CELEX: 51991PC0158
Language: en
Date: 1991-06-04
Title: AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE 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 TELECOMMUNICATIONS SECTORS

N o C 179/18                            Official Journal of the European Communities                                   10.7. 91
               Amended proposal for a Council Directive 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 telecommunications sectors
                                                          (91/C 179/10)
                                                 COM(91) 158 final — SYN 292
                  (Submitted by the Commission pursuant to Article 149 (3) of the EEC Treaty on 4 June 1991)
 THE COUNCIL OF THE EUROPEAN COMMUNITIES,                            public works contracts (5), as last amended by Directive
                                                                     89/440/EEC ('), and Council Directive 77/62/EEC of
                                                                     21 December 1976 coordinating procedures for the
                                                                     award of public supply contracts (7), as last amended by
 Having regard to the Treaty establishing the European
                                                                     Directive 89/295/EEC (8);
 Economic Community, and in particular Article 100a
 thereof,
                                                                     Whereas the opening-up of procurement in the sectors
 Having regard to the proposal from the Commission ('),              concerned to Community competition necessitates
                                                                     measures concerning remedies available to suppliers or
                                                                     contractors in case of violation of the rules; whereas it is
                                                                     also necessary to ensure that there is general evidence of
 In cooperation with the European Parliament,                        compliance with the rules, in order to build up
                                                                     confidence in correct application of the rules;
 Having regard to the opinion of the Economic and
 Social Committee (2),                                              Whereas with regard to remedies it is necessary to
                                                                    provide for a substantial increase in the guarantees of
                                                                    transparency and non-discrimination and whereas, for it
                                                                    to have tangible effects, effective and rapid remedies
Whereas Council Directive 90/531/EEC of 17                          must be available in the case of infringements of
 September 1990 on the procurement procedures of                    Community law in the field or national rules
 entities operating in the water, energy, transport and             implementing that law;
telecommunications sectors (3), does not contain any
specific provisions ensuring its effective application;
                                                                    Whereas account must be taken of the specific nature of
                                                                    certain legal orders by authorizing the Member States to
Whereas the existing arrangements at both national and              choose between the introduction of different powers for
Community levels for ensuring its application are                   the review bodies which have equivalent effects;
inadequate;
                                                                    Whereas one of these options includes the powers to
Whereas in certain Member States the absence of
                                                                    directly intervene in the contracting entities' procurement
effective remedies or inadequacy of existing remedies               procedures such as by suspending them, or by setting
deter Community undertakings from submitting tenders                aside decisions or discriminatory clauses in documents or
in such Member States; whereas, therefore, the Member               publications;
States concerned must remedy this situation;
                                                                    Whereas the other option provides for the power to
Whereas Council Directive 89/665/EEC of 21                          exert effective indirect pressure on the contracting
December 1989 on the application of review procedures               entities in order to make them correct any infringements
to the award of public supply and public works                      or prevent them from committing infringements;
contracts (4) is limited to contract award procedures
within the scope of Council Directive 71/305/EEC of 26
July 1971 coordinating procedures for the award of
(1) OJ   No C 216, 31. 8. 1990, p. 8.                               (') OJ  No  L 185, 16. 8. 1971, p. 5.
(2) OJ   No C 60, 8. 3. 1991, p. 16.                                (*) OJ  No  L 210, 21. 7. 1989, p. 1.
(3) OJ   No L 297, 29. 10. 1990, p. 1.                              O   OJ  No  L 13, 15. 1. 1977, p. 1.
(4) OJ   No L 395, 30. 12. 1989, p. 33.                             (») OJ  No  L 127, 20. 5. 1988, p. 1.
 ---pagebreak---  10. 7. 91                            Official Journal of the European Communities                            No C 179/19
Whereas claims for damages must always be possible;             HAS ADOPTED THIS DIRECTIVE:
 whereas such claims are in general subject to national
 law;
                                                                                         CHAPTER 1
Whereas the fact must be taken into account that the EC                          Remedies at national level
 procurement rules grant the right of a fair chance to
                                                                                           Article 1
 suppliers and contracts; whereas violations of that right
 must be compensated by reimbursement of costs                   1.    The Member States shall take the measures
 incurred;                                                      necessary to ensure that decisions taken by contracting
                                                                entities may be reviewed effectively and, in particular, as
                                                                rapidly as possible in accordance with the conditions set
Whereas general evidence of compliance with the                 out in the following Articles and, in particular, Article 2
 procurement rules requires a regular examination, by           (9), on the grounds that such decisions have infringed
 independent persons, of procurement procedures and             Community law in the field of procurement or national
practices applied by the contracting entities;                  rules implementing that law as regards:
Whereas for this purpose an attestation system, leading         (a) contract award procedures falling within the scope of
to certificates available to interested parties, is appro-           Directive 90/531/EEC; and
priate;
                                                                (b) respect for Article 3 (2) (a) of that Directive in the
Whereas the Member States may confer the responsi-
                                                                     case of the contracting entities to which that
bility for the execution of the examination to govern-
                                                                     provision applies.
