Openbare aanbestedingen: Commissie start procedure tegen Frankrijk en Italië wegens niet-omzetting EU-richtlijnen (en)

The European Commission has decided to take France to the European Court of Justice for non-compliance of its public procurement code with the Directives on public contracts and with the EC Treaty. The Commission has also decided to make a formal request to the French authorities to make a provision of the French town planning code compatible with European law. This provision allows local development agreements to be concluded without being advertised and without competition. In addition, the Commission will make a formal request to Italy to end its practice of awarding an Italian company directly without competition contracts for helicopters to be used by certain police and security services. The Commission requests will take the form of reasoned opinions, which are the second stage of the infringement procedure laid down in Article 226 of the EC Treaty. If there is no satisfactory reply to these reasoned opinions, the Commission may refer the matter to the Court of Justice.

The open and transparent procedures for invitations to tender required by Community law on public contracts mean more competition and better guarantees against corruption, as well as a better service to taxpayers and a better use of public money. A recent study (see IP/04/149) has shown that the application of the Directives has reduced by about 30% the prices paid by awarding authorities for works, supplies and services. Recently, the EU finally adopted a legislative package intended to clarify, modernise and simplify the Directives in order to achieve even greater savings (see IP/04/150).

France: public procurement code

The Commission has decided to take France to the Court of Justice for the non-compliance of its public procurement code with the Directives on public contracts and with the EC Treaty. The Commission found that the new code adopted on 7 January 2004 did not take into account the 11 complaints which the Commission had made in its reasoned opinion of 23 October 2002 regarding the earlier version of the code dated 7 March 2001 (see IP/02/1507).

Firstly, the new code, like the March 2001 version, provides "simplified" procedures for certain service contracts listed in Annex B of Directive 92/50/EEC. These are primarily legal services, social and health services, recreational, cultural and sporting services, education services and vocational training and placement services.

For these services, the public authorities are not required by the French code to ensure a proper degree of advertising, which according to the Telaustria judgement by the Court of Justice (Case C-324/98) is in fact absolutely necessary for the award of a contract to comply with the principle of transparency required by the Treaty.

Secondly, the code continues to exclude loan contracts from advertising and competition requirements, whereas the Commission considers that generally contracts concerning loans or other financial commitments are covered by Annex IA of Directive 92/50/EEC (public service contracts) and Annex XVIA of Directive 93/38/EEC (public contracts in the water, energy, transport and telecommunications sectors) and are thus subject to the requirements of transparency laid down by the Directives.

Lastly, the Commission considers that the new code continues to infringe the Directives on public contracts with regard to the minimum number of participants to be invited in a restricted procedure (i.e. not open to every tenderer wishing to submit a bid). Indeed, according to the case law of the Court of Justice, even if there is no range laid down in the contract notice published in the Official Journal of the European Union, the minimum number of applicants invited to tender should not be less than five (see judgement, Commission v France, Case C-225/98). The code in fact applies this minimum number only if a range has been indicated in the contract notice.

France: local development agreements

The Commission has sent the French authorities a reasoned opinion in connection with the incompatibility of Article L.300-4 of the French town planning code with European law. This article allows local development agreements and appointment contracts for the follow-up of preliminary studies for a development project to be concluded without being advertised and without competition.

France makes use of local development agreements primarily for global projects including the construction of public amenities to be handed over to the awarding authority and for buildings to be resold or rented, e.g. as part of the implementation of a town planning project and local housing policy or urban renewal.

The Commission considers that the main purpose of these agreements concerns works, even if they are not actually performed by the planner but by a builder selected by the planner. These types of local development agreements must in principle be concluded in accordance with the advertising and competition rules laid down in Directive 93/37/EEC on public works contracts.

When these local development agreements are concluded with a restricted category of public or semi-public bodies defined in Article L.300-4 of the town planning code (e.g. semi-public companies), these bodies may also be given the right to perform the procedures for the expropriation decided by the State of the land to be developed. In this case, the Commission feels that granting this right to "public" planners, when there is nothing to prevent it from being granted to private individuals, does not provide grounds for exemption from the rules of the EC Treaty. Indeed, the application of this right is not an activity involving the exercise of official authority, as referred to in Article 45 of the EC Treaty.

Other types of local development agreement may refer to the management of economic activities or the development of recreation and tourism, in which case the Commission takes the view that they must be regarded in the same light as service concessions, which according to the Treaty must be awarded with a proper degree of advertising for the benefit of all potential applicants (see Court of Justice judgement, Telaustria, Case C-324/98).

As for appointment contracts for preliminary studies needed to define the features of a development project, the Commission considers that such contracts must be awarded in accordance with the advertising and competition rules laid down in Directive 92/50/EEC on public service contracts.

Purchase by mutual agreement of helicopters for civilian use in Italy

The Commission has decided to send Italy a reasoned opinion on the procedures followed by the Government in connection with the purchase of helicopters for civilian use. The Italian Government has for a long time followed a practice of awarding to an Italian manufacturer, directly and without any kind of competition, contracts for helicopters to be used by certain public services, and especially by the forestry department ("Corpo Forestale dello Stato"), financial police ("Guardia di Finanza"), fire services ("Vigili del Fuoco"), police and security forces ("Polizia di Stato" and "Carabinieri"), coastguard ("Guardia Costiera") and the civil defence department ("Dipartimento della Protezione Civile").

The Commission feels that this practice is contrary to the Directive on public supply contracts (93/36/EEC), since none of the strict conditions governing the possibility of using a negotiated procedure without prior publication of a contract notice is met in this instance.

It also feels that Italy has in no way shown that the practice in question is justified on the basis of Article 2 of Directive 93/36/EEC, which states that the Directive does not apply to "contracts which are declared secret or the execution of which must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member States concerned or when the protection of the basic interests of the Member State's security so requires".

The Commission has already referred Italy to the Court of Justice in connection with a government order authorising one of the services mentioned - "Corpo Forestale dello Stato" to purchase helicopters without any form of competition (see IP/03/1037). The case in question at the moment, on the other hand, concerns the general practice followed by the Italian Government for the purchase of all helicopters for civilian use by the services concerned.

For recent general information on infringements concerning the Member States, please refer to the following website:

http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm