 

Member States shall ensure in particular: 

(a) 

(b) 

that  staff  members  referred  to  in  paragraph  2(a)  are  required  to  disclose  any 
conflict of interests in relation to any of the candidates or tenderers, as soon as 
they  become  aware  of  such  conflicts,  in  order  to  enable  the  contracting 
authority to take remedial action,  

that  candidates  and  tenderers  are  required  to  submit  at  the  beginning  of  the 
procurement  procedure  a  declaration  on  the  existence  of  any  privileged  links 
with the persons referred to in paragraph 2(b), which are likely to place those 
persons  in  a  situation  of  conflict  of  interests;  the  contracting  authority  shall 
indicate in the individual report referred to in Article 94 whether any candidate 
or tenderer has submitted a declaration. 

In the event of a conflict of interests, the contracting authority shall take appropriate 
measures. Those measures may include the recusal of the staff member in question 
from involvement in the affected procurement procedure or the re-assignment of the 
staff  member’s  duties  and  responsibilities.  Where  a  conflict  of  interests  cannot  be 
effectively  remedied  by  other  means,  the  candidate  or  tenderer  concerned  shall  be 
excluded from the procedure. 

Where  privileged  links  are  identified,  the  contracting  authority  shall  immediately 
inform  the  oversight  body  designated  in  accordance  with  Article  93  and  take 
appropriate measures to avoid any undue influence on the award process and ensure 
equal  treatment  of  candidates  and  tenderers.  If  the  conflict  of  interests  cannot  be 
effectively  remedied  by  other  means,  the  candidate  or  tenderer  concerned  shall  be 
excluded from the procedure.  

4. 

All  measures  taken  pursuant  to  this  Article  shall  be  documented  in  the  individual 
report referred to in Article 94. 

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Article 37 
Illicit conduct  

Candidates  shall  be  required  at  the  beginning  of  the  procedure  to  provide  a  declaration  on 
honour that they have not undertaken and will not undertake to: 

(a) 

(b) 

(c) 

unduly  influence  the  decision-making  process  of  the  contracting  entity  or  obtain 
confidential  information  that  may  confer  upon  them  undue  advantages  in  the 
procurement procedure; 

enter  into  agreements  with  other  candidates  and  tenderers  aimed  at  distorting 
competition, or  

deliberately  provide  misleading  information  that  may  have  a  material  influence  on 
decisions concerning exclusion, selection or award.  

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TITLE II 
RULES APPLICABLE TO CONTRACTS 

CHAPTER I 
Procedures 

1. 

2. 

1. 

Article 38  
Conditions relating to the Government Procurement Agreement and other international 
agreements 

As far as covered by Annexes III, IV and V and the General Notes to the European 
Union’s  Appendix  1  to  the  Government  Procurement  Agreement  and  by  the  other 
international agreements by which the Union is bound, as listed in Annex V to this 
Directive,  contracting  entities  within  the  meaning  of  Article  4(3)(a)  shall  accord  to 
the  works,  supplies,  services  and  economic  operators  of  the  signatories  to  those 
agreements  treatment  no  less  favourable  than  the  treatment  accorded  to  the  works, 
supplies, services and economic operators of the Union. By applying this Directive to 
economic  operators  of  the  signatories  to  those  agreements  contracting entities shall 
comply with those agreements. 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 98 to amend  the list in Annex V,  where  necessary  due  to  the  conclusion of 
new international agreements or modification of existing international agreements. 

Article 39 
Choice of procedures 

When  awarding  supply,  works  or  service  contracts,  contracting  entities  shall  apply 
the  procedures  adjusted  to  be  in  conformity  with  this  Directive,  provided  that, 
without  prejudice  to  Article  42,  a  call  for  competition  has  been  published  in 
accordance with this Directive. 

Member  States  shall  provide  that  contracting  entities  may  apply  open  or  restricted 
procedures  or  negotiated  procedures  with  prior  call  for  competition  as  regulated  in 
this Directive.  

2. 

The call for competition may be made by one of the following means: 

(a) 

(b) 

a  periodic  indicative  notice  pursuant  to  Article  61  where  the  contract  is 
awarded by restricted or negotiated procedure; 

a notice on the existence of a qualification system pursuant to Article 62 where 
the  contract  is  awarded  by  restricted  or  negotiated  procedure  or  by  an 
innovation partnership, 

(c)  by means of a contract notice pursuant to Article 63. 

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In the case referred to in point (a), economic operators having expressed their 
interest  following  the  publication  of  the  periodic  indicative  notice  shall 
subsequently  be  invited  to  confirm  their  interest  in  writing  by  means  of  an 
‘invitation to confirm interest’ in conformity with Article 68. 

3. 

Member  States  may  provide  that  contracting  entities  may  apply  a  negotiated 
procedure  without  prior  call  for  competition  only  in  the  specific  cases  and 
circumstances referred to expressly in Article 42.  

Article 40 
Open procedure 

1. 

In  open  procedures  any  interested  economic  operator  may  submit  a  tender  in 
response to a call for competition. 

The minimum time limit for the receipt of tenders shall be 40 days from the date on 
which the contract notice was sent. 

The  tender  shall  be  accompanied  by  the  requested  information  for  qualitative 
selection. 

Where  contracting  entities  have  published  a  periodic  indicative  notice  which  is  not 
used as a means of calling for competition, the minimum time limit for the receipt of 
tenders, as laid down in the second subparagraph of paragraph 1 of this Article, may 
be shortened to 20 days, provided that both of the following conditions are fulfilled:  

(a) 

the  periodic  indicative  notice  has  included,  in  addition  to  the  information 
required  by  Section  I  of  Part  A  of  Annex  VI,  all  the  information  required  by 
Section II of Part A of Annex VI, insofar as the latter information is available 
at the time the periodic indicative notice is published; 

(b) 

it was sent for publication between 45 days and 12 months before the date on 
which the contract notice was sent. 

Where  a  state  of  urgency  duly  substantiated  by  the  contracting  entities  renders 
impracticable  the  time  limit  laid  down  in  the  second  subparagraph  of  paragraph  1, 
they may fix a time limit which shall be not less than 20 days from the date on which 
the contract notice was sent. 

The contracting entity may reduce by five days the time limit for receipt of tenders 
set out in the second subparagraph of paragraph 1 where it accepts that tenders may 
be submitted by electronic means in accordance with Article 33(3), (4) and (5). 

Article 41 
Restricted procedure 

In restricted procedures, any economic operator may submit a request to participate 
in  response  to  a  call  for  competition  by  providing  the  requested  information  for 
qualitative selection. 

2. 

3. 

4. 

1. 

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The minimum time limit for the receipt of requests to participate shall, as a general 
rule, be fixed at no less than 30 days from the date on which the contract notice or 
the invitation to confirm interest is sent and may in no case be less than 15 days. 

2. 

Only  those  economic  operators  invited  by  the  contracting  entity  following  their 
assessment  of  the  requested  information  may  submit  a  tender.  Contracting  entities 
may  limit  the  number  of  suitable  candidates  to  be  invited  to  participate  in  the 
procedure in accordance with Article 72(2).  

The time limit for the receipt of tenders may be set by mutual agreement between the 
contracting entity and the selected candidates, provided that all candidates have the 
same time to prepare and submit their tenders; 

Where  it  is  not  possible  to  reach  agreement  on  the  time  limit  for  the  receipt  of 
tenders, the contracting entity shall fix a time limit which shall in no case be less than 
10 days from the date on which the invitation to tender is sent. 

1. 

2. 

Article 42 
Negotiated procedure with prior call for competition 

In negotiated procedures with prior call for competition, any economic operator may 
submit a request to participate in response to a call for competition by providing the 
requested information for qualitative selection. 

The minimum time limit for the receipt of requests to participate shall, as a general 
rule, be fixed at no less than 30 days from the date on which the contract notice or, 
where a periodic indicative notice is used as a means of calling for competition, the 
invitation to confirm interest is sent and may in no case be less than 15 days. 

Only  those  economic  operators  invited  by  the  contracting  entity  following  their 
assessment  of  the  requested  information  may  participate  in  the  negotiations. 
Contracting  entities  may  limit  the  number  of  suitable  candidates  to  be  invited  to 
participate in the procedure in accordance with Article 72(2). 

The time limit for the receipt of tenders may be set by mutual agreement between the 
contracting entity and the selected candidates, provided that all candidates have the 
same time to prepare and submit their tenders; 

Where  it  is  not  possible  to  reach  agreement  on  the  time  limit  for  the  receipt  of 
tenders, the contracting entity shall fix a time limit which shall in no case be less than 
10 days from the date on which the invitation to tender is sent. 

Article 43 
Innovation partnership 

1. 

Member  States  may  provide  that  contracting  entities  may  apply  innovation 
partnerships  as  regulated  in  this  Directive.  Member  States  may  decide  not  to 
transpose into their national law innovation partnerships or to restrict the use of it to 
certain types of procurement. 

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In  innovation  partnerships,  any  economic  operator  may  submit  a  request  to 
participate in response to a call for competition in accordance with points (b) and (c) 
of  Article  39(2)  with  a  view  to  establishing  a  structured  partnership  for  the 
development of an innovative product, service or works and the subsequent purchase 
of  the  resulting  supplies,  services  or  works,  provided  that  they  correspond  to  the 
agreed performance levels and costs. 

2. 

The  partnership  shall  be  structured  in  successive  stages  following  the  sequence  of 
steps in the research and innovation process, possibly up to the manufacturing of the 
supply or the provision of the services. It shall provide for intermediate targets to be 
attained by the partner and provide for payment of the remuneration in appropriate 
instalments. Based on those targets, the contracting entity can decide after each stage 
to  terminate  the  partnership  and  launch  a  new  procurement  procedure  for  the 
remaining  phases,  provided  that  it  has  acquired  the  relevant  intellectual  property 
rights.  

3. 

The contract shall be awarded in accordance with the rules for a negotiated procedure 
with prior call for competition set out in Article 42.  

In  selecting  candidates,  contracting  entities  shall  pay  particular  attention  to  criteria 
concerning  the  tenderers’  capacity  and  experience  in  the  field  of  research  and 
development  or  of  developing  innovative  solutions.  They  may  limit  the  number  of 
suitable  candidates  to  be  invited  to  participate  in  the  procedure  in  accordance  with 
Article 72(2). 

Only  those  economic  operators  invited  by  the  contracting  entity  following  its 
assessment  of  the  requested  information  may  submit  research  and  innovation 
projects, aimed at meeting the needs identified by the contracting entity that cannot 
be met by existing solutions. The contract shall be awarded on the sole basis of the 
award  criterion  of  the  most  economically  advantageous  tender  in  accordance  with 
Article 76 (1)(a). 

4. 

The  structure  of  the  partnership  and,  in  particular  the  duration  and  value  of  the 
different  phases  shall  reflect  the  degree  of  innovation  of  the  proposed  solution  and 
the sequence of the research and innovation activities required for the development 
of an innovative solution not yet available on the market. The value and duration of a 
contract for the purchase of the resulting supply, service or works shall remain within 
appropriate limits, taking into account the need to recover the costs, including those 
incurred in developing an innovative solution, and to achieve an adequate profit. 

Contracting entities shall not use innovation partnerships in such a way as to prevent, 
restrict or distort competition. 

Article 44 
Use of the negotiated procedure without prior call for competition 

Contracting entities may use a negotiated procedure without prior call for competition in the 
following cases: 

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(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

(h) 

(i) 

(j) 

where  no  tenders  or  no  suitable  tenders  or  no  requests  to  participate  have  been 
submitted in response to a procedure with a prior call for competition, provided that 
the initial conditions of the contract are not substantially altered; 

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

where the aim of the procurement is the creation or obtention of a work of art; 

where the works, supplies or services can be supplied only by a particular economic 
operator for any of the following reasons:  

(i) 

the absence of competition for technical reasons; 

(ii) 

the protection of patents, copyrights or other intellectual property rights; 

(iii) 

the protection of other exclusive rights. 

This  exception  only  applies  when  no  reasonable  alternative  or  substitute  exists  and 
the  absence  of  competition  is  not  the  result  of  an  artificial  narrowing  down  of  the 
parameters of the procurement; 

insofar as is strictly necessary where, for reasons of extreme urgency brought about 
by  force  majeure,  the  time  limits  laid  down  for  open  procedures,  restricted 
procedures  and  negotiated  procedures  with  prior  call  for  competition  cannot  be 
complied  with.  The  circumstances  invoked  to  justify  extreme  urgency  must  not  in 
any event be attributable to the contracting entity; 

in the case of supply contracts for additional deliveries by the original supplier which 
are intended either as a partial replacement of normal supplies or installations or as 
the extension of existing supplies or installations, where a change of supplier would 
oblige  the  contracting  entity  to  acquire  material  having  different  technical 
characteristics  which  would  result  in  incompatibility  or  disproportionate  technical 
difficulties in operation and maintenance; 

for  new  works  or  services  consisting  in  the  repetition  of  similar  works  or  services 
assigned to the contractor to which the same contracting entities awarded an earlier 
contract, provided that such works or services conform to a basic project for which a 
first contract was awarded according to a procedure in accordance with Article 39(1).  

for supplies quoted and purchased on a commodity market or other similar markets 
such as electricity exchanges; 

for bargain purchases, where it is possible to procure supplies by taking advantage of 
a  particularly  advantageous  opportunity  available  for  a  very  short  time  at  a  price 
considerably lower than normal market prices; 

for  purchases  of  supplies  under  particularly  advantageous  conditions  from  either  a 
supplier  definitively  winding  up  its  business  activities  or  the  liquidators  in  an 

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insolvency  procedure,  an  arrangement  with  creditors  or  a  similar  procedure  under 
national laws or regulations; 

(k) 

where  the  service  contract  concerned  follows  a  design  contest  organised  in 
accordance  with  this  Directive  and  is  to  be  awarded,  under the  applicable  rules,  be 
awarded to the winner or to one of the winners of that contest; in the latter case, all 
the winners shall be invited to participate in the negotiations. 

For the purposes of point (a), a tender shall be considered not to be suitable where: 

(a) 

(b) 

it is irregular or unacceptable, and 

it is completely irrelevant to the contract, being incapable of meeting the contracting 
entity’s needs as specified in the procurement documents. 

In particular, tenders shall be considered to be irregular, where they do not comply with the 
procurement  documents  or  where  the  prices  offered  are  sheltered  from  normal  competitive 
forces; 

In particular, tenders shall be considered to be unacceptable in any of the following cases:  

(a) 

(b) 

(c) 

they have been received late;  

they have been submitted by tenderers that do not have the requisite qualifications; 

their  price  either  exceeds  the  contracting entity’s  budget  as  determined  prior  to  the 
launching of the procurement procedure; the prior determination of the budget must 
be documented in writing;  

(d) 

they have been found to be abnormally low in accordance with Article 79. 

For the purposes of point (g) of paragraph 1 of this Article, the basic project shall indicate the 
extent  of  possible  additional  works  or  services  and  the  conditions  under  which  they  will  be 
awarded.  As  soon  as  the  first  project  is  put  up  for  tender,  notice  shall  be  given  that  this 
procedure might be adopted and the total estimated cost of subsequent works or services shall 
be taken into consideration by the contracting entities when they apply Articles 12 and 13. 

CHAPTER II 
Techniques and instruments for electronic and aggregated 
procurement 

Article 45 
Framework agreements 

1. 

Contracting entities may conclude framework agreements, provided that they apply 
the procedures provided for in this Directive. 

A  framework  agreement  means  an  agreement  between  one  or  more  contracting 
entities and one or more economic operators, the purpose of which is to establish the 

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terms  governing  contracts  to  be  awarded  during  a  given  period,  in  particular  with 
regard to price and, where appropriate, the quantities envisaged. 

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

2. 

Contracts based on a framework agreement shall be awarded in accordance with the 
procedures laid down in this paragraph and paragraphs 3 and 4.  

Those  procedures  may  be  applied  only  between  those  contracting  entities  clearly 
identified  for  this  purpose  in  the  call  for  competition,  in  the  invitation  to  confirm 
interest  or,  where  a  notice  on  the  existence  of  a  qualification  system  is  used  as  a 
means  of  calling  for  competition,  in  the  invitation  to  tender  and  those  economic 
operators originally party to the framework agreement.  

Contracts  based  on  a  framework  agreement  may  under  no  circumstances  make 
substantial  modifications  to  the  terms  laid  down  in  that  framework  agreement,  in 
particular in the case referred to in paragraph 3.  

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

3. 

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 entities may consult the operator party 
to  the  framework  agreement  in  writing,  requesting  it  to  supplement  its  tender  as 
necessary. 

4. 

Where a framework agreement is concluded with more than one economic operator, 
it may be performed in one of the two following ways: 

(a) 

following  the  terms  and  conditions  of  the  framework  agreement,  without 
reopening competition, where it sets out all the terms governing the provision 
of the works, services and supplies concerned and the objective conditions for 
determining  which  of  the  economic  operators,  party  to  the  framework 
agreement,  shall  perform  them;  the  latter  conditions  shall  be  indicated  in  the 
procurement documents; 

(b)  where  not  all  the  terms  governing  the  provision  of  the  works,  services  and 
supplies  are  laid  down  in  the  framework  agreement,  through  reopening 
competition  amongst  the  economic  operators  parties  to  the  framework 
agreement.  

5. 

The competition referred to in paragraph (4)(b) shall be based on the same terms as 
applied  for  the  award  of  the  framework  agreement  and,  where  necessary,  more 
precisely  formulated  terms,  and,  where  appropriate,  other  terms  referred  to  in  the 
specifications  of  the  framework  agreement,  in  accordance  with  the  following 
procedure: 

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(a) 

(b) 

(c) 

(d) 

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

contracting  entities  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 send in tenders; 

tenders shall be submitted in writing, and their content shall not be opened until 
the stipulated time limit for reply has expired; 

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

Article 46 
Dynamic purchasing systems 

1. 

2. 

For commonly used purchases, the characteristics of which, as generally available on 
the market, meet the requirements of the contracting entities, they may use a dynamic 
purchasing  system.  The  dynamic  purchasing  system  shall  be  operated  as  a 
completely electronic process, open throughout its validity to any economic operator 
that satisfies the selection criteria. 

In order to award contracts under a dynamic purchasing system, contracting entities 
shall follow the rules of the restricted procedure. All the candidates who satisfy the 
selection  criteria  shall  be  admitted  to  the  system;  the  number  of  candidates  to  be 
admitted  to  the  system  shall  not  be  limited  in  accordance  with  Article  72  (2).  All 
communications in the context of a dynamic purchasing system shall only be made 
with electronic means in accordance with Article 33(2) to (6). 

3. 

For  the  purposes  of  awarding  contracts  under  a  dynamic  purchasing  system, 
contracting entities shall: 

(a)  publish a call for competition making it clear that a dynamic purchasing system 

is involved; 

(b) 

indicate in the specifications, at least the nature and estimated quantity of the 
purchases  envisaged,  as  well  as  all  the  necessary  information  concerning  the 
purchasing system, the electronic equipment used and the technical connection 
arrangements and specifications; 

(c)  offer  unrestricted  and  full  direct  access,  as  long  as  the  system  is  valid,  to  the 

specifications and to any additional documents in accordance with Article 67. 

4. 

Contracting entities shall give any economic operator, throughout the entire duration 
of the dynamic purchasing system, the possibility of requesting to participate in the 
system  under  the  conditions  referred  to  in  paragraph  2.  Contracting  entities  shall 
finalise their assessment of such requests according to the selection criteria within 10 
working days following their receipt. 

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Contracting  entities  shall  inform  the  economic  operator  referred  to  in  the  first 
subparagraph  at  the  earliest  possible  opportunity  of  whether  or  not  it  has  been 
admitted to the dynamic purchasing system. 

5. 

Contracting entities shall invite all qualified participants to submit a tender for each 
specific  procurement  under  the  dynamic  purchasing  system,  in  accordance  with 
Article 68. 

6. 

7. 

1. 

2. 

They  shall  award  the  contract  to  the  tenderer  that  submitted  the  best  tender  on  the 
basis of the award criteria set out in the contract notice for the dynamic purchasing 
system,  in  the  invitation  to  confirm  interest,  or,  where  the  means  of  calling  for 
competition is a notice on the existence of a qualification system, in the invitation to 
tender.  Those  criteria  may,  where  appropriate,  be  formulated  more  precisely  in  the 
invitation to tender. 

Contracting entities shall indicate the duration of the dynamic purchasing system in 
the call for competition. They shall notify the Commission of any change in duration, 
using the following standard forms: 

(a)  where  the  duration  is  changed  without  terminating  the  system,  the  form  used 
initially for the call for competition for the dynamic purchasing system;  

(b)  where the system is terminated, a contract award notice referred to in Article 

64.  

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

Article 47 
Electronic auctions  

Contracting  entities  may  use  electronic  auctions  in  which  new  prices,  revised 
downwards, and/or new values concerning certain elements of tenders are presented. 

For  this  purpose,  contracting  entities  shall  use  a  repetitive  electronic  process 
(electronic  auction),  which  occurs  after  an  initial  full  evaluation  of  the  tenders, 
enabling them to be ranked using automatic evaluation methods. 

In  open,  restricted  or  negotiated  procedures  with  a  prior  call  for  competition,  the 
contracting entities may decide that the award of a contract shall be preceded by an 
electronic auction when the tender specifications can be established with precision. 

In  the  same  circumstances,  an  electronic  auction  may  be  held  on  the  reopening  of 
competition among the parties to a framework agreement as provided for in point (b) 
of Article 45(4) and on the opening for competition of contracts to be awarded under 
the dynamic purchasing system referred to in Article 46. 

3. 

The electronic auction shall be based on one of the the following criteria: 

(a) 

solely on prices where the contract is awarded to the lowest cost,  

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4. 

5. 

6. 

7. 

(b)  on prices and/or on the new values of the features  of the  tenders  indicated in 
the  specifications,  where  the  contract  is  awarded  to  the  most  economically 
advantageous tender. 

Contracting entities which decide to hold an electronic auction shall state that fact in 
the  contract  notice,  in  the  invitation  to  confirm  interest  or,  where  a  notice  on  the 
existence of a qualification system is used as a means of calling for competition, in 
the invitation to tender. The specifications shall include at least the information set 
out in Annex VII. 

Before proceeding with the electronic auction, contracting entities shall make a full 
initial evaluation of the tenders in accordance with the award criterion or criteria and 
with the weighting fixed for them. 

A tender shall be considered admissible where it has been submitted by a qualified 
tenderer and is in conformity with the technical specifications.  

