CELEX: 51997PC0289
Language: en
Date: 1997-06-30
Title: Amended proposal for a European Parliament and Council Directive amending Council Directive 92/50/EEC relating to the coordination of procedures for the award of public service contracts, Council Directive 93/36/EEC coordinating procedures for the award of public supply contracts and Council Directive 93/37/EEC concerning the coordination of procedures for the award of public works contracts

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                              COMMISSION OF THE EUROPEAN COMMUNITIES
            •sir     £
                                                                 Brussels, 30.06.1997
                                                                 COM(97) 289 final
                                                                 95/0079 (COD)
                                      OPINION OF THE COMMISSION
                              pursuant to Article 189 b (2) (d) of the EC Treaty,
                                   on the European Parliament's amendments
                               to the Council's common position regarding the
                                                 proposai for a
                         EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
                 amending Council Directive 92/50/EEC relating to the coordination of procedures for
         the award of public service contracts, Council Directive 93/36/EEC coordinating procedures for
                       the award of public supply contracts and Council Directive 93/37/EEC concerning
                        the coordination of procedures for the award of public works contracts
                           AMENDING THE PROPOSAL OV THE COMMISSION
                                 pursuant to Article 189 a (2) of the EC Treaty
 ---pagebreak---  ---pagebreak---                                       Opinion of the Commission
                          pursuant to Article 189 b (2) (d) of the EC-Treaty on
                                the European Parliament's amendments
     to the Council's Common Position on the proposal for a European Parliament and Council
  directive amending Council Directive 92/50/EEC relating to the coordination of procedures for
 the award of public service contracts, Council Directive 93/36/EEC coordinating procedures for
               the award of public supply contracts and Council Directive 93/37/EEC concerning
                the coordination of procedures for the award of public works contracts.
I       State of the file
The proposal was forwarded to the European Parliament and the Council on 30.3.1995.
The Economic and Social Committee adopted its opinion on 5.7.1995.
The European Parliament adopted its opinion in first reading on 28.2.1996.
The amended proposal was transmitted to the Council on 16.12.1996.
The Common position was adopted by the Council on 19 December 1996.
The European Parliament adopted its opinion in second reading on 14.5.1997.
II       Purpose of the Directive
The Government Procurement Agreement (GPA or, in French, AMP), entered into force in the
Community on 1 January 1996, as stipulated in its Article XXIV, forms an integral part of the
legal order of the Community through Council Decision 94/800/EC of 22 December 1994,
which approves the agreements reached in the Uruguay Round multilateral negotiations. This
does not, however, entail that its provisions can be directly invoked before the jurisdictions of
the Community and the Member States (last recital of Decision 94/800/EC).
 The Commission has proposed a series of amendments to the Directives, aimed at inserting
some provisions of the GPA in order to:
a)      avoid discrimination against Community companies and give them the same advantages
         that third country companies enjoy pursuant to the GPA; and
b)      ensure coherence between the two legal regimes. This way contracting authorities, which
         are subject to both the Directives and the GPA, will be able to conform to the GPA by
        applying the provisions of the amended Directives. They would otherwise be obliged to
         know both legal regimes perfectly, to highlight the differences between them and to draw
        the correct consequences of these differences. That would seem to be a difficult process,
        which could lead to significant differences in the application of Community law in the
        different Member States.
                                                Z
 ---pagebreak--- Ill     The Commission's position on the amendments adopted by the                       European
        Parliament
A       Amendments accepted by the Commission
Recital 10 (technical dialogue - amendment n. 4)
The part of amendment 4, which was adopted by the European Parliament, is acceptable to the
Commission given that it is simply a positive formulation of Article VI (4) of the GPA. In fact,
whereas the GPA provision states that "entities shall not seek or accept, in a manner which
would have the effect of precluding competition, advice which may be used in the preparation
of specifications for a specific procurement from a firm that may have a commercial interest in
the procurement", the text of the European Parliament provides that "contracting authorities may
seek or accept advice which may be used in the preparation of specifications for a specific
procurement, provided that such advice does not have the effect of precluding competition".
Recital 10 a (new) (training and information in favour of SMEs - amendment n. 2)
Although a recital to the public procurement directives, which is not mirrored in the Directive
itself, is not the most appropriate and efficient means of reaching the legitimate goal pursued, the
Commission can also accept this amendment, through which the European Parliament aims at
favouring the access of SMEs to public procurement by placing appropriate training and
information facilities at their disposal.
Annex I
Amendment n. 3, whereby the German Federal Ministry of Transport would be added to the list
of central State purchasing authorities is acceptable to the Commission.
B       Amendments rejected by the Commission
None.
                                               ^
 ---pagebreak---                             AMENDED PROPOSAL FOR A
              EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
                                        amending
Council Directive 92/50/EEC relating to the coordination of procedures for the award of
 public service contracts, Council Directive 93/36/EEC coordinating procedures for the
  award of public supply contracts, and Council Directive 93/37/EEC concerning the
           coordination of procedures for the award of public works contracts
        (presented by the Commission pursuant to Article 189 a (2) of the EC-Treaty)
                                                v
 ---pagebreak---    Recital 10 is amended as follows:
   "Whereas contracting authorities may seek or accept advice which may be used in the
   preparation of specifications for a specific procurement, provided that such advice
   does not have the effect of precluding competition;"
   Recital 10 a is inserted:
   "Whereas the Commission shall make available to small and medium-sized
   undertakings the training and information materials they need to enable them to
   participate fully in the changed procurement market;"
3. The following authority is inserted in Annex I under the heading Federal Republic of
   Germany as point 17a :
   "Federal Ministry of Transport"
                                                 S
 ---pagebreak---  ---pagebreak---                                                                   ISSN 0254-1475
                                                           COM(97) 289 final
                                             DOCUMENTS
EN                                                                  08 01 06
                                    Catalogue number : CB-C0-97-278-EN-C
                                                             ISBN 92-78-21187-7
Office for Official Publications of the European Communities
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