CELEX: 51990PC0297
Language: en
Date: 1990-07-30
Title: 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

COMMISSION OF THE EUROPEAN COMMUNITIES
                                             ' C0MC90) 297 final -SYN292
                                              Brussels, 30 July 1990
                             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
                     (presented by the Commission)
 ---pagebreak---                                    - 2 -
                          Explanatory Memorandum
I.  INTRODUCTION
(a) The context
1.  In October 1988, as contemplated by the programme for completing the
    Internal market by 1992, the Commission sent the Council two proposals
    for a Council Directive on the procurement procedures of entities
    operating In the water, energy and transport sectors d ) and of those
    operating In the telecommunications sectors^2) (hereafter "the
    utilities"). These two proposals became one single proposal on the
    recommendation of the Parliament and an amended proposal was submitted
    to the Council in August 1989(3), following the adoption of the
    European Parliament's   opinion^4) In May of that year. The Council's
    common position was adopted on 29 March 1990.
2.  In December 1989, the Council adopted Directive 89/665/EEC (5) on the
    coordination of the laws, regulations and administrative provisions
    relating to the application of review procedures to the award of
    public supply and public works contracts. This Directive applies to
    the fields covered by Directives 71/305/EEC <6> and 77/62/EEC<7>:
    purchases of works and supplies by the public administration. It does
    not apply to the award of works and supply contracts In the water,
    energy, transport and telecommunications sectors.
(1) OJ No C 319, 12.12.1988.
(2) OJ No C 40, 17.2.1989.
(3) OJ No C 264, 16.10.1989.
(4) OJ No C 158, 26.6.1989.
(5) OJ No L 395/33, 30.12.1989.
(6) OJ No L 185, 16.8.1971, most recently amended by Directive 89/440/EEC
    (OJ No L 210, 21.7.1989).
(7) OJ No L 13, 15.1.1977, most recently amended by Directive 88/295
    (OJ No L 127, 20.5.1988).
 ---pagebreak---                                           - 3 -
    3. The availability of adequate remedies and control procedures                       is as
        important    in  the   hitherto     "excluded    sectors"        as   it   Is   in   the
       general    field   of   public    procurement.     Only      such    guarantees     will
       ensure    that   the   Community     rules  on   contract        procedures     are    In
       practice respected and that the Community's fundamental objectives
        in this area of the        internal market programme are realized. This
       new   proposal    thus   fills    an   important    gap     and    is the    necessary
       complement to the proposals already made.
    b) General approach
    4. As   matters    stand   at   the   present   time,      the    remedies     open    to a
       contractor     or   supplier     concerning    the     procedures        for   awarding
       contracts    vary    considerably      from  one    Member       State    to   another.
       Suspension of illegal award procedures or similar                    interim remedies
       are not available under similar conditions                  in all Member       States.
       The   possibility     of   obtaining     damages     is    also    subject     in    many
        Jurisdictions to such constraints that             it is really a theoretical
       possibility on I y(8). Moreover, since             the utilities have            In many
       cases    not    been    subject     to   regulation       of     their     procurement
       procedures, national systems of remedies may simply not exist.
    5. The Commission      therefore considers       it necessary for Member             States
        to  amend,    where   appropriate,      their   administrative          and   Judicial
       procedures so as to afford contractors and suppliers interested in
        taking   part   in relevant      contract   award     procedures       effective     and
        rapid remedies against procedures, practices and decisions that are
        incompatible with Community procurement              law. As noted above, this
        is as necessary      for    the utilities     as    it   is    in relation      to   the
        established public procurement regime.
(8) The situation in the Member States is analysed in a summary of studies
    recently   carried    out   on   this   subject    in    a   Commission       Information
    document   Ill/F/7086/fInal, June 1990.
 ---pagebreak---                                   - 4-
6. It should also be recalled that Article 5 EEC imposes a general
   duty on Member States to make effective Judicial remedies available
   for the enforcement of directly applicable Community rights arising
   under the Treaty Itself (Case 33/76 REWE-ZentralfInanz [1976] ECR
   1989). This duty has since been specifically recognised in relation
   to Treaty provisions concerning free movement of goods (Case 178/84
   CommIssIon v. Germany [1987] ECR 1227) and of workers (Case 222/86
   Hey I ens [1987] ECR 4097). New secondary Community           legislation on
   remedies    should   take   account  of   this   legal   duty   as   well  as
   considerations calling for remedies to be available on a broader
   basis.
7. The following general considerations have in particular guided the
   Commission in preparing this proposal:
   (i)    the need to ensure that effective remedies for disadvantaged
          tenderers are available at national        level   and at    Community
          level;
   (li) the need     to ensure    that  these  remedies    in the sectors of
          water,   energy,    transport    and   telecommunications       be  in
          principle as close as possible to those already adopted for
          the general   system of public procurement        review    procedures
          while taking   into account the particular       characteristics of
          the  entities   engaged   in those   sectors    from   the   economic,
          technical and legal points of view;
   ( M i ) the need to ensure that effective remedies are available to
           disadvantaged   tenderers   Irrespective of     the public     law or
           private law status of the utilities;
    (iv) the need to ensure that remedies are available In as.flexible
          and unbureaucratle a manner as possible;
 ---pagebreak---                                   - 5 -
   (v)   the need to ensure that compliance with Community         law may be
         effectively supervised at Community level;
   (vi) the need to ensure that a litigious approach        Is not the only
         method of dispute settlement available to interested parties;
   (vil) the need to take account of the different character of the
          national legal systems within which the review procedures and
          remedies must be created.
8. There    are    various    remedies   which   may,   depending     on   the
   circumstances, be relevant      in connection with ensuring compliance
   with Community law, apart from the Inherent right of the Commission
   to exercise its discretion to bring infringement proceedings under
   Article 169 EEC. In considering these remedies, it is important to
   remember that infringement of Community rules on public procurement
   generally    occur  before   the contract   is awarded.   Since    contract
   award procedures are of short duration (a decision         is often taken
   within a few weeks), any failure to comply with the Community rules
   in question     needs,   if possible,   to be dealt   with   urgently   and
   rapidly. Among the principal       remedies are therefore    interlocutory
   remedies,    designed   to correct   the alleged   Infringement    by,  for
   example, ordering the setting aside or modification of a contested
   clause or to prevent further damage to the party concerned by, for
   example, securing the suspension of the award procedure or of the
    Implementation of a decision of the awarding entity. On           its own,
   however, interlocutory relief is not enough and, as has been agreed
    in relation to Directive 89/665/EEC, it is necessary to ensure that
   damages may be awarded       for those breaches of relevant       Community
   provisions which it has not proved possible to avoid or correct.
