Brussels, 3 June 2010
Public procurement: Commission acts to ensure fair access to notebook computers and Internet services contracts for education purposes in Portugal
The European Commission has acted to ensure that EU rules on public procurement – the spending of public money by public authorities – are respected in Portugal. The Commission is concerned that Portugal has failed to fulfil its obligations by not opening to competition contracts for the supply of notebooks computers and Internet services to students, teachers and trainees in Portugal within the context of the education programmes «e-Escola», «e-Professores» and «e-Oportunidades». Common public procurement rules are designed to ensure fair competition for public contracts on a European scale, thereby creating opportunities for European businesses and ensuring the best value for public money. If they are not properly implemented, there is a risk of a closed market and waste of public money. The Commission's request to Portugal takes the form of a reasoned opinion. If Portugal does not reply satisfactorily within two months, the Commission may refer this 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 or consulting services. Total 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 money for taxpayers.
How is Portugal not respecting these rules and why are citizens and business suffering as a result?
In April and July 2008, the Portuguese Ministry of Public Works, Transports and Communications directly awarded public contracts for the supply of notebook computers and the provision of Internet services to the telecom operators TMN, SONAECOM and VODAFONE. The contracts were awarded within the context of the education programmes «e-Escolinha», «e-Escola», «e-Professores» and «e-Oportunidades». The notebooks and internet connections would be used by students, teachers and trainees. More than one million notebooks with internet access have already been supplied.
The notebooks were considered by the Portuguese authorities as part of the payment by the telecom providers for operating third generation GSM telecommunication services. For this reason, the authorities claimed that no public tendering procedure was required.
However, in the Commission's view the Portuguese authorities distorted competition by setting precise terms and conditions for the supply of notebooks and associated internet services and subsequently awarding the public contracts to telecom operators without a proper tender procedure. This may have also resulted in a waste of taxpayer's money. Moreover, the Commission believes that the contracts included discriminatory technical specifications with regard to microprocessors equipping the notebooks, which limited the range of computers to be supplied.
Informed about the facts of the case by a complainant, the Commission sent Portugal a letter of formal notice, the first stage of an infringement procedure, in February and November 2009 to comment on the situation. The Portuguese authorities accepted to comply with EU public procurement law in relation to notebooks of the «e-Escolinha» programme and launched in January 2010 a procedure for the award of new contracts. As a result, the Commission decided not to continue the infringement procedure in relation to this programme.
However, as no satisfactory reply was provided to contracts related to programmes «e-Escola», «e-Professores» and «e-Oportunidades», the Commission has now decided to initiate the second stage of the formal infringement procedure by issuing a reasoned opinion.
About infringement procedures
The European Commission has powers under Article 258 of the Treaty on the Functioning of the European Union (TFEU) to take legal action – known as infringement procedures – against a Member State that is not respecting its obligations under EU rules. These procedures consist of three steps. The first is that the Member State receives a letter of formal notice seeking information if the Commission has concerns that there may be a breach of EU law and has two months to respond. If the Commission's concerns about a breach of EU legislation are confirmed, the Commission sends a reasoned opinion requiring the Member State to comply with EU law within two months. If there is no satisfactory reply, the Commission can refer the matter to the Court of Justice in Luxembourg. If the Court rules against a Member State and the Member State does not comply with the Court's ruling, the Commission can also request that the Court impose a fine on the country concerned.
Latest information on infringement proceedings concerning all Member States: