Brussels, 30 September 2010
Public procurement: Commission calls on Slovakia to respect EU rules for electronic toll collection contracts
The European Commission has requested Slovakia to ensure compliance with EU rules on public procurement for the selection of an electronic toll collection system operator. The Commission is concerned that Slovakia has breached EU public procurement rules by discriminating against some candidates and thus not opening up a tender procedure for electronic toll collection to EU-wide competition. Public procurement rules are designed to ensure fair competition for public contracts in Europe, thereby creating opportunities for European companies while ensuring the best value for public money. If these rules are not properly implemented, there is a risk of a closed market and waste of public money. The Commission's request to Slovakia to comply with EU law takes the form of a reasoned opinion – the second stage of the infringement procedure. If the Slovak authorities do not reply satisfactorily within two months, the Commission may refer the matter to the Court of Justice.
What is the aim of the EU rule in question?
Public procurement is about how public authorities spend public money. It covers purchases of everything from coffee to computer systems, waste water plants, ship building and consulting services. The total value of public procurement in the EU is estimated at about 17% of the Union’s GDP. The open and transparent tendering procedures required under EU public procurement rules mean more competition, stronger safeguards against corruption, and better service and value for taxpayers' money.
How is Slovakia not respecting these rules and why are citizens and business suffering as a result?
According to the public procurement Directive 2004/18/EC, the award of public contracts must be made on the basis of an EU-wide tender procedure. One of the main principles enshrined in the public procurement procedure is the principle of non-discrimination of candidates. This principle derives from the basic right of establishment and the freedom to provide services established in Articles 49 and 56 of the Treaty on the Functioning of the European Union.
The non-discrimination principle is to ensure that all candidates in a tender procedure are treated equally and to prevent any unjustified action towards them. This could take the form of undue exclusion from the public procurement procedure or the substantial modification of the original contractual conditions after the award of the contract.
On 27 September 2007, the National Motorway Company launched a public tender for the selection of an electronic toll collection system operator. The value of the contract was worth approximately € 664 million. Out of the four tenders submitted, three were excluded by the National Motorway Company for not submitting a tender that was in compliance with the technical specifications. Following the signature of the contract on 13 January 2009, several contracting conditions were substantially modified. If these modifications had been made and communicated at the beginning of the procedure, participating bidders might have submitted a different tender and more candidates might have participated in the bidding procedure.
By excluding certain candidates for unjustified reasons and by substantially modifying the contract after its signature, the European Commission finds that the National Motorway Company has violated the principle laid down in EU law of non-discrimination. This has prevented proper competition and may have wasted taxpayers' money.
Latest information on infringement proceedings concerning all Member States:
For more information on EU infringement procedures, see MEMO/10/457.