 ---pagebreak---                                   - 6 -
   9. However, the preparatory work and consultations on this proposal
      have shown that the particular characteristics of the utilities
      concerned, and of the national        legal orders within which review
      procedures and remedies must be made available, require a degree
      of   flexibility   to be    introduced    Into  the  proposal.     In  some
      contexts it may be possible, legally and politically, to apply a
      classical     system    of    the    type    applied    to    the    public
      administration generally. In other contexts, this could              create
      major difficulties. For example, given the industrial             character
      of some organisations concerned, and also their need to satisfy
      imperative requirements of continuous service to the public, the
      view is strongly held in some quarters that classical              remedies
      which    directly    affect    the   decision-making     of    the   bodies
      concerned would not be appropriate. Suspension of contract award
      procedures and setting aside of award decisions are accordingly
      said to be unacceptable.
10.    In some Member States, indeed, the application of such remedies
      to bodies governed by private law would face constitutional [or
      other   serious]   obstacles     due   to  the  adverse    impact   on  the
      autonomy of the bodies concerned.
11.   Thus,   in Germany, attention has had to be given to the basic
      rights of enterprises pursuant to Articles 12 and 19(3) of the
      Basic Law: the principle of non-interference In the exercise of
      a   trade or   profession.    The proposed     directive    respects   this
      principle as it permits the Member States to offer entities a
      flexible means of demonstrating compliance with Community                law
      which does not involve mandatory interference with their freedom
      of commercial action. Thus Article 11 is drafted so as to permit
      effective interim relief whilst respecting this freedom.
 ---pagebreak---                                          - 7 -
     12.   In Spain, any re-dlstrIbutIon of Jurisdiction arising from the
           implementation of this proposal may require modification of the
           organic law on the Judiciary by a special majority in Parliament
           In accordance with Article 81 of the Constitution.
     13.   Means    have    accordingly    had   to   be    found     to    resolve    these
           difficulties through the Introduction of a degree of flexibility
           which    is nevertheless conditioned to ensure              its compatibility
           with    the principle of equal        treatment      of   similarly      situated
           undertakings both as between Member States and whether they are
           pub Iic or pr ivate.
     14.   This approach has also served to Introduce                 into the Community
           procurement framework for the first time a form of control which
           has    its   own   particular    merits:     attestation       on    a   regular,
           periodic     basis   or,   as   it  is often      called,      "audif'O).       |n
           brief, where Member States choose to depart from the classical
           approach applied to the public administration by not providing
           for remedies such as suspension of procedures and setting aside
           of decisions, they may do so subject               to two conditions: the
           bodies concerned must be subject to regular attestation of the
           general conformity of their procurement systems with Community
            law by    an   independent,    qualified     person;      and,    in   addition,
           effective interlocutory remedies must still be available though
            in   a    way    which    leaves    the    body     concerned        the   final
           responsibility to decide whether to correct an infringement or
            instead pay a financial penalty.
     15.   Since, in any event, the industrial, public service character of
           the utilities may well make it more difficult for individuals to
           obtain    effective     interlocutory    relief     due    to   the    utilities'
           possibility of relying on arguments to show that suspension of
           procedures Is not
(9) "Audit-    Is not    used   In the proposal      to avoid       possible      confusion
    with  the    financial     audit   of   corporate     accounts.      "Cert IfIcatIon-
    has  also    been    rejected    because   of   Its    use     In   connection      with
    technical standards.
 ---pagebreak---                                  - 8 -
    procedures     is not    Justified    taking   account    of   all   possible
    Interests likely to be affected, Including the public interest,
    the proposal     also seeks to ensure that          in all Member      States
    claims to damages will be a practical proposition and therefore
    a genuine incentive to compliance. In particular, it should not
    be necessary for interested parties seeking to recover the costs
    of  bid   preparation     or  of   their   participation     in an    illegal
    procedure    to    show   that   they   would   have    been    awarded   the
    contract. Such proof will         in many cases be extremely difficult
    and  makes    the   availability of      remedies    in damages     far  less
    effective as an incitation to contracting bodies to comply with
    the law. Interested parties should be required to show only that
    their chances of securing the contract were adversely affected.
    In addition, disputes about the exact amount of their                 bidding
    costs   should    be   limited by providing       for   a minimum     amount,
    related to the value of the contract, which will be payable in
    the absence of proof that the costs were in fact higher.
16. Different considerations apply to claims for other               losses such
    as lost profits. These raise complex           issues which are resolved
    by   the   Member    States    in   the   context   of   their     particular
    approaches to the quantification of economic loss. Much of the
     law is Judge made and of general application, applying outside
    the   field   of   procurement.     Harmonisation    of   these    approaches
    would    certainly      encounter    considerable      difficulties.     Such
    matters are accordingly        left to be resolved for the time being
    according to national law as under Council Directive 89/665/EEC.
     In the longer term, it will be necessary to see whether further
    action at Community level is necessary.
17. The   proposal    further    envisages    a  rapid   corrective     mechanism
    whereby the Commission may invoke certain procedures when, prior
    to a contract being concluded,           it considers that a clear and
    manifest    infringement of Community provisions on procurement in
 ---pagebreak---                                  - 9 -
    the fields covered      is being committed        during a contract         award
    procedure.     This   proposed    corrective      mechanism      is   in    terms
    Identical to those of Article 3 of Directive 89/665/EEC and has
    the same Justification. First, remedies at national               level, while
    vital, need to be complemented          by possibilities for         effective
    intervention at Community        level. Parties directly concerned may
    not consider their intervention at national             level to be in their
    own   best    Interests.     Nevertheless,       important     violations      of
    Community     procurement     law   may   have     occurred     calling      into
    question its credibility. In these circumstances, the Commission
    must be able to act and obtain a rapid intervention at national
    level, preferably to correct the situation before the damage has
    become    irreparable.    In   addition,    rapid    clarification       of   the
    issues    will     facilitate     the   Commission's        possibility,       in
    appropriate     cases,   of   seizing    the   Court    of   Justice     of   the
    European    Communities,     in good    tfme, of      requests    for    interim
    measures where it considers that necessary corrective action has
    not been taken at national level.
18. The   proposal    finally    envisages    a   conciliation      procedure      at
    Community    level. This would be available to interested parties
    as   a   non-litigious      method    of    dispute      settlement      without
    prejudice    to the possibility of        infringement      procedures      being
    taken under Article 169 or 170 EEC, or to the possibility of a
    corrective mechanism       being used, or       to the     rights of     persons
     invoking   the procedure, of       the contracting        entity   or    of  any
    other   person under    applicable national         laws unless     they enter
     into an agreement for the resolution of the differences between
    them. Experience      in certain Member States suggests that such a
    procedure may have a useful role to play, not               least by avoiding
    unnecessary     law suits. Considerable       interest has been expressed
     in  the   possibility    in   some   quarters.     Accordingly,       It   seems
    appropriate     to establish such a system with a view to testing
     its utI I Ity in pract ice.