All tenderers that have submitted admissible tenders shall be invited simultaneously 
by electronic means to participate in the electronic auction using, as of the specified 
date  and  time,  the  connections  in  accordance  with  the  instructions  set  out  in  the 
invitation. The electronic auction may take place in a number of successive phases. 
The electronic auction shall not start sooner than two working days after the date on 
which invitations are sent out. 

Where  the  contract  is  to  be  awarded  on  the  basis  of  the  most  economically 
advantageous  tender,  the  invitation  shall  be  accompanied  by  the  outcome  of  a  full 
evaluation  of  the  relevant  tender  carried  out  in  accordance  with  the  weighting 
provided for in the first subparagraph of Article 76(5). 

The invitation shall also state the mathematical formula to be used in the electronic 
auction to determine automatic re-rankings on the basis of the new prices and/or new 
values  submitted.  That  formula  shall  incorporate  the  weighting  of  all  the  criteria 
established to determine the most economically advantageous tender, as indicated in 
the notice used as a means of calling for competition or in the specifications. For that 
purpose, any ranges shall, however, be reduced beforehand to a specified value. 

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

Throughout  each  phase  of  an  electronic  auction  the  contracting  entities  shall 
instantaneously communicate to all tenderers sufficient information to enable them to 
ascertain  their  relative  rankings  at  any  moment.  They  may  also  communicate  other 
information concerning other prices or values submitted, provided that that is stated 
in the specifications. They may also at any time announce the number of participants 
in that phase of the auction. In no case, however, may they disclose the identities of 
the tenderers during any phase of an electronic auction. 

8. 

Contracting entities shall close an electronic auction in one or more of the following 
manners: 

(a) 

at the previously indicated date and time; 

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(b)  when  they  receive  no  more  new  prices  or  new  values  which  meet  the 
requirements  concerning  minimum  differences,  provided  that  they  have 
previously  stated  the  time  which  they  will  allow  to  elapse  after  receiving  the 
last submission before they close the electronic auction; 

(c)  when  the  previously  indicated  number  of  phases  in  the  auction  has  been 

completed. 

Where  the  contracting  entities  have  decided  to  close  an  electronic  auction  in 
accordance with point (c), possibly in combination with the arrangements laid down 
in point (b), the invitation to take part in the auction shall indicate the timetable for 
each phase of the auction. 

After closing an electronic auction the contracting entities shall award the contract in 
accordance with Article 76 on the basis of the results of the electronic auction. 

Article 48 
Electronic catalogues  

Where  contracting  entities  require  the  use  of  electronic  means  of  communication 
pursuant to Article 33 , they may require tenders to be presented in the format of an 
electronic catalogue. 

Member States may render the use of electronic catalogues mandatory in connection 
with certain types of procurement. 

Tenders  presented  in  the  form  of  an  electronic  catalogue  may  be  accompanied  by 
other documents, completing the tender. 

Electronic catalogues shall be established by the candidates or tenderers with a view 
to participating in a specific procurement procedure in accordance with the technical 
specifications and format established by the contracting entity.  

Furthermore, electronic catalogues shall comply with the requirements for electronic 
communication  tools  as  well  as  with  any  additional  requirements  set  by  the 
contracting entity in accordance with Article 33.  

9. 

1. 

2. 

3. 

Where the presentation of tenders in the form of electronic catalogues is accepted or 
required, contracting entities shall: 

(a) 

(b) 

state so in the contract notice, in the invitation to confirm interest, or, where the 
means of calling for competition is a notice on the existence of a qualification 
system, in the invitation to tender or to negotiate; 

indicate in the specifications all the necessary information pursuant to Article 
33(5)  concerning  the  format,  the  electronic  equipment  used  and  the  technical 
connection arrangements and specifications for the catalogue. 

4. 

Where  a  framework  agreement  has  been  concluded  with  more  than  one  economic 
operator  following  the  submission  of  tenders  in  the  form  of  electronic  catalogues, 
contracting  entities  may  provide  that  the  reopening  of  competition  for  specific 

EN 

77 

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contracts  takes  place  on  the  basis  of  updated  catalogues.  In  such  case,  contracting 
entities shall use one of the following alternative methods: 

(a) 

invite  tenderers  to  resubmit  their  electronic  catalogues,  adapted  to  the 
requirements of the specific contract in question; 

(b)  notify  tenderers  that  they  intend  to  collect  from  the  catalogues  which  have 
already been submitted the information needed to constitute tenders adapted to 
the requirements of the specific contract in question (hereinafter "punch out"), 
provided  that  the  use  of  this  method  has  been  announced  in  the  procurement 
documents for the framework agreement. 

Where  contracting  entities  reopen  competition  for  specific  contracts  in  accordance 
with  point  (b)  of  paragraph  (4),  they  shall  specify  the  date  and  time  at  which  they 
intend  to  collect  the  information  needed  to  constitute  tenders  adapted  to  the 
requirements  of  the  specific  contract  in  question  and  shall  give  tenderers  the 
possibility to refuse such collection of information.  

Contracting entities shall allow for an adequate period between the notification and 
the actual collection of information. 

Before  awarding  the  contract,  contracting  entities  shall  present  the  collected 
information  to  the  tenderer  concerned  so  as  to  give  it  the  opportunity  to  contest  or 
confirm the correctness of the tender thus constituted.  

Contracting  entities  may  award  contracts  based  on  a  dynamic  purchasing  system 
through  a  punch  out  provided  that  the  request  for  participation  in  the  dynamic 
purchasing system is accompanied by an electronic catalogue in accordance with the 
technical  specifications  and  format  established  by  the  contracting  entity.  This 
catalogue  shall  be  completed  subsequently  by  the  candidates,  when  they  are 
informed  of  the  contracting  entity's  intention  to  constitute  tenders  by  means  of  a 
punch  out.  The  punch  out  shall  be  conducted  in  conformity  with  point  (b)  of 
paragraph 4 and paragraph 5. 

Article 49 
Centralised purchasing activities and central purchasing bodies 

Contracting entities may purchase works, supplies and/or services from or through a 
central purchasing body. 

Member  States  shall  provide  for  the  possibility  for  contracting  entities  to  have 
recourse  to  centralised  purchasing  activities  offered  by  central  purchasing  bodies 
established in another Member State. 

A contracting entity fulfills its obligations pursuant to this Directive when it procures 
by  having  recourse  to  centralised  purchasing  activities,  to  the  extent  that  the 
procurement  procedures  concerned  and  their  performance  are  conducted  by  the 
central procurement body alone in all its stages from the publication of the call for 
competition to the end of the execution of the ensuing contract or contracts. 

5. 

6. 

1. 

2. 

3. 

EN 

78 

   EN 

 
However, where certain stages of the procurement procedure or the performance of 
the  ensuing  contracts  are  carried  out  by  the  contracting  entity  concerned,  the 
contracting entity continues to be responsible for fulfilling the obligations pursuant to 
this Directive in respect of the stages it conducts.  

All  procurement  procedures  conducted  by  a  central  purchasing  body  shall  be 
performed  using  electronic  means  of  communication,  in  accordance  with  the 
requirements of Article 33. 

Contracting  entities  may,  without  applying  the  procedures  provided  for  in  this 
Directive,  choose  a  central  purchasing  body  to  provide  centralised  purchasing 
activities, including where the central purchasing body is remunerated for so doing.  

Central  purchasing  bodies  shall  also  ensure  the  documentation  of  all  transactions 
performed in the course of the execution of the contracts, framework agreements or 
dynamic purchasing systems they conclude in the course of their central purchasing 
activities. 

Article 50 
Ancillary purchasing activities  

The  providers  of  ancillary  purchasing  activities  shall  be  chosen  in  accordance  with 
the procurement procedures set out in this Directive. 

Article 51 
Occasional joint procurement 

One or more contracting entities may agree to perform certain specific procurements 
jointly.  

Where one contracting entity alone conducts the procurement procedures concerned 
in  all  its  stages  from  the  publication  of  the  call  for  competition  to  the  end  of  the 
performance  of  the  ensuing  contract  or  contracts,  that  contracting  entity  shall  have 
sole responsibility for fulfilling the obligations pursuant to this Directive. 

However, where the conduct of the procurement procedures and the performance of 
the ensuing contracts is carried out by more than one of the participating contracting 
entities, each shall continue to be responsible for fulfilling its obligations pursuant to 
this Directive in respect of the stages it conducts.  

Article 52 
Joint procurement between contracting entities from different Member States 

Without prejudice to Title I, Chapter III, Section 2, Subsection 2: Special relations, 
contracting  entities  from  different  Member  States  may  jointly  award  contracts  by 
using one of the means described in this Article. 

Several  contracting  entities  may  purchase  works,  supplies  and/or  services  from  or 
through a central purchasing body located in another Member State. In that case, the 

4. 

5. 

6. 

1. 

2. 

1. 

2. 

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79 

   EN 

 
procurement procedure shall be conducted in accordance with the national provisions 
of the Member State where the central purchasing body is located.  

3. 

Several  contracting  entities  from  different  Member  States  may  jointly  award  a 
contract.  In  that  case,  the  participating  contracting  entities  shall  conclude  an 
agreement that determines 

(a)  which national provisions shall apply to the procurement procedure; 

(b) 

the  internal  organisation  of  the  procurement  procedure,  including  the 
management of the procedure, the sharing of responsibilities, the distribution of 
the works, supplies or services to be procured, and the conclusion of contracts. 

When  determining  the  applicable  national  law  in  accordance  with  point  (a), 
contracting  entities  may  choose  the  national  provisions  of  any  Member  State  in 
which at least one of the participating entities is located. 

4. 

Where several contracting entities from different Member States have set up a joint 
legal  entity,  including  European  Groupings  of  territorial  cooperation  under 
Regulation (EC) No° 1082/2006 of the European Parliament and of the Council46 or 
other entities established under Union law, the participating contracting entities shall, 
by a decision of the competent body of the joint legal entity, agree on the applicable 
national procurement rules of one of the following Member States: 

(a) 

(b) 

the national provisions of the Member State where the joint legal entity has its 
registered office; 

the  national  provisions  of  the  Member  State  where  the  joint  legal  entity  is 
carrying out its activities. 

This  agreement  may  either  apply  for  an  undetermined  period,  when  fixed  in  the 
constitutive act of the joint legal entity, or may be limited to a certain period of time, 
certain types of contracts or to one or more individual contract awards. 

5. 

In the absence of an agreement determining the applicable public procurement law, 
the national legislation governing the contract award shall be determined following 
the rules set out below: 

(a)  where the procedure is conducted or managed by one participating contracting 
entity on behalf of the others, the national provisions of the Member State of 
that contracting entity shall apply; 

(b)  where  the  procedure  is  not  conducted  or  managed  by  one  participating 

contracting entity on behalf of the others, and 

(i) 

concerns  a  works  contract,  contracting  entities  shall  apply  the  national 
provisions of the Member State where most of the works are located; 

46 

OJ L 210 of 31.7.2006, p. 19 

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80 

   EN 

 
                                                 
(ii) 

concerns a service or supply contract, contracting entities shall apply the 
national  provisions  of  the  Member  State  where  the  major  part  of  the 
services or supplies is provided; 

(c)  where  it  is  not  possible  to  determine  the  applicable  national  law  pursuant  to 
points (a) or (b), contracting entities shall apply the national provisions of the 
Member  State  of  the  contracting  entity  which  bears  the  biggest  share  of  the 
costs. 

6. 

In  the  absence  of  an  agreement  determining  the  applicable  public  procurement  law 
under  paragraph  4,  the  national  legislation  governing  procurement  procedures 
conducted by joint legal entities set up by several contracting entities from different 
Member States shall be determined following the following rules: 

(a)  where  the  procedure  is  conducted  or  managed  by  the  competent  organ  of  the 
joint legal entity, the national provisions of the Member State where the legal 
entity has its registered office shall apply; 

(b)  where the procedure is conducted or managed by a member of the legal entity 
on behalf of that legal entity, the rules set out in points (a) and (b)of paragraph 
5 shall apply; 

(c)  where  it  is  not  possible  to  determine  the  applicable  national  law  pursuant  to 
points (a) or (b) of paragraph 5, the contracting entities shall apply the national 
provisions of the Member State where the legal entity has its registered office. 

One or more contracting entities may award individual contracts under a framework 
agreement  concluded  by  or  jointly  with  a  contracting  entity  located  in  another 
Member  State,  provided  that  the  framework  agreement  contains  specific  provisions 
enabling  the  respective  contracting  entity  or  entities  to  award  the  individual 
contracts. 

Decisions  on  the  award  of  contracts  in  cross-border  public  procurement  shall  be 
subject  to  the  ordinary  review  mechanisms  available  under  the  national  law 
applicable.  

In order to enable the effective operation of review mechanisms, Member States shall 
ensure that the decisions of review bodies within the meaning of Council Directive 
92/13/EEC47  located  in  other  Member  States  are  fully  executed  in  their  domestic 
legal  order,  where  such  decisions  involve  contracting  entities  established  on  their 
territory participating in the relevant cross-border public procurement procedure. 

7. 

8. 

9. 

47 

OJ L 76, 23.03.1992, p. 14. 

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CHAPTER III 
Conduct of the procedure 

SECTION 1 PREPARATION  

Article 53 
Preliminary market consultations  

1. 

2. 

Before launching a procurement procedure, contracting entities may conduct market 
consultations  in  order  to  assess  the  structure,  capability  and  capacity  of  the  market 
and to inform economic operators of their procurement plans and requirements.  

For this purpose, contracting entities may seek or accept advice from administrative 
support  structures  or  from  third  parties  or  market  participants,  provided  that  such 
advice  does  not  have  the  effect  of  precluding  competition  and  does  not  result  in  a 
violation of the principles of non-discrimination and transparency. 

Where  a  candidate  or  tenderer  or  an  undertaking  related  to  a  candidate  or  tenderer 
has advised the contracting entity or has otherwise been involved in the preparation 
of the procurement procedure, the contracting entity shall take appropriate measures 
to  ensure  that  competition  is  not  distorted  by  the  participation  of  that  candidate  or 
tenderer.  

Such measures shall include the communication to the other candidates and tenderers 
of  any  relevant  information  exchanged  in  the  context  of  or  resulting  from  the 
involvement  of  the  candidate  or  tenderer  in  the  preparation  of  the  procurement 
procedure  and  the  fixing  of  adequate  time  limits  for  the  receipt  of  tenders.  The 
candidate  or  tenderer  concerned  shall  only  be  excluded  from  the  procedure  where 
there are no other means to ensure compliance with the duty to observe the principle 
of equal treatment.  

Prior to any such exclusion, candidates or tenderers shall be given the opportunity to 
prove that their involvement in preparing the procurement procedure is not capable 
of distorting competition. The measures taken shall be documented in the individual 
report required by to Article 94. 

Article 54 
Technical specifications 

1. 

The technical specifications as  defined in point 1 of Annex VIII  shall be set out in 
the  procurement  documents.  They  shall  define  the  characteristics  required  of  a 
works, service or supply. 

These characteristics may also refer to the specific process of production or provision 
of the requested works, supplies or services or of any other stage of its life cycle as 
referred to in point (22) of Article 2.  

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2. 

3. 

The  technical  specifications  shall  also  specify  whether  the  transfer  of  intellectual 
property rights will be required. 

For  all  procurement,  the  subject  of  which  is  intended  for  use  by  persons,  whether 
general public or staff of the contracting entity, those technical specifications shall, 
except  in  duly  justified  cases,  be  drawn  up  so  as  to  take  into  account  accessibility 
criteria for people with disabilities or design for all users. 

Where  mandatory  accessibility  standards  are  adopted  by  a  legislative  act  of  the 
Union, technical specifications shall, as far as accessibility criteria are concerned, be 
defined by reference thereto. 

Technical  specifications  shall  guarantee  equal  access  of  economic  operators  to  the 
procurement procedure and not have the effect of creating unjustified obstacles to the 
opening up of public procurement to competition. 

Without  prejudice  to  mandatory  national  technical  rules,  to  the  extent  that  they  are 
compatible with Union law, the technical specifications shall be formulated in one of 
the following ways: 

(a) 

in  terms  of  performance  or  functional  requirements,  including  environmental 
characteristics,  provided  that  the  parameters  are  sufficiently  precise  to  allow 
tenderers  to  determine  the  subject-matter  of  the  contract  and  to  allow 
contracting entities to award the contract; 

(b)  by reference to technical specifications 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 - when 
those do not exist - national standards, national technical approvals or national 
technical specifications relating to the design, calculation and execution of the 
works  and  use  of  the  supplies;  each  reference  shall  be  accompanied  by  the 
words "or equivalent"; 

(c) 

in  terms  of  performance  or  functional  requirements  referred  to  in  point  (a), 
with reference to the technical specifications referred to in point (b) as a means 
of presuming conformity with such performance or functional requirements; 

(d)  by  reference  to  the  technical  specifications  referred  to  in  point  (b)  for  certain 
characteristics, and by reference to the performance or functional requirements 
referred to in point (a) for other characteristics. 

4. 

Unless  justified  by  the  subject-matter  of  the  contract,  technical  specifications  shall 
not refer to a specific make or source, or to 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  paragraph  3  is  not 
possible. Such reference shall be accompanied by the words "or equivalent". 

5. 

Where a contracting entity uses the option of referring to the specifications referred 
to in point (b) of paragraph 3, it shall not reject a tender on the ground that the works, 

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6. 

1. 

supplies and services tendered for do not comply with the specifications to which it 
has referred, once the tenderer proves in its tender, by whatever appropriate means, 
including  the  means  of  proof  referred  to  in  Article  56,  that  the  solutions  which  it 
proposes  satisfy  in  an  equivalent  manner  the  requirements  defined  by  the  technical 
specifications. 

in 

technical  specifications 

Where a contracting entity uses the option provided for in point (a) of paragraph 3 to 
formulate 
functional 
requirements, it shall not reject a tender for supplies, services or works which comply 
with a national standard transposing a European standard, with a European technical 
approval, a common technical specification, an international standard, or a technical 
reference  system  established  by  a  European  standardisation  body,  where  those 
specifications  address  the  performance  or  functional  requirements  which  it  has  laid 
down. 

terms  of  performance  or 

In  its  tender,  the  tenderer  shall  prove  by  any  appropriate  means  including  those 
referred  to  in  Article  56,  that  the  supplies,  service  or  work  in  compliance  with  the 
standard meets the performance or functional requirements of the contracting entity. 

Article 55 
Labels 

Where contracting entities lay down environmental, social or other characteristics of 
a  works,  service  or  supply  in  terms  of  performance  or  functional  requirements  as 
referred to in point (a) of Article 54 paragraph 3, they may require that those works, 
supplies or services bear a specific label, provided that all of the following conditions 
are fulfilled: 

(a) 

(b) 

(c) 

the requirements for the label only concern characteristics which are linked to 
the  subject-matter  of  the  contract  and  are  appropriate  to  define  the 
characteristics of the works, supplies or services that are the subject-matter of 
the contract; 

the  requirements  for  the  label  are  drawn  up  on  the  basis  of  scientific 
information  or  based  on  other  objectively  verifiable  and  non-discriminatory 
criteria; 

the  labels  are  established  in  an  open  and  transparent  procedure  in  which  all 
stakeholders, 
including  government  bodies,  consumers,  manufacturers, 
distributors and environmental organisations may participate,  

(d) 

the labels are accessible to all interested parties; 

(e) 

the criteria of the label are set by a third party which is independent from the 
economic operator applying for the label.  

Contracting  entities  requiring  a  specific  label  shall  accept  all  equivalent  labels  that 
fulfil the requirements of the label indicated by the contracting entities. For products 
that do not bear the label, contracting entities shall also accept a technical dossier of 
the manufacturer or other appropriate means of proof. 

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2. 

1. 

2. 

3. 

4. 

1. 

Where  a  label  fulfils  the  conditions  of  provided  in  points  (b),  (c),  (d)  and  (e)  of 
paragraph 1 but also sets outs out requirements not linked to the subject-matter of the 
contract,  contracting  entities  may  use  those  of  the  detailed  specifications  of  that 
label,  or,  if  necessary,  parts  thereof,  that  are  linked  to  the  subject-matter  of  the 
contract and are appropriate to define characteristics of this subject-matter. 

Article 56 
Test reports, certification and other means of proof. 

Contracting entities may require that economic operators provide a test report from a 
recognised  body  or  a  certificate  issued  by  such  a  body  as  means  of  proof  of 
conformity with the technical specifications.  

Where  contracting  entities  require  the  submission  of  certificates  drawn  up  by 
recognised  bodies  attesting  conformity  with  a  particular  technical  specification, 
certificates  from  equivalent  other  recognised  bodies  shall  also  be  accepted  by  the 
contracting entities.  

Contracting entities shall accept other appropriate means of proof than those referred 
to  in  paragraph  1,  such  as  a  technical  dossier  of  the  manufacturer  where  the 
economic  operator  concerned  has  no  access  to  such  certificates  or  test  reports 
referred  to  in  paragraph  1,  or  no  possibility  of  obtaining  them  within  the  relevant 
time limits. 

"Recognised bodies" within the meaning of paragraph 1 of this Article shall be test 
and calibration laboratories, and any certification and inspection bodies accredited in 
accordance  with  Regulation  (EC)  No  765/2008  of  the  European  Parliament  and  of 
the Council48. 

Member  States  shall  make  available  to  other  Member  States,  upon  request,  any 
information  related  to  the  evidence  and  documents  submitted  in  accordance  with 
Article  54(6),  Article  55  and  paragraphs  1,  2  and  3  of  this  Article  to  prove 
compliance  with  technical  requirements.  The  competent  authorities  of  the  Member 
State of establishment shall provide this information in accordance with Article 96. 

Article 57 
Communication of technical specifications 

On  request  from  economic  operators  interested  in  obtaining  a  contract,  contracting 
entities shall make available the technical specifications regularly referred to in their 
supply, works or service contracts, or the technical specifications which they intend 
to apply to contracts for which the call for competition is a periodic indicative notice. 
Those  specifications  shall  be  made  available  by  electronic  means  through 
unrestricted and full direct access free of charge.  

2. 

Where  the  technical  specifications  are  based  on  documents  available  by  electronic 
means  through  unrestricted  and  full  direct  access  free  of  charge  to  interested 

48 

OJ L 218, 13.8.2008, p. 30. 

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economic  operators,  the  inclusion  of  a  reference  to  those  documents  shall  be 
sufficient. 

Article 58 
Variants 

1. 

Contracting entities may take account of variants which are submitted by a tenderer 
and meet the minimum requirements specified by the contracting entities. 

