CELEX: 51997PC0290
Language: en
Date: 1997-06-30
Title: Amended proposal for a European Parliament and Council Directive amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                      Brussels, 30.06.1997
                                                      COM(97) 290 final
                                                      95/0080 (COD)
                           OPINION OF THE COMMISSION
                   pursuant to Article 189 b (2) (d) of the EC Treaty,
                       on the European Parliament's amendments
                    to the Council's common position regarding the
                                       proposal for a
             EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
                 amending Council Directive 93/38/EEC of 14 June 1993
coordinating the procurement procedures of entities operating in the water, energy, transport
                              and telecommunications sectors.
               AMENDING THE PROPOSAL OF THE COMMISSION
                     pursuant to Article 189 a (2) of the EC Treaty
 ---pagebreak---  ---pagebreak--- I       State of the file
The proposal was forwarded to the European Parliament and the Council on 30.3.1995.
The Economic and Social Committee adopted its opinion on 5.7.1995.
The European Parliament adopted its opinion in first reading on 22.10.1996.
The amended proposal was transmitted to the Council on 25.11.1996.
The Common position was adopted by the Council on 19 December 1996.
The European Parliament adopted its opinion in second reading on 14.5.1997.
II    -Purpose of the Directive
The Government Procurement Agreement (GPA or, in French, AMP), which entered into force
in the Community on 1 January 1996 as stipulated in its Article XXIV, forms an integral part of
the legal order of the Community through Council Decision 94/800/EÉC of 22 December 1994,
which approves the agreements reached in the Uruguay Round multilateral negotiations. This
does not, however, entail that its provisions can be directly invoked before the jurisdictions of
the Community and the Member States (last recital of Decision 94/800/EEC).
The Commission has proposed a series of amendments to the Directive aimed at inserting some
provisions of the GPA in order to:
a)     avoid discrimination against Community companies and give them the same advantages
       that third country companies enjoy pursuant to the GPA; and
b)     ensure coherence between the two legal regimes. This way contracting entities, which
       are subject to both the directive and the GPA, will be able to conform to the GPA by
       applying the provisions of the amended Directive. They would otherwise be obliged to
       know both legal regimes perfectly, to highlight the differences between them and to draw
       the correct consequences of these differences. That would seem to be a difficult process
       which could lead to significant differences in the application of Community law in the
       different Member States.
                                            ~1
 ---pagebreak---  iili   Ike    Commissf.G'i's position OR the amendments adopted by the                  European
 A      Amendments accepted by the Commission
 Recital 1.3 (technical dialogue - amendment n. 6)
 The part of amendment 6S which was adopted by the European Parliament, is acceptable to the
 Commission given that it is simply a positive formulation of Article VI (4) of the GPA. In fact,
 whereas the GPA provision states that "entities shall not seek or accept, in a manner which
wcraM have the effect of precluding competition, advice which may be used in the preparation
of specifications for a specific procurement from a firm that may have a commercial interest in
ilm procurement", the text of the European Parliament provides that "contracting authorities may
seek or accept advice which m&y be used in the preparation of specifications for a specific
procurement, provided that such advice does not have the effect of precluding competition".
Recital 13 a (new) (training and information in favour of SMEs - amendment n. 2)
Although a recital to the public procurement directives, which is not mirrored in the Directive
itself, is not the most appropriate and efficient means of reaching the legitimate goal pursued, the
Commission can also accept this amendment, through which the European Parliament aims at
favouring the access of SMEs to public procurement by placing appropriate training and
information facilities at their disposal.
B       Amendments rejected by the Commission
Article Î (11) - (Article 41 (3) of Directive 93/38/EEC - obligation to inform participants cf
decisions on contract awards)
As the amendment limits this obligation solely to the public contracting entities, thus breaking
the fundamental principle of equal treatment of public and private entities, it is unacceptable to
the Commission.
Article 1 (11) - (Article 41 (4) of Directive 93/38/EEC - obligation to state the reasons for a
rejection and the characteristics of the winning tender)
This amendment also excludes private contracting entities operating on the basis of special or
exclusive rights from its scope and is therefore unacceptable to the Commission for the reason
mentioned above.
Article 1 (12) - (Article 42 (la) of Directive 93/38/EEC - statistical obligations)
The same limitation to public contracting entities only would equally be introduced through this
amendment, which - although less important than the two preceding amendments in terms of
significance for the liberalisation of public procurement - is likewise unacceptable to the
Commission.
                                                  3
 ---pagebreak---                              AMENDED PROPOSAL FOR A
               EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
                                         amending
Directive 93/38/EEC coordinating the procurement procedures of entities operating in the
                  water, energy, transport and telecommunications sectors
         (presented by the Commission pursuant to Article 189 a (2) of the EC-Treaty)
                                            <+
 ---pagebreak--- Recitai 13 is amended as follows:
"Whereas contracting authorities may seek or accept advice which may be used in the
preparation of specifications for a specific procurement, provided that such advice
does not have the effect of precluding competition;."
Recital 13 a is inserted:
"Whereas the Commission shall make available to small and medium-sized
undertakings the training and information materials they need to enable them to
participate fully in the changed procurement market;"
                                        .S"
 ---pagebreak---  ---pagebreak---                                                                    ISSN 0254-1475
                                                           COM(97) 290 final
                                              DOCUMENTS
 EN                                                             14   15 12     07
                                    Catalogue number : CB-C0-97-279-EN-C
                                                             ISBN 92-78-21198-2
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