EC
Infringement Proceedings - Public Procurement Part 3
Greece
- Barriers to the Import of Petroleum Products - Obstacle
to Free Movement of Goods <Top>
16 April 1998
The Commission decided to bring an action against Greece
before the Court of Justice on the basis of certain aspects
of its legislation on the stocking, transport and distribution
of petroleum products which contravened the provisions of
the EU Treaty relating to the free movement of goods (Article
30). In Greece, the obligation to maintain stocks laid down
by Directive 68/414/EEC applies to companies marketing petroleum
products. However, Greek law provided that if such companies
do not have sufficient storage capacity to comply with this
obligation, it can be met by refineries established in Greece
with which supply contracts have been signed. In practice,
this lead marketing companies to sign supply contracts with
the refineries. Moreover, Greek law required retailers to
transport fuel to points of sale using lorries belonging
either to the marketing companies or to public transport
companies. For the retailers, this requirement meant additional
costs and delivery times which affected prices and the quantities
sold. Finally, the effect of the legislation was that retailers
could not directly import petroleum products.
In their reply to the reasoned opinion, which the Commission
received on 23 September 1997, the Greek authorities maintained
their view that these provisions did not constitute an obstacle
to the free movement of petroleum products. However, the
Commission believed that these provisions together ultimately
favoured refineries established in Greece and were likely
to restrict imports of petroleum products from other Member
States. The Commission has therefore decided to bring the
matter before the Court of Justice.
France
- Foodstuffs using Enzyme Preparations - Obstacle to Free
Movements of Goods <Top>
16 April 1998
The Commission decided to send a reasoned opinion to France
because its legislation contained provisions which constituted
a barrier to the free movement of foodstuffs produced using
enzyme preparations. The rules concerned laid down a prior
authorisation procedure even for products which had been
legally produced and/or marketed in other Member States.
In that form, the procedure was disproportionate to the
protection of the public interest (public health, consumer
protection) and therefore constituted an obstacle to the
free movement of goods which is contrary to Articles 30
and 36 of the Treaty of Rome.
France
- Disposable Barbecues - Trade Restriction<Top>
16 April 1998
The total ban on sales in France of disposable barbecues,
despite their being legally produced and/or marketed in
other Member States of the European Union, is contrary to
Articles 30 and 36 of the EU Treaty because it is disproportionate
to the objectives of consumer protection and environmental
protection given as justification. The Commission believed
that there were less trade-restrictive measures available
that would ensure the desired levels of protection. Therefore,
following discussions between the Commission and the French
authorities, the product was adapted in order to reinforce
consumer safety and information. Despite these changes,
the product still could not be sold. The Commission therefore
decided to send a reasoned opinion to France.
Sweden
- Pressure Vessels - Quantative Restriction <Top>
16 April 1998
The Commission decided to send a reasoned opinion to the
Swedish Government for refusing to allow pressure vessels
legally produced and marketed in Germany to be marketed
in Sweden without the applicant having to adapt them. The
Commission received a complaint pointing out that the technical
requirements applicable in Sweden prevented pressure vessels
being accepted unless their design had been modified. The
competent authority's refusal to approve the pressure vessels
concerned unless the applicant modified them constituted
a measure having equivalent effect to a quantitative restriction.
The Swedish authorities did not demonstrate to the Commission
that their refusal was justified and proportionate to all
essential requirements.
France
- Architectural Competitions Organised by the General Council
of Réunion - Directive Infringement <Top>
6 April 1998
After securing the cancellation of several architectural
competitions involving serious irregularities in an earlier
case in 1995, the Commission received a fresh complaint
concerning various architectural competitions organised
by the General Council of the French department of Réunion.
In general terms, the contracting authority appeared to
have departed from the principle of equality of treatment
between candidates laid down in Article 3(2) of Directive
92/50/EEC on public service contracts. The two winners of
the four contested competitions had links with one of the
members of the jury, in breach of Article 13(6) of the Directive,
which stipulates that the jury must be independent (one
of them was even an ex officio member of the jury). The
contracting authority for the most recent competition rejected
certain candidates on the ground that they had not been
selected in earlier procedures, which contravened the requirement
laid down in Article13(5) of the Directive that selection
criteria must be clear and laid down beforehand. One of
the projects selected was incompatible with the land-use
plan, which was subsequently revised in breach of the principle
of equal treatment.
Not
satisfied with the explanations given by the French authorities
in response to its initial request for information, the
Commission sent them a letter of formal notice on 17 September
1997.
After
examining their reply dated 5 December 1997, it decided
to issue a reasoned opinion for infringement of Directive
92/50/EEC, in which it called on the French authorities
to terminate the award procedures in question and to take
the necessary steps to ensure that architectural competitions
in Réunion are genuinely opened up to competition.
The French authorities were advised that if they failed
to take this action, the Commission could bring the matter
before the Court of Justice.