Contracting entities shall indicate in the specifications whether or not they authorise 
variants  and,  if  so,  the  minimum  requirements  to  be  met  by  the  variants  and  any 
specific requirements for their presentation. Where variants are authorised, they shall 
also ensure that the chosen award criteria can be usefully applied to variants meeting 
those  minimum  requirements  as  well  as  to  conforming  tenders  which  are  not 
variants. 

2. 

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

Article 59 
Division of contracts into lots  

1. 

Contracts may be subdivided into homogenous or heterogeneous lots. Article 13(7) 
applies. 

Contracting entities shall indicate, in the contract notice, in the invitation to confirm 
interest, or, where the means of calling for competition is a notice on the existence of 
a qualification system, in the invitation to tender or to negotiate, whether tenders are 
limited to one or more lots only. 

2. 

3. 

Contracting  entities  may,  even  where  the  possibility  to  tender  for  all  lots  has  been 
indicated, limit the number of lots that may be awarded to a tenderer provided that 
the maximum number is stated in the contract notice or in the invitation to confirm 
interest.  Contracting  entities  shall  determine  and  indicate  in  the  procurement 
documents  the  objective  and  non-discriminatory  criteria  or  rules  for  awarding  the 
different lots where the application of the chosen award criteria would result in the 
award to one tenderer of more lots than the maximum number.  

Where more than one lot may be awarded to the same tenderer, contracting entities 
may provide that they will either award a contract per lot or one or more contracts, 
covering several or all lots.  

Contracting entities shall specify in the procurement documents whether they reserve 
the right to make such a choice and, if so, which lots may be grouped together under 
one contract. 

Contracting entities shall first determine the tenders fulfilling best the award criteria 
set out pursuant to Article 76 for each individual lot. They may award a contract for 

EN 

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more than one lot to a tenderer that is not ranked first in respect of all individual lots 
covered by this contract, provided that the award criteria set out pursuant to Article 
76 are better fulfilled with regard to all the lots covered by that contract. Contracting 
entities  shall  specify  the  methods  they  intend  to  use  for  such  comparison  in  the 
procurement  documents.  Such  methods  shall  be  transparent,  objective  and  non-
discriminatory. 

Contracting entities may require that all contractors coordinate under the direction of 
the economic operator to which a lot involving the coordination of the entire project 
or its relevant parts has been awarded. 

Article 60 
Setting time limits 

When  fixing  the  time  limits  for  requests  to  participate  and  the  receipt  of  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 out in Articles 39 to 44. 

Where  tenders  can  be  made  only  after  a  visit  to  the  site  or  after  on-the-spot 
inspection of the documents supporting the procurement documents, the time limits 
for the receipt of tenders shall be extended, so that all economic operators concerned 
may be aware of all the information needed to produce tenders. 

Section 2 
Publication and transparency 

Article 61 
Periodic indicative notices 

Contracting  entities  may  make  known  their  intentions  of  planned  procurement 
through  the  publication  of  a  periodic  indicative  notice  as  soon  as  possible  after  the 
beginning of the budgetary year. Those notices shall contain the information set out 
in part A, section I of Annex VI. They shall be published either by the Commission 
or by the contracting entities on their buyer profilesin accordance with point 2(b) of 
Annex  IX.  Where  the  notice  is  published  by  the  contracting  entities  on  their  buyer 
profile, they shall send a notice of the publication of the periodic indicative notice on 
a buyer profile in accordance with point 3 of Annex IX. 

When  a  call  for  competition  is  made  by  means  of  a  periodic  indicative  notice  in 
respect  of  restricted  procedures  and  negotiated  procedures  with  prior  call  for 
competition, the notice shall meet all the following requirements: 

(a) 

it refers specifically to the supplies, works or services that will be the subject of 
the contract to be awarded; 

4. 

1. 

2. 

1. 

2. 

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(b) 

(c) 

(d) 

it  indicates  that  the  contract  will  be  awarded  by  restricted  or  negotiated 
procedure  without  further  publication  of  a  call  for  competition  and  invite 
interested economic operators to express their interest in writing;  

it contains, in addition to the information set out in part A, section I of Annex 
VI, the information set out in part A, section II of Annex VI; 

it has been published not more than 12 months prior to the date on which the 
invitation to confirm interest is sent. 

Article 62 
Notices on the existence of a qualification system 

Where contracting entities choose to set up a qualification system in accordance with Article 
71,  the  system  shall  be  the  subject  of  a  notice  as  referred  to  in  Annex  X,  indicating  the 
purpose  of  the  qualification  system  and  how  to  have  access  to  the  rules  concerning  its 
operation.  Where  the  system  is  of  a  duration  greater  than  three  years,  the  notice  shall  be 
published annually. Where the system is of a shorter duration, an initial notice shall suffice. 

Article 63 
Contract notices 

Contract  notices  may  be  used  as  a  means  of  calling  for  competition  in  respect  of  all 
procedures. They shall contain the information set out in the relevant part of Annex XI and 
shall be published in accordance with Article 65. 

Article 64 
Contract award notices 

1. 

2. 

Within  two  months  of  the  award  of  a  contract  or  the  conclusion  of  a  framework 
agreement, contracting entities shall send a contract award notice on the results of the 
procurement procedure. 

Such notice shall contain the information set out in Annex XII and shall be published 
in accordance with Article 65. 

Where the call for competition for the contract concerned has been made in the form 
of  a  periodic  indicative  notice  and  the  contracting  entity  does  not  intend  to  award 
further  contracts  during  the  12  month  period  covered  by  the  periodic  indicative 
notice, the contract award notice shall contain a specific indication to that effect. 

In  the  case  of  framework  agreements  concluded  in  accordance  with  Article  45, 
contracting  entities  shall  not  be  bound  to  send  a  notice  of  the  results  of  the 
procurement procedure for each contract based on that agreement. 

Contracting  entities  shall  send  a  contract  award  notice  within  two  months  after  the 
award of each contract based on a dynamic purchasing system. They may, however, 
group  such  notices  on  a  quarterly  basis.  In  that  case,  they  shall  send  the  grouped 
notices within two months of the end of each quarter. 

EN 

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3. 

4. 

1. 

2. 

3. 

4. 

The information provided in accordance with Annex XII and intended for publication 
shall be published in accordance with Annex IX. Certain information on the contract 
award  or  the  conclusion  of  the  framework  agreement  may  be  withheld  from 
publication  where  its  release  would  impede  law  enforcement  or  otherwise  be 
contrary to the public interest or would prejudice the legitimate commercial interests 
of  a  particular  economic  operator,  public  or  private,  including  the  interests  of  the 
economic  operator to  whom the  contract has been awarded, or might  prejudice fair 
competition between economic operators. 

In the case of contracts for research-and-development services ("R&D services"), the 
information  concerning  the  nature  and  quantity  of  the  services  may  be  respectively 
limited to: 

(a) 

the  indication  "R&D  services"  where  the  contract  has  been  awarded  by  a 
negotiated procedure without a call for competition in accordance with Article 
44(b); 

(b) 

at least as detailed information as was indicated in the notice that was used as a 
means of calling for competition. 

Information  provided  in  accordance  with  Annex  XII  and  marked  as  not  being 
intended for publication shall be published only in simplified form and in accordance 
with Annex IX for statistical purposes. 

Article 65 
Form and manner of publication of notices 

Notices  referred  to  in  Articles  61  to  64  shall  include  the  information  set  out  in 
Annexes XI, X, VI A, VI B and XII and in the format of standard forms, including 
standard forms for corrigenda.  

The Commission shall establish those standard forms. Those implementing acts shall 
be adopted in accordance with the advisory procedure referred to in Article 100. 

Notices referred to in Articles 61 to 64 shall be drawn up, transmitted by electronic 
means to the Commission and published in accordance with Annex IX. Notices shall 
be published not later than five days after they are sent. The costs of publication of 
the notices by the Commission shall be borne by the Union. 

Calls for competition within the meaning of Article 39(2) shall be published in full in 
an official language of the Union as chosen by the contracting entity. That language 
version shall constitute the sole authentic text. A summary of the important elements 
of each notice shall be published in the other official languages. 

The  Commission  shall  ensure  that  the  full  text  and  the  summary  of  periodic 
indicative  notices  referred  to  in  Article  61(2),  calls  for  competition  setting  up  a 
dynamic  purchasing  system  as  referred  to  in  Article  46(3)(a)  and  notices  on  the 
existence  of  a  qualification  system  used  as  a  means  of  calling  for  competition  in 
accordance with Article 39(2)(b) continue to be published: 

EN 

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(a) 

(b) 

(c) 

in  the  case  of  periodic  indicative  notices  for  12  months  or  until  receipt  of  a 
contract award notice as provided for in Article 64 (2) indicating that no further 
contracts will be awarded during the 12 month period covered by the call for 
competition; 

in the case of calls for competition setting up a dynamic purchasing system for 
the period of validity of the dynamic purchasing system; 

in the case of notices on the existence of a qualification system for its period of 
validity. 

Contracting  entities  shall  be  able  to  supply  proof  of  the  dates  on  which  notices  are 
dispatched. 

The Commission shall give the contracting entity confirmation of the receipt of the 
notice  and  of  the  publication  of  the  information  sent,  indicating  the  date  of  that 
publication. Such confirmation shall constitute proof of publication. 

Contracting entities may publish notices for works, supply or service contracts that 
are not subject to the publication requirements laid down in this Directive provided 
that those notices are sent to the Commission by electronic means in accordance with 
the format and procedures for transmission indicated in Annex IX. 

Article 66 
Publication at national level 

Notices  referred  to  in  Articles  61  to  64  and  the  information  contained  therein  shall 
not be published at national level before the publication pursuant to Article 65. 

Notices  published  at  national  level  shall  not  contain  information  other  than  that 
contained  in  the  notices  dispatched  to  the  Commission  or  published  on  a  buyer 
profile, but shall indicate the date of dispatch of the notice to the Commission or its 
publication on the buyer profile. 

Periodic  indicative  notices  shall  not  be  published  on  a  buyer  profile  before  the 
dispatch to the Commission of the notice of their publication in that form; they shall 
indicate the date of that dispatch. 

Article 67 
Electronic availability of procurement documents 

Contracting  entities  shall  offer  unrestricted  and  full  direct  access  free  of  charge  by 
electronic means to the procurement documents from the date of publication of the 
notice  in  accordance  withArticle  65  or  the  date  on  which  the  invitation  to  confirm 
interest  is  sent.  Where  the  means  of  calling  for  competition  is  a  notice  on  the 
existence of a qualification system, such access shall be offered as soon as possible 
and at the latest when the invitation to tender or to negotiate is sent. The text of the 
notice  or  of  those  invitations  shall  specify  the  internet  address  at  which  this 
documentation is accessible. 

5. 

6. 

1. 

2. 

3. 

1. 

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90 

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2. 

1. 

2. 

1. 

Provided  that  it  has  been  requested  in  good  time,  the  contracting  entities  or 
the 
competent  departments  shall  supply  additional 
specifications and any supporting documents not later than six days before the time 
limit fixed for the receipt of tenders. In the event of an accelerated open procedure as 
referred to in Article 40(3), that period shall be four days.  

information  relating 

to 

Article 68 
Invitations to submit a tender or to negotiate; invitations to confirm interest 

In  restricted  procedures,  innovation  partnerships  and  negotiated  procedures  with 
prior  call  for  competition,  contracting  entities  shall  simultaneously  and  in  writing 
invite the selected candidates to submit their tenders or to negotiate. 

Where a periodic indicative notice is used as a call for competition pursuant to point 
(a) of Article 39(2), contracting entities shall simultaneously and in writing invite the 
economic  operators  having  expressed  their  interest  to  confirm  their  continuing 
interest. 

The invitations referred to in paragraph 1 shall include a reference to the electronic 
address  on  which  the  specifications  and  any  other  supporting  document  have  been 
made  directly  available  by  electronic  means.  In  addition,  they  shall  include  the 
information set out in Annex XIII. 

Article 69 
Informing applicants for qualification, candidates and tenderers 

Contracting entities shall as soon as possible inform each candidate and tenderer of 
decisions reached concerning the conclusion of a framework agreement, the award of 
the contract, or admission to a dynamic purchasing system, including the grounds for 
any decision not to conclude a framework agreement or award a contract for which 
there  has  been  a  call  for  competition  or  to  recommence  the  procedure,  or  not  to 
implement a dynamic purchasing system. 

2. 

On request from the party concerned, contracting entities shall, as soon as possible, 
and in any case within 15 days from receipt of a written request, inform: 

(a) 

(b) 

(c) 

any  unsuccessful  candidate  of  the  reasons  for  the  rejection  of  its  request  to 
participate; 

any  unsuccessful  tenderer  of  the  reasons  for  the  rejection  of  its  tender, 
including, for the cases referred to in Article 54(5) and (6), the reasons for their 
decision  of  non-equivalence  or  their  decision  that  the  works,  supplies  or 
services do not meet the performance or functional requirements; 

any  tenderer  that  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; 

(d) 

any tenderer that has made an admissible tender of the conduct and progress of 
negotiations and dialogue with tenderers. 

EN 

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3. 

Contracting entities may decide that certain information on the contract award or the 
conclusion  of  the  framework  agreement  or  the  admission  to  a  dynamic  purchasing 
system, referred to in paragraph 1, is to be withheld where its release would impede 
law  enforcement  or  otherwise  be  contrary  to  the  public  interest  or  would  prejudice 
the  legitimate  commercial  interests  of  a  particular  economic  operator,  public  or 
private,  including  the  interests  of  the  economic  operator  to  whom  the  contract  has 
been awarded, or might prejudice fair competition between economic operators. 

4. 

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

If  the  decision  will  take  longer  than  four  months  from  the  presentation  of  an 
application,  the  contracting  entity  shall  inform  the  applicant,  within  two  months  of 
the application, of the reasons justifying the longer period and of the date by which 
his application will be accepted or refused. 

5. 

6. 

Applicants whose qualification is refused shall be informed of this decision and the 
reasons for refusal as soon as possible and under no circumstances more than 15 days 
later  than  the  date  of  the  decision.  The  reasons  shall  be  based  on  the  criteria  for 
qualification referred to in Article 71(2). 

Contracting entities which establish and operate a system of qualification may bring 
the  qualification  of  an  economic  operator  to  an  end  only  for  reasons  based  on  the 
criteria  for  qualification  referred  to  in  Article  71(2).  Any  intention  to  bring 
qualification  to  an  end  shall  be  notified  in  writing  to  the  economic  operator 
beforehand,  at  least  15  days  before  the  date  on  which  qualification  is  due  to  end, 
together with the reason or reasons justifying the proposed action. 

SECTION 3 
CHOICE OF PARTICIPANTS AND AWARD OF CONTRACTS 

Article 70 
General principles 

1. 

For  the  purpose  of  selecting  participants  in  their  procurement  procedures,  the 
following cumulative rules apply: 

(a) 

(b) 

(c) 

contracting  entities  having  provided  rules  and  criteria  for  the  exclusion  of 
tenderers or candidates in accordance with Article 72(1) or Article 74(2) shall 
exclude  economic  operators  identified  in  accordance  with  such  rules  and 
fulfilling such criteria; 

they shall select tenderers and candidates in accordance with the objective rules 
and criteria laid down pursuant to Articles 72 and 74; 

in  restricted  procedures,  in  negotiated  procedures  with  a  call  for  competition 
and  in  innovation  partnerships,  they  shall  where  appropriate  reduce  in 
accordance  with  Article  72(2)  the  number  of  candidates  selected  pursuant  to 
points (a) and (b) of this paragraph. 

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2. 

3. 

4. 

5. 

6. 

7. 

When  a  call  for  competition  is  made  by  means  of  a  notice  on  the  existence  of  a 
qualification  system  and  for  the  purpose  of  selecting  participants  in  procurement 
procedures for the specific contracts which are the subject of the call for competition, 
contracting entities shall: 

(a)  qualify economic operators in accordance with Article 71; 

(b) 

apply to such qualified economic operators those provisions of paragraph 1 that 
are relevant to restricted or negotiated procedures or to innovation partnerships. 

When selecting participants for a restricted or negotiated procedure or an innovation 
partnership,  in  reaching  their  decision  as  to  qualification  or  when  the  criteria  and 
rules are being updated, contracting entities shall not: 

(a) 

(b) 

impose  administrative,  technical  or  financial  conditions  on  certain  economic 
operators which would not be imposed on others; 

require  tests  or  evidence  which  would  duplicate  objective  evidence  already 
available. 

Contracting entities shall verify that the tenders submitted by the selected tenderers 
comply with the rules and requirements applicable to tenders and award the contract 
on  the  basis  of  the  criteria  laid  down  in  Articles  76  and  79,  taking  into  account 
Article 58. 

Contracting entities may decide not to award a contract to the tenderer submitting the 
best tender where they have established that the tender does not comply, at least in an 
equivalent manner, with obligations established  by Union legislation in the  field of 
social  and  labour  law  or  environmental  law  or  of  the  international  social  and 
environmental law provisions listed in Annex XIV. 

In  open  procedures,  contracting  entities  may  decide  to  examine  tenders  before 
verifying the suitability of tenderers, provided that the relevant provisions of Articles 
70 to 79 are observed, including the rule that the contract shall not be awarded to a 
tenderer who should have been excluded pursuant to Article 74 or who does not meet 
the selection criteria set out by the contracting entity in accordance with Article 72(1) 
and Article 74. 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 98 to amend the list in Annex XIV, where necessary due to the conclusion of 
new international agreements or modification of existing international agreements. 

SUBSECTION 1 
QUALIFICATION AND QUALITATIVE SELECTION 

Article 71 
Qualification systems 

1. 

Contracting  entities  which  so  wish  may  establish  and  operate  a  system  of 
qualification of economic operators. 

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

2. 

The system under paragraph 1 may involve different qualification stages. 

Contracting entities shall establish objective rules and criteria for the exclusion and 
selection  of  economic  operators  requesting  qualification  and  objective  criteria  and 
rules  for  the  operation  of  the  qualification  system,  covering  matters  such  as 
inscription  in  the  system,  periodic  updating  of  the  qualifications,  if  any,  and  the 
duration of the system. 

Where those criteria and rules include technical specifications, Articles 54 to 56 shall 
apply. The criteria and rules may be updated as required. 

The criteria and rules referred to in paragraph 2 shall be made available to economic 
operators on request. Those those updated criteria and rules shall be communicated 
to interested economic operators. 

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

A written record of qualified economic operators shall be kept; it may be divided into 
categories according to the type of contract for which the qualification is valid. 

When  a  call  for  competition  is  made  by  means  of  a  notice  on  the  existence  of  a 
qualification system, specific contracts for the works, supplies or services covered by 
the  qualification  system  shall  be  awarded  by  restricted  procedures  or  negotiated 
procedures, in which all tenderers and participants are selected among the candidates 
already qualified in accordance with such a system. 

Any  charges  that  are  billed  in  connection  with  requests  for  qualification  or  with 
updating or conserving an already obtained qualification pursuant to the system shall 
be proportionate to the generated costs. 

Article 72 
Criteria for qualitative selection 

Contracting  entities  may  establish  objective rules  and  criteria  for  the  exclusion  and 
selection  of  tenderers  or  candidates;  those  rules  and  criteria  shall  be  available  to 
interested economic operators. 

Where  contracting  entities  need  to  ensure  an  appropriate  balance  between  the 
particular characteristics of the procurement procedure and the resources required to 
conduct  it,  they  may,  in  restricted  or  negotiated  procedures  or  in  innovation 
partnerships, establish objective rules and criteria that reflect this need and enable the 
contracting entity to reduce the number of candidates that will be invited to tender or 
to negotiate. The number of candidates selected shall, however, take account of the 
need to ensure adequate competition. 

3. 

4. 

5. 

6. 

1. 

2. 

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1. 

2. 

3. 

1. 

Article 73 
Reliance on the capacities of other entities 

Where  the  objective  rules  and  criteria  for  the  exclusion  and  selection  of  economic 
operators  requesting  qualification  in  a  qualification  system  include  requirements 
relating  to  the  economic  and  financial  capacity  of  the  economic  operator,  or  to  its 
technical and professional abilities, the economic operator may where necessary rely 
on the capacity of other entities, whatever the legal nature of the link between itself 
and those entities. In this case the economic operator shall prove to the contracting 
entity that those resources will be available to it throughout the period of the validity 
of  the  qualification  system,  for  example  by  producing  an  undertaking  by  those 
entities  to  that  effect.  In  the  case  of  economic  and  financial  standing,  contracting 
entities  may  require  that  the  economic  operator  and  those  entities  are  jointly  liable 
for the execution of the contract. 

Under the same conditions, a group of economic operators as referred to in Article 30 
may rely on the capacity of participants in the group or of other entities. 

Where the  objective rules and criteria for the exclusion and selection of candidates 
and  tenderers  in  open,  restricted  or  negotiated  procedures  or  in  innovation 
partnerships include requirements relating to the economic and financial capacity of 
the  economic  operator,  or  to  its  technical  and  professional  abilities  the  economic 
operator  may  where  necessary  and  for  a  particular  contract  rely  on  the  capacity  of 
other entities, whatever the legal nature of the link between itself and those entities. 
In  this  case  the  economic  operator  shall  prove  to  the  contracting  entity  that  the 
necessary resources will be available to it, for example by delivering an undertaking 
by  those  entities  to  that  effect.  In  the  case  of  economic  and  financial  standing, 
contracting  entities  may  require  that  the  economic  operator  and  those  entities  are 
jointly liable for the execution of the contract.  

Under the same conditions, a group of economic operators as referred to in Article 30 
may rely on the capacities of participants in the group or of other entities. 

In the case of works contracts, service contracts and siting and installation operations 
in  the  context  of  a  supply  contract,  contracting  entities  may  require  that  certain 
critical  tasks  be  performed  directly  by  the  tenderer  itself  or,  where  a  tender  is 
submitted by a group of economic operators as referred to in Article 30, a participant 
in the group. 

Article 74 
Use of exclusion grounds and selection criteria provided for under [Directive 2004/18] 

The objective rules and criteria for the exclusion and selection of economic operators 
requesting qualification in a qualification system and the objective rules and criteria 
for  the  exclusion  and  selection  of  candidates  and  tenderers  in  open,  restricted  or 
negotiated  procedures  or  in  innovation  partnerships  may  include  the  exclusion 
grounds listed in Article 55 of Directive 2004/18 on the terms and conditions set out 
therein. 

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2. 

3. 

1. 

2. 

Where the contracting entity is a contracting authority, those criteria and rules shall 
include the exclusion grounds listed in Article 55(1) and (2) of Directive 2004/18 on 
the terms and conditions set out in that Article.  

The criteria and rules referred to in paragraph 1 may include the selection criteria set 
out in Article 56 of Directive 2004/18/EC on the terms and conditions set out therein, 
notably  as  regards  the  limits  to  requirements  concerning  yearly  turnovers,  as 
provided for under the second subparagraph of paragraph 3 of that Article. 

For the purpose of applying paragraphs 1 and 2 of this Article, Articles 57 to 60 of 
Directive 2004/18/EC shall apply. 

Article 75 
Quality assurance standards and environmental management standards 

Where  they  request  the  production  of  certificates  drawn  up  by  independent  bodies 
attesting  that  the  economic  operator  complies  with  certain  quality  assurance 
standards,  including  on  accessibility  for  disabled  persons,  contracting  entities  shall 
refer  to  quality  assurance  systems  based  on  the  relevant  European  standards  series 
certified  by  bodies  conforming  to  the  European  standards  series  concerning 
certification. 

Contracting entities shall recognise equivalent certificates from bodies established in 
other  Member  States.  They  shall  also  accept  other  evidence  of  equivalent  quality 
assurance measures from economic operators that have no access to such certificates, 
or no possibility of obtaining them within the relevant time limits. 

Where  contracting  entities  require  the  production  of  certificates  drawn  up  by 
independent  bodies  attesting  that  the  economic  operator  complies  with  certain 
environmental  management  schemes  or  standards,  they  shall  refer  to  the  European 
Union  Eco-Management  and  Audit  Scheme  (EMAS)  or  to  other  environmental 
management  schemes  as  recognized  in  accordance  with  Article  45  of  Regulation 
(EC)  No  1221/2009  of  the  European  Parliament  and  of  the  Council49  or  other 
the  relevant  European  or 
environmental  management  standards  based  on 
international standards by accredited bodies. 

Contracting entities shall recognise equivalent certificates from bodies established in 
other  Member  States.  They  shall  also  accept  other  evidence  of  equivalent 
environmental management measures  from  economic  operators that  have no access 
to  such  certificates,  or  no  possibility  of  obtaining  them  within  the  relevant  time 
limits. 

3. 

Upon  request,  Member  States  shall  make  available  to  other  Member  States,  in 
accordance with Article 97, any information relating to the documents  produced as 
evidence  of  compliance  with  quality  and  environmental  standards  referred  to  in 
paragraphs 1 and 2 of this Article. 

49 

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SUBSECTION 2 
AWARD OF THE CONTRACT 

Article 76 
Contract award criteria 

1. 

Without  prejudice  to  national  laws,  regulations  or  administrative  provisions  on  the 
remuneration of certain services, the criteria on which contracting entities shall base 
the award of contracts shall be one of the following: 

(a) 

the most economically advantageous tender; 

(b) 

the lowest cost. 

Costs  may  be  assessed,  at  the  choice  of  the  contracting  entity,  on  the  basis  of  the 
price  only  or  using  a  cost-effectiveness  approach,  such  as  a  life-cycle  costing 
approach, under the conditions set out in Article 77. 

2. 

The most economically advantageous tender referred to in point (a) of paragraph 1) 
from  the  point  of  view  of  the  contracting  entity  shall  be  identified  on  the  basis  of 
criteria linked to the subject-matter of the contract in question. 

Those criteria shall include in addition to the price or costs referred to in point (b) of 
paragraph  1,  other  criteria  linked  to  the  subject-matter  of  the  contract  in  question, 
such as: 

(a)  quality,  including  technical  merit,  aesthetic  and  functional  characteristics, 
accessibility, design for all users, environmental characteristics and innovative 
character; 

(b) 

(c) 

(d) 

for  service  contracts  and  contracts  involving  the  design  of  works,  the 
organisation,  qualification  and  experience  of  the  staff  assigned  to  performing 
the contract in question may be taken into consideration, with the consequence 
that, following the award of the contract, such staff may only be replaced with 
the  consent  of  the  contracting  entity  which  must  verify  that  replacements 
ensure equivalent organisation and quality; 

after-sales service and technical assistance, delivery date and delivery period or 
period of completion, commitments with regard to parts and security of supply; 

the specific process of production or provision of the requested works, supplies 
or services or of any other stage of its life cycle, as referred to in point 22 of 
Article  2,  to  the  extent  that  those  criteria  are  specified  in  accordance  with 
paragraph 4 and they concern factors directly involved in those processes and 
characterise  the  specific  process  of  production  or  provision  of  the  requested 
works, supplies or services. 

3. 

Member  States  may  provide  that  the  award  of  certain  types  of  contracts  shall  be 
based  on  the  most  economically  advantageous  tender  referred  to  in  point  (a)  of 
paragraph 1 and in paragraph 2. 

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4. 

5. 

Award criteria shall not confer an unrestricted freedom of choice on the contracting 
entity.  They  shall  ensure  the  possibility  of  effective  competition  and  shall  be 
accompanied by requirements which allow the information provided by the tenderers 
to be effectively verified. Contracting entities shall verify effectively, on the basis of 
the  information  and  proof  provided  by  the  tenderers,  whether  the  tenders  meet  the 
award criteria. 

In the case referred to in point (a) of paragraph 1, the contracting entity shall specify 
the relative weighting which it gives to each of the criteria chosen to determine the 
most economically advantageous tender. 

Those  weightings  may  be  expressed  by  providing  for  a  range  with  an  appropriate 
maximum spread. 

Where  weighting  is  not  possible  for  objective  reasons,  the  contracting  entity  shall 
indicate the criteria in descending order of importance. 

The  relative  weighting  or  order  of  importance  shall  be  specified,  as  appropriate,  in 
the  notice  used  as  a  means  of  calling  for  competition,  in  the  invitation  to  confirm 
interest, in the invitation to tender or to negotiate, or in the specifications. 

Article 77 
Life-cycle costing 

1. 

Life-cycle costing shall to the extent relevant cover the following costs over the life 
cycle of a product, service or works as defined in point 22 of Article 2:  

(a) 

(b) 

internal costs, including costs relating to acquisition, such as production costs, 
use,  such  as  energy  consumption,  maintenance  costs  and  end  of  life,  such  as 
collection and recycling costs and 

external  environmental  costs  directly  linked  to  the  life  cycle,  provided  their 
monetary value can be determined and verified, which may include the cost of 
emissions  of  greenhouse  gases  and  of  other  pollutant  emissions  and  other 
climate change mitigation costs. 

2. 

Where contracting entities assess the costs using a life-cycle costing approach, they 
shall  indicate  in  the  procurement  documents  the  methodology  used  for  the 
calculation  of  the  life-cycle  costs.  The  methodology  used  must  fulfil  all  of  the 
following conditions: 

(a) 

it has been drawn up on the basis of scientific information or is based on other 
objectively verifiable and non-discriminatory criteria; 

(b) 

it has been established for repeated or continuous application; 

(c) 

it is accessible to all interested parties. 

Contracting  entities  shall  allow  economic  operators,  including  economic  operators 
from third countries, to apply a different methodology for establishing the life-cycle 
costs of their offer, provided that they prove that this methodology complies with the 

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requirements  set  out  in  points  a,  b  and  c  and  is  equivalent  to  the  methodology 
indicated by the contracting entity. 

3. 

Whenever a common methodology for the calculation of life-cycle costs is adopted 
as  part  of  a  legislative  act  of  the  Union,  including  by  delegated  acts  pursuant  to 
sector specific legislation, it shall be applied where life-cycle costing is included in 
the award criteria referred to in Article 76 (1).  

A  list  of  such  legislative  and  delegated  acts  is  set  out  in  Annex  XV.  The 
Commission, shall be empowered to adopt delegated acts in accordance with Article 
98  concerning  the  update  of  this  list,  when  on  the  basis  of  the  adoption  of  new 
legislation,  repeal  or  modification  of  such  legislation,  such  amendments  prove 
necessary. 

Article 78 
Impediments to award  

Contracting  entities  shall  not  conclude  the  contract  with  a  successful  tenderer  where  one  of 
the following conditions is fulfilled: 

(a) 

(b) 

(c) 

the tenderer is not able to provide the certificates and documents required pursuant to 
Article 74(3); 

the declaration provided by the tenderer pursuant to Article 37 is false; 

the declaration provided by the tenderer pursuant to Article 36(3)(b) is false. 

Article 79 
Abnormally low tenders 

1. 

The contracting entity shall request economic operators to explain the price or costs 
charged, where all of the following conditions are fulfilled:  

(a) 

(b) 

the  price  or  cost  charged  is  more  than  50  %  lower  than  the  average  price  or 
costs of the remaining tenders; 

the price or cost charged is more than 20 % lower than the price or costs of the 
second lowest tender; 

(c) 

at least five tenders have been submitted. 

2. 

3. 

Where  tenders  appear  to  be  abnormally  low  for  other  reasons,  contracting  entities 
may also request such explanations. 

The explanations referred to in paragraphs 1 and 2 may in particular relate to: 

(a) 

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

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(b) 

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

(c) 

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

(d) 

compliance,  at  least  in  an  equivalent  manner,  with  obligations  established  by 
Union legislation in the field of social and labour law or environmental law or 
of  the  international  social  and  environmental  law  provisions  listed  in  Annex 
XIV  or,  where  not  applicable,  with  other  provisions  ensuring  an  equivalent 
level of protection; 

(e) 

the possibility of the tenderer obtaining State aid. 

4. 

The  contracting  entity  shall  verify  the  information  provided  by  consulting  the 
tenderer.  

It  may  only  reject  the  tender  where  the  evidence  does  not  justify  the  low  level  of 
price or costs charged, taking into account the elements referred to in paragraph 3. 

Contracting  entities  shall  reject  the  tender,  where  they  have  established  that  the 
tender is abnormally low because it does not comply with obligations established by 
Union legislation in the field of social and labour law or environmental law or by the 
international social and environmental law provisions listed in Annex XIV. 

Where  a  contracting  entity  establishes  that  a  tender  is  abnormally  low  because  the 
tenderer has obtained State aid, the tender may be rejected on that ground alone only 
after  consultation  with  the  tenderer  where  the  latter  is  unable  to  prove,  within  a 
sufficient  time  limit  fixed  by  the  contracting  entity,  that  the  aid  in  question  was 
compatible with the internal market within the meaning of Article 107 of the Treaty. 
Where the contracting entity rejects a tender in those circumstances, it shall inform 
the Commission thereof. 

Upon  request,  Member  States  shall  make  available  to  other  Member  States,  in 
accordance with Article 97, any information relating to the evidence and documents 
produced in relation to details listed in paragraph 3. 

5. 

6. 

Chapter IV 
Contract performance 

Article 80 
Conditions for performance of contracts  

Contracting  entities  may  lay  down  special  conditions  relating  to  the  performance  of  a 
contract, provided that they are indicated in the call for competition or in the specifications. 
Those  conditions  may,  in  particular,  concern  social  and  environmental  considerations.  They 
may also include the requirement that economic operators foresee compensations for risks of 
price increases that are the result of price fluctuations (hedging) and that could substantially 
impact the performance of a contract. 

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1. 

2. 

3. 

1. 

2. 

Article 81 
Subcontracting 

In the procurement documents, the contracting entity may ask, or may be required by 
a Member State to ask, the tenderer to indicate in its tender any share of the contract 
it may intend to subcontract to third parties and any proposed subcontractors. 

Member States may provide that, at the request of the subcontractor and where the 
nature  of  the  contract  so  allows,  the  contracting  entity  shall  transfer  due  payments 
directly  to  the  subcontractor  for  services,  supplies  or  works  provided  to  the  main 
contractor.  In  such  case,  Member  States  shall  put  in  place  appropriate  mechanisms 
permitting  the  main  contractor  to  object  to  undue  payments.  The  arrangements 
concerning that mode of payment shall be set out in the procurement documents. 

Paragraphs  1  and  2  shall  be  without  prejudice  to  the  question  of  the  principal 
economic operator's liability. 

Article 82 
Modification of contracts during their term 

A  substantial  modification  of  the  provisions  of  a  works,  supply  or  service  contract 
during its term shall be considered as a new award for the purposes of this Directive 
and shall require a new procurement procedure in accordance with this Directive. 

A modification of a contract during its term shall be considered substantial within the 
meaning of paragraph 1, where it renders the contract substantially different from the 
one  initially  concluded.  In  any  case,  without  prejudice  to  paragraph  3  and  4,  a 
modification shall be considered substantial where one of the following conditions is 
met:  

(a) 

(b) 

(c) 

the modification introduces conditions which, had they been part of the initial 
procurement  procedure,  would  have  allowed  for  the  selection  of  other 
candidates than those initially selected or would have allowed for awarding the 
contract to another tenderer; 

the modification changes the economic balance of the contract in favour of the 
contractor; 

the modification extends the scope of the contract considerably to encompass 
supplies, services or works not initially covered. 

3. 

The  replacement  of  the  contractual  partner  shall  be  considered  a  substantial 
modification within the meaning of paragraph 1.  

However,  the  first  subparagraph  shall  not  apply  in  the  event  of  universal  or  partial 
succession into the position of the initial contractor, following corporate restructuring 
operations  or  insolvency,  of  another  economic  operator  that  fulfils  the  criteria  for 
qualitative  selection  initially  established  provided  that  this  does  not  entail  other 
substantial  modifications  to  the  contract  and  is  not  aimed  at  circumventing  the 
application of this Directive. 

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4. 

5. 

6. 

Where  the  value  of  a  modification  can  be  expressed  in  monetary  terms,  the 
modification  shall  not  be  considered  to  be  substantial  within  the  meaning  of 
paragraph 1, where its value does not exceed the thresholds set out in Article 12 and 
where  it  is  below  5%  of  the  price  of  the  initial  contract,  provided  that  the 
modification  does  not  alter  the  overall  nature  of  the  contract.  Where  several 
successive  modifications  are  made,  the  value  shall  be  assessed  on  the  basis  of  the 
cumulative value of the successive modifications. 

Contract  modifications  shall  not  be  considered  substantial  within  the  meaning 
ofparagraph 1 where they have been provided for in the procurement documents in 
clear, precise and unequivocal review clauses or options. Such clauses shall state the 
scope and nature of possible modifications or options as well as the conditions under 
which  they  may  be  used.  They  shall  not  provide  for  modifications  or  options  that 
would alter the overall nature of the contract.  

By way of derogation from parapgraph 1, a substantial modification shall not require 
a  new  procurement  procedure  where  the  following  cumulative  conditions  are 
fulfilled:  

(a) 

the  need  for  modification  has  been  brought  about  by  circumstances  which  a 
diligent contracting entity could not foresee;  

(b) 

the modification does not alter the overall nature of the contract. 

Contracting  entities  shall  publish  in  the  Official  Journal  of  the  European  Union  a 
notice  on  such  modifications.  Such  notices  shall  contain  the  information  set  out  in 
Annex XVI and be published in accordance with Article 65.  

7. 

Contracting  entities  shall  not  have  recourse  to  modifications  of  the  contract  in  the 
following cases: 

(a)  where 

the 
the  modification  would  aim  at  remedying  deficiencies 
performance  of  the  contractor  or  the  consequences,  which  can  be  remedied 
through the enforcement of contractual obligations; 

in 

(b)  where the modification would aim at compensating risks of price increases that 

have been hedged by the contractor. 

Article 83 
Termination of contracts 

Member States shall ensure that contracting entities have the possibility, under the conditions 
determined  by  the  applicable  national  contract  law,  to  terminate  a  works,  supply  or  service 
contract during its term, where one of the following conditions is fulfilled: 

(a) 

(b) 

the  exceptions  provided  for  in  Article  21  cease  to  apply  following  a  private 
participation in the legal person awarded the contract pursuant to Article 21 (4);  

a modification of the contract constitutes a new award within the meaning of Article 
82; 

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(c) 

the Court of Justice of the European Union finds, in a procedure under Article 258 of 
the Treaty, that a Member State has failed to fulfil its obligations under the Treaties 
due to the fact that a contracting entity belonging to that Member State has awarded 
the  contract  in  question  without  complying  with  its  obligations  under  the  Treaties 
and this Directive. 

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TITLE III 
PARTICULAR PROCUREMENT REGIMES 

CHAPTER I 
Social and other specific services  

Article 84 
Award of contracts for social and other specific services 

Contracts  for  social  and  other  specific  services  listed  in  Annex  XVII  shall  be  awarded  in 
accordance with this Chapter where the value of the contracts is equal to or greater than the 
threshold indicated in Article 12(c). 

Article 85 
Publication of notices 

1. 

2. 

3. 

4. 

1. 

2. 

Contracting  entities  intending  to  award  a  contract  for  the  services  referred  to  in 
Article 84 shall make known their intention by means of a contract notice. 

Contracting  entities  that  have  awarded  a  contract  for  the  services  referred  to  in 
Article 84 shall make known the results by means of contract award notice. 

The notices refered to in paragraphs 1 and 2 shall contain the information referred to 
in  Annex  XVIII  in  accordance  with  the  standard  model  notices.  The  Commission 
shall  establish  the  standard  forms.  Those  implementing  acts  shall  be  adopted  in 
accordance with the advisory procedure referred to in Article 100. 

The notices referred to in paragraphs 1 and 2 shall be published in accordance with 
Article 65. 

Article 86 
Principles of awarding contracts 

Member States shall  put in  place appropriate procedures for the  award  of contracts 
subject to this Chapter, ensuring full compliance with the principles of transparency 
and equal treatment of economic operators and allowing contracting entities to take 
into account the specificities of the services in question.  

Member States shall ensure that contracting entities may take into account the need 
to ensure quality, continuity, accessibility, availability and comprehensiveness of the 
services,  the  specific  needs  of  different  categories  of  users,  the  involvement  and 
empowerment  of  users  and  innovation.  Member  States  may  also  provide  that  the 
choice of the service provider shall not be made solely on the basis of the price for 
the provision of the service. 

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CHAPTER II 
RULES GOVERNING DESIGN CONTESTS 

Article 87 
General provisions 

The  rules  for  the  organisation  of  design  contests  shall  be  in  conformity  with  this 
Chapter and shall be made available to those interested in participating in the contest. 

The admission of participants to design contests shall not be limited: 

(a)  by reference to the territory or part of the territory of a Member State; 

(b)  on the grounds that, under the law of the Member State in which the contest is 

organised, they would be required to be either natural or legal persons. 

Article 88  
Scope 

This  Chapter  shall  apply  to  design  contests  organised  as  part  of  a  procurement 
procedure for a service contract, provided that the estimated value of the contract, net 
of VAT, and including any possible prizes or payments to participants, is equal to or 
greater than the amount set out in point (a) of Article 12.  

This  Chapter  shall  apply  to  all  design  contests  where  the  total  amount  of  contest 
prizes and payments to participants, including the estimated value net of VAT of the 
service contract which might subsequently be concluded under point (k) of Article 44 
if the contracting entity does not exclude such an award in the contest notice, is equal 
to or greater than the amount set out in point (a) of Article 12. 

Article 89  
Notices 

Contracting entities that intend to organise a design contest shall call for competition 
by  means  of  a  contest  notice.  Where  they  intend  to  award  a  subsequent  service 
contract  pursuant  to  point  (k)  of  Article  44,  this  shall  be  indicated  in  the  design 
contest  notice.  Contracting  entities  that  have  held  a  design  contest  shall  make  the 
results known by means of a notice.  

The call for competition shall include the information set out in Annex XIX and the 
notice of the results of a design contest shall include the information set out in Annex 
XX  in  the  format  of  standard  forms.  The  Commission  shall  establish  the  standard 
forms.  Those  implementing  acts  shall  be  adopted  in  accordance  with  the  advisory 
procedure referred to in Article 100. 

The notice of the results of a  design  contest shall be forwarded to the Commission 
within two months of the closure of the design contest.  

1. 

2. 

1. 

2. 

1. 

2. 

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Where  release  of  information  on  the  outcome  of  the  contest  would  impede  law 
enforcement  or  otherwise  be  contrary  to  the  public  interest  or  would  prejudice  the 
legitimate commercial interests of a particular economic operator, public or private, 
including  the  interests  of  the  economic  operator  to  whom  the  contract  has  been 
awarded,  or  might  prejudice  fair  competition  between  economic  operators,  such 
information may be withheld from publication. 

Paragraphs  (2)  to  (6)  of  Article  65  shall  also  apply  to  notices  relating  to  design 
contests. 

Article 90 
Rules on the organisation of design contests, the selection of participants and the jury 

When  organising  design  contests,  contracting  entities  shall  apply  procedures  which 
are adapted to this Directive. 

Where design contests are restricted to a limited number of participants, contracting 
entities  shall  establish  clear  and  non-discriminatory  selection  criteria.  In  any  event, 
the number of candidates invited to participate shall be sufficient to ensure genuine 
competition. 

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

Article 91 
Decisions of the jury 

The jury shall be autonomous in its decisions or opinions. 

The  jury  shall  examine  the  plans  and  projects  submitted  by  the  candidates 
anonymously and solely on the basis of the criteria indicated in the contest notice. 

The jury shall record its ranking of projects in a report, signed by its members, made 
according to the merits of each project, together with its remarks and any points that 
may need clarification. 

Anonymity shall be observed until the jury has reached its opinion or decision. 

Candidates may be invited, if need be, to answer questions that the jury has recorded 
in the minutes to clarify any aspects of the projects. 

Complete  minutes  shall  be  drawn  up  of  the  dialogue  between  jury  members  and 
candidates. 

3. 

1. 

2. 

3. 

1. 

2. 

3. 

4. 

5. 

6. 

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TITLE IV 
GOVERNANCE 

Article 92 
Enforcement 

In  conformity  with  Council  Directive  92/13/EEC,  Member  States  shall  ensure  correct 
application  of  this  Directive  by  effective,  available  and  transparent  mechanisms  which 
complement the system in place for the review of decisions taken by contracting entities. 

Article 93 
Public oversight 

1. 

2. 

Member States shall appoint a single independent body responsible for the oversight 
and  coordination  of  implementation  activities  (hereinafter  "the  oversight  body"). 
Member States shall inform the Commission of their designation.  

All contracting entities shall be subject to such oversight.  

The  competent  authorities  involved  in  the  implementation  activities  shall  be 
organised  in  such  a  manner  that  conflicts  of  interests  are  avoided.  The  system  of 
public  oversight  shall  be  transparent.  For  this  purpose,  all  guidance  and  opinion 
documents  and  an  annual  report  illustrating  the  implementation  and  application  of 
rules laid down in this Directive shall be published.  

