Brussels, 24 June 2010
Public procurement: Commission requests Greece to comply with Court ruling on acquisition of medical equipment and to ensure fair access to medical waste management contracts in Attica
The European Commission has acted today to ensure that common rules on public procurement – the spending of public money by public authorities – are respected in Greece. The Commission has formally requested Greece to comply with an EU Court judgment from 2009 (C‑489/06). The Court ruled that Greece had failed to fulfil its obligations under common EU rules on harmonisation as well as the public procurement directives by rejecting offers from suppliers of medical equipment bearing the CE marking. The Commission considers that Greece has not taken the necessary measures to comply with the judgment of the Court as several Greek public hospitals still continue to reject such offers. In the absence of compliance, the Commission may refer the case for the second time to the Court and ask it to impose a lump sum or penalty payment. The Commission has also referred Greece to the EU's Court of Justice over the direct award of a public service contract for the management of hazardous medical waste in Attica without following a public tender procedure in line with EU public procurement rules.
What is the aim of the EU rules 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 Greece not respecting this rule and how are citizens and/or businesses suffering as a result?
The Commission was notified in 2003 by a complainant that several public hospitals in Greece are rejecting offers from suppliers of medical equipment that bear the CE certification marking, such as medical gloves and threads used for operations. CE is a mandatory conformity mark on many products placed on the EU Internal Market and certifies that a product has met EU consumer safety, health or environmental requirements. The CE marking is particularly important for medical equipment, as the common standards ensure safety and health protection for patients and users and guarantee the free movement of such equipment across the EU.
Only under strict circumstances, such as suspected forgeries or concerns on public health, can Member States prevent CE-certified medical equipment to be put in service or placed on their market.
The Commission found that the technical specifications in the tender notice were subjective and discriminatory, effectively blocking any supplier of CE-certified medical equipment to enter into a competitive bidding procedure to supply several Greek public hospitals. Furthermore, the Commission found that as a result, Greek public hospitals may not have received best value for money leading to a waste of taxpayers' money. The Greek health security fund reimburses the acquired medical equipment. In 2009, the Court of Justice of the European Union upheld the Commission's position, but Greece has so far yet to take the appropriate measures to comply with the judgment.
Under Article 260 of the Treaty on the Functioning of the European Union, Member States are obliged to take the necessary measures to comply with judgments of the Court. The Commission's request takes the form of a complementary letter of formal notice under Article 260 of the Treaty on the Functioning of the European Union. If the Greek authorities do not comply within two months, the Commission may refer the case to the Court and ask the Court to impose a lump sum or penalty payment on Greece.
Attica – medical waste management contract
In November 2008, the Hellenic Health Procurement Committee directly awarded a services contract for the management of hazardous medical waste following a negotiated procedure. The selected contractor would be required to manage medical waste, such as blood, contaminated needles, lancets and other sharps, coming from hospitals belonging to the regional health service in Attica. No prior call for competition was organised. The total value of the contract is estimated at €2.2 million.
Informed of the facts by a complainant, the Commission found that the Committee should have opened the contract following a public tender procedure in line with EU public procurement rules. Without publishing the contract notice or using the transparent procedures of an open or restricted procedure, the Greek authorities had excluded other potential suppliers from participating in competitive bidding. Furthermore, the use of a negotiated procedure without a prior call for competition did not allow for effective competition or the obligations of transparency and may have lead to a waste of taxpayers' money. As no reply was provided by the Greek authorities following the Commission's letter of formal notice and subsequent reasoned opinion, the Commission is now referring Greece to the EU Court under Article 258 of the Treaty on the Functioning of the European Union.
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