European Commission - Press release
Public procurement: Commission acts to ensure that Greece and Malta comply with EU rules
Brussels, 24 November 2011 - The European Commission has requested Greece to ensure full compliance with EU rules on public procurement as regards exemptions in Greek legislation for the tendering of public works. The Commission is concerned that these exemptions allow the Greek authorities to directly award public works contracts, such as the construction of roads, bridges and other infrastructure, without a transparent and competitive tender procedure. Currently, the Greek authorities can declare such projects to be of a "special nature" - without further justification. The Commission's request to Greece takes the form of a reasoned opinion. If Greece does not reply satisfactorily within two months, the Commission may refer this matter to the Court of Justice.
The European Commission has requested Malta to amend its public procurement legislation, in particular its national review procedures concerning decisions to award public contracts. The Commission is particularly concerned that these rules do not conform to the Remedies Directive ( 2007/66/EC ), which sets out EU-wide standards to ensure rapid and effective means of redress in cases where bidders consider that contracts have been awarded unfairly. If this Directive is not properly and promptly implemented, there is a risk that bidders cannot efficiently challenge illegal contract awards. The Commission's request to Malta takes the form of a reasoned opinion, the second stage of EU infringement proceedings. If Malta does not notify measures to ensure compliance with EU public procurement rules within two months, the Commission may refer this matter to the EU's Court of Justice. Malta has not replied to the Commission's letter of formal notice.
Greek law on public works allows the use of a negotiated procedure, without publication of a contract notice for works of a "special nature" where they have been declared as such by the contracting authority, following the opinion of the Technical Council. In the Commission's view, this procedure essentially amounts to direct awards, without any transparent and competitive tendering procedures.
The relevant EU Public Procurement Directive ( 2004/18/EC ) establishes strict conditions and scenarios for an exception from the general principle of transparent and competitive tendering, for example in urgent and unforeseeable situations such as natural disasters. Given the wide scope of the provision in the Greek law, it allows the use of this exceptional procedure in many more circumstances than established by the EU rules.
The Greek authorities acknowledged the non-conformity of the relevant national provision with the relevant EU legislation on public procurement.
However, the provision in question has still not been changed and contracts risk continuing to be awarded without competitive tenders on the basis of this law. Therefore, the Commission has decided to initiate the second stage of the formal infringement procedure by issuing a reasoned opinion.
The Commission considers that the Maltese law which has been notified by the Maltese Government as a transposition measure of the Remedies Directive does not fully and correctly implement EU law applicable to remedies in the area of public procurement. In particular, the Commission is of the view that it does not implement the Directive's provisions applicable to the review procedures for "utilities" sectors (water, energy, transport and postal sector). As far as the other sectors are concerned, a number of procedures relating to the ineffectiveness of contracts, sanctions and time limits are not completely and correctly transposed.
What is the aim of the EU rule in question?
Public procurement is when public authorities spend public money to construct infrastructure and to purchase all sorts of goods and services, from computer systems, waste water treatment systems and shipbuilding to consultancy services. It is estimated that all the public contracts awarded in the EU represent, together, some 17% of GDP. The open and transparent evaluation procedures laid down by the EU rules on public procurement promote competition, offer better protection against corruption and enable taxpayers to benefit from more effective and better value goods and services.
Latest information on infringement proceedings concerning all Member States
For more information on infringement procedures, see MEMO/11/824