mental authorities, or leave it to private persons;
Whereas the necessary flexibility in the introduction of        2.     Member States shall ensure that there is no
such a system is guaranteed by laying down the essential        discrimination between undertakings claiming injury in
requirements for it in this Directive; whereas in order to      the context of a procedure for the award of a contract as
 allow the attestation system to be used beyond the field       a result of the distinction made by this Directive between
of application of this Directive, operational details           national rules implementing Community law and other
should be provided in European standards to which this          national rules.
Directive refers;
                                                                3.     The Member States shall ensure that the review
Whereas the Member States may need to determine such            procedures are available, under detailed rules which the
operational details prior to, or in addition to, the rules      Member States may establish, at least to any person
contained in European standards;                                having or having had an interest in obtaining a particular
                                                                contract and who has been or risks being harmed by an
                                                                alleged infringement. In particular, the Member States
Whereas, when undertakings do not seek review, certain
                                                                may require that the person seeking the review must
infringements may not be corrected unless a specific
                                                                have previously notified the contracting entity of the
mechanism is put in place;
                                                                alleged infringement and of his intention to seek review.
Whereas, accordingly, the Commission, when it
considers that a clear and manifest infringement has been                                 Article 2
committed during a contract award procedure, should be
able to bring it to the attention of the competent auth-        1.     The Member States shall ensure that the measures
orities of the Member State and of the contracting entity       taken concerning the review procedures specified in
concerned so that appropriate steps are taken for ^the          Article 1 include provision for the powers at least:
rapid correction of that infringement;
                                                                     either
Whereas it is necessary to provide for the possibility of
non-litigious conciliation at Community level to enable
disputes to be settled amicably;                                (a) to take, at the earliest opportunity and by way of
                                                                     interlocutory procedures, interim measures with the
                                                                    aim of correcting the alleged infringement or
Whereas the application in practice of the provisions of            preventing further        damage to the        interests
this Directive should be reviewed at the same time as               concerned, including measures to suspend or to
that of Directive 90/531/EEC on the basis of infor-                 ensure the suspension of the procedure for the award
mation to be supplied by the Member States concerning               of a contract or the implementation of any decision
the functioning of the national review procedures,                  taken by the contracting entity;
 ---pagebreak---   No C 179/20                           Official Journal of the European Communities                                10.7.91
  (b) to set aside or ensure the setting aside of decisions        6. The Member States may provide that where
      taken unlawfully, including the removal of discrimi-         damages are claimed on the grounds that a decision was
      natory technical, economic or financial specifications       taken unlawfully, the contested decision must first be set
      in the contract notices, periodic indicative notices,        aside or declared illegal by a body having the necessary
      notices on the existence of a qualification system, the      powers.
      invitation to tender, the contract documents or in
      any other document relating to the contract award
      procedure;
                                                                   7. The effects of the exercise of the powers referred to
                                                                   in paragraph 1 on a contract concluded subsequent to its
      or                                                           award shall be determined by national law. Furthermore,
                                                                   except where a decision must be set aside prior to the
  (c) to take, at the earliest opportunity, where necessary        award of damages, a Member State may provide that,
      by way of interlocutory procedure, other measures            after the conclusion of a contract following its award,
      with the aim of correcting the infringement or               the powers of the body responsible for the review
      preventing further damage to the interests                   procedures shall be limited to awarding damages to any
      concerned, in particular the power to make an order          person harmed by an infringement.
      for the payment of a given sum of money in the
      event that the infringement is not corrected or
      avoided;
                                                                   8. Where a claim is made for damages representing
                                                                  the costs of preparing a bid or of participating in an
      and (for either of the above alternatives)                   award procedure, the person making the claim shall be
                                                                  required to prove the infringement of Community law in
                                                                  the field of procurement or national rules implementing
 (d) to award damages to persons harmed by an                     that law and that the infringement adversely affected his
      infringement.                                               chance of being awarded the contract. He shall not be
                                                                  required to prove that, in the absence of the
 The Member States may exercise this choice either for            infringement, he would have been awarded the contract.
 all contracting entities or for categories of contracting
 entities which are defined by objective criteria.