Italy
- IT Services for the General State Accounting Department
- Directive Infringement <Top>
The Commission decided to send Italy a reasoned opinion
for infringement of Directive 92/50/EEC on public service
contracts, in respect of contracts for the maintenance,
management and development of the integrated computer system
of the Treasury Ministry's General State Accounting Department
('Ragioneria generale dello Stato') and the Court of Auditors.
The
infringement resulted from the fact that these contracts,
which were originally concluded in 1987 and 1988, had been
renewed several times with the same company (owned by the
Treasury Ministry), without any call for competition, although
the conditions laid down by Article 11 of Directive 92/50/EEC,
the only conditions that could justify using the negotiated
procedure, were not met.
It is also a consequence of the adoption of legislative
decree No 414/97 of 19 November 1997, which allows contracts
to be awarded by direct agreement for a period of more than
18 months. The decree also reserves certain IT activities
(to be specified in a decree to be adopted by the Treasury
Ministry) for the State, which will perform them via a company
all of whose capital will be directly or indirectly in State
hands. The Italian authorities' reply to the letter of formal
notice transmitted on 7 August 1997 was not satisfactory.
UK - Improper Use of Framework Contract
Arrangements - Directive Infringement<Top>
6 January 1998
The Commission decided to refer the United Kingdom to the
Court of Justice concerning the use of "framework arrangements"
by the Department of Environment (Northern Ireland) for
procuring architectural, engineering and other construction-related
services. Under this procedure, a tender notice is published
in the EC Official Journal indicating a general category
of services to be provided rather than giving details of
a specific contract. Once a list of approved suppliers has
been established by this procedure, entities may choose
suppliers from the list without going through a new competitive
procedure for each individual contract. The case raises
an important question of principle, namely the use by contracting
entities of such framework contract arrangements for the
procurement of services, supplies and works. The Directive
on procurement of works, supplies, services and in the water,
energy, transport and telecommunications sectors (93/38/EEC)
explicitly provides for the use of such framework contracts.
However, the use of such framework contracts is not authorised
by the public procurement rules applicable in all other
sectors to public service, supplies and works contracts
(Directives 92/50/EEC, 93/36/EEC and 93/37/EEC respectively).
The
UK authorities' reply, received on 29.7.1997, to the reasoned
opinion sent by the Commission on 2.5.1997 was unsatisfactory,
in the Commission's view.
Austria
- Qualification Procedure for Potential Bidders - Directive
and Treaty Infringements <Top>
6 January 1998
The Commission decided to send a reasoned opinion to Austria
because of the requirement imposed on EU companies to submit
to a qualification procedure to prove their professional
capacities before they could bid for a public procurement
contract in Austria. Such a qualification procedure violates
not only the Directives on public procurement of works,
supplies, services (including procurement in the water,
energy, transport and telecommunications sectors), but also
EC Treaty rules on the freedom to provide services (Article
59). The requirement was laid down specifically in the public
procurement legislation of the Land of Vienna and was in
practice applied throughout Austria by the Order of Trades
(Gewerbeordnung). This Order stipulated that before EU companies
could provide a service in Austria, they had to request
from the Austrian authorities a declaration that they had
the qualifications necessary to be able to provide a service.
According to the EU public procurement Directives, contracting
authorities cannot, in general, require EU companies to
justify their qualifications in the country of the contracting
authority and can only request proof delivered in companies'
country of origin of the necessary qualifications.
Germany
- Failure to Recognise Validity of Non-German Technical
Specifications - Discrimination <Top>
6 January 1998
The Commission decided to send a reasoned opinion to Germany
concerning repeated discrimination against imported products
when public procurement contracts were awarded by the Länder
authorities. Such discrimination contravened EC
Treaty
rules on the free movement of goods (Article 30) according
to the case law of the Court of Justice (Dundalk ruling,
22 September 1988) and had to be eliminated. The Commission
therefore decided to request the German authorities to require
that calls for tender feature a mutual recognition clause.
Such a clause would ensure that products from other Member
States would not be discriminated against on the grounds
that they were manufactured according to national technical
specifications other than German specifications.
Portugal
- Incorrect Implementation of Supplies Directive - Directive
Infringement<Top>
6 January 1998
The Commission decided to refer Portugal to the Court of
Justice concerning its failure to implement fully and correctly
the Directive on public supply contracts (93/36). Decree-Law
55/95, the instrument of implementation notified by the
Portuguese authorities, applies parts of the Directive but
does not implement it in full. In particular:
Following
the dispatch of a letter of formal notice on 7 July 1997,
the Commission's services reached an informal agreement
at technical level with representatives from the competent
Portuguese services on suggestions for comprehensive amendments
to Decree-law 55/95.