 ---pagebreak---                                 - 10 -
19.  Given the   Important changes that the directive will              introduce
     and   also   the   necessarily     limited    nature   of    some    of   its
     provisions, for example, on damages, a review of Its working In
     practice after a sufficient period of time would appear to be
     useful. Provision     is accordingly made to this effect along the
     lines of the provision already included in Directive 89/665/EEC.
I I.  DETAILED COMMENTARY
(a)  Chapters 1 and 2: remedies at national level
20.  Chapter I requires that Member States ensure that adequate means
     of   Independent   review are available to any          person    having or
     having had an Interest       in obtaining a particular contract and
     who has been or risks being harmed by an alleged              infringement.
     The provisions of the chapter are for the most part the same as
     those in Articles 1 and 2 of Council Directive 89/665/EEC. Since
      in many cases it will be necessary to seek review at an early
     stage prior to the award of a contract, provision               is made for
     obtaining     Interim    relief    by    interlocutory     procedure,      in
     particular, suspension of the award procedure. Provision is also
     made for the award of damages and, for the reasons given above,
     this   includes   specific    provision    concerning    the   recovery    of
     bidding costs.
21.  Considerable     flexibility    is   left   for  the   Member     States   to
      implement the directive's requirements in accordance with their
     particular    approaches    to administrative      and   Judicial     review,
      including the procedural and other conditions applying to such
      remedies.   This   is  to   facilitate     the   insertion    of   the   new
      remedies into existing national structures.
 ---pagebreak---                                - 11 -
22. However, to ensure that the fundamental guarantees offered by
    different national systems are equivalent, if the review bodies
    are not themselves Judicial      In character, their decisions must
    be   subject   to review   by a body    which   is capable   of  making
    references to the Court of Justice of the European Communities
    and which is independent both of the contracting entity and the
    review   body.   This   requirement   was   the  provision   which   was
    central to the resolution of the differences of view concerning
    Directive 89/665/EEC.
23. Chapter 2 permits Member States to adopt an alternative approach
    in cases in which they consider that the classical remedies such
    as suspension of award procedures or setting aside decisions of
    contracting bodies are inappropriate for reasons already given.
    Those particular remedies then need not be made available under
    the conditions that the utilities         in question are subject     to
    regular certification of their purchasing systems, and that, in
    addition, effective interim remedies are still available.
                                Article 1
24. This Article sets out the principle of decisions by contracting
    entities on award procedures falling within the scope of             the
    utilities directive already proposed being subject to effective
    and rapid review on the ground of infringements of Community law
     in the field of procurement or national rules implementing that
     law. The coverage is complete in the sense that breaches of all
    provisions of the directive already proposed which require the
    utilities to act      In a particular way will      be subject   to the
    review procedures specified. For this reason, specific reference
     is made   to Article    3  (2) of   the   utilities   directive   which
    obliges      entities    subject    to     the    alternative,    regime
 ---pagebreak---                                   - 12 -
    for the exploration        for and extraction of oil, gas, coal              and
    other    solid     fuels     to    respect      the    principles     of    non-
    discrimination      and    competitive     procurement,       particularly    as
    regards     Information      on    their    procurement       intentions    made
    available to undertakings.
25. No   discrimination      between     undertakings      may   result   from   the
    distinction     made    in the proposed        Directive     between   national
    rules implementing Community law and other national rules.
26. The Member States will be at liberty to establish detailed rules
    relating     to  the   review     procedures,      for    example,   concerning
    procedural     formalities or costs. Of course, in so doing, they
    must in    no way disadvantage those who seek to use the remedies
    for breaches of Community law by comparison with persons seeking
    redress for breaches of national rules. This is in line with the
    approach of the Court of Justice In myriad cases (for example
    Case 199/82 Amminlstrazione del le FInanze dello Stato v. Spa San
    Giorgio [1983] ECR 3595) which requires that the availability of
    remedies for breach of Community             law must be on conditions no
     less   favourable     than     those    governing      the   availability    of
    remedies for breach of national law and that the conditions must
    not   be such as to render          the remedies       illusory or    virtually
     Impossible to obtain.
27. Accordingly     the procedures must         be open      at  least  to persons
    having    or   having    had   an   interest     in obtaining     a  particular
    contract and who have been or risk being harmed by an alleged
     infringement. Review will be thus available to those who have or
     have had a legitimate         Interest   in the outcome of a particular
    procedure. Nevertheless, express provision is made to the effect
     that  Member    States will      be free     to require      that  the   person
     seeking review should have previously notified the contracting
     entity of the alleged infringement and of his intention to seek
     review. This has the advantage of ensuring                 that there   Is the
     possibility of achieving a settlement prior to the dispute going
     to formal review.
 ---pagebreak---                            - 13 -
28. The  wording  of  this  Article  closely  reflects   that  of   the
    equivalent Article In Directive 89/665/EEC.
                             Article 2
29. This Article deals with the remedies for which provision must be
    made;  it does not preclude a Member State from providing for
    additional remedies. The first set of remedies are essentially
    Interim remedies, designed to correct the alleged     Infringement
    or prevent further damage to the interests concerned. This set
    Includes the power to suspend or ensure the suspension of the
    procedure for the award of a contract or the implementation of
    any decision taken by the contracting entity. The second set of
    remedies   concerns  the   setting  aside   of  decisions     taken
    unlawfully. This set Includes the power to remove discriminatory
    technical economic or financial specifications in the invitation
    to tender, the contract documents or any other document relating
    to the contract award procedure. The final remedy is the right
    to damages for injury caused by the Infringement.
30. The Member States will be able to endow separate bodies with
    powers in relation to different aspects of the review procedure.
    This flexibility permits Member States to allocate functions to
    different bodies in accordance with their existing practices. In
    some cases, those practices reflect sensitive and deep seated
    constitutional considerations such as the national conception of
    the separation   of powers between   the administration   and   the
    Judiciary. Because suspension may not always be appropriate, the
    proposed Directive provides that review procedures need not in
    themselves have an automatic suspensive effect     in relation to
 ---pagebreak---                                 - 14 -
    the award procedure concerned. The Member States are also free
    to provide     that   In considering    whether   to order     an   Interim
    measure the body concerned may have regard to the balance of
    convenience.     Interests that may be taken       into account     Include
    those of other participants        in the award procedure as well as
    those of    persons    to whom   the contracting      entity   provides    a
    service and     indeed the public In general.        As is customary, a
    decision not to grant       interim measures will not prejudice the
    outcome of any other claim which an applicant for such measures
    may   make.   The   Member   States   may   require    that  a    contested
    decision be set aside or declared          illegal before an award of
    damages may be made in relation to an unlawful decision.