The annual report shall include the following: 

(a) 

(b) 

(c) 

an indication of the success rate of small and medium-sized enterprises (SMEs) 
in procurement; where the percentage is lower than 50 % in terms of values of 
contracts awarded to SMEs, the report shall provide an analysis of the reasons 
therefore; 

a  global  overview  of  the  implementation  of  sustainable  procurement  policies, 
including  on  procedures  taking  into  account  considerations  linked  to  the 
protection  of  the  environment,  social  inclusion  including  accessibility  for 
persons with disabilities or fostering innovation; 

centralized data about reported cases of fraud, corruption, conflict of interests 
and  other  serious  irregularities  in  the  field  of  public  procurement,  including 
those affecting projects cofinanced by the budget of the Union. 

3. 

The oversight body shall be responsible for the following tasks: 

(a)  monitoring the application of public procurement rules and the related practice 

by contracting entities and in particular by central purchasing bodies; 

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(b)  providing  legal  advice  to  contracting  entities  on  the  interpretation  of  public 
procurement rules and principles and on the application of public procurement 
rules in specific cases; 

(c) 

issuing  own  initiative  opinions  and  guidance  on  questions  of  general  interest 
pertaining to the interpretation and application of public procurement rules, on 
recurring  questions  and  on  systemic  difficulties  related  to  the  application  of 
public procurement rules, in the light ofthe provisions of this Directive and of 
the relevant case-law of the Court of Justice of the European Union; 

(d) 

establishing  and  applying  comprehensive,  actionable  'red  flag'  indicator 
systems  to  prevent,  detect  and  adequately  report  instances  of  procurement 
fraud, corruption, conflict of interest and other serious irregularities; 

(e)  drawing the attention of the national competent institutions, including auditing 

authorities, to specific violations detected and to systemic problems; 

(f) 

examining complaints from citizens and businesses on the application of public 
procurement  rules  in  specific  cases  and  transmitting  the  analysis  to  the 
competent  contracting  entities,  which  shall  have  the  obligation  to  take  it  into 
account in their decisions or, where the analysis is not followed, to explain the 
reasons for disregarding it; 

(g)  monitoring  the  decisions  taken  by  national  courts  and  authorities  following  a 
ruling  given  by  the  Court  of  Justice  of  the  European  Union  on  the  basis  of 
Article  267  of  the  Treaty  or  findings  of  the  European  Court  of  Auditors 
establishing  violations  of  Union  public  procurement  rules  related  to  projects 
cofinanced by the Union; the oversight body shall report to the European Anti-
Fraud  Office  any  infringement  to  Union  procurement  procedures  where  these 
were related to contracts directly or indirectly funded by the European Union. 

The tasks referred to in point (e) shall be without prejudice to the exercise of rights 
of appeal under national law or under the system established on the basis of directive 
92/13/EEC. 

Member States shall empower the oversight body to seize the jurisdiction competent 
according to national law for the review of contracting entities' decisions where it has 
detected a violation in the course of its monitoring and legal advising activity. 

4. 

Without prejudice to the general procedures and working methods established by the 
Commission for its communications and contacts with Member States, the oversight 
body  shall  act  as  a  specific contact  point  for  the  Commission  when  it  monitors  the 
application  of  Union  law  and  the  implementation  of  the  budget  from  the  Union  on 
the basis of Article 17 of the Treaty on the European Union and Article 317 of the 
Treaty on the Functioning of the European Union. It shall report to the Commission 
any violation of this Directive in procurement procedures for the award of contracts 
directly or indirectly funded by the Union. 

The  Commission  may  in  particular  refer  to  the  oversight  body  the  treatment  of 
individual cases where the contract is not yet concluded or a review procedure can 
still  be  carried  out.  It  may  also  entrust  the  oversight  body  with  the  monitoring 

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activities necessary to ensure the implementation of the measures to which Member 
States  are  committed  in  order  to  remedy  a  violation  of  Union  public  procurement 
rules and principles identified by the Commission. 

The  Commission  may  require  the  oversight  body  to  analyse  alleged  breaches  to 
Union public procurement rules affecting projects co-financed by the budget of the 
Union.  The  Commission  may  entrust  the  oversight  body  to  follow-up  certain  cases 
and  to  ensure  that  the  appropriate  consequences  of  breaches  to  Union  public 
procurement rules affecting projects co-financed are taken by the competent national 
authorities which will be obliged to follow its instructions. 

The  investigation  and  enforcement  activities  carried  out  by  the  oversight  body  to 
ensure that contracting entities' decisions comply with this Directive and the general 
principles of the Treaty on the Functioning of the European Union shall not replace 
or prejudge the institutional role of the Commission as guardian of the Treaty. When 
the  Commission  decides  to  refer  the  treatment  of  an  individual  case,  it  shall  also 
retain  the  right  to  intervene  in  accordance  withhe  powers  conferred  to  it  by  the 
Treaty. 

Contracting authorities shall transmit to the national oversight body the full text of all 
concluded contracts with a a value equal to or greater than 

(a)  1 000 000 EUR in the case of supply contracts or service contracts; 

(b)  10 000 000 EUR in the case of works contracts. 

Without  prejudice  to  the  national  law  concerning  access  to  information,  and  in 
accordance  with  national  and  EU  legislation  on  data  protection,  the  oversight  body 
shall, upon written request, give unrestricted and full direct access, free of charge, to 
the  concluded  contracts  referred  to  in  paragraph  6.  Access  to  certain  parts  of  the 
contracts  may  be  refused  where  their  disclosure  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. 

Access to the parts that may be released shall be given within a reasonable delay and 
no later than 45 days from the date of the request.  

The  applicants  filing  a  request  for  access  to  a  contract  shall  not  need  to  show  any 
direct  or  indirect  interest  related  to  that  particular  contract.  The  recipient  of 
information should be allowed to make it public. 

A summary of all the activities carried out by the oversight body in accordance with 
paragraphs 1 to 7 shall be included in the annual report mentioned in paragraph 2.  

Article 94 
Individual reports on procedures for the award of contracts 

Contracting entities shall keep appropriate information on each contract, framework 
agreement  and  each  time  a  dynamic  purchasing  system  is  established.  This 

5. 

6. 

7. 

8. 

1. 

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information shall be sufficient to permit them at a later date to justify decisions taken 
in connection with: 

(a) 

(b) 

(c) 

the  qualification  and  selection  of  economic  operators  and  the  award  of 
contracts; 

the  use  of  negotiated  procedures  without  a  call  for  competition  by  virtue  of 
Article 44; 

the non-application of Chapters II to IV of Title II by virtue of the derogations 
provided for in Chapters II and III of Title I. 

Contracting  entities  shall  document  the  progress  of  all  procurement  procedures, 
whether or not the procedures are conducted by electronic means. To that end, they 
shall  document  all  stages 
including  all 
communications  with  economic  operators  and  internal  deliberations,  preparation  of 
the tenders, dialogue or negotiation if any, selection and award of the contract. 

the  procurement  procedure, 

in 

2. 

1. 

2. 

3. 

4. 

The  information  shall  be  kept  for  at  least  four  years  from  the  date  of  award  of  the 
contract so that the contracting entity will be able, during that period, to provide the 
necessary information to the Commission or the national oversight body where they 
so request it. 

Article 95 
National reporting 

The bodies established or appointed in accordance with Article 93 shall  forward to 
the  Commission  an  implementation  and  statistical  report  on  each  year,  based  on  a 
standard form, not later than 31 October of the following year. 

The  report  referred  to  in  paragraph  1  shall  contain  at  least  the  total  value,  broken 
down by category of activity to which Articles 5 to 11 refer, of the contracts awarded 
below  the  thresholds  set  out  in  Article  12  but  which  would  be  covered  by  this 
Directive if their value exceeded the threshold.  

Member States shall ensure that this report contains at least the number and value of 
contracts awarded, broken down by categories of activity to which Articles 5 to 11 
refer  and  any  other  information  required  to  verify  the  proper  application  of  the 
Agreement. This shall include the number and value of contracts awarded pursuant to 
a negotiated procedure without a call for competition, broken down down according 
to the circumstances referred to in Article 44 and by categories of activity to which 
Articles 5 to 11 refer. It shall also specify the Member State or third country of the 
successful contractor.  

The yearly report shall furthermore, for each of the activities to which Articles 5 to 
11  refers,  contain  a  list  of  contracting  entities  exercising  the  activity  concerned, 
indicating  for  each  entity  the  unique  identification  number  where  such  number  is 
provided for in national legislation.  

The  Commission  may  periodically  publish  the  list  of  those  contracting  entities  for 
information in the Official Journal of the European Union. 

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5. 

The Commission shall establish the standard form for the drawing-up of the annual 
implementation and statistical report referred to in paragraph 1. Those implementing 
acts shall be adopted in accordance with the advisory procedure referred to in Article 
100. 

6. 

The acts referred to under paragraph 5 shall ensure that: 

(a) 

in  the  interests  of  administrative  simplification,  the  statistical  data  may  be 
collected  on  the  basis  of  sampling,  provided  that  its  representativeness  is  not 
jeopardised; 

(b) 

the confidential nature of the information provided is respected. 

1. 

2. 

3. 

Article 96 
Assistance to contracting entities and businesses 

Member States shall make available technical support structures in order to provide 
legal  and  economic  advice,  guidance  and  assistance  to  contracting  entities  in 
preparing and carrying out procurement procedures. Member States shall also ensure 
that each contracting entity can obtain competent assistance and advice on individual 
questions. 

With  a  view  to  improving  access  to  public procurement  for  economic  operators,  in 
particular SMEs, and in order to facilitate correct understanding of the provisions of 
this  Directive,  Member  States  shall  ensure  that  appropriate  assistance  can  be 
obtained,  including  by  electronic  means  or  using  existing  networks  dedicated  to 
business assistance. 

Specific administrative assistance shall be available to economic operators intending 
to participate in a procurement procedure in another Member State. Such assistance 
shall  at  least  cover  administrative  requirements  in  the  Member  State  concerned,  as 
well as possible obligations related to electronic procurement.  

Member  States  shall  ensure  that  interested  economic  operators  have  easy  access  to 
appropriate information on the obligations relating to taxes, environmental protection 
and to social and labour law obligations, which are in force in the Member State, in 
the region or locality where the works are to be carried out or the services are to be 
provided  and  which  will  be  applicable  to  the  works  carried  out  on  site  or  to  the 
services provided during the performance of the contract. 

4. 

For the purposes of paragraphs 1, 2 and 3, Member States may appoint a single body 
or several bodies or administrative  structures. Member States shall ensure case due 
coordination between those bodies and structures. 

Article 97 
Administrative cooperation 

1. 

Member States shall provide mutual assistance to each other, and shall put in place 
measures for effective cooperation with one another, in order to ensure exchange of 

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2. 

3. 

4. 

information  on  issues  referred  to  in  Articles  56,  75  and  79.  They  shall  ensure  the 
confidentiality of the information which they exchange.  

The  competent  authorities  of  all  Member  States  concerned  shall  exchange 
information  in  compliance  with  personal  data  protection  legislation  provided  for  in 
Directives  95/46/EC  of  the  European  Parliament  and  of  the  Council50  and 
2002/58/EC of the European Parliament and of the Council51.  

For the purposes of this Article, Member States shall designate one or more liaison 
points,  the  contact  details  of  which  shall  be  communicated  to  the  other  Member 
States,  the  oversight  bodies  and  the  Commission.  Member  States  shall  publish  and 
regularly  update  the  list  of  liaison  points.  The  oversight  body  shall  be  in  charge  of 
the coordination of such liaison points. 

The  exchange  of  information  shall  take  place  via  the  Internal  Market  Information 
system  established  pursuant  to  Regulation  (EU)  N°  XXX/XXXX  of  the  European 
Parliament  and  Council52  [proposal  for  a  Regulation  of  the  European  Pariliament 
and  Council  on  the  administrative  cooperation  through  the  Internal  Market 
Information  System  ('the  IMI  Regulation')  COM(2011)522].  Member  States  shall 
supply  information  requested  by  other  Member  States  within  the  shortest  possible 
period of time. 

50 
51 
52 

OJ L 281, 23.11.1995, p. 31. 
OJ L 201, 31.7.2002, p. 37. 
OJ L […] 

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TITLE V 
DELEGATED POWERS, IMPLEMENTING POWERS 
AND FINAL PROVISIONS 

1. 

2. 

3. 

4. 

5. 

1. 

2. 

Article 98 
Exercise of the delegation 

The  power  to  adopt  delegated  acts  is  conferred  on  the  Commission  subject  to  the 
conditions laid down in this Article.  

The delegation of power referred to in Articles 4, 35, 33, 38, 25, 65, 70, 77, 85 and 
95  shall  be  conferred  on  the  Commission  for  an  indeterminate  period  of  time  from 
the [date of entry into force of this Directive]. 

The delegation of power referred to in Articles 4, 35, 33, 38, 25, 65, 70, 77, 85 and 
95  may  be  revoked  at  any  time  by  the  European  Parliament  or  by  the  Council.  A 
revocation decision shall put an end to the delegation of the power specified in that 
decision. It shall take effect the day following the publication of the decision in the 
Official Journal of the European Union or at a later date specified therein. It shall not 
affect the validity of any delegated acts already in force.  

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to 
the European Parliament and to the Council.  

A  delegated  act  adopted  pursuant  to  Article  98  shall  enter  into  force  only  if  no 
objection  has  been  expressed  either  by  the  European  Parliament  or  by  the  Council 
within a period of 2 months of notification of the act to the European Parliament and 
the Council or if, before the expiry of that period, the European Parliament and the 
Council  have  both  informed  the  Commission  that  they  will  not  object.  That  period 
shall  be  extended  by  2  months  at  the  initiative  of  the  European  Parliament  or  the 
Council. 

Article 99 
Urgency procedure 

Delegated  acts  adopted  under  this  Article  shall  enter  into  force  without  delay  and 
shall apply as long as no objection is expressed in accordance with paragraph 2. The 
notification  of  a  delegated  act  to  the  European  Parliament  and  to  the  Council  shall 
state the reasons for the use of the urgency procedure. 

Either  the  European  Parliament  or  the  Council  may  object  to  a  delegated  act  in 
accordance  with  the  procedure  referred  to  in  Article  98(5).  In  such  a  case,  the 
Commission  shall  repeal  the  act  without  delay  following  the  notification  of  the 
decision to object by the European Parliament or the Council. 

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1. 

2. 

1. 

Article 100 
Committee procedure 

The Commission shall be assisted by the Advisory Committee for Public Contracts 
established by Council Decision 71/306/EEC53. That committee shall be a committee 
within the meaning of Regulation (EU) No 182/2011. 

Where reference is made to this Article, Article 4 of Regulation (EU) No 182/2011 
shall apply.  

Article 101 
Transposition 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  30  June  2014  at  the  latest. 
They shall forthwith communicate to the Commission the text of those provisions. 

When  Member  States  adopt  those  measures,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. 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 field covered by this Directive. 

Article 102 
Repeal 

Directive 2004/17/EC is hereby repealed with effect from 30 June 2014. 

References to the repealed  Directive  shall be construed as being made to this  Directive and 
shall be read in accordance with the correlation table in Annex XXI. 

Article 103 
Review 

The Commission shall review the economic effects on the internal market resulting from the 
application of the thresholds set in Article 12 and report thereon to the European Parliament 
and the Council by 30 June 2017.  

In  the  event  of  any  change  to  the  threshold  amounts  applicable  under  the  Agreement,  the 
report shall, if appropriate, be followed by a legislative proposal amending the thresholds set 
out in this Directive. 

53 

OJ L 185, 16.8.1971, p. 15 

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Article 104 
Entry into force 

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

Article 105 
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 
LIST OF ACTIVITIES AS SET OUT IN POINT 8(a) OF ARTICLE 2 

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

NACE(1) 

SECTION F 

CONSTRUCTION 

Division  Group  Class  Subject 

Notes 

CPV 
code 

45 

Construction  This division includes: 

45000000

construction of new buildings and works, restoring and common 
repairs. 

45.1 

Site 
preparation 

45.11  Demolition 
and 
wrecking  of 
buildings; 
earth moving 

45100000

45110000

This class includes: 

— demolition of buildings and other structures, 

— clearing of building sites, 

— earth moving: excavation, landfill, levelling and grading of 
construction sites, trench digging, rock removal, blasting, etc. 

— site preparation for mining: 

— overburden removal and other development and preparation 
of mineral properties and sites. 

This class also includes: 

— building site drainage. 

— drainage of agricultural or forestry land. 

45.12  Test  drilling 

This class includes: 

and boring 

45120000

— test drilling, test boring and core sampling for construction, 
geophysical, geological or similar purposes. 

This class excludes: 

— drilling of production oil or gas wells, see 11.20. 

— water well drilling, see 45.25, 

— shaft sinking, see 45.25, 

— oil  and  gas  field  exploration,  geophysical,  geological  and 
seismic surveying, see 74.20. 

45.2 

Building  of 
complete 
constructions 

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45200000

   EN 

 
  
  
  
  
  
  
  
  
  
  
  
  
45210000

Except: 

-
45213316

45220000

45231000

45232000

or 
parts 
thereof;  civil 
engineering 

45.21  General 

This class includes: 

construction 
of  buildings 
and 
civil 
engineering 
works 

— construction  of  all  types  of  buildings  construction  of  civil 
engineering constructions, 

— bridges,  including  those  for  elevated  highways,  viaducts, 
tunnels and subways, 

— long-distance pipelines, communication and power lines, 

— urban pipelines, urban communication and power lines, 

— ancillary urban works, 

— assembly and erection of prefabricated constructions on the 
site. 

This class excludes: 

— service  activities  incidental  to  oil  and  gas  extraction,  see 
11.20, 

— erection of complete prefabricated constructions from self-
manufactured  parts  not  of  concrete,  see  divisions  20,  26  and 
28, 

— construction  work,  other  than  buildings,  for  stadiums, 
swimming pools, gymnasiums, tennis courts, golf courses and 
other sports installations, see 45.23, 

— building installation, see 45.3, 

— building completion, see 45.4, 

— architectural and engineering activities, see 74.20, 

— project management for construction, see 74.20. 

45.22  Erection  of 
roof 
covering  and 
frames 

45.23  Construction 
of  highways, 
roads, 
airfields  and 
sport 
facilities 

This class includes: 

45261000

— erection of roofs, 

— roof covering, 

— waterproofing. 

This class includes: 

— construction  of  highways,  streets,  roads,  other  vehicular 
and pedestrian ways, 

— construction of railways, 

— construction of airfield runways, 

— construction  work,  other  than  buildings,  for  stadiums, 
swimming pools, gymnasiums, tennis courts, golf courses and 

45212212 
and 
DA03 

45230000

except: 

-
45231000

-

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other sports installations, 

— painting of markings on road surfaces and car parks. 

This class excludes: 

— preliminary earth moving, see 45.11. 

45.24  Construction 
water 

of 
projects 

This class includes 

— construction of: 

— waterways,  harbour  and  river  works,  pleasure  ports 
(marinas), locks, etc., 

— dams and dykes, 

— dredging, 

— subsurface work. 

45.25  Other 

This class includes: 

construction 
work 
involving 
special 
trades 

— construction activities specialising in one aspect common to 
different  kinds  of  structures,  requiring  specialised  skill  or 
equipment, 

— construction of foundations, including pile driving, 

— water well drilling and construction, shaft sinking, 

— erection of non-self-manufactured steel elements, 

— steel bending, 

— bricklaying and stone setting, 

— scaffolds  and  work  platform  erecting  and  dismantling, 
including renting of scaffolds and work platforms, 

— erection of chimneys and industrial ovens. 

This class excludes: 

— renting  of  scaffolds  without  erection  and  dismantling,  see 
71.32 

45.3 

Building 
installation 

45.31  Installation 

This class includes: 

of  electrical 
wiring 
and 
fittings 

installation in buildings or other construction projects of: 

— electrical wiring and fittings, 

— telecommunications systems, 

— electrical heating systems, 

— residential antennas and aerials, 

45232000

-
45234115

45240000

45250000

45262000

45300000

45213316

45310000

Except: 

-
45316000

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— fire alarms, 

— burglar alarm systems, 

— lifts and escalators, 

— lightning conductors, etc. 

45.32  Insulation 
work 
activities 

This class includes: 

45320000

— installation  in  buildings  or  other  construction  projects  of 
thermal, sound or vibration insulation. 

This class excludes: 

— waterproofing, see 45.22. 

45.33  Plumbing 

This class includes: 

45330000

— installation in buildings or other construction projects of: 

— plumbing and sanitary equipment, 

— gas fittings, 

— heating,  ventilation, 
equipment and ducts, 

— sprinkler systems. 

This class excludes: 

refrigeration  or  air-conditioning 

— installation of electrical heating systems, see 45.31. 

45.34  Other 

This class includes: 

building 
installation 

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

— installation  in  buildings  or  other  construction  projects  of 
fittings and fixtures n.e.c. 

45.4 

Building 
completion 

45.41  Plastering 

This class includes: 

45234115

45316000

45340000

45400000

45410000

— application  in  buildings  or  other  construction  projects  of 
interior and exterior plaster or stucco, including related lathing 
materials. 

45.42  Joinery 

This class includes: 

45420000

installation 

— installation of not self-manufactured doors, windows, door 
and  window  frames,  fitted  kitchens,  staircases,  shop  fittings 
and the like, of wood or other materials, 

— interior  completion  such  as  ceilings,  wooden  wall 
coverings, movable partitions, etc. 

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45.43  Floor 
wall 
covering 

This class excludes: 

— laying  of  parquet  and  other  wood  floor  coverings,  see 
45.43. 

and 

This class includes: 

45430000

— laying,  tiling,  hanging  or  fitting  in  buildings  or  other 
construction projects of: 

—  

— ceramic, concrete or cut stone wall or floor tiles, 

— parquet  and  other  wood  floor  coverings  carpets  and 
linoleum floor coverings, 

— including of rubber or plastic, 

— terrazzo, marble, granite or slate floor or wall coverings, 

— wallpaper. 

45.44  Painting  and 
glazing 

This class includes: 

45440000

— interior and exterior painting of buildings, 

— painting of civil engineering structures, 

— installation of glass, mirrors, etc. 

This class excludes: 

— installation of windows, see 45.42, 

45.45  Other 

This class includes: 

building 
completion 

— installation of private swimming pools, 

45212212 
and 
DA04 

— steam  cleaning,  sand  blasting  and  similar  activities  for 
building exteriors, 

45450000

— other building completion and finishing work n.e.c. 

This class excludes: 

— interior  cleaning  of  buildings  and  other  structures,  see 
74.70. 

45500000

This class excludes: 

45500000

— renting  of  construction  or  demolition  machinery  and 

45.5 

Renting 
of 
construction 
or 
demolition 
equipment 
with 
operator 

45.50  Renting 

of 
construction 
or 

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equipment without operators, see 71.32. 

demolition 
equipment 
with 
operator 

(1) Council Regulation (EEC) No 3037/90 of 9 October 1990 (OJ L 293, 24.10.1990, p. 1), Regulation as amended by 
Commission Regulation (EEC) No 761/93 (OJ L 83, 3.4.1993, p. 1). 

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ANNEX II 
LIST OF UNION LEGISLATION REFERRED TO IN ARTICLE 4(2)  

Rights  which  have  been  granted  by  means  of  a  procedure  in  which  adequate  publicity  has 
been ensured and where the granting of those rights was based on objective criteria shall not 
constitute  "special  or  exclusive  rights"  within  the  meaning  of  this  Directive.  The  following 
lists procedures, ensuring adequate prior transparency, for granting authorisations on the basis 
of other legislative acts of the European Union which do not constitute "special or exclusive 
rights" within the meaning of this Directive: 

(a) 

(b) 

(c) 

(d) 

(e) 

granting  authorisation  to  operate  natural  gas  installations  in  accordance  with  the 
procedures laid down in Article 4 of Directive 98/30/EC; 

authorisation  or  an  invitation  to  tender  for  the  construction  of  new  electricity 
production installations in accordance with Directive 96/92/EC; 

the  granting  in  accordance  with  the  procedures  laid  down  in  Article  9  of  Directive 
97/67/EC of authorisations in relation to a postal service which is not or shall not be 
reserved; 

a  procedure  for  granting  an  authorisation  to  carry  on  an  activity  involving  the 
exploitation of hydrocarbons in accordance with Directive 94/22/EC; 

public service contracts within the meaning of Regulation (EC) No 1370/2007 which 
have been awarded on the basis of a competitive tendering procedure in accordance 
with its Article 5(3). 

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ANNEX III 
LIST OF UNION LEGISLATION REFERRED TO IN ARTICLE 27(3) 

A. TRANSPORT OR DISTRIBUTION OF GAS OR HEAT 

Directive 2009/73/EC 

B. PRODUCTION, TRANSMISSION OR DISTRIBUTION OF ELECTRICITY 

Directive 2009/72/EC 

C. PRODUCTION, TRANSPORT OR DISTRIBUTION OF DRINKING WATER 

None 

D. CONTRACTING ENTITIES IN THE FIELD OF RAIL SERVICES 

Rail Freight transport 

Council  Directive 91/440/EEC  of  29  July  1991  on  the  development  of  the  Community's 
railways54  

Rail passenger transport 

None 

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

None 

F. CONTRACTING ENTITIES IN THE FIELD OF POSTAL SERVICES 

Directive 97/67/EC 

G. EXTRACTION OF OIL OR GAS 

Directive 94/22/EC 

H. EXPLORATION FOR AND EXTRACTION OF COAL OR OTHER SOLID FUELS 

None 

I.  CONTRACTING  ENTITIES  IN  THE  FIELD  OF  SEAPORT  OR  INLAND  PORT  OR 
OTHER TERMINAL EQUIPMENT 

None 

J. CONTRACTING ENTITIES IN THE FIELD OF AIRPORT INSTALLATIONS 

54 

OJ L 237, 24.8.1991, p. 25 

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None 

EN 

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ANNEX IV 
REQUIREMENTS RELATING TO DEVICES FOR THE ELECTRONIC RECEIPT 
OF TENDERS, REQUESTS TO PARTICIPATE, APPLICATIONS FOR 
QUALIFICATION AS WELL AS PLANS AND PROJECTS IN CONTESTS 

Devices  for  the  electronic  receipt  of  tenders,  requests  to  participate,  applications  for 
qualification as well as plans and projects in contests must guarantee, through technical means 
and appropriate procedures, at least that: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

the exact time and date of the receipt of tenders, requests to participate, applications 
for qualification as well as the submission  of  plans  and  projects  can  be  determined 
precisely; 

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

where  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 qualification procedure, the procurement procedure 
or  contest,  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  those  requirements  must  remain 
accessible only to persons authorised to acquaint themselves therewith and 

(h) 

authentication of tenders must conform to the requirements set out in this Annex. 

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ANNEX V 
LIST OF INTERNATIONAL AGREEMENTS REFERRED TO IN ARTICLE 38 

Agreements with the following countries or groupings of countries: 

– 

– 

– 

– 

– 

– 

– 

– 

– 

Albania (OJ L 107, 28.4.2009) 

Former Yugoslav Republic of Macedonia (OJ L 87, 20.03.2004) 

CARIFOUM (OJ L 289, 30.10.2008) 

Chile (OJ L352, 30.12.2002) 

Croatia (OJ L 26, 28.1.2005) 

Mexico (OJ L 276, 28.10.2000, L 157/30.6.2000) 

Montenegro (OJ L 345 of 28.12.2007) 

South Korea - (OJ L 127/14.5.2011) 

Switzerland (OJ L 300, 31/12/1972) 

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ANNEX VI 
PART A 
INFORMATION TO BE INCLUDED IN THE PERIODIC INDICATIVE NOTICE 
(as referred to in Article 61) 

I. INFORMATION TO BE INCLUDED IN ALL CASES 

1. 

2. 

3. 

4. 

5. 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  entity  and,  where  different,  of  the  service  from  which  additional 
information may be obtained. 

Main activity exercised. 

(a)  For supply contracts: nature and quantity or value of the services or products to 

be supplied (nomenclature reference No(s)). 

(b)  For  works  contracts:  nature  and  extent  of  the  services  to  be  provided,  the 
general  characteristics  of  the  work  or  of  the  lots  by  reference  to  the  work 
(nomenclature reference No(s)). 

(c)  For  service  contracts:  intended  total  procurement  in  each  of  the  service 

categories envisaged (nomenclature reference No(s)). 

Date of dispatch of the notice or of dispatch of the notice of the publication of this 
notice on the buyer profile. 

Any other relevant information. 

II.  ADDITIONAL  INFORMATION  TO  BE  SUPPLIED  WHERE  THE  NOTICE  IS  USED 
AS A MEANS OF CALLING FOR COMPETITION OR PERMITS THE REDUCTION OF 
THE TIME LIMITS FOR THE RECEIPT OF TENDERS (Article 61(2)) 

6. 

7. 

8. 

9. 

10. 

A reference to the fact that interested economic operators shall  advise the  entity of 
their interest in the contract or contracts. 

Email or internet address at which the specifications and any supporting documents 
will be available for unrestricted and full direct access, free of charge. 

Where appropriate, state whether the contract is reserved for sheltered workshops or 
whether  its  performance  is  reserved  in  the  context  of  sheltered  employment 
programmes. 

Time limit for the receipt of applications for an invitation to tender or to negotiate. 

Nature  and  quantity  of  the  goods  to  be  supplied  or  general  nature  of  the  work  or 
category of service and description, stating if framework agreement(s) are envisaged, 
including  any  options  for  further  procurement  and  the  estimated  time  available  for 
exercising  those  options  as  well  as  the  number  of  renewals,  if  any.  In  the  case  of 
recurring  contracts,  also,  an  estimate  of  the  timing  of  the  subsequent  calls  for 
competition.  State  whether  purchase,  lease,  rental  or  hire-purchase  or  any 
combination of those is involved. 

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11. 

12. 

13. 

14. 

15. 

16. 

NUTS code for the main location of works in case of works or NUTS code for the 
main  place  of  delivery  or  performance  in  supplies  and  service  ;  if  the  contract  is 
divided into lots, this information shall be provided for each lot. 

Time limits for delivery or completion or duration of service contract and, as far as 
possible, for starting. 

Address  to  which  interested  undertakings  shall  send  their  expressions  of  interest  in 
writing. 

Time limit for receipt of expressions of interest. 

Language or languages authorised for the presentation of candidatures or tenders. 

Economic and technical conditions, and financial and technical  guarantees  required 
of suppliers. 

17. 

(a)  Estimated  date  for  initiating  the  procurement  procedures  in  respect  of  the 

contract or contracts (if known); 

(b)  Type of procurement procedure (restricted or negotiated); 

(c)  The amount of and payment details for any sum to be paid to obtain documents 

concerning the consultation. 

18. 

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

19. 

Where appropriate, indication whether: 

(a)  E-submission of tenders or requests to participate will be required/accepted, 

(b)  E-ordering will be used, 

(c)  E-invoicing will be used, 

(d)  E-payment will be accepted. 

20. 

21. 

Name  and  address  of  the  body  responsible  for  appeal  and,  where  appropriate, 
mediation  procedures.  Precise  information  concerning  time  limits  for  lodging 
appeals, or, if need be, the name, address, telephone number, fax number and e-mail 
address of the service from which this information may be obtained. 

Where known, criteria referred to in Article 76 to be used for award of the contract: 
"lowest cost" or "most economically advantageous tender". Criteria representing the 
most  economically  advantageous  tender  as  well  as  their  weighting  or,  where 
appropriate, the order of importance of those criteria shall be mentioned, where they 
do  not  appear  in  the  specifications,  or  will  not  be  indicated  in  the  invitation  to 
confirm  interest  referred  to  in  Article  61(2)(b)  or  in  the  invitation  tender  or  to 
negotiate. 

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PART B 
INFORMATION TO BE INCLUDED IN NOTICES OF PUBLICATION OF A 
PERIODIC INDICATIVE NOTICE ON A BUYER PROFILE NOT USED AS A 
MEANS OF CALLING FOR COMPETITION 
(as referred to in Article 61(1)) 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  entity  and,  where  different,  of  the  service  from  which  additional 
information may be obtained. 

Main activity exercised. 

CPV Nomenclature reference No(s). 

Internet address of the "buyer profile" (URL). 

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

1. 

2. 

3. 

4. 

5. 

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ANNEX VII 
INFORMATION TO BE INCLUDED IN THE SPECIFICATIONS IN ELECTRONIC 
AUCTIONS (ARTICLE 47(4)) 

The  specifications  to  be  used  where  contracting  entities  have  decided  to  hold  an  electronic 
auction shall include at least the following details:  

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

the features whose values will be the subject of electronic auction, provided that such 
features are quantifiable and can be expressed in figures or percentages; 

any  limits  on  the  values  which  may  be  submitted,  as  they  result  from  the 
specifications relating to the subject of the contract; 

the  information  which  will  be  made  available  to  tenderers  in  the  course  of  the 
electronic auction and, where appropriate, when it will be made available to them; 

the relevant information concerning the electronic auction process; 

the  conditions  under  which  the  tenderers  will  be  able  to  bid  and,  in  particular,  the 
minimum differences which will, where appropriate, be required when bidding; 

the  relevant  information  concerning  the  electronic  equipment  used  and  the 
arrangements and technical specifications for connection. 

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ANNEX VIII 
DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS 

For the purposes of this Directive, 

(1) 

"technical specification" means one of the following: 

(e) 

(b) 

in the case of service or supply contracts a specification in a document defining 
the  required  characteristics  of  a  product  or  a  service,  such  as  quality  levels, 
environmental  and  climate  performance  levels,  design  for  all  requirements 
(including  accessibility  for  disabled  persons)  and  conformity  assessment, 
performance, use of the product, safety or dimensions, including requirements 
relevant  to  the  product  as  regards  the  name  under  which  the  product  is  sold, 
terminology,  symbols,  testing  and  test  methods,  packaging,  marking  and 
labelling, user instructions,  production  processes  and  methods  at  any  stage  of 
the life cycle of the supply or service and conformity assessment procedures; 

in 

in  particular 

the  procurement  documents,  defining 

in  the  case  of  works  contracts,  the  totality  of  the  technical  prescriptions 
contained 
the 
characteristics  required  of  a  material,  product  or  supply,  which  permits  a 
material, a product or a supply to be described in a manner such that it fulfils 
the use for which it is intended by the contracting entity; those characteristics 
include  levels  of  environmental  and  climate  performance,  design  for  all 
requirements  (including  accessibility  for  disabled  persons)  and  conformity 
assessment,  performance,  safety  or  dimensions,  including  the  procedures 
concerning quality assurance, terminology, symbols, testing and test methods, 
packaging,  marking  and  labelling,  user  instructions,  and  production  processes 
and  methods  at  any  stage  of  the  life  cycle  of  the  works;  those  characteristics 
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  entity  is  in  a  position  to 
prescribe,  under  general  or  specific  regulations,  in  relation  to  the  finished 
works and to the materials or parts which they involve; 

(2) 

"Standard" means a technical specification approved by a recognised standardisation 
body  for  repeated  or  continuous  application,  compliance  with  which  is  not 
compulsory and which falls into one of the following categories: 

(a) 

(b) 

(c) 

"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) 

"European technical approval" means a favourable technical assessment of the fitness 
for  use  of  a  product,  based  on  the  fulfilment  of  the  essential  requirements  for 
building  works,  by  means  of  the  inherent  characteristics  of  the  product  and  the 

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(4) 

(5) 

defined  conditions  of  application  and  use.  European  technical  approvals  are  issued 
by an approval body designated for this purpose by the Member State; 

"Common  technical  specifications"  means  a  technical  specification  laid  down  in 
accordance with a procedure recognised by the Member States or in accordance with 
Articles  9  and  10  of  Parliament  and  Council  Regulation  [XXX]  on  European 
standardisation  [and  amending  Council  Directives  89/686/EEC  and  93/15/EEC  and 
Directives  94/9/EC,  94/25/EC,  95/16/EC,  97/23/EC,  98/34/EC,  2004/22/EC, 
2007/23/EC,  2009/105/EC  and  2009/23/EC  of  the  European  Parliament  and  the 
Council] which has been published in the Official Journal of the European Union; 

"Technical reference" means any deliverable produced by European standardisation 
to 
bodies,  other 
developments in market needs. 

than  official  standards,  according 

to  procedures  adapted 

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ANNEX IX 
FEATURES CONCERNING PUBLICATION 

1. 

Publication of notices 

The  notices  referred  to  in  Articles  61,  62,  63,  64,  85  and  89  must  be  sent  by  the 
contracting entities to the Publications Office of the European Union and published 
in accordance with the following rules: 

(a)  Notices referred to in Articles 61, 62, 63, 64, 85 and 89 shall be published by 
the Publications Office of the European Union or by the contracting entities in 
the  event  of  a  periodic  indicative  notice  published  on  a  buyer  profile  in 
accordance with Article 61 (1). 

In addition, contracting entities may publish this information on the Internet on 
a "buyer profile" as referred to in point 2(b) below; 

(b)  The Publications Office of the European Union will give the contracting entity 
the confirmation referred to in the second subparagraph of Article 65 (5). 

2. 

Publication of complementary or additional information 

(a)  Contracting  entities  shall  publish  the  specifications  and  the  additional 

documents in their entirety on the Internet; 

(b)  The  buyer  profile  may  include  periodic  indicative  notices  as  referred  to  in 
Article  61 (1),  information  on  ongoing  invitations  to  tender,  scheduled 
purchases,  contracts  concluded,  procedures  cancelled  and  any  useful  general 
information,  such  as  a  contact  point,  a  telephone  and  a  fax  number,  a  postal 
address and an e-mail address. 

3. 

Format and procedures for the electronic transmission of notices 

The format and procedure for sending notices electronically as established by the Commission 
are made accessible at the Internet address "http://simap.eu.int". 

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ANNEX X 
INFORMATION TO BE INCLUDED IN THE NOTICE ON THE EXISTENCE OF A 
QUALIFICATION SYSTEM 
(as referred to in point (b) of Article 39(2) and in Article 62) 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  entity  and,  where  different,  of  the  service  from  which  additional 
information may be obtained. 

Main activity exercised. 

Where appropriate, state whether the contract is reserved for sheltered workshops or 
whether  its  performance  is  reserved  in  the  context  of  sheltered  employment 
programmes. 

Purpose  of  the  qualification  system  (description  of  the  goods,  services  or  works  or 
categories  thereof  to  be  procured  through  the  system  -  nomenclature  reference 
No(s)). NUTS code for the main location of works in case of works or NUTS code 
for the main place of delivery or performance in supplies and service. 

Conditions  to  be  fulfilled  by  the  economic  operators  in  view  of  their  qualification 
pursuant to the system and the methods according to which each of those conditions 
will be verified. Where the description of such conditions and verification methods is 
voluminous  and  based  on  documents  available  to  interested  economic  operators,  a 
summary  of  the  main  conditions  and  methods  and  a  reference  to  those  documents 
shall be sufficient. 

Period of validity of the qualification system and the formalities for its renewal. 

Reference to the fact that the notice acts as the call for competition. 

Address  where  further  information  and  documentation  concerning  the  qualification 
system can be obtained (where different from the addresses mentioned under 1). 

Name  and  address  of  the  body  responsible  for  appeal  and,  where  appropriate, 
mediation  procedures.  Precise  information  concerning  time-limits  for  lodging 
appeals, or, if need be, the name, address, telephone number, fax number and e-mail 
address of the service from which this information may be obtained. 

10. 

Where known, criteria referred to in Article 76 to be used for award of the contract: 
"lowest cost" or "most economically advantageous tender". Criteria representing the 
most  economically  advantageous  tender  as  well  as  their  weighting  or,  where 
appropriate, the order of importance of those criteria, shall be mentioned where they 
do not appear in the specifications or will not be indicated in the invitation to tender 
or to negotiate. 

11. 

Where appropriate, indication whether: 

(a) 

 E-submission of tenders or requests to participate will be required/accepted, 

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(b) 

 E-ordering will be used,  

(c) 

 E-invoicing will be used,  

(d) 

 E-payment will be accepted. 

12. 

Any other relevant information. 

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ANNEX XI 
INFORMATION TO BE INCLUDED IN CONTRACT NOTICES 
(as referred to in Article 63) 

A. OPEN PROCEDURES 

1. 

2. 

3. 

4. 

5. 

6. 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  entity  and,  where  different,  of  the  service  from  which  additional 
information may be obtained. 

Main activity exercised. 

Where appropriate, state whether the contract is reserved for sheltered workshops or 
whether  its  performance  is  reserved  in  the  context  of  sheltered  employment 
programmes. 

Nature  of  the  contract  (supply,  works  or  service,  where  appropriate,  state  if  it  is  a 
framework  agreement  or  a  dynamic  purchasing  system),  description  (nomenclature 
reference  No(s)).  Where  appropriate,  state  whether  tenders  are  requested  for 
purchase, lease, rental or hire purchase or any combination of those.  

NUTS code for the main location of works in case of works or NUTS code for the 
main place of delivery or performance in supplies and service. 

For supplies and works: 

(a)  Nature  and  quantity  of  the  goods  to  be  supplied  (nomenclature  reference 
No(s)),  including  any  options  for  further  procurement  and,  if  possible,  the 
estimated time available for exercising those options as well as the number of 
renewals, if any. In the case of recurring contracts, also, if possible, an estimate 
of  the  timing  of  the  subsequent  calls  for  competition  for  the  goods  to  be 
procured  or  the  nature  and  extent  of  the  services  to  be  provided  and  general 
nature of the work (nomenclature reference No(s)); 

(b) 

Indication  of  whether  the  suppliers  may  tender  for  some  and/or  all  the  goods 
required. 

If, for works contracts, the work or the contract is subdivided into several lots, 
the order of size of the different lots and the possibility of tendering for one, for 
several or for all the lots; 

(c)  For  works  contracts:  information  concerning  the  purpose  of  the  work  or  the 

contract where the latter also involves the drawing-up of projects. 

7. 

For services: 

(a)  The nature and quantity of the goods to be supplied, including any options for 
further procurement and, if possible, the estimated time available for exercising 
those options as well as the number of renewals, if any. In the case of recurring 

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contracts, also, if possible, an estimate of the timing of the subsequent calls for 
competition for the services to be procured; 

(b) 

Indication  of  whether  the  performance  of  the  service  is  reserved  by  law, 
regulation or administrative provision to a particular profession; 

(c)  Reference of the law, regulation or administrative provision; 

(d) 

(e) 

Indication  of  whether  legal  persons  shall  indicate  the  names  and  professional 
qualifications of the staff to be responsible for the performance of the service; 

Indication  of  whether  service  providers  may  tender  for  a  part  of  the  services 
concerned. 

Where known, indication of whether authorisation to submit variants exists or not. 

Time limits for delivery or completion or duration of service contract and, as far as 
possible, the starting date. 

Email or internet address at which the specifications and any supporting documents 
will be available for unrestricted and full direct access, free of charge 

8. 

9. 

10. 

11. 

(a)  Final  date  for  receipt  of  tenders  or  indicative  tenders  where  a  dynamic 

purchasing system is introduced; 

(b)  Address to which they shall be sent; 

(c)  Language or languages in which they shall be drawn up. 

12. 

(a)  Where  applicable,  the  persons  authorised  to  be  present  at  the  opening  of 

tenders; 

13. 

14. 

15. 

16. 

17. 

18. 

19. 

(b)  Date, time and place of such opening. 

Where applicable, any deposits and guarantees required. 

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

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

Minimum  economic  and  technical  conditions  required  of  the  economic  operator  to 
whom the contract is awarded. 

Period during which the tenderer is bound to keep open his tender. 

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

Criteria referred to in Article 76 to be used for award of the contract: "lowest cost" or 
"most  economically  advantageous 
the  most 
economically advantageous tender as well as their weighting or, where appropriate, 

tender".  Criteria 

representing 

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the order of importance of those criteria shall be indicated where they do not appear 
in the specifications. 

Where appropriate, date(s) and the reference(s) to publication in the Official Journal 
of  the  European  Union  of  the  periodic  information  notice  or  of  the  notice  of  the 
publication of this notice on the buyer profile to which the contract refers. 

Name  and  address  of  the  body  responsible  for  appeal  and,  where  appropriate, 
mediation  procedures.  Precise  information  concerning  time  limits  for  lodging 
appeals, or, if need be, the name, address, telephone number, fax number and e-mail 
address of the department from which this information may be obtained. 

Date of dispatch of the notice by the contracting entity. 

Any other relevant information. 

20. 

21. 

22. 

23. 

B. RESTRICTED PROCEDURES 

1. 

2. 

3. 

4. 

5. 

6. 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  entity  and,  where  different,  of  the  service  from  which  additional 
information may be obtained. 

Main activity exercised. 

Where appropriate, state whether the contract is reserved for sheltered workshops or 
whether  its  performance  is  reserved  in  the  context  of  sheltered  employment 
programmes. 

Nature of the contract (supplies, works or services; where appropriate, state if it is a 
framework  agreement);  description 
reference  No(s)).  Where 
appropriate,  state  whether  tenders  are  requested  for  purchase,  lease,  rental  or  hire 
purchase or any combination of those. 