France - Planned Automatic Light Rail Transit
System - Directive Infringement <Top>
18 December 1997
The Commission decided to deliver a reasoned opinion to
France concerning the negotiated award to a French group
of the main supply contract for the planned automatic light
rail transit system in Rennes. It took this decision after
asking the French authorities in January for more details
about the conditions under which the contract was awarded,
after sending them a letter of formal notice on 17 June
and after examining their replies of August and November.
Notwithstanding the French authorities' explanations, the
Commission considers that no award of the contract at issue
took place before the entry into force of the Directive
on procurement procedures in the water, energy, transport
and telecommunications sectors (93/38/EEC) and that the
award of the negotiated contract on 22 November 1996, after
the previous procedure conducted between 1989 and 1993 had
been abandoned in 1995, was covered by the Directive in
question. Furthermore, there were no technical reasons to
justify the failure to open up the contract to competition.
Finally,
the Commission disputed the contracting entity's use of
the possibility, provided for in the French public procurement
code, of exempting itself from the normal competition rules
on the grounds that it had already carried out major investment.
Such justification is not covered by the derogations provided
for in Directive 93/38/EEC. The Commission is requesting
the French authorities to take appropriate measures to remedy
this situation and may decide to refer the matter to the
Court of Justice if such measures are not adopted.
Italy
- Collection of Urban Waste - Directive Infringement <Top>
18 December 1997
The Commission decided to deliver a reasoned opinion to
Italy in connection with a public contract awarded by the
Naples municipal authorities for the collection of urban
waste, which was not consistent with the Directive on public
service contracts (92/50/EEC) in a number of respects. Firstly,
one of the conditions of participation in the contract was
registration with the Italian Chamber of Commerce, Industry
and Crafts; firms established in other Member States were
not permitted to produce equivalent documentary evidence.
Secondly, the deadline for submission of tenders was less
than the minimum 40 days from the dispatch of the letter
of invitation to tender, and that letter did not contain
the tender specifications. Thirdly, firms were requested
in the letter of invitation to tender to submit documents
relating to legal, technical, economic and financial capacity.
Those documents included a certificate issued by a "Cancelleria
del Tribunale", and firms established in other Member
States were not permitted to submit equivalent documents.
Finally, quality certification under standard EN 29000 was
also required, without firms being able to submit alternative
evidence of equivalent quality assurance measures.
Italy
- Conversion and Maintenance of Heating Installations in
Buildings - Directive Infringement <Top>
18 December 1997
The Commission decided to deliver a reasoned opinion to
Italy for infringing the Directive on public works contracts
(71/305/EEC, as amended by 89/440/EEC) and for failing to
observe the principle of equality of treatment. The non-compliance
alleged by the Commission involved a public contract awarded
by the Rome municipal authorities for the conversion, operation
and maintenance of heating installations in a number of
their buildings.
The
non-compliance stems from the fact that the main terms of
the tenders, such as prices and deadlines, were renegotiated
after they had been received and opened. The contracting
authority thus made de facto use of a negotiated procedure
in violation of the provisions of the Directive on public
works contracts. Furthermore, in the tender assessment phase,
the principle of equality of treatment recognised by the
Court of Justice as the basis of the Public Procurement
Directives was not observed, because not all the tenderers
had the same opportunity to formulate their tenders: only
the tenderer which had submitted the tender which, following
reformulation, had been selected by the contracting authority
was invited to indicate whether it accepted the changes
made.
Germany
- Management of a Waste Disposal Site - Directive Infringement <Top>
18 December 1997
The Commission decided to deliver a reasoned opinion to
Germany concerning the award of the contract for the management
of a waste disposal site at Flörsheim/Wicker. It considered
that the award of the contract had infringed the Directive
on public service contracts (92/50/EEC), for three reasons.
Firstly, the criteria governing the award of the contract
were not set out either in the contract notice or in the
tender specifications. Secondly, the contracting authority
used an accelerated procedure without valid justification
for doing so. Thirdly, local firms were placed in a de facto
favourable position in that preference was given to firms
which already had experience of working for the local authorities
in question.
Spain
- Study for a Road - Directive Infringements <Top>
18 December 1997
The Commission decided to deliver a reasoned opinion to
Spain in connection with a public service contract put out
to tender by the Regional Ministry for Public Works, Housing
and Water in the Canary Islands for a study concerning the
Agaete - San Nicolás de Tolentino - Mogán
road on the island of Gran Canaria. The Commission had a
number of objections to the invitation to tender: the use
of a mathematical formula which distorted the concept of
the "economically most advantageous tender" and
penalised tenders considered to be abnormally low; the a
posteriori breakdown of the price criterion into subcriteria
which had not been previously detailed either in the administrative
specifications or in the contract notice; the use of criteria
for selecting competitors as award criteria and the fact
that these criteria were also contrary to the principles
of non-discrimination, equality of treatment and freedom
to supply services.
All information in this Guidance is
checked and believed to be correct, but cannot be so guaranteed
and the publishers shall not be liable for any loss suffered
directly or indirectly as a result of its use.