31.  It will   be for national      law to determine      the effect    of   the
    exercise of the review powers. Save where a Member               State has
    made setting aside a precondition for the award of damages, a
    Member   State may     restrict   the powers of     the reviewing     body,
    after the conclusion of a contract following its award, to the
    award   of  damages. The provision on claims           for  damages    Is a
     limited step designed to ensure that in all Member States such
    claims will be a practical possibility. Given likely constraints
    on suspension and equivalent        interim measures, the possibility
    of claims for damages will be a particularly            important part of
    the system. A high level of harmonisation of the quantification
    of damages is an unrealistic objective at this stage. A limited
    step of the kind proposed         is both feasible and sufficient         to
    meet   the Community's      immediate objectives     in the    procurement
    field. In any event, Member States must ensure that decision of
    the reviewing bodies can be effectively enforced. As part of the
    guarantee of transparency, if reviewing bodies are non-Judicial
     in   character,    they   must    give   written    reasons    for    their
    decisions. Any allegedly illegal measures taken by the reviewing
    body or any alleged defect in the exercise of its powers must be
    subject    to  Judicial   review or to review by a body which             is
 ---pagebreak---                                - 15 -
    a body capable of making a reference to the Court of Justice
    under Article 177 EEC and which is also Independent of both the
    contracting entity and the reviewing body. The purpose of this
    requirement    Is   to   ensure    that    the   review   systems    offer
    equivalent  guarantees as to the effective application of              the
    requirements of Community       procurement     law. References    to the
    Court of Justice of the European Communities for a preliminary
    ruling will also    ensure the coherent development of case law In
    the   different    Member    States.     If   the   Judicial   or    other
    Independent   body   Is of    last   instance    Jurisdiction   then   the
    obligation in third paragraph of Article 177 EEC will apply, as
    interpreted by the Court of Justice.
32. The wording of     this Article reflects        that of   the equivalent
    Article in Directive 89/665/EEC.
                                Article 3
33. This Article empowers the Member States to set up a system of
    attestation whereby contracting entities attested in accordance
    with the system set out       in chapter 2 need not be subject, in
    particular,   to the suspension of their awards of contracts or
    to   the   setting     aside   of    unlawful     decisions,    Including
    specifications. They remain, however, subject to other             interim
    measures designed     to correct alleged       infringements or prevent
    further damage to interested parties and to the award of damages
    to persons harmed by any infringement.
34. The purpose of this system        is to satisfy concerns which have
    been expressed about the feasibility of suspension or setting
    aside of   the award of contracts         in certain sectors     in which
    meeting deadlines     is of crucial     importance while, at the same
 ---pagebreak---                                 - 16 -
    time, ensuring that the utilities concerned will be subject to
    effective     means    for   ensuring    their   compliance      with     the
    requirements of Community procurement         law, both in general and
    in particular      cases,   including   situations   in which      problems
    arise before a contract is awarded.
35. The attestation system affords the opportunity of               controlling
    the whole purchasing system of contracting entities on a regular
    and    systematic     basis.    It   is   thus   envisaged      as    having
    considerable preventive effects since the entities will be aware
    that any decision may be the subject of subsequent examination
    by an independent, qualified person.
36. Since    the   attestation    system  addresses    the    procedure    of   a
    utility    taken as a whole,       it does not    provide    remedies     for
    particular     claims    by   individuals.    Accordingly,     contracting
    entities subject      to attestation will      still   be   liable   to pay
    damages to persons harmed by an infringement in accordance with
    Article    2.   In addition, Article      3(b) ensures     that   effective
     interim relief will also be available with a view to correcting
    the alleged      infringement or preventing      further    damage   to the
    person concerned. The characteristics of this interim relief are
    specified in Article II.
                                 Article 4
37. An attestation by an authorised person on at              least an annual
    basis offers an effective continuing basis on which to evaluate
    procurement practices and procedures.
 ---pagebreak---                               - 17 -
                               Article 5
38. The appointment and removal of those who attest the purchasing
    procedures   and   practices    must   be   subject    to   appropriate
    guarantees of Independence.
                               Article 6
39. This  Article   lays  down   the  qualities   and   qualifications   of
    persons who attest     in order   to ensure their     Independence  and
    professional competence.
                               Article 7
40. This Article deals with the subject-matter of the attestation.
    The examination covers the overall fairness        of the opportunity
    given to potential suppliers and contractors to secure the award
    of contracts and whether      the procedures and practices of       the
    contracting   entities conform with     national   and Community    law
    concerning the award of contracts.
                               Article 8
41. This Article sets out the minimum contents of the written report
    which   it    requires    persons    attesting    to    prepare.   Such
    requirements are essential     in the interests of transparency and
    to ensure that the report is an effective Instrument.
 ---pagebreak---                                 - 18 -
                                  Article 9
42. This Article specifies those who are entitled to receive copies
    of   the   report   drawn   up   by   those  who  have   carried   out   the
    attestation.      It permits supervision by interested persons, the
    Commission     and  the   relevant    competent   authority    at  national
    level.
                                 Article 10
43. This    Article    requires    contracting    entities    benefiting    from
    derogations under Article 3 of this proposal              to  indicate   the
    general nature of the derogation from which they benefit in the
    tender and periodic indicative notices published in the Official
    Journal pursuant to Articles 16 and 17 of Directive...
                                 Article 11
44. Attestation procedures do not address immediately the particular
    problems of interested suppliers or contractors, though they may
    disclose    facts which enable        them  to take action. Claims       for
    damages, though an important part of the system, do not address
    the Issue of corrective action while a contract award procedure
     is still running. The form of interim relief described by this
    Article permits such action to be taken while at the same time
    not   interfering directly with the         internal   decision making of
    the    contracting    entity.     Conflict   with   any   constitutionally
    protected     freedoms of the contracting entity are thus avoided
    while, at the same time, effective means for defending                 their
     interests are put at the disposal of interested persons.
45. The sum of money payable in the event that an infringement                 is
    not avoided or corrected        is to be fixed at a dissuasive        level.
     It should In any event cover the plaintiffs costs of preparing
    or   bid   or   participating      in a   procedure.   To   facilitate   the
    quantification of       these costs, a minimum        amount   Is fixed    in
     accordance with the probable size of the contract              in the same
    ways as In Article 2(7).
 ---pagebreak---                                   - 19 -
(b)  Chapter 3: corrective mechanism
46.  This  chapter    establishes     a corrective    mechanism   whereby   the
     Commission may     Intervene prior to the award of a contract, In
     cases   In    which    it   considers   that   a   clear   and    manifest
     Infringement of Community public procurement provisions in this
     field has been committed during a contract award procedure. This
     mechanism    Is, however, without prejudice to the right of            the
     Commission or a Member State to bring Infringement proceedings
     against    a   Member     State   under   Articles    169  or    170   EEC
     respectIvely.
                                  Article 12
47.  This Article sets out the procedure of the corrective mechanism
     which the Commission may Invoke. It parallels the provisions of
     Article 3 of Directive 89/665/EEC. (10)
(c)  Chapter 4: cone I Illation
48.  This chapter establishes a conciliation procedure at Community
     level  In addition to any existing procedures at national            level
     as a means of non-litigious dispute settlement. The conciliation
     procedure may be       Invoked by any party having an         interest  in
     obtaining a particular contract in the field who has been harmed
     or risks being harmed. There is, though, a filter in the form of
     the Commission or the national authorities of the Member States
     who must be prepared to seize the relevant advisory committee.
     The conciliation procedure is available without prejudice to the
     possibility of      infringement   proceedings being commended       under
     Articles 169 or 170 EEC or to the possibility of the corrective
     mechanism provided for in Chapter 3 of the present proposal. It
      is also without prejudice to the rights of the parties to the
     particular dispute under national         law save   in so Tar as they
     agree to resolve the issues between themselves.
(10) see note 5 above.
 ---pagebreak---                                   - 20 -
                                   Article 13
49. This Article sets out the persons who have standing to invoke
    the conciliation procedure. Thus any person who has an Interest
    In obtaining      a particular      contract   in the      field    and who    in
    relation to the procedure for that contract has been or risks
    being harmed by an alleged infringement of Community procurement
    law or    national    rules     Implementing    that     law may     invoke   the
    conciliation procedure by written notification to the Commission
    or to the national authorities of the Member States                    listed in
    Annex   I to     the  present      proposal.   It    is up     to    the   person
    concerned whether he sends his notification to the Commission or
    to the national authorities involved.
                                   Article 14
50. This   Article     sets    out    the   mechanics      of   the    conciliation
    procedure.     Both   the    person    Invoking    the    procedure      and  the
    contracting     entity    are   to be given      the opportunity         to make
    either oral or written representations on the matter concerned.
    The working group endeavours to resolve the dispute by making
    recommendations to the parties and Inviting their agreement. If
    necessary,     the   working      group   acts    by    majority      vote.   The
    recommendations are not, however, legally binding and there is
    no sanction for failure to enter             into agreement       although    the
    whole   procedure      is   without     prejudice     to   the   possibilities
    envisaged    In Article 15 of the present             proposal. The working
    group reports to the Committee on its findings and on any result
    achieved.     In   keeping    with    the  non-litigious       nature     of  the
    proceedings, the parties to the conciliation proceedings bear
    their own costs.
                                   Article 15
51. The first paragraph of this Article ensures that conflicts will
    not   arise     between     the    conciliation      procedure      and    review
    proceedings at national          level. The second paragraph makes             it
    clear   that   the conciliation procedure does not              prejudice any
 ---pagebreak---                                   21 -
    possible action under Articles 169 or 170 EEC or the possibility
    of the corrective mechanism set up under the present          proposal
    being   applied. The     conciliation   procedure   likewise does  not
    prejudice the rights of the person         invoking the procedure and
    the contracting entity under national laws or any other person,
    save In so far as they may agree to resolve the Issues between
    them.
(d) Chapter 5: final provisions
52. This chapter    contains provisions      to enable   the system  to be
    properly reviewed after a sufficient period of operation which
    shall   not  be   later  then   1 January   1996  (Article 16) and  to
    ensure the adoption and application of the necessary measures
    according   to   the   schedule   fixed  by   the  utilities directive
     Itself (Article 17).
 ---pagebreak---                                   - 22 -
                              A N N E X
This Annex indicates the Articles of Directive 89/665/EEC which correspond
to the provisions of this proposal.
          Directive 89/665                       This proposal
Article 1                              Article 1
       1                                      1
       2                                      2
       3                                      3
Article 2                              Article 2
       1                                      1
       2                                      2
       3                                      3
       4                                      4
       5                                      5
       6                                      6
       7                                      8
       8
Article 3                              Article 12
       1                                      1
       2                                      2
       3                                      3
       4                                      4
       5                                      5
Article 4                              Article 16
        1                                     1
       2                                      2
Article 6                              Article 18
 ---pagebreak---                                         - 23 -
                                   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
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
and in particular Article 100a thereof,
Having regard to the proposal from the Commission,<1>
In co-operation with the European Par I lament, <2>
Having regard to the opinion of the Economic and Social Committee,(3)
Whereas Directive      .../.../... on the procurement procedures of entitles
operating    in    the   water,    energy,   transport    and   telecommunications
         4)
sectors<      does    not   contain    any  specific    provisions   ensuring   its
effective application;
Whereas   Council     Directive    89/665/EEC   of   21   December   1989   on  the
coordination    of   the    laws,   regulations  and    administrative   provisions
relating to the application of review procedures to the award of public
(1) OJ No
(2) OJ No
(3) OJ No
(4) OJ No
 ---pagebreak---                                     - 24 -
supply   and  public  works   contracts*5*   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 public works contracts,(6) as
last amended by Directive 89/440/EEC,<7> and Council Directive 77/62/EEC
of 21 December 1976 coordinating procedures for the award of public supply
contracts,<8) as last amended by Directive 88/295/EEC^9^;
Whereas the existing arrangements at both national and Community levels for
ensuring its application will otherwise not always be adequate to ensure
compliance with the relevant Community provisions particularly at a stage
when infringements can be corrected;
Whereas the openlng-up of procurement In the sectors concerned to Community
competition   necessitates  a  substantial   increase   in  the  guarantees of
transparency and non-discrimination and whereas, for it to have tangible
effects, effective and rapid remedies must be available         in the case of
 infringements of Community law In the field or national rules implementing
that law;
Whereas   in certain Member   States the absence of effective remedies or
 Inadequacy  of   existing   remedies  deter    Community   undertakings   from
submitting tenders in the Member State in which the contracting authority
 Is established; whereas, therefore, the Member States concerned must remedy
this situation;
Whereas, since procedures for the award of contracts are of short duration,
competent review bodies must, among other things, be able to take rapid and
effective interim measures aimed at correcting or avoiding Infringements
during the procedures;
Whereas it is necessary to ensure that adequate procedures exist in all the
Member States to permit the setting aside of decisions taken unlawfully and
compensation of persons harmed by an Infringement;
(5) OJ No L 395, 30.12.1989, p. 33.