                                                                  9. The Member States shall ensure that decisions
 2. The powers specified in paragraph 1 may be                    taken by bodies responsible for review procedures can be
 conferred on separate bodies responsible for different           effectively enforced.
 aspects of the review procedure.
 3. Review procedures need not in themselves have an              10. Where bodies responsible for review procedures
 automatic suspensive effect on the contract award                are not judicial in character, written reasons for their
 procedures to which they relate.                                 decisions shall always be given. Furthermore, in such a
                                                                  case provision must be made to guarantee procedures
                                                                  whereby any allegedly illegal measures taken by the
 4. The Member States may provide that when                       review body or any alleged defect in the exercise of the
 considering whether to order interim measures the body           powers conferred on it can be the subject of judicial
responsible may take into account the probable conse-             review or review by another body which is a court or
quences of the measures for all interests likely to be            tribunal within the meaning of Article 177 of the Treaty
harmed, as well as the public interest, and may decide            and independent of both the contracting entity and the
not to grant such measures where their negative conse-            review body.
quences could exceed their benefits. A decision not to
grant interim measures shall not prejudice any other
claim of the person seeking these measures.
                                                                 The members of the independent body shall be
                                                                  appointed and leave office under the same conditions as
5. The sum of money referred to in paragraph 1 (c)                members of the judiciary as regards the authority
shall be fixed at the necessary level for dissuading the         responsible for their appointment, their period of office,
contracting entity from committing or continuing the             and their removal. At least the president of this inde-
infringement, taking account, as appropriate, of the             pendent body shall have the same legal and professional
value of the contract and the turnover of the contracting        qualifications as members of the judiciary. The inde-
entity. It shall at least represent one percent of the value     pendent body shall take its decisions following a
of the contract. The payment may be made conditional             procedure in which both sides are heard, and these
on a final decision being reached to the effect that the         decisions shall, by means determined by each Member
infringement has been committed.                                 State, be legally binding.
 ---pagebreak--- 10. 7. 91                               Official Journal of the European Communities                              No C 179/21
                         CHAPTER 2                                 (b) any competent authority designated by the Member
                                                                        State by the law of which the contracting entity is
                      Attestation system                                governed;
                           Article 3
The Member States shall take the measures necessary to             (c) the Commission.
ensure the introduction, operation and supervision of an
attestation system in accordance with the provisions of           On the basis of these reports the Commission may
Articles 4 to 8.                                                  publish periodic summary reports in the Official Journal
                                                                   of the European Communities.
                           Article 4
                                                                                             Article 6
Without prejudice to the remedies provided in chapter 1,
                                                                  The Member States shall provide that attestors shall be
contracting entities whose contract award procedures fall
                                                                   appointed to office:
within the scope of Directive 90/531/EEC shall, at least
once a year, have their purchasing procedures and
practices examined by an attestor. This examination shall         — either by an authority, independent of the
seek to establish, in accordance with any relevant                     contracting entities and designated for this purpose,
European standards, whether the purchasing procedures
and practices of the contracting entities are in                  — or by the contracting entities themselves, subject to
conformity with national and Community law                             the prior approval of such a competent authority.
concerning the award of contracts and thereby give
potential suppliers and contractors a fair opportunity to
secure the award of contracts.                                                               Article 7
                                                                  Attestors, who shall be independent of the contracting
                                                                   entities and of bidders which have participated in award
                           Article 5                               procedures of the contracting entities during the period
1.     Attestors shall report in writing, in accordance with       covered by the attestation, shall be accredited by a
any relevant European standards, on the results of their           competent authority, itself independent of              the
examination.                                                       contracting entities and designated for this purpose by a
                                                                   Member State. The competent authority shall ensure that
                                                                   accredited attestors:
2.     The report shall contain, as appropriate:
                                                                   (a) are holders of a higher education diploma within
                                                                        the meaning of Article 1 of Council Directive
     either                                                             89/48/EECO;
                                                                   (b) offer appropriate guarantees of professional qualifi-
(a) an attestation that the purchasing procedures and
                                                                        cations and specific expertise in this sector;
     practices of the contracting entities give potential
     suppliers and contractors a fair opportunity to secure
     the award of contracts;                                       (c) have passed an examination of professional
                                                                        competence organized or recognized by the State;
     or                                                            (d) are in conformity with the requirements of any
                                                                        relevant European standards.
