CELEX: 51992PC0292
Language: en
Date: 1992-07-09
Title: Amendment to the proposal for a COUNCIL DIRECTIVE amending Directive 90/531/EEC on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors

25 . 7 . 92                                Official Journal of the European Communities                                No C 188 /21
                 Amendment to the proposal for a Council Directive amending Directive 90/531 /EEC on the
                procurement procedures of entities operating in the water, energy, transport and telecommuni­
                                                           cations sectors (')
                                                             (92/C 188 /08 )
                                                   COM(92) 292 final — SYN 361
                 (Submitted by the Commission pursuant to Article 149(3) of the EEC Treaty on 10 July 1992)
1 . In the proposal, a new recital is added between the                     'Article 11a
    thirteenth and fourteenth recital :
                                                                            1.     This Directive shall not apply to contracts for
    'Whereas contracting entities must be entitled to                      services which :
    reject tenders that are unsound because they are based
    on State aids ; whereas tenders submitted by public
    authorities may engender risks of distortion of                        (a) a contracting entity awards to an affiliated under­
    competition when they are influenced by the availa­                          taking ;
    bility of public funds ; whereas this Directive should
    be without prejudice to the application of Article 92ff
    of the Treaty.'                                                        (b) are awarded by a joint venture formed by a
                                                                                 number of contracting entities for the purpose of
                                                                                 carrying out a relevant activity within the
2 . In the proposal, the fourteenth recital is replaced by                       meaning of Article 2 (2) to an undertaking which
    the following :                                                              is affiliated with one of these contracting entities,
                                                                                 provided that at least 85 % of the coverage
    'Whereas Community undertakings should be granted                            turnover of that undertaking arising within the
    access     to   the  award      of   service   contracts   in                Community for the preceding three years from
    non-member countries, whereas negotiations must be                           the provision of services derives from the
    initiated to that effect when such access , in law or in                     provision of such services to undertakings with
                                                                                 which it is affiliated .
    fact, is found to be restricted , whereas the possibility
    should exist under certain conditions to take measures
    as regards access to service contracts subject to
    Directive 90 / 531 / EEC by undertakings of the                        2. The contracting entities notify the Commission,
    non-member country concerned or by tenders orig­                       at its request, the following information regarding the
    inating in that country . . .'.                                        application of the provisions of paragraph 1 :
3 . In Article 1 point 9 of the proposal, the reference to                 — the names of the undertakings concerned,
    the New Article 10a of Directive 90 / 531 / EEC is
    replaced by the following :                                            — the nature and value of the service contracts
                                                                                involved,
     !Article 10a
                                                                           — such proof as may reasonably be deemed
    This Directive shall not apply to service contracts                         necessary by the Commission that the relationship
    awarded to an entity which is itself a contracting                          between the undertaking to which the contracts
    authority within the meaning of Article 1 (b) of                            are awarded and the contracting entity is in
    Directive .../... (') on the basis of an exclusive right                    conformity with the requirements of this Article.'
    which it enjoys pursuant to a published law, regu­
    lation or administrative provision which is compatible
    with the Treaty.                                                   5 . In Article 1 point 18 of the proposal, the reference to
                                                                           new Article 15 (2) (1) of Directive 90/ 531 /EEC is
                                                                           replaced by the following :
    O OJ No C 250, 25 . 9 . 1991 , p. 4 .'
                                                                           '(1) when the service contract concerned is part of the
4 . In Article 1 point 11 of the proposal, the reference to                      follow-up to a design contest organized in
    the new Article 11a of Directive 90 / 531 / EEC is                           conformity with the provisions of this Directive
    replaced by the following :                                                  and must, in accordance with the relevant rules,
                                                                                 be awarded to the winner or to one of the
                                                                                 winners of that contest, in the latter case, all the
                                                                                 winners must be invited to participate in the
(') OJ No C 337 , 31 . 12. 1991 , p. 1 .                                         negotiations .'
 ---pagebreak--- No C 188 / 22                           Official Journal of the European Communities                                  25 . 7 . 92
6. In Article 1 point 24 of the proposal, the reference to        7. In Article 1 point 25 of the proposal, the reference to
   the new Article 17a of Directive 90 / 531 /EEC is                  Article 18 of Directive 90 / 531 /EEC is replaced by the
   replaced by the following :                                        following :
                                                                        !Article 18
    !Article 17a
                                                                       1 . Contracting entities which have awarded a
   1.     This Article shall apply to design contests                 contract or organized a design contest shall
   organized as part of a procedure leading to the award              communicate to the Commission , within two months
   of a sevice contract whose estimated value net of                  of the award of the contract or selection of the design
   VAT is not less than the value referred to in Article              and under conditions to be laid down by the
    12(1 ).                                                           Commission in accordance with the procedure laid
                                                                      down in Article 32, the results of the awarding
   2 . This Article shall apply to all design contests                procedure or contest leading to an award by means of
   where the total amount of contest prizes and                       a notice drawn up in accordance with Annex XV or
                                                                      Annex XVIII . '
   payments to participants is not less than ECU 400 000
   for design contests organized by entities exercising an
   activity referred to in Article 2 (a), (b) and (c) and             [Paragraphs 2 to 4 unchanged .]