(6) OJ No L 185, 16.8.1971, p. 5.
(7) OJ No L 210, 21.7.1989, p. 1.
(8) OJ No L 13. 15.1.1977, p. 1.
(9) OJ No L 127, 20.5.1988, p. 1.
 ---pagebreak---                                       - 25 -
Whereas It Is necessary to ensure equivalent treatment and guarantees for
contracting   entitles   Irrespective of    their  public  law or     private   law
status;
Whereas it is necessary, to take account of the specific nature of certain
legal orders, to authorize the Member States to choose to apply for any one
category of contracting entity a control system based on        attestation by an
independent   body and offering equivalent      guarantees   in relation    to the
transparency and non-discriminatory nature of the awarding procedure;
Whereas, when undertakings do not seek review, certain          infringements may
not be corrected unless a specific mechanism is put in place;
Whereas, accordingly, the Commission, when it considers that a clear and
manifest Infringement has been committed during a contract award procedure,
should be able to bring it to the attention of the competent authorities of
the   Member   State  and   of   the  contracting   entity   concerned    so   that
appropriate steps are taken for the rapid correction of any         infringement;
Whereas   it is necessary to provide for the possibility of non-1 ItIgious
conciliation at Community level;
Whereas the application     In practice of the provisions of this Directive
should   be  reviewed   not   later  than  1   January  1996   on   the  basis   of
 Information to be supplied by the Member States concerning the functioning
of the national review procedures,
 ---pagebreak---                                         - 26 -
HAS ADOPTED THIS DIRECTIVE:
                     Chapter I - Remedies at national level
                                      Article 1
(1) The Member States shall take the measures 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 out       in the following Articles and,       in particular,
      Article  2(8), on     the grounds     that such decisions     have  infringed
      Community    law   In   the   field   of  procurement    or  national   rules
      implementing that law as regards:
         (a)    contract    award   procedures   falling   within    the  scope  of
                                          1
                Directive .../.../...< °); and
         (b)    compliance with Article 3(2)(a) of that Directive in the case
                of the contracting entities to which that provision applies.
(2) Member States shall ensure that there is no discrimination between
      undertakings claiming      Injury in the context of a procedure for the
      award of a contract as a result of the distinction made by this
      Directive between national rules implementing Community law and other
      national rules.
(3) The    Member    States   shall   ensure   that  the   review   procedures  are
      available, under detailed rules which the Member States may establish,
      at least to any person having or having had an interest in obtaining a
 (10) The proposed     Directive on     the procurement   procedures of entities
      operating    in the water, energy, transport         and   telecommunications
      sectors: see OJ No C 264, 16.10.1989, p. 22.
 ---pagebreak---                                      - 27 -
    particular  contract   and who has been or        risks being    harmed   by an
    alleged  Infringement.    In particular, the Member       States may     require
    that the person seeking the review must have previously notified the
    contracting entity of the alleged infringement and of his intention to
    seek review.
                                   Article 2
(1) The Member States shall ensure that the measures taken concerning the
    review procedures specified      in Article 1 Include provision         for the
    powers to:
       (a)   take, at the earliest opportunity and by way of interlocutory
             procedures, interim measures with the aim of correcting the
             alleged    infringement   or   preventing   further   damage    to  the
              interests   concerned,    including   measures   to suspend     or  to
             ensure the suspension of the procedure for the award of a
             contract or the implementation of any decision taken by the
             contracting entity;
       (b)   either   set aside or ensure the setting aside of            decisions
             taken   unlawfully,    including   the   removal  of   discriminatory
             technical,     economic   or   financial    specifications      in  the
              invitation to tender, the contract documents or in any other
             document relating to the contract award procedure;
        (c)  award damages to persons harmed by an infringement.
(2) The powers specified      in paragraph    1 may    be conferred    on  separate
    bodies responsible for different aspects of the review procedure.
 ---pagebreak---                                    - 28 -
(3) Review procedures need not In themselves have an automatic suspensive
    effect on the contract award procedures to which they relate.
(4) The Member States may provide that when considering whether to order
    Interim   measures  the  body  responsible  may   take   into  account   the
    probable consequences of the measures for all interests likely to be
    harmed, as well as the public Interest, and may decide not to grant
    such measures where their negative consequences could exceed           their
    benefits. A decision not to grant Interim measures shall not prejudice
    any other claim of the person seeking these measures.
(5) The Member States may provide that where damages are claimed on the
    grounds that a decision was taken unlawfully, the contested decision
    must  first be set aside or declared      illegal  by a body having      the
    necessary powers.
(6) The effects of the exercise of the powers referred to in paragraph 1
    on a contract concluded subsequent to its award shall be determined by
    national   law. Furthermore, except where a decision must be set aside
    prior to the award of damages, a Member State may provide that, after
    the conclusion of a contract following Its award, the powers of the
    body   responsible   for  the review   procedures   shall   be  limited   to
    awarding damages to any person harmed by an infringement.
(7) Where a claim is made for damages representing the costs of preparing
    a bid or of participating in an 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 that law and
     that the Infringement adversely affected his chance of being awarded
     the contract. He shall not be required to prove that, in the absence
 ---pagebreak---                                        - 29 -
    of  the   infringement, he would have been awarded           the contract. The
    amount of such costs shall be deemed to be one per cent of the value
    of the contract unless the person making the claim proves that his
    costs were greater.
(8) The   Member   States    shall   ensure   that   decisions    taken   by    bodies
    responsible for review procedures can be effectively enforced.
(9) Where bodies responsible for review procedures are not              Judicial    In
    character, written reasons for their 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 review
    body or any alleged defect in the exercise of the powers conferred on
     it can be the subject of Judicial review or review by another body
    which is a court or tribunal within the meaning of Article 177 of the
    Treaty and independent of both the contracting entity and the review
    body.
    The members of      the   independent   body shall    be appointed    and    leave
    office   under   the same     conditions   as members    of   the  Judiciary    as
    regards the authority responsible for their appointment, their period
    of   office,   and   their    removal.   At   least   the   President    of   this
     independent    body    shall   have   the   same    legal    and   professional
    qualifications as members of the Judiciary. The Independent body shall
    take   its decisions     following   a procedure    in which both sides are
    heard, and these decisions shall, by means determined by each Member
    State, be legally binding.