(b) observations concerning any infringements of
     national or Community law concerning the award of
                                                                                             Article 8
     contracts and a description of deficiencies in existing
     purchasing procedures and practices which are such            Taking account of the provisions of this chapter and of
     as to make the attestation in sub-paragraph (a) inap-         the European standards referred to in Articles 4, 5 (1)
     propriate. In this case, the report shall also contain a      and 7, Member States may establish operational
     description of action needed to prevent their repe-           provisions on the implementation of the attestation
     tition.                                                       system, in particular as regards the manner in which the
                                                                   examination is carried out, the form and content of
                                                                   the report, and the qualification, accreditation and
3.     The contracting entities shall communicate the              appointment of attestors.
report to:
(a) interested persons, upon their request;                        (l) OJ No L 19, 24. 1. 1989, p. 16.
 ---pagebreak--- No C 179/22                            Official Journal of the European Communities                                10.7.91
                        CHAPTER 3                                                        CHAPTER 4
                   Corrective mechanism                                                  Conciliation
                          Article 9                                                       Article 10
 1.   The Commission may invoke the procedures for               Any person having or having had an interest in obtaining
which this Article provides when, prior to a contract            a particular contract falling within the scope of Directive
being concluded, it considers that a clear and manifest          90/531 /EEC and who, in relation to the procedure for
infringement of Community provisions in the field of             the award of that contract, has been or risks being
public procurement has been committed during a                   harmed by an alleged infringement of Community law in
contract award procedure falling within the scope of             the field of procurement or national rules implementing
Directive 90/531/EEC, or in relation to Article 3 (2) (a)        that law may invoke the procedure for which this
of that Directive in the case of the contracting entities to     chapter provides by written notification to the
which that provision applies.                                    Commission or to the national authorities of the
                                                                 Member States listed in the Annex.
2.    The Commission shall notify the Member State and
the contracting entity concerned of the reasons which                                     Article 11
have led it to conclude that a clear and manifest
                                                                  1.   Where the Commission or the national authorities
infringement has been committed and request its
                                                                 of a Member State consider on the basis of a notification
correction.
                                                                 pursuant to Article 10 that an infringement of
                                                                 Community law has occurred, they may seize the
                                                                 Advisory Committee for Public Contracts or, in the case
3.    Within 21 days of receipt of the notification              of contracting entities the activities of which are
referred to in paragraph 2, the Member State concerned           defined in Article 2 (2) (d) of Directive 90/531/EEC,
shall communicate to the Commission:                             the Advisory Committee on Telecommunications
                                                                 Procurement.
(a) its confirmation    that the infringement      has been
     corrected; or                                               2.    The Chairman of the committee in question shall
                                                                 convoke as rapidly as possible a working group of at
                                                                 least two members of the committee and himself or
                                                                 another Commission official designated by him. The
(b) a reasoned submission as to why no correction has            working group shall normally meet within ten working
     been made; or                                               days of the seizure of the relevant committee. It may
                                                                 decide on a proposal from any of its members to invite
                                                                 not more than two other persons as experts to advise it
(c) a notice to the effect that the contract award               in its work. Any other member of the committee may
     procedure has been suspended either by the                  attend any meeting of the working group as an observer.
     contracting entity on its own initiative or on the basis
     of the powers specified in Article 2 (1) (a).
                                                                 3.    The working group shall give the person invoking
                                                                 this procedure, the contracting entity and any other
                                                                 candidate or tenderer participating in the contract award
4.    A reasoned submission in accordance with
                                                                 procedure to which the notification relates the oppor-
paragraph 3 (b) may rely among other matters on the
                                                                 tunity to make representations on the matter either orally
fact that the alleged infringement is already the subject
                                                                 or in writing.
of judicial or other review proceedings or of a review as
referred to in Article 2 (10). In such a case, the Member
State shall inform the Commission of the result of those
proceedings as soon as it becomes known.                         4.    The working group shall endeavour to reach an
                                                                 agreement between the parties which is in accordance
                                                                 with Community law.
5.    Where notice has been given that a contract award
procedure has been suspended in accordance with
paragraph 3 (c), the Member State shall notify the               5.    The working group shall report to the committee
Commission when the suspension is lifted or another              on its findings and any result achieved.
contract procedure relating in whole or in part to the
same subject matter is begun. That notification shall
confirm that the alleged infringement has been corrected         6.    The person invoking the procedure and the
or include a reasoned submission as to why no                    contracting entity shall bear their own costs of partici-
correction has been made.                                        pating in the procedure.
 ---pagebreak---   10.7.91                              Official Journal of the European Communities                              No C 179/23
                          Article 12                              2.     By 1 March each year the Member States shall
                                                                  communicate to the Commission information on the
  1.    Where, in relation to a particular contract award
                                                                  operation of their national review procedures during the
 procedure, an interested person within the meaning of
                                                                  preceding calendar year. The nature of the information
Article 10 other than the person invoking the conciliation
                                                                  shall be determined by the Commission in consultation
 procedure is pursuing judicial or other review
                                                                  with the Advisory Committee for Public Contracts.
 proceedings in the sense of this Directive, the contracting
 entity shall inform the working group. The chairman
 shall inform that person that the conciliation procedure         3.    In the case of matters relating to contracting
 has been invoked and shall invite that person to indicate        entities the activities of which are defined in Article 2 (2)
within a given time limit whether he agrees to participate        (d) of Directive 90/531/EEC, the Commission shall also
 in the conciliation procedure. If that person refuses to         consult the Advisory Committee on Telecommunications
participate, the working group may decide, acting if              Procurement.
necessary by majority, to stop the conciliation procedure,
 if it considers that the participation of this person is
 necessary to resolve the dispute. It shall notify its
decision to the committee and give its reason for so                                         Article 14
doing.                                                            1.    Member States shall adopt, before 1 July 1992, the
                                                                  measures necessary to comply with this Directive. They
                                                                 shall forthwith inform the Commission thereof.
2.      Action taken pursuant to this chapter shall be
without prejudice to:
                                                                 2.     The provisions adopted by Member States shall
(a) any action that the Commission or any Member                 contain a reference to this Directive or be accompanied
      State might take pursuant to Articles 169 or 170 of        by such a reference at the time of their official publi-
      the Treaty or pursuant to chapter 3;                       cation. The practical details of this reference shall be
                                                                 adopted by the Member States.
(b) the rights of the person invoking the conciliation
      procedure, of the contracting entity or of any other
                                                                 3.     Member States shall bring into force the necessary
      person.
                                                                 measures adopted pursuant to paragraph 1 on the same
                                                                 dates as those contained in Directive 90/531/EEC.
                        CHAPTER 5
                                                                 4.     Member States shall ensure that the texts of the
                      Final provisions
                                                                 basic provisions of domestic law, whether laws, regu-
                         Article 13                              lations or administrative provisions, which they adopt to
                                                                 implement this Directive, are communicated to the
1.     Not later than four years after the application of        Commission.
this Directive the Commission, in consultation with the
Advisory Committee for Public Contracts, shall review
the manner in which the provisions of this Directive have
                                                                                             Article 15
been implemented and, if necessary, make proposals for
amendments.                                                      This Directive is addressed to the Member States.
 ---pagebreak--- No C 179/24                          Official Journal of the European Communities                                   10. 7. 91
                                                            ANNEX
          National authorities of the Member States to which written notifications may be sent invoking the concil-
                                            iation procedure pursuant to Article 10
                                                           BELGIUM
                                               Ministere des affaires economiques
                                               Ministerie van Economische Zaken
                                                           DENMARK
                                        Indk0bsaftalter: Industri- og Handelsstyrelsen
                                         Bygge- og anlaegskontrakter: Boligministeriet
                                                           GERMANY
                                                Bundesministerium fur Wirtschaft
                                                            GREECE
                                        Ministry of Industry, Energy and Technology
                                                     Ministry of Commerce
                                  Ministry of the Environment, Planning and Public Works
                                                             SPAIN
                                              Ministerio de Economia y Hacienda
                                                            FRANCE
                                                Commission centrale des marches
                                                           IRELAND
                                                     Department of Finance
                                                             ITALY
                                Presidenza del Consiglio del ministri — Politiche comunitarie
                                                        LUXEMBOURG
                                                  Ministere des travaux publics
                                                    THE NETHERLANDS
                                              Ministerie van Economische Zaken
                                                          PORTUGAL
                                Ministerio das Obras Publicas, Transportes e CommunicacOes
                            Conselho Superior de Obras Publicas, Transportes e CommunicacOes
                                                     UNITED KINGDOM
                                                          HM Treasury