Openbare aanbestedingen: Zes lidstaten moeten nationale obstakels opruimen (en)

The European Commission has decided to formally request six Member States to put right a total of nine infringements of EU public procurement law. It is asking Italy to ensure fair competition, open to bidders from across the EU, for the award of contracts to build high-speed railway lines. Greece is being requested to comply with the public procurement Directives in awarding contracts for the printing and publication of school text books and Portugal to implement correctly EU law on procurement in the water, energy, transport and telecommunications sectors. The Commission has also decided to ask Ireland and the UK to introduce procedures to allow tenderers to challenge the decisions of awarding authorities before it is too late to change such decisions, in line with the Public Procurement Remedies Directive. In Lower Saxony, meanwhile, a contract for waste water disposal in Hinte was awarded without competition and Germany is being requested to rectify this. These formal requests take the form of 'reasoned opinions', the second stage of infringement procedures under Article 226 of the EC Treaty. In the absence of a satisfactory response, the Commission may refer the Member States in question to the European Court of Justice. In two further cases involving Germany, the Commission, under Article 228 of the Treaty, is asking the national authorities to apply decisions already taken by the Court over the illegal award of contracts for waste water collection in Bockhorn and for waste disposal in Braunschweig (both also in Lower Saxony). If Germany does not comply, the Commission may ask the Court to impose a daily fine.

EU public procurement law aims to ensure that all European companies have a fair chance to bid for public contracts. Open and transparent tendering procedures mean more competition, stronger safeguards against corruption, better service and value for money for taxpayers and, ultimately, a more competitive Europe. EU public procurement markets are worth over €1 500 billion, over 16% of total EU GDP. The existing EU public procurement Directives have increased cross-border competition in procurement markets and reduced by around 30% the prices paid by public authorities for goods and services, according to a European Commission working document (see IP/04/149). The European Parliament and Council of Ministers adopted in February a new legislative package modernising and simplifying procurement procedures which should further boost cross-border competition (see IP/04/150).

Italy - high-speed railway lines

The Commission has decided to send Italy a reasoned opinion concerning the procedures used by its national railway administration, Ferrovie dello Stato (FS), to award the company TAV contracts for the construction of high-speed railway lines. In 1991, FS decided to contract TAV to build these lines in accordance with criteria to be set out in a performance agreement, which stipulated that TAV had to use general contractors to be chosen among Italy's leading industrial groupings.

After considering the arguments put forward by the Italian authorities, the Commission took the view that this provision effectively reserved the contracts for the lines in question for Italian companies, in breach of the principles of freedom of establishment and freedom to provide services enshrined in Articles 43 and 49 of the EC Treaty. The Commission's action under this procedure is primarily aimed at opening up to EU-wide competition work on lines (particularly those between Milan and Verona and Milan and Genoa) whose construction phase has not yet commenced.

Greece - printing and publication of schoolbooks

The Commission is sending a reasoned opinion to Greece for non-compliance with Directive 92/50 (public service contracts) in relation to the printing and publications of schoolbooks in Greece.

The Organisation for the Publication of Schoolbooks co-operates with approximately 80-90 relevant companies, based in the region of Attika, to which it awards the publication and printing of the schoolbooks every year, without launching a tender, on the basis of the companies' personnel, equipment and productivity.

The Greek authorities argue that there are time-constraints as the books need to be ready for the beginning of every school year. Although the Directive (Article 11 (3) (d)) allows agreements to be negotiated directly with suppliers without publishing a general invitation to tender in justifiable cases of extreme urgency, the Commission does not consider that these conditions are met in this case. First, there is no evidence that these time-constraints are tight enough to prevent adhering to even the reduced time limits for accelerated restricted procedures provided for in Article 20 of the Directive. Furthermore, the reasons of urgency invoked by the Greek authorities are not brought about by events unforeseeable by the contracting authorities or by events which are not within the latter's control, as the Directive would require if the circumstances were to be considered of extreme urgency. After all, the school year begins every year, on a date set by the Greek authorities themselves. Therefore, the approximate number of books to be published and edited every year, as well as the expected delivery date, are known beforehand by the contracting authority.

Portugal - water, energy, transport and telecommunications

The Commission has decided to send Portugal two reasoned opinions for incorrect implementation of Directive 93/38/EEC, coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, and of Directive 92/13/EEC, aimed at guaranteeing the effective implementation of the previous Directive by ensuring that effective and rapid remedies are available to suppliers, contractors and service providers in the event of infringement of the relevant EU law or national rules implementing that law.

The Commission takes the view that the Portuguese legislation does not comply with EU law, particularly in relation to the scope and application thresholds of the Directive, time limits for receipt of tenders, design competitions and abnormally low tenders.

Ireland and UK -review procedures for unsuccessful tenderers

The Commission has decided to issue reasoned opinions against Ireland and the UK owing to their failure to comply with the obligations of the "Remedies" Directive 89/665/EEC on public procurement. In its "Alcatel" judgment (Case C-81/98), the European Court of Justice stipulated that Member States were required to set up review procedures permitting a decision awarding a public procurement contract to be suspended and annulled at a stage where the infringement can still be rectified. This should allow an aggrieved tenderer to have a contracting authority's decision suspended by way of interim measures and set aside, notwithstanding the possibility once the contract has been concluded of obtaining an award of damages.

In the Commission's view, neither Irish nor UK legislation currently complies in full with these requirements. The UK authorities are proposing amendments to their current remedies system, but the Commission does not consider these sufficient to comply with the Alcatel judgement.

Germany - waste and waste water disposal

The Commission is sending three reasoned opinions to the German authorities over the award without competition of contracts for the disposal of waste and waste water.

In the first two cases, the Court of Justice has already ruled against Germany on 10 April 2003 (joint cases C-20/01 and C-28/01). The Commission is now asking the national authorities to comply with this judgement, failing which it can ask the Court to impose a daily fine.

The Court ruled that the Federal Republic of Germany had failed to fulfil its obligations under the services procurement Directive (92/50/EEC) in two cases of procurement by local communities in the German State of Lower Saxony. In 1996, the City of Braunschweig awarded a contract for waste disposal by direct negotiations with contractors without prior publication of a contract notice. In 1998, the Municipality of Bockhorn did not invite tenders for the award of the contract for the collection of its waste water. The contracts have been concluded for durations of a minimum of 30 years.

The Commission sent a letter of formal notice to Germany in October 2003 asking it to provide information on the measures it had taken to comply with the Court's judgement. However, the German authorities replied by simply repeating previous arguments which the Court had not accepted. Its judgement established that the breach of procurement law continues throughout the period of the contracts awarded illegally. As the current contracts will continue to produce effects for decades, the Commission considers that it is not sufficient to avoid breaches in future procurement procedures. To comply with the judgement, measures to end the actual infringements are required.

Finally, in December 1999 the municipality of Hinte, also in Lower Saxony, awarded a service concession to the Oldenburgisch Ostfriesischen Wasserverband for the provision of waste water disposal services. No transparent award procedure was carried out as required under EU law as interpreted by the Court of Justice (C-324/98, Teleaustria).

Germany argued that the municipality was justifiably assuming that its decision was in compliance with EU law because at the time of that decision it could not have been aware of the developments in the Court of Justice's case law. However, the Commission does not accept this view, because an interpretation of EU law by the Court does not mean that the provision which it interpreted had a different substance before the Court's decision. Thus, EU law was broken by the award of the service concession.

Up-to-date information on all infringement procedures against Member States can be found at:

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