 ---pagebreak---                                     - 30 -
                           Chapter 2 - Attestation
                                  Article 3
Member  States may choose to apply     to contracting entities   in the same
category defined by objective criteria the system set out in Articles 4 to
10 instead of the measures set out In Article 2(1)(a) concerning measures
to suspend or to ensure the suspension of procedures for the award of a
contract or the implementation of any decision taken by the contracting
entity and Instead of Article 2(1)(b), provided that the review procedures
made available pursuant    to chapter   1 Include provision  for the  Interim
measure specified In Article 11.
                                   Article 4
The contracting entitles shall, at least once a year, have their purchasing
procedures and practices attested by one or more persons authorised by
national law to exercise this function.
                                   Article 5
Persons   who  attest  the   purchasing   procedures and   practices  of  the
contracting entities shall be appointed to and may be removed from their
office either by a competent authority designated for this purpose by the
Member  States or by the contracting entities themselves subject       to the
prior approval of such a competent authority. The competent authority shall
be Independent of the contracting entities.
 ---pagebreak---                                        - 31 -
                                     Article 6
Persons   who   attest   the   purchasing   procedures   and   practices    of  the
contracting entities shall be
(a)  independent of the contracting entitles;
(b)  holders of a higher education diploma within the meaning of Article 1
     of Council Directive 89/48/EEC* 11 >;
(c)  persons having knowledge and practical experience of procurement           law
     and practice by reason of
     (i)    their having passed an examination of professional           competence
            organized or recognised by the State; and
     (ii)   their having a minimum of three years practical experience of
            procurement    law and practice    in the field of activity of the
            contracting entities concerned.
                                     Article 7
The  persons   who  attest    the purchasing   procedure   and   practices   of the
contracting entities shall examine whether those procedures and practices
have been    in conformity with national      and Community    law concerning   the
award of contracts and have given potential suppliers and contractors a
fair opportunity to secure the award of contracts.
                                     Article 8
The   persons   who   attest    the  purchasing   procedures    and  practices   of
contracting entities shall prepare a written report relating to the results
of their work. The report shall contain the following at least:
(11) OJ No L 19, 24.1.1989, p. 16.
 ---pagebreak---                                     - 32 -
(a)  an indication of whether the purchasing procedures and practices of
     the contracting entitles gave potential suppliers and contracts a fair
     opportunity to secure the award of contracts;
(b)  observations concerning any infringements of national or Community law
     concerning the award of contracts;
(c)  where deficiencies have occurred pursuant to paragraphs (a) or (b),
     suggestions as to actions needed to prevent their repetition        In the
     future.
                                   Article 9
The report to which Article 8 refers shall be
(a)  made available by the contracting entities to interested persons who
     shall be supplied with copies at their request, for which a price may
     be   charged which  does  not   exceed  the cost of    their  copying  and
     transmission;
(b)  communicated by the contracting entities to the Commission and to any
     competent authority designated by a Member State by the law of which a
     contracting entity is governed.
On the basis of these reports the Commission may publish periodic summary
reports In the Official Journal of the European Communities.
                                  Article 10
(1)  Contracting entities to which the system set out       in Articles 4 to 9
     applies shall   indicate   in accordance with paragraph     2 the general
     nature of this system    in the tender and periodic     indicative notices
     published in the Official Journal of the European Communities pursuant
      to Articles 16 and 17 of Directive .../.../...< 12 >.
(12) OJ No C 264, 16.10.1989, p. 22.
 ---pagebreak---                                      - 33 -
(2) The first point of the notice shall conclude with the phrase: "The
    contracting entity     is subject to attestation and accordingly     is not
    subject   to certain    powers   specified  in Article   ... of   Directive
    .../.../..., namely those concerning
    (a)    suspension of contract award procedures;
    (b)    setting aside of decisions".
    However, subparagraph (a) or (b) of the phrase shall be deleted where
    it does not apply.
                                   Article 11
(1) The Member    States shall    ensure, under   the conditions specified   in
    chapter 1, that a review body shall have the power, at the earliest
    opportunity and by way of interlocutory procedure, to declare at any
    stage that, on the basis of the evidence available to it at that time,
    an infringement has been or risks being committed during a contract
    award   procedure   and that   the contracting   entity should  correct or
    avoid the infringement. A review body shall also have the power to
    make an order     for the payment of a sum of money      to the person or
    persons   seeking   review  in the event    that  the infringement   Is not
    corrected or avoided. The payment may be made conditional on a final
    decision being reached to the effect that the infringement         has been
    committed.
(2) The review body responsible for fixing the sum of money payable in
    accordance with paragraph 1 shall fix any such sum at a level designed
    to dissuade the contracting entity from committing or continuing the
     infringement. The amount shall at least cover any costs of preparing a
    bid or participating      in the award procedure of the person      seeking
    review. The amount of such costs shall be deemed to be one per cent
 ---pagebreak---                                     - 34
     of the value of the contract unless the person seeking review proves
     that his costs were greater. An order for payment of a sum of money in
     accordance with this provision shall bar any further claim by the
     person concerned to the recovery of the costs taken into account by
     the review body when fixing the order.
                      Chapter 3 - Corrective mechanism
                                  Article 12
(1) The Commission may      invoke the procedures  for which    this Article
     provides when, prior to a contract being concluded, It considers that
     a clear and manifest infringement of Community provisions In the field
     of procurement has been committed during a contract award procedure
     falling within the scope of Directive .../.../...(13) or In relation
     to Article 3(2)(a) of that Directive in the case of the contracting
     entities to which that provision applies. ,
(2) The Commission shall      notify the Member State and    the contracting
     entity concerned of the reasons which have led it to conclude that a
     clear and manifest    infringement has been committed and request Its
     correct ion.
(3) Within twenty-one days of receipt of the notification referred to in
     paragraph   2, the Member State concerned shall     communicate  to the
     Commission:
      (a)   Its confirmation that the infringement has been corrected; or
      (b)   a reasoned submission as to why no correction has been made; or
(13) OJ No C 264, 16.10.1989, p. 22
 ---pagebreak---                                          - 35 -
      (c)    a notice to the effect that the contract             award procedure has
             been   suspended   either    by   the contracting     entity     on    its own
             Initiative    or   on    the   basis    of  the    powers     specified      in
             Article 2(1)(a).
(4)   A reasoned submission In accordance with paragraph 3(b) may rely among
     other matters on the fact that the alleged infringement is already the
      subject   of   Judicial or other      review proceedings or of a review as
      referred to in Article 2(9). In such a case, the Member State shall
      Inform the Commission of the result of those proceedings as soon as it
      becomes known.
(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    Commission   when    the   suspension   is    lifted     or    another
      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 or include a reasoned submission as to
      why no correction has been made.
                              Chapter 4 - Conciliation
                                       Article 13
Any person    having or having had an          interest  In obtaining       a particular
                                                                            14
contract   falling within the scope of Directive            .../.../...( >         and who,
 in relation to the procedure for the award of that contract, has been or
risks being harmed by an alleged infringement of Community law in the field
of  procurement     or  national   rules    implementing   that   law may       invoke   the
procedure for which this chapter provides by written notification to the
Commission or to the national authorities of the Member States                    listed in
the Annex.
(14) OJ No C 264, 16.10.1989, p. 22.
 ---pagebreak---                                   - 36 -
                                Article 14
(1) Where the Commission or the national authorities of a Member State
    consider that, following a notification pursuant to Article 13, an
    infringement of Community law has occurred, they may put the matter
    before the Advisory Committee for Public Contracts or, In the case of
    contracting entities having as one of their activities the operation
    of public telecommunications networks or the provision of one or more
    telecommunications services to the public, the Advisory Committee on
    Telecommunications Procurement.
(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 working
    group shall normally meet within ten working days of the matters being
    put before 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 in its work. Any other member of the committee
    may attend any meeting of the working group as an observer.
(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 procedure to which the notification relates the
    opportunity to make representations on the matter either orally or In
    wrItIng.
(4) The working group shall endeavour to reach an agreement between the
    parties which is In accordance with Community law.
(5) The working group shall report to the committee on its findings and
     any result achieved.
 ---pagebreak---                                         - 37 -
(6) The person     invoking the procedure and the contracting entity shall
    bear their own costs of participating In the procedure.
                                      Article 15
(1) Where,   in   relation    to   a particular     contract    award  procedure,      an
    interested    person within      the meaning of Article 13 other           than   the
    person   Invoking    the conciliation procedure        is pursuing     Judicial    or
    other   review    proceedings     or   proceedings   for    review  according      to
    Article 2(9), the contracting entity shall           inform the working group.
    The chairman shall inform that person that the conciliation procedure
    has been    invoked and shall       invite that person to indicate within a
    time limit that     it may determine whether he agrees to participate in
    the   conciliation     procedure.      If  that   person    does   not    agree    to
    participate within that time and the working group decides, acting if
    necessary by majority, that his participation is necessary to resolve
    the dispute,      it shall    terminate    its activities     and  report     to  the
    committee on its reason for so doing.
(2) Action taken pursuant to this chapter shall be without prejudice to
    (a)    any action that the Commission or any Member State might                  take
           pursuant    to Articles 169 or 170 of the Treaty or pursuant                to
           Chapter 3;
    (b)    the   rights    of    the   person   invoking    the   procedure,     of   the
           contracting     entity    or   of  any other   person    under    applicable
           national    laws except     in so far as they enter      into an agreement
           for the resolution of issues between them.
 ---pagebreak---                                      - 38 -
                         Chapter 5 - Final provisions
                                   Article 16
(1) Not later than 1 January 1996, the Commission, In consultation with
      the Advisory Committee for Public Contracts, shall review the manner
      In which the provisions of this Directive have been implemented and,
      if necessary, make proposals for amendments.
(2) By 1 March each year       the Member States shall      communicate   to the
     Commission   Information on    the operation of    their   national   review
     procedures during    the preceding calendar year. The nature of the
      information shall be determined by the Commission in consultation with
      the Advisory Committee for Public Contracts.
(3)   In the case of matters relating to contracting entities the activities
     of which are defined in Article 2(2)(d) of Directive .../.../...<15>,
      the   Commission    shall     consult   the    Advisory     Committee    on
      Telecommunications Procurement.
                                   Article 17
(1) Member States shall adopt, before 1 July 1992, the measures necessary
      to  comply  with   this   Directive.  They   shall   communicate    to  the
      Commission  the  texts of    the main national     laws, regulations and
      administrative provisions which they adopt In the field governed by
      this DirectIve.
      The provisions adopted pursuant to the first subparagraph shall make
      express reference to this Directive.
 (2) Member States shall bring into force the necessary measures adopted
      pursuant to paragraph (1) on the same dates as those contained in
      Directive   .../.../..,(16).     They  shall    immediately    inform   the
      Commission of them.
(15) OJ No C 264, 16.10.1989, p. 22.
(16) OJ NO C 264, 16.10.1989, p. 22.
 ---pagebreak---                                   - 39 -
                                Article 18
This Directive is addressed to the Member States.
Done at Brussels,                           For the Council
 ---pagebreak---                                                  - 40 -
                                                ANNEX I
      National a u t h o r i t i e s of the Member S t a t e s t o which
          w r i t t e n n o t i f i c a t i o n s may be sent  Invoking the
           c o n c i l i a t i o n procedure pursuant to A r t i c l e 16
                                                BELGIUM
                      Ministère des Affaires Economiques
                        Minister le van Economlsche Zaken
                                                DENMARK
          Indktibsaftaler: D l r e k t o r a t e t for Statens        Indkéb
            Bygge-og anlaegskontrakter: B o l I g m i n i s t e r l e t
                                                GERMANY
                         BundesminlsterIurn fur W i r t s c h a f t
                                                  GREECE
              M i n i s t r y of     Industry, Energy and Techno Ioav
YTTovpyelo Biovmxavtas, Evépretas <ai TexvoXorîas
                                   M i n i s t r y of Commerce
                                  YTTOvpYCto EuTfoptov
   M i n i s t r y of the Environment, Planning and P u b l i c Works
 YirovpYeto nepieaXXovTOS,                            XwpoTaçias  icai A*nuooîu>v 'EpY<*>v
                                                   SPAIN
                       M i n i s t e r i o de Economia y Hacienda
                                                  FRANCE
                           Commission Central des Marchés
 ---pagebreak---                             - 41 -
                            IRELAND
                   Department of Finance
                             ITALY
               Ministerro del LavorI Public!
                         LUXEMBOURG
               Ministère des Travaux Publics
                      THE NETHERLANDS
             Ministerie van Economische Zaken
                           PORTUGAL
Ministerio das Obras Pubiicas Transportes e Communicaçoes
     Conselho Superior de Obras Pubiicas Transportes e
                       Commun i caçoes
                       UNITED KINGDOM
                         HM Treasury
 ---pagebreak---  ---pagebreak---                                                                                 ISSN 0254-1475
                                                                 COM(90) 297 final
                                                      DOCUMENTS
EN                                                                                         06
                                 Catalogue number : CB-CO-90-388-EN-C
                                                               ISBN 92-77-62975-4
PRICE                         1-30 pages: 3.50 ECU       per additional 10 pages: 1.25 ECU
Office for Official Publications of the European Communities
1^2985 Luxembourg