(nomenclature 

NUTS code for the main location of works in case of works or NUTS code for the 
main place of delivery or performance in supplies and service. 

For supplies and works: 

(a)  The  nature  and  quantity  of  the  goods  to  be  supplied  (nomenclature  reference 
No(s)),  including  any  options  for  further  procurement  and,  if  possible,  the 
estimated time available for exercising those options as well as the number of 
renewals, if any. In the case of recurring contracts, also, if possible, an estimate 
of  the  timing  of  the  subsequent  calls  for  competition  for  the  goods  to  be 
procured  or  the  nature  and  extent  of  the  services  to  be  provided  and  general 
nature of the work (nomenclature reference No(s)); 

(b) 

Indication  of  whether  the  suppliers  may  tender  for  some  and/or  all  the  goods 
required. 

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If, for works contracts, the work or the contract is subdivided into several lots, 
the order of size of the different lots and the possibility of tendering for one, for 
several or for all the lots; 

(c) 

Information concerning the purpose of the work or the contract where the latter 
also involves the drawing-up of projects. 

7. 

For services: 

(a)  The nature and quantity of the goods to be supplied, including any options for 
further procurement and, if possible, the estimated time available for exercising 
those options as well as the number of renewals, if any. In the case of recurring 
contracts, also, if possible, an estimate of the timing of the subsequent calls for 
competition for the services to be procured; 

(b) 

Indication  of  whether  the  performance  of  the  service  is  reserved  by  law, 
regulation or administrative provision to a particular profession; 

(c)  Reference to the law, regulation or administrative provision; 

(d) 

(e) 

Indication  of  whether  legal  persons  shall  indicate  the  names  and  professional 
qualifications of the staff to be responsible for the performance of the service; 

Indication  of  whether  service  providers  may  tender  for  a  part  of  the  services 
concerned. 

Where known, indication of whether authorisation to submit variants exists or not. 

Time  limits  for  delivery  or  completion  or  duration  of  the  contract  and,  as  far  as 
possible, for starting. 

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

8. 

9. 

10. 

11. 

(a)  Final date for receipt of requests to participate; 

(b)  Address to which they shall be sent; 

12. 

13. 

14. 

15. 

16. 

(c)  Language or languages in which they shall be drawn up. 

Final date for dispatch of invitations to tender. 

Where applicable, any deposits and guarantees required. 

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

Information concerning the economic operator's position and the minimum economic 
and technical conditions required of him. 

Criteria referred to in Article 76 to be used for award of the contract: "lowest cost" or 
"most  economically  advantageous 
the  most 
economically advantageous tender as well as their weighting or, where appropriate, 

tender".  Criteria 

representing 

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the order of importance of those criteria shall be indicated where they do not appear 
in the specifications or will not be indicated in the invitation to tender. 

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

Where appropriate, the date(s) and reference(s) to publication in the Official Journal 
of  the  European  Union  of  the  periodic  information  notice  or  of  the  notice  of  the 
publication of this notice on the buyer profile to which the contract refers. 

Name  and  address  of  the  body  responsible  for  appeal  and,  where  appropriate, 
mediation  procedures.  Precise  information  concerning  time  limits  for  lodging 
appeals, or, if need be, the name, address, telephone number, fax number and e-mail 
address of the service from which this information may be obtained. 

Date of dispatch of the notice by the contracting entities. 

Any other relevant information. 

17. 

18. 

19. 

20. 

21. 

C. NEGOTIATED PROCEDURES 

1. 

2. 

3. 

4. 

5. 

6. 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  entity  and,  where  different,  of  the  service  from  which  additional 
information may be obtained. 

Main activity exercised. 

Where appropriate, state whether the contract is reserved for sheltered workshops or 
whether  its  performance  is  reserved  in  the  context  of  sheltered  employment 
programmes. 

Nature of the contract (supplies, works or services; where appropriate, state if it is a 
framework  agreement);  description 
reference  No(s)).  Where 
appropriate,  state  whether  tenders  are  requested  for  purchase,  lease,  rental  or  hire 
purchase or any combination of those. 

(nomenclature 

NUTS code for the main location of works in case of works or NUTS code for the 
main place of delivery or performance in supplies and service. 

For supplies and works: 

(a)  The  nature  and  quantity  of  the  goods  to  be  supplied  (nomenclature  reference 
No(s)),  including  any  options  for  further  procurement  and,  if  possible,  the 
estimated time available for exercising those options as well as the number of 
renewals, if any. In the case of recurring contracts, also, if possible, an estimate 
of  the  timing  of  the  subsequent  calls  for  competition  for  the  goods  to  be 
procured  or  the  nature  and  extent  of  the  services  to  be  provided  and  general 
nature of the work (nomenclature reference No(s)); 

(b) 

Indication  of  whether  the  suppliers  may  tender  for  some  and/or  all  the  goods 
required. 

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If, for works contracts, the work or the contract is subdivided into several lots, 
the order of size of the different lots and the possibility of tendering for one, for 
several or for all the lots; 

(c)  For  works  contracts:  information  concerning  the  purpose  of  the  work  or  the 

contract where the latter also involves the drawing-up of projects. 

7. 

For services: 

(a)  The  nature  and  quantity  of  the  services  to  be  supplied,  including  any  options 
for  further  procurement  and,  if  possible,  the  estimated  time  available  for 
exercising those options as well as the number of renewals, if any. In the case 
of  recurring  contracts,  also,  if  possible,  an  estimate  of  the  timing  of  the 
subsequent calls for competition for the services to be procured; 

(b) 

Indication  of  whether  the  performance  of  the  service  is  reserved  by  law, 
regulation or administrative provision to a particular profession; 

(c)  Reference of the law, regulation or administrative provision; 

(d) 

(e) 

Indication  of  whether  legal  persons  shall  indicate  the  names  and  professional 
qualifications of the staff to be responsible for the performance of the service; 

Indication  of  whether  service  providers  may  tender  for  a  part  of  the  services 
concerned. 

Where known, indication of whether authorisation to submit variants exists or not. 

Time  limits  for  delivery  or  completion  or  duration  of  the  contract  and,  as  far  as 
possible, for starting. 

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

8. 

9. 

10. 

11. 

(a)  Final date for receipt of requests to participate; 

(b)  Address to which they shall be sent; 

12. 

13. 

14. 

15. 

(c)  Language or languages in which they shall be drawn up. 

Where appropriate, any deposits and guarantees required. 

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

Information concerning the economic operator's position and the minimum economic 
and technical conditions required of him. 

Criteria referred to in Article 76 to be used for award of the contract: "lowest cost" or 
"most  economically  advantageous 
the  most 
economically advantageous tender as well as their weighting or, where appropriate, 

tender".  Criteria 

representing 

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the order of importance of those criteria shall be indicated where they do not appear 
in the specifications or will not be indicated in the invitation to negotiate. 

Where  appropriate,  the  names  and  addresses  of  the  economic  operators  already 
selected by the contracting entity. 

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

Where appropriate, the dates and reference(s) of publication in the Official Journal of 
the  European  Union  of  the  periodic  information  notice  or  of  the  notice  of  the 
publication of this notice on the buyer profile to which the contract refers. 

Name  and  address  of  the  body  responsible  for  appeal  and,  where  appropriate, 
mediation  procedures.  Precise  information  concerning  time  limits  for  lodging 
appeals, or, if need be, the name, address, telephone number, fax number and e-mail 
address of the service from which this information may be obtained. 

Date of dispatch of the notice by the contracting entity. 

Any other relevant information. 

16. 

17. 

18. 

19. 

20. 

21. 

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ANNEX XII 
INFORMATION TO BE INCLUDED IN THE CONTRACT AWARD NOTICE 
(as referred to in Article 64) 

I. Information for publication in the Official Journal of the European Union55 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

55 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  entity  and,  where  different,  of  the  service  from  which  additional 
information may be obtained. 

Main activity exercised. 

Nature  of  the  contract  (supplies,  works  or  services  and  Nomenclature  reference 
No(s); where appropriate state if it is a framework agreement). 

At  least  a  summary  indication  of  the  nature  and  quantity  of  the  products,  works  or 
services provided. 

(a)  Form  of  the  call  for  competition  (notice  on  the  existence  of  a  system  of 

qualification; periodic notice; call for tenders); 

(b)  Date(s) and reference(s) of publication of the notice in the Official Journal of 

the European Union; 

(c) 

In the case of contracts awarded without a prior call for competition, indication 
of the relevant provision of Article 44. 

Procurement procedure (open, restricted or negotiated). 

Number of tenders received, specifying 

(a)  number  of  tenders  received  from  economic  operators  which  are  small  and 

medium-sized enterprises, 

(b) 

 number of tenders received from abroad, 

(c)  number of tenders received electronically. 

In  the  case  of  multiple  awards  (lots,  multiple  framework  agreements),  this 
information shall be given for each award. 

Date of award of the contract(s). 

Price paid for bargain purchases pursuant to Article 44(i). 

For each award, name, address including NUTS code, telephone, fax number, email 
address and internet address of the successful tenderer(s) including: 

Information  in  headings  6,  9  and  11  is  deemed  information  not  intended  for  publication  where  the 
awarding  entity  considers  that  publication  thereof  might  be  detrimental  to  a  sensitive  commercial 
interest. 

EN 

143 

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(a) 

 information  whether  the  successful  tenderer  is  small  and  medium-sized 
enterprise, 

(b) 

 information whether the contract was awarded to a consortium. 

11. 

12. 

13. 

State, where appropriate, whether the contract has been, or may be, subcontracted. 

Price  paid  or  the  prices  of  the  highest  and  lowest  tenders  taken  into  account  in  the 
award of the contract. 

Name  and  address  of  the  body  responsible  for  the  appeal  and,  where  appropriate, 
mediation  procedures.  Precise  information  concerning  the  time  limit  for  lodging 
appeals, or, if need be, the name, address, telephone number, fax number and e-mail 
address of the service from which this information may be obtained. 

14. 

Optional information: 

– 

value and share of the contract which has been or may be subcontracted to third 
parties, 

– 

award criteria. 

II. Information not intended for publication 

15. 

16. 

17. 

18. 

19. 

20. 

Number  of  contracts  awarded  (where  an  award  has  been  split  between  several 
suppliers). 

Value of each contract awarded. 

Country  of  origin  of  the  product  or  service  (Community  origin  or  non-Community 
origin; if the latter, broken down by third country). 

Which award criteria were used (most economically advantageous; lowest cost)? 

Was the contract awarded to a tenderer who submitted a variant, in accordance with 
Article 58(1)? 

Were  any  tenders  excluded  on  the  grounds  that  they  were  abnormally  low,  in 
accordance with Article 79? 

21. 

Date of transmission of the notice by the contracting entity. 

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ANNEX XIII 
CONTENTS OF THE INVITATIONS TO SUBMIT A TENDER, TO NEGOTIATE OR 
TO CONFIRM INTEREST PROVIDED FOR UNDER ARTICLE 68 

1. 

The invitation to submit a tender or to negotiate provided for under Article 68 must 
contain at least: 

(a) 

the  final  date  for  receipt  of  tenders,  the address  to  which  they  are  to  be  sent, 
and the language or languages in which they are to be drawn up; 

However, in the case of contracts awarded through an innovation partnership, 
this  information  shall  not  appear  in  the  invitation  to  negotiate  but  it  shall 
appear in the invitation to submit a tender. 

(b) 

a reference to any published call for competition; 

(c) 

an indication of any documents to be attached; 

(d) 

(e) 

the  criteria  for  the  award  of  the  contract,  where  they  are  not  indicated  in  the 
notice on the existence of a qualification system used as a means of calling for 
competition; 

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

2. 

When  a  call  for  competition  is  made  by  means  of  a  periodic  indicative  notice, 
contracting  entities  shall  subsequently  invite  all  candidates  to  confirm  their  interest 
on the basis of detailed information on the contract concerned before beginning the 
selection of tenderers or participants in negotiations. 

This invitation shall include at least the following information: 

(a)  nature and quantity, including all options concerning complementary contracts 
and,  if  possible,  the  estimated  time  available  for  exercising  those  options  for 
renewable  contracts,  the  nature  and  quantity  and,  if  possible,  the  estimated 
publication  dates  of  future  notices  of  competition  for  works,  supplies  or 
services to be put out to tender; 

(b) 

type of procedure: restricted or negotiated; 

(c)  where appropriate, the date on which the delivery of supplies or the execution 

of works or services is to commence or terminate; 

(d) 

(e) 

the  address  and  closing  date  for  the  submission  of  requests  for  procurement 
documents and the language or languages in which they are to be drawn up; 

the  address  of  the  entity  which  is  to  award  the  contract  and  the  information 
necessary for obtaining the specifications and other documents; 

EN 

145 

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(f) 

(g) 

(h) 

economic  and  technical  conditions,  financial  guarantees  and  information 
required from economic operators; 

the  form  of  the  contract  which  is  the  subject  of  the  invitation  to  tender: 
purchase, lease, hire or hire-purchase, or any combination of those; and 

the contract award criteria and their weighting or, where appropriate, the order 
of importance of such criteria, if this information is not given in the indicative 
notice or the specifications or in the invitation to tender or to negotiate. 

EN 

146 

   EN 

 
ANNEX XIV  
LIST OF INTERNATIONAL SOCIAL AND ENVIRONMENTAL CONVENTIONS 
REFERRED TO IN ARTICLES 70 AND 79 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

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

Convention 98 on the Right to Organise and Collective Bargaining; 

Convention 29 on Forced Labour; 

Convention 105 on the Abolition of Forced Labour; 

Convention 138 on Minimum Age; 

Convention 111 on Discrimination (Employment and Occupation); 

Convention 100 on Equal Remuneration; 

Convention 182 on Worst Forms of Child Labour; 

Vienna Convention for the protection of the Ozone Layer and its Montreal Protocol 
on substances that deplete the Ozone Layer; 

Basel  Convention  on  the  Control  of  Transboundary  Movements  of  Hazardous 
Wastes and their Disposal (Basel Convention); 

Stockholm  Convention  on  Persistent  Organic  Pollutants  (Stockholm  POPs 
Convention); 

Convention  on  the  Prior  Informed  Consent  Procedure  for  Certain  Hazardous 
Chemicals and Pesticides in International Trade (UNEP/FAO) (The PIC Convention) 
Rotterdam, 10/09/1998 and its 3 regional Protocols. 

EN 

147 

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ANNEX XV  
LIST OF EU LEGISLATION REFERRED TO IN ARTICLE 77(3) 

(a)  Directive 2009/33/EC. 

EN 

148 

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ANNEX XVI 
INFORMATION TO BE INCLUDED IN NOTICES OF MODIFICATIONS OF A 
CONTRACT DURING ITS TERM 
(as referred to in Article 82(6) 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  entity  and,  where  different,  of  the  service  from  which  additional 
information may be obtained. 

Main activity exercised. 

CPV Nomenclature reference No(s); 

NUTS code for the main location of works in case of works or NUTS code for the 
main place of delivery or performance in supplies and service; 

Description of the procurement before and after the modification: nature and extent 
of the works, nature and quantity or value of supplies, nature and extent of services. 

Where applicable, increase in price caused by the modification. 

Description of the circumstances which have rendered necessary the modification.  

Date of contract award decision. 

Where applicable, the name, address including NUTS code, telephone, fax number, 
email address and internet address of the new economic operator or operators. 

Information whether the contract is related to a project and /or programme financed 
by European Union funds. 

Name  and  address  of  the  oversight  body  and  the  body  responsible  for  review  and, 
where  appropriate,  mediation  procedures.  Precise  information  concerning  the 
deadline for review procedures, or if need be the name, address, telephone number, 
fax  number  and  email  address  of  the  service  from  which  this  information  may  be 
obtained. 

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ANNEX XVII  
SERVICES REFERRED TO IN ARTICLE 84 

CPV Code 

79611000-0 and  

Description 

Health and social services 

from 85000000-9 to 85323000-9 

(except 85321000-5 and 85322000-2) 

to  80660000-8 

75121000-0,  75122000-7,  75124000-1;  from 
79995000-5  to  79995200-7;  from  80100000-
5 
(except  80533000-9, 
80533100-0,  80533200-1);  from  92000000-1 
92230000-2, 
92700000-8 
to 
92231000-9, 92232000-6) 

(except 

Administrative  educational,  healthcare  and 
cultural services 

75300000-9 

Compulsory social security services 

75310000-2, 75311000-9, 75312000-6, 

Benefit services 

75313000-3, 75313100-4, 75314000-0, 

75320000-5, 75330000-8, 75340000-1 

98000000-3 

98120000-0 

98131000-0 

Other  community, 
services 

social  and  personal 

Services furnished by trade unions 

Religious services 

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ANNEX XVIII 
Information to be included in notices concerning contracts for social and other specific 
services 
(as referred to in Article 85) 

Part A Contract notice 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  entity  and,  where  different,  of  the  service  from  which  additional 
information may be obtained. 

Main activity exercised. 

Description  of  the  services  or  categories  thereof  and  where  applicable,  incidental 
works and supplies to be procured, including an indication of the quantities or values 
involved, nomenclature reference No(s). 

NUTS code for the main place of performance of the services.  

Where appropriate, state whether the contract is reserved for sheltered workshops or 
whether  its  performance  is  reserved  in  the  context  of  sheltered  employment 
programmes. 

Main  conditions  to  be  fulfilled  by  the  economic  operators  in  view  of  their 
participation,  or,  where  appropriate, 
the  electronic  address  where  detailed 
information may be obtained. 

Time limit(s) for contacting the contracting entity in view of participation.  

Any other relevant information. 

Part B Contract award notice 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  entity  and,  where  different,  of  the  service  from  which  additional 
information may be obtained. 

Main activity exercised. 

At least a summary indication of the nature and quantity of the services and where 
applicable, incidental works and supplies provided. 

Reference of publication of the notice in the Official Journal of the European Union 

Number of tenders received. 

Name and address of the chosen economic operator(s). 

Any other relevant information. 

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ANNEX XIX 
INFORMATION TO BE INCLUDED IN THE DESIGN CONTEST NOTICE 
(as referred to in Article 89(1)) 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  entity  and,  where  different,  of  the  service  from  which  additional 
information may be obtained. 

Main activity exercised. 

Project description (nomenclature reference No(s)). 

Nature of the contest: open or restricted. 

In the case of open contests: final date for receipt of projects. 

In the case of restricted contests: 

(a) 

the number of participants envisaged, or range; 

(b)  where applicable, names of participants already selected; 

(c) 

criteria for the selection of participants; 

(d) 

final date for receipt of requests to participate. 

Where  applicable,  indication  of  whether  participation  is  reserved  to  a  particular 
profession. 

Criteria to be applied in the evaluation of projects. 

Where applicable, names of the selected members of the jury. 

Indication of whether the decision of the jury is binding on the authority. 

Where applicable, number and value of prizes. 

Where applicable, details of payments to all participants. 

Indication of whether the prize-winners are permitted any follow-up contracts. 

Name  and  address  of  the  body  responsible  for  the  appeal  and,  where  appropriate, 
mediation  procedures.  Precise  information  concerning  the  time  limit  for  lodging 
appeals, or, if need be, the name, address, telephone number, fax number and e-mail 
address of the service from which this information may be obtained. 

Date of dispatch of the notice. 

Any other relevant information 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

13. 

14. 

15. 

16. 

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ANNEX XX 
INFORMATION TO BE INCLUDED IN THE RESULTS OF DESIGN CONTEST 
NOTICES 
(as referred to in Article 89(1)) 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

Name,  identification  number  (where  provided  for  in  national  legislation),  address 
including  NUTS  code,  telephone,  fax  number,  email  and  internet  address  of  the 
contracting  entity  and,  where  different,  of  the  service  from  which  additional 
information may be obtained. 

Main activity exercised. 

Project description (nomenclature reference No(s)). 

Total number of participants. 

Number of foreign participants. 

Winner(s) of the contest. 

Where applicable, the prize(s). 

Other information. 

Reference of the design contest notice. 

Name  and  address  of  the  body  responsible  for  the  appeal  and,  where  appropriate, 
mediation  procedures.  Precise  information  concerning  the  time  limit  for  lodging 
appeals, or, if need be, the name, address, telephone number, fax number and e-mail 
address of the service from which this information may be obtained. 

11. 

Date of dispatch of the notice. 

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ANNEX XXI 
CORRELATION TABLE56  

This Directive  

Directive 2004/17/EC 

Art. 1 

- 

Art. 2, 1st sentence 

Art. 1, par. 1 

Art. 2, point 1 

Art.  2,  par.  1,  point  (a),  1st 
subpar.  

Art. 2, points 2 and 3 

- 

New 

= 

= 

New 

Art. 2, point 4, (a), 1st part 

Art.  2,  par.  1,  point  (a),  2nd 
subpar., 1st indent 

= 

Art. 2, point 4, (a), 2nd part 

Art. 2, point 4, (b) 

Art. 2, point 4, (c) 

Art. 2, point 5 

Art. 2, point 6 

Art. 2, point 7 

Art. 2, point 8 

Art. 2, point 9 

Art.  2,  par.  1,  point  (a),  2nd 
subpar., 2nd indent 

Art.  2,  par.  1,  point  (a),  2nd 
subpar., 3rd indent 

Art.  2,  par.  1,  point  (b),  1st 
subpar. 

Art. 2, par. 3 

Art. 1, par. 2, point (a) 

Art.  1,  par.  2,  point  (b),  1st 
sentence 

New 

= 

= 

= 

Adapted 

Adapted 

Adapted 

Art.  1,  par.  2,  point  (b),  2nd 
sentence 

= 

Art. 2, point 10 

Art. 1, par. 2, point (c) 

Adapted 

Art. 2, point 11 

Art. 2, point 12 

Art. 2, point 13 

Art.  1,  par.  2,  point  (d),  1st 
subpar. 

Amended 

Art. 1, par. 7, 1st & 2nd subpar.  Adapted 

Art. 1, par. 7, 3rd subpar. 

= 

56 

"Adapted" means that the wording of the text was changed, while the meaning of the repealed directive 
was preserved. Changes to the meaning of the provisions of the repealed directive are indicated by the 
term "Amended".  

EN 

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Art. 2, point 14 

Art. 1, par. 7, 3rd subpar. 

Art. 2, point 15 

Art. 34, par. 1 

Art. 2, point 16 

Art. 1, par. 8 

Art. 2, point 17 

Art. 2, point 18 

Art. 1, par. 8 

Art. 2, point 19 

Art. 2, point 20 

Art. 1, par. 11 

Art. 2, point 21 

Art. 1, par. 12 

Art. 2, point 22 

Art. 2, point 23 

Art. 1, par. 10 

3, 

Art. 
subparagraph 

par. 