   ECU 600 000 for design contests organized by entities
   exercising an activity referred to in Article 2 (2) (d).       8 . In Article 1 point 34 of the proposal , the reference to
                                                                      new paragraph 6 of Article 27 of Directive
                                                                      90/531 /EEC is replaced by the following :
   3 . The rules for the organization of a design
   contest shall be in conformity with the requirements               '6 .     In the case of a tender for the award of a
   of this Article and shall be communicated to those
                                                                      service contract submitted by a public authority or a
   interested in participating in the contest.                        public undertaking, the tenderer shall be required to
                                                                      submit documents to the contracting entity specifying
   4.     The admission of participants to design contest             what public funds, if any, have been granted for :
   shall not be limited :
                                                                      (a) the setting-off of operating losses ;
   — by reference to the territory or part of the                     (b) the provision of capital ;
        territory of a Member State,
                                                                      (c) non-refundable grants, or loans on privileged
   — on the grounds that, under the law of the Member                       terms ;
        State in which the contest is organized, they
        would have been required to be either natural or              (d) the granting of financial advantages by foregoing
        legal persons .                                                     profits or the recovery of sums due ;
                                                                      (e) the foregoing of a normal return on public funds
   5 . Where design contests are restricted to a limited                    used ;
   number of participants, the contracting entities shall
   lay down clear and non discriminatory selection                    (f) compensation for financial burdens imposed by
   criteria, in any event, the number of candidates                         the public authorities .
   invited to participate shall be sufficient to ensure
   competition .                                                      If it intends to award a contract to a tenderer to
                                                                      which public funds have been granted, the contracting
   6. The jury shall be independent and impartial. The                entity shall be required to forward copies of the above
   jury shall be composed only of persons who have no                 mentioned documents to the Commission .'
   financial connections or professional or family
   relationships wich participants in the contest, nor any        9. In Article 1 point 35 of the proposal , the reference to
   other type of relationships which could compromise                 new Article 29a of Directive 90 / 531 /EEC is replaced
   their independence. Whenever a particular                          by the following :
   professional qualification is required from participants
   in a contest, at least a third of its members shall have            'Article 29a
   the same or similar qualifications .
                                                                      [Paragraphs 1 and 2 are unchanged.]
   The jury shall be autonomous in its decisions or
   opinions. These shall be reached on the basis of                   3.      Whenever the Commission establishes, either on
   projects submitted anonymously and solely on the                   the basis of the reports referred to in paragraph 2, or
   grounds of the criteria indicated in the notice                    on the basis of the other information , that a third
   provided for in Annex XVII .'                                      country as regards the award of service contracts :
 ---pagebreak---  25 . 7 . 92                               Official Journal of the European Communities                                 No C 188 / 23
     (a) does not grant Community undertakings effective                 (c) grants undertakings from other third countries
          access comparable to that granted by the                           more favourable treatment than Community
          Community undertakings from that country;                          undertakings,
                                                                         the Commission shall initiate negotiations in order to
     (b) does not grant Community undertakings national                  remedy the situation .'
          treatment or the same competitive opportunities as
          are available to national undertakings ; or                    [Paragraphs 4 and 5 are unchanged .]
                 Proposal for a Council Regulation (EEC) on the unit of account and the conversion rates to be
                                     applied for the purposes of the common agricultural policy
                                                           (92 /C 188 /09)
                                                         COM(92) 275 final
                                           (Submitted by the Commission on 10 July 1992)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                              — Council Regulation (EEC) No 1678 / 85 of 11 June
                                                                          1985 fixing the conversion rates to be applied in agri­
Having regard to the Treaty establishing the European                     culture (4), as last amended by Regulation (EEC) No
Economic Community, and in particular Articles 42 and
43 thereof,
Having regard to the proposal from the Commission,                   — Council Regulation (EEC) No 129/78 of 24 January
                                                                          1978 on the exchange rates to be applied for the
Having regard to the opinion of the European                              purposes of the common agricultural structures
Parliament,                                                              policy (5),
Having regard to the opinion of the Economic and
Social Committee ,
                                                                     requires checks at the Community's internal frontiers ;
Having regard to the opinion of the Monetary                         whereas, therefore, agromonetary arrangements must be
Committee .                                                          etablished which are compatible with the internal market
                                                                     and the Regulations in question should be repealed ;
Whereas the internal market provided for in Article 8 a of
the Treaty will constitute from 1 January 1993 an area
without internal frontiers ; whereas application of the              Whereas the ecu is defined by Council Regulation (EEC)
agrimonetary arrangements on the basis of :                          No 3180/78 of 18 December 1978 changing the value of
                                                                     the unit of account used by the European Monetary
— Council Regulation (EEC) No 1676/ 85 of 11 June                    Cooperation Fund ('), as last amended by Regulation
      1985 on the value of the unit of account and the
                                                                     (EEC) No 1971 /89 (7); whereas this unit of account
     conversion rates to be applied for the purposes of the          should be used to fix and express the prices or amounts
     common agricultural policy ('), as last amended by              established under the common agricultural policy ;
     Regulation (EEC) No 2205 /90 (2),
— Council Regulation (EEC) No 1677/ 85 of 11 June
      1985 on monetary compensatory amounts in agri­                 Whereas, prior to the achievement of economic and
     culture (J), as last amended by Regulation (EEC) No             monetary union, prices and amounts fixed in ecus must
     2205 / 90 ,
                                                                     be     paid       in       national       currency  and    the
                                                                     (4) OJ  No  L  164, 24. 6 . 1985, p. 11 .
(') OJ No L 164 , 24 . 6 . 1985 , p. 1 .                             C)  OJ  No  L 20 , 25 . 1 . 1978 , p. 16.
O OJ No L 201 , 31 . 7 . 1990 , p . 9 .                              (') OJ  No  L 379, 30 . 12 . 1978 , p. 1 .
O OJ No L 164 , 24 . 6 . 1985 , p . 6 .                              O   OJ  No  L  189, 4. 7 . 1989, p. 1 .