Brussels, 9 August 1999
Public contracts: infringement procedures against Germany, France, United Kingdom, Italy, Greece, Austria and Spain
The European Commission has decided to send eleven reasoned opinions for violation of the Community rules stipulating that public contracts must be published and put up for tender. Four reasoned opinions (second stage in infringement proceedings under Article 226 of the Treaty) have been sent to France, Greece, Germany and Austria for failure to notify the measures necessary to implement the Directive 97/52/EC adapting the previous Directives for the award of public service contracts, public supply contracts and public works contracts to the Government Procurement Agreement (GPA) signed at Marrakech in 1994. The other reasoned opinions concern: in Germany, a negotiated procedure for a contract with the hospital of the University of Würzburg; in the United Kingdom, the publication of a White Paper ("Setting New Standards: a strategy for Government Procurement") which could lead public purchasers to commit infringements against the public procurement rules; in Italy, the award without a public tender procedure of a contract by SACE of banking services and by the municipality of Ravenna of a service contract for the Museum in Classe; in Greece, the use of a restricted procedure for the award of a supply contract by the Ministry for Development; in Austria the construction and the financing of a by-pass in the City of Linz without applying prior public procurement procedure; in Spain, works for an experimental penitentiary centre in Segovia without a public tender. In the absence of a satisfactory response within two months of receipt by the Member State concerned, the Commission may decide to refer the cases to the European Court of Justice.
France, Greece, Germany and Austria - failure to notify national measures to implement Directive 97/52/EC
The European Commission has decided to send a reasoned opinion to France, Greece, the Federal Republic of Germany and Austria for failing to transpose into national law Directive 97/52/EEC amending the Directives concerning the co-ordination of procedures for the award of public service contracts, public supply contracts and public works contracts.
Directive 97/52/EEC of 13 October 1997 amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC concerning the co-ordination of procedures for the award of public service contracts, public supply contracts and public works contracts adapts the abovementioned directives to the Government Procurement Agreement (GPA), which is a part of the Agreements reached in the Uruguay Round multilateral negotiations (1986 to 1994). In Article 4(1) of Directive 97/52/EEC it is stated that the Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 13 October 1998.
Germany - University of Würzburg.
The procurement procedure concerning the hospital of the Julius-Maximilian-University of Würzburg was brought to the attention of the Commission by a complaint. In September 1997 a contract for the planning, extension and refurbishment of the old dental clinic and another contract for the construction of operational units of the hospital of the University of Würzburg was published in the Supplement to the Official Journal. The contract notice referred under point 14 to a "negotiated procedure with prior publication in accordance with Article 11(2) of Council Directive 92/50/EEC".
The negotiated procedure is an exceptional procedure and therefore only applicable in certain limited cases. The Commission is of the opinion that the conditions of the provisions to award the contract under the negotiated procedure have not been fulfilled. The German authorities have not proved the existence of exceptional circumstances justifying a negotiated procedure with prior publication.
United Kingdom: minimum number