1, 

1st 

Amended 

Amended 

Amended 

New 

Amended 

New 

= 

= 

New 

= 

New 

3, 

Art. 
subparagraph 

par. 

3, 

Art. 
subparagraph 

par. 

Art. 3, par. 2 

Art. 3, par. 3 

Art. 3, par. 4 

Art. 4, par. 1 

4, 

Art. 
subparagraph 

par. 

1, 

2nd 

Art.  1,  par.  2,  point  (d),  2nd  & 
3rd subpar. 

Amended 

1, 

3rd 

Art. 9, par. 1 

Art. 9, par. 2 

Art. 9, par. 3 

New 

= 

= 

Amended 

Art.  2,  par.  1,  point  (b)  2nd 
subpar. 

= 

2, 

1st 

Art. 2, par. 3; Recital 25 

Adapted 

4, 

Art. 
subparagraph 

par. 

2, 

2nd 

Art. 4, par. 3 

Art. 4, par. 4 

Art. 5 

Art. 2, par. 2 

Art. 3, par. 1 & 2 

New 

= 

New 

= 

Art. 6, par. 1 

Art. 3, par. 3 

Adapted 

EN 

155 

   EN 

 
 
 
 
 
 
 
 
Art. 6, par. 2 

Art. 3, par. 4 

Art. 7 

Art. 8 

Art. 9 

Art. 4 

Art. 5, par. 1 

Art. 5, par. 2 

Art. 7, point (b) 

Art. 10, par. 1 

Art. 6, par. 1 

= 

= 

= 

Deleted 

= 

adapted 

Art. 10, par. 2, point (a) 

Art. 6, par. 2, point (a) 

= 

Art. 10, par. 2, point (b) 

Art. 6, par. 2, point (b) 

Amended 

Art. 10, par. 2, point (c) 

Art. 6, par. 2, point (c) 

Adapted 

Art. 11, point (a) 

Art. 7, point (a) 

Amended 

Art. 11, point (b) 

Art. 7, point (a) 

Art. 8 

Annex I - X 

Art. 16 & 61 

= 

Deleted 

Deleted 

Amended 

Art. 17, par. 1; Art. 17, par. 8 

Amended 

Art. 17, par. 2; Art. 17, par. 8 

Amended 

Art. 17, par. 3 

New 

= 

New 

Art. 17, par. 4 & 5 

Adapted 

Art.  17,  par.  6(a),  1st  &  2nd 
subpar. 

Art.  17,  par.  6(b),  1st  &  2nd 
subpar. 

= 

= 

Art. 17, par. 6(a), 3rd subpar. & 
par. 6(b), 3rd subpar. 

Adapted 

Art. 12 

Art. 13, par. 1 

Art. 13, par. 2 

Art. 13, par. 3 

Art. 13, par. 4 

Art. 13, par. 5 

Art. 13, par. 6 

Art. 13, par. 7 

Art. 13, par. 8 

Art. 13, par. 9 

Art. 13, par. 10  

Art. 17, par. 7 

Art. 13, par. 11 

Art. 17, par . 9 

= 

= 

EN 

156 

   EN 

 
 
 
 
 
 
Art. 13, par. 12 

Art. 17, par. 10 

Art. 13, par. 13 

Art. 17, par. 11 

Art. 19, point (a) and (b) 

Art. 24, point (a) and (b) 

= 

Art. 19, point (c) 

Art. 24, point (c) 

Amended 

Art. 19, point (d) 

Art. 24, point (d) 

Art. 19, point (e) 

Art.  19,  point  (f)  and  2nd 
subparagraph. 

= 

= 

Adapted 

= 

Amended 

= 

New 

New 

Adapted 

New 

Adapted 

Adapted 

Adapted 

Art. 69 

Art. 19, par. 1 

Art. 19, par. 1 

Art. 20, par. 1; Art. 62, point 1  Adapted 

Art. 20, par. 2 

Art. 22a 

Amended 

Adapted 

Art. 21; Art. 62, point 1 

Amended 

Art. 22; Art. 62, point 1 

Amended 

Art. 26 

Art. 23, par. 1 

Art. 23, par. 1 

Art. 23, par. 2 

Art. 23, par. 3, points (a) to (c)  Adapted 

Art. 23, par. 3, 2nd & 3rd subpar.  Adapted 

Art. 23, par. 4 

Art. 23, par. 5 

Art. 24, point (e) 

Adapted 

Amended 

Amended 

New 

Art. 14 

Art. 15, par. 1 

Art. 15, par. 2 

Art. 16, par. 1 

Art. 16, par. 2 

Art. 17, par. 1 

Art. 17, par. 2 

Art. 18 

Art. 20 

Art. 21 

Art. 22, par. 1 

Art. 22, par. 2 

Art. 22, par. 3 

Art. 22, par. 4 

Art. 22, par. 5 

Art. 23 

Art. 24 

Art. 25, par. 1 

Art. 25, par. 2 

EN 

157 

   EN 

 
 
 
 
 
Art.  30,  par.  1;  Art.  62,  point 
(2) 

Adapted 

Art. 26, par. 1 and 2 

Art. 27 

Art. 26, par. 3 

Art. 27, par. 1, 1st sentence 

Art. 27, par. 1, 2nd sentence 

27, 

Art. 
subparagraph 

27, 

Art. 
subparagraph 

par. 

2, 

1st 

Art. 30, par. 2 

par. 

2, 

2nd 

Amended 

New 

New 

= 

New 

= 

Art. 27, par. 3 

Art. 28, par. 1 

Art. 28, par. 2 

Art.  28,  par.  3,  1st  &  2nd 
subparagraph 

Art. 30, par. 3 

Art.  30,  par.  4,  1st  subpar.;  par. 
5, 1st & 2nd subpar.  

Amended 

Art. 30, par. 4, 2nd subpar.; par. 
5, 4th subpar.; Art. 62, point (2) 

Adapted 

Art. 30, par. 4, 3rd subpar. 

Deleted 

Art. 30, par. 6, 1st subpar. 

Amended 

28, 

Art. 
subparagraph 

28, 

Art. 
subparagraph 

par. 

3, 

3rd 

New 

par. 

3, 

4th 

Art.  30,  par.  6,  1st  subpar.,  2nd 
sentence 

Amended 

Art. 28, par. 4 

Art. 28, par. 5 

Art. 29 

Art. 30, par. 1 

Art. 30, par. 2 

Art. 31 

Art. 32 

Art. 33, par. 1 

Art. 33, par. 2 

Art. 30, par. 6, 2nd subpar. 

= 

Art. 30, par. 6, 4th subpar. 

Amended 

Art. 10 

Art. 11, par. 1 

Art. 11, par. 2 

Art. 28 

Art. 13 

Amended 

Adapted 

Amended 

Amended 

Amended 

Art. 48, par. 1; Art. 64, par. 1  

Amended 

Art. 48, par. 2 & 3; Art. 64, par.  Adapted 

EN 

158 

   EN 

 
 
 
 
 
 
1 & 2 

par 

3, 

1st 

Art. 48, par. 4; Art. 64, par. 1 

Amended 

par 

3, 

2nd 

Art. 70, par 2, point (f) 

= 

par. 

3 

3rd 

New 

New 

Art. 48, par. 5; Art. 64, par. 3 

Amended 

Art. 48, par. 6 

Adapted 

New 

New 

33, 

Art. 
subparagraph 

33, 

Art. 
subparagraph 

33, 

Art. 
subparagraph 

Art, 33, par. 4 

Art. 33, par. 5 

Art. 33, par. 6 

Art. 33, par. 7 

Art. 34 

Art. 35, par. 1 

Art. 1, par. 13 

Amended 

Art. 35, par 2 

Art. 70, par. 2, points (c) & (d)  Adapted 

Art. 36 

Art. 37 

Art. 38, par. 1 

Art. 38, par. 2 

Art. 39, par. 1 

Art. 39, par. 2 

Art. 39, par. 3 

Art. 40, par. 1 

Art. 40, par. 2 

Art. 40, par. 3 

Art. 40, par. 4 

Art. 41 

Art. 42 

Art. 12 

New 

New 

Amended 

New 

Art. 40, par. 1 & 2 

Amended 

Art. 42 

= 

New 

Art. 1, par. 9, point (a); Art. 45, 
par. 2 

Amended 

Art. 45, par. 4 

Amended 

New 

New 

Art. 1, par. 9, point (b); Art. 45, 
par. 3 

Amended 

Art. 1, par. 9, point (c); Art. 45,  Amended 

EN 

159 

   EN 

 
 
 
 
 
 
 
 
 
 
 
par. 3 

Art. 43 

Art. 44, point (a) 

Art. 40, par. 3, point (a) 

Art. 44, point (b) 

Art. 40, par. 3, point (b) 

New 

= 

= 

Art. 44, point (c) 

Art. 40, par. 3, point (c) 

Amended 

Art. 44, point (d) 

Art. 40, par. 3, point (c) 

Amended 

Art. 44, point (e) 

Art. 40, par. 3, point (d) 

Amended 

Art. 44, point (f) 

Art. 40, par. 3, point (e) 

= 

Art. 44, point (g) 

Art. 40, par. 3, point (g) 

Amended 

Art. 44, point (h) 

Art. 40, par. 3, point (h) 

Amended 

Art. 44, point (i) 

Art. 40, par. 3, point (j) 

= 

Art. 44, point (j) 

Art. 40, par. 3, point (k) 

Adapted 

Art. 44, point (k) 

Art. 40, par. 3, point (l) 

Adapted 

44, 

Art. 
subparagraphs 

2nd 

and 

3rd 

New 

Art. 44, 4th subparagraph 

Art. 40, par. 3, point (g) in fine  Adapted 

Art.  45,  par.  1,  1st  &  2nd 
subparagraph 

45, 

Art. 
subparagraph 

par. 

1, 

3rd 

Art. 45, par. 2 to 5 

Art. 46, par. 1 

Art. 46, par. 2 

Art. 46, par. 3 

Art. 46, par. 4 

Art. 46, par. 5 

Art. 46, par. 6 

Art. 14, par. 1; Art. 1, par. 4 

Adapted 

New 

Art. 14, par. 2 - 4; Art. 40, par. 
3, point (i) 

Amended 

Art. 1, par. 5; Art. 15, par. 1 

Amended 

Art. 15, par. 2 

Art. 15, par. 3 

Art. 15, par. 4 

Art. 15, par. 6 

Amended 

Adapted 

Amended 

Amended 

New 

EN 

160 

   EN 

 
 
 
 
 
Art. 46, par. 7 

Art. 47, par. 1 

Art. 15, par. 7, 3rd subpar. 

= 

Art. 1, par. 6; Art. 56, par. 1 

Amended 

47, 

Art. 
subparagraph 

47, 

Art. 
subparagraph 

par. 

2, 

1st 

Art. 56, par. 2, 1st subpar. 

= 

par. 

2, 

2nd 

Art. 56, par. 2, 2nd subpar. 

Adapted 

Art. 47, par. 3 

Art. 47, par. 4 

Art. 47, par. 5 

Art. 47, par. 6 

Art. 47, par. 7 

Art. 47, par. 8 

Art. 47, par. 9 

Art. 48 

Art. 49, par. 1 

Art. 49, par. 2 

Art. 49, par. 3 

Art. 49, par. 4 

Art. 49, par. 5 

Art. 49, par. 6 

Art. 50 

Art. 51 

Art. 52 

Art. 53, par. 1 

Art. 53, par. 2 

Art. 54, par. 1 

Art. 54, par. 2 

Art. 56, par. 2, 3rd subpar. 

Art. 56, par. 3 

Art. 56, par. 4 

Art. 56, par. 5 

Art. 56, par. 6 

Art. 56, par. 7 

Art. 56, par. 8, 1st subpar. 

Art. 29, par. 1 

Art. 29, par. 2 

Art. 29, par. 2 

Recital 15 

Art. 34, par. 1 

Art. 34, par. 2 

Adapted 

Adapted 

Adapted 

Adapted 

= 

Adapted 

= 

New 

Amended 

New 

Amended 

New 

Amended 

New 

New 

New 

New 

Amended 

New 

Amended 

Adapted 

EN 

161 

   EN 

 
 
 
 
 
 
 
 
 
Art. 54, par. 3 

Art. 54, par. 4 

Art. 54, par. 5 

Art. 54, par. 6 

Art. 55, par. 1 

Art. 55, par. 2 

Art. 56, par. 1 

Art. 56, par. 2 

Art. 56, par. 3 

Art. 56, par. 4 

Art. 57 

Art. 58, par. 1 

Art. 58, par. 2 

Art. 59  

Art. 60, par. 1 

Art. 60, par. 2 

Art. 61, par. 1 

Art. 61, par. 2 

Art. 62 

Art. 63 

Art. 64, par. 1 

Art. 64, par. 2 

Art. 64, par. 3 

Art. 64, par. 4 

Art. 34, par. 3 

Art. 34, par. 8 

Art. 34, par. 4 

Art. 34, par. 5 

Art. 34, par. 6 

Art. 34, par. 6 

Adapted 

= 

Adapted 

Amended 

Amended 

Adapted 

Art. 34, par. 4, 5, 6, & 7 

Amended 

Art. 34, par. 4, 5 & 6 

Amended 

Art. 34, par. 7 

Art. 35 

Art. 36, par. 1 

Art. 36, par. 2 

Art. 45, par. 1 

Art. 45, par. 9 

Art. 45, par. 10 

Art. 41, par. 1 & 2 

Adapted 

New 

Amended 

Amended 

Adapted 

New 

Adapted 

Amended 

Deleted 

Adapted 

Art. 42, par. 3; Art. 44, par. 1 

Adapted 

Art. 41, par. 3 

Art.  42,  par.  1,  point  (c);  Art. 
44, par. 1 

Adapted 

Adapted 

Art. 43, par. 1, 1st subpar.; Art. 
44, par. 1 

Adapted 

Art. 43, par. 1, 2nd & 3rd subpar.  Amended 

Art. 43, par 2 & 3 

Art. 43, par. 5 

Amended 

Adapted 

EN 

162 

   EN 

 
 
 
 
Art. 65, par. 1 

Art. 65, par. 2 

Art. 65, par 3 

Art. 65, par. 4 

Art. 65, par. 5 

Art. 65, par. 6 

Art. 66, par. 1 

Art.  44,  par.  1;  Art.  70,  par.  1, 
point (b) 

Amended 

Art.  44,  par.  2,  3  &  par.  4,  2nd 
subpar. 

Amended 

Art. 44, par. 4, 1st subpar. 

Adapted 

Art. 44, par. 6 & 7 

Art. 44, par. 8 

New 

Amended 

Amended 

Art. 44, par. 5, 1st subpar. 

Amended 

Art. 66, par. 2 and 3 

Art. 44, par. 5, 2nd & 3rd subpar.  Adapted 

Art. 67, par. 1 

Art. 67, par. 2 

Art. 68, par. 1 

Art. 68, par. 2 

Art. 69, par. 1 

Art. 69, par. 2 

Art. 69, par. 3 

Art. 45, par. 6 

Art. 46, par.2 

Amended 

Amended 

Art. 47, par. 1, 1st sentence 

Adapted 

Art. 47, par. 1, 2nd sentence  

Adapted 

Art. 49, par. 1 

Adapted 

Art. 49, par. 2, 1st & 2nd subpar.  Adapted 

Art. 49, par. 2, 3rd subpar. 

Art. 69, par. 4, 5 and 6 

Art. 49, par. 3, 4 & 5 

Art. 70, par. 1 

Art. 70, par. 2 

Art. 70, par. 3 

Art. 70, par. 4 

Art. 70, par. 5 

Art. 70, par. 6 

Art. 70, par. 7 

Art. 71, par. 1 

Art. 71, par. 2 

Art. 51, par. 1 

Art. 51, par. 2 

Art. 52, par. 1 

Art. 51, par. 3 

Art. 53, par. 1 

Art. 53, par. 2 

= 

= 

Adapted 

= 

= 

Adapted 

New 

New 

New 

= 

Adapted 

EN 

163 

   EN 

 
 
 
 
 
Art. 71, par. 3 

Art. 71, par. 4 

Art. 71, par. 5 

Art. 71, par. 6 

Art. 72, par. 1 

Art. 72, par. 2 

Art. 73, par. 1 

Art. 73, par. 2 

Art. 73, par. 3 

Art. 74, par. 1 

Art. 74, par. 2 

Art. 74, par. 3 

Art. 75, par. 1 

Art. 75, par. 2 

Art. 75, par. 3 

Art. 76, par. 1 

Art. 76, par. 2 

Art. 76, par. 3 

Art. 76, par. 4 

Art. 76, par. 5 

Art. 77 

Art. 78 

Art. 79, par. 1 

Art. 79, par. 2 

Art. 53, par. 6 

Art. 53, par. 7 

Art. 53, par. 9 

Art. 54, par. 1 & 2 

Art. 54, par. 3 

Art. 53, par. 4 & 5 

Art. 54, par. 5 & 6 

= 

= 

Adapted 

New 

Adapted 

Adapted 

Amended 

Amended 

New 

Art. 53, par. 3; Art. 54, par. 4 

Adapted 

New 

Art. 53, par. 3; Art. 54, par. 4 

Amended 

Art. 52, par. 2 

Art. 52, par. 3 

Art. 55, par. 1 

Amended 

Amended 

New 

Amended 

Art. 55, par. 1, point (a) 

Amended 

Recital 1; Recital 55, 3rd par. 

Amended 

New 

Amended 

New 

New 

Amended 

Adapted 

Art. 57, par. 1 

Art. 57, par. 1 

Art. 79, par. 3, point (a) 

Art.  57,  par.  1,  2nd  subpar., 
point (a) 

= 

Art. 79, par. 3, point (b) 

Art.  57,  par.  1,  2nd  subpar.,  = 

EN 

164 

   EN 

 
 
 
 
 
 
 
 
 
point (b)  

Art. 79, par. 3, point (c) 

Art.  57,  par.  1,  2nd  subpar., 
point (c)  

= 

Art. 79, par. 3, point (d) 

Art.  57,  par.  1,  2nd  subpar., 
point (d)  

Amended 

Art. 79, par. 3, point (e) 

Art.  57,  par.  1,  2nd  subpar., 
point (e)  

= 

Art.  79,  par.  4,  1st  &  2nd 
subparagraph 

79, 

Art. 
subparagraph 

par. 

4, 

3rd 

Art. 79, par. 5 

Art. 79, par. 6 

Art. 80 

Art. 81, par. 1 

Art. 81, par. 2 

Art. 81, par. 3 

Art. 82, par.1 – 5, par. 7 

Art. 57, par. 2 

Amended 

Art. 57, par. 3 

Art. 58; Art. 59 

Art. 38 

Art. 37, 1st sentence 

Art. 37, 2nd sentence 

New 

Adapted 

New 

Deleted 

Amended 

= 

New 

Adapted 

New 

Art. 82, par. 6 

Art. 40, par. 3, point (f) 

Amended 

Art. 83 

Art. 84 

Art. 85 

Art. 86 

Art. 87 

Art. 88 

Art. 60 

Art. 61 

Art. 89, par. 1 

Art. 63, par. 1, 1st subpar. 

Art.  89,  par.  2,  1st  and  2nd 
subparagraphs 

Art.  63,  par.  1,  1st  subpar;  2nd 
subpar., 1st sentence 

New 

New 

New 

New 

= 

Adapted 

Adapted 

Adapted 

EN 

165 

   EN 

 
 
 
 
 
 
 
 
 
 
Art. 90 

Art. 91 

Art. 92 

Art. 93, par. 1 

Art. 93, par. 2 - 8 

Art. 94 

Art. 95, par. 1 - 3 

Art. 95, par. 4 

Art. 95, par. 5 

Art. 95, par. 6 

Art. 96 

Art. 97 

Art. 98 

Art. 99 

89, 

Art. 
subparagraph 

par. 

2, 

3rd 

Art.  63,  par.  1,  2nd  subpar.,  2nd 
sentence 

Amended 

Art. 89, par. 3 

Art. 63, par. 2 

Adapted 

Art. 65 

Art. 66 

Art. 72, 1st subpar. 

Art. 72, 2nd subpar. 

Art. 50 

Art. 67 

= 

= 

Adapted 

Amended 

New 

Amended 

Amended 

New 

Art. 70, par. 1, point (c) 

Adapted 

Art. 67, par. 3 

Amended 

Art. 68, par. 3 & 4 

Art. 68, par. 5 

Art. 100, par. 1 

Art. 68, par. 1 

Art. 100, par. 2 

Art. 68, par. 3 

Art. 101, par. 1 

Art. 71, par. 1 

Art. 101, par. 2 

Art. 71, par. 2 

Art. 102 

Art. 103 

Art. 73 

Art. 104 and 105 

Art. 74; Art. 75 

Annex I to X 

New 

New 

Amended 

Amended 

Adapted 

Adapted 

Adapted 

= 

Adapted 

New 

= 

Deleted 

Annex I (except 1st sentence)  Annex XII (except footnote 1) 

= 

1st sentence of Annex I 

Footnote 1 to Annex XII 

Amended 

EN 

166 

   EN 

 
 
 
 
 
 
 
Annex II 

Annex III, points A, B, C, E, 
F, G, H, I and J 

Annex XI 

Annex III, point D 

Annex IV, (a) – (g) 

Annex XXIV, (b) – (h) 

Annex IV, (h) 

Annex V 

Annex VI 

Annex VII 

Annex XV 

Amended 

Art. 56, par. 3, points (a) – (f) 

= 

New 

Adapted 

New 

= 

New 

New 

Annex  VIII,  except  for  point 
4 

Annex XXI 

Annex VIII, point 4 

Annex XXI 

Annex IX 

Annex X 

Annex XI 

Annex XII 

Annex XX 

Annex XIV 

Annex XIII 

Annex XVI 

Annex XIII, 1. 

Art. 47, par. 4 

Annex XIII, 2. 

Art. 47, par. 5 

Annex XIV 

Annex XV 

Annex XVI 

Annex XVII 

Annex XVIII 

Annex XIX 

Annex XX 

 Annex XI 

Annex XXIII 

Annex XVI 

Annex XVII 

Annex XVIII 

Annex XIX 

Annex XXVI 

Annex XXII 

Adapted 

Amended 

Amended 

Amended 

Amended 

Amended 

Adapted 

Adapted 

Amended 

New 

Amended 

Amended 

New 

Amended 

Amended 

Amended 

Deleted 

EN 

167 

   EN 

 
 
 
 
 
 
 
 
Annex XXV 

Deleted 

EN 

168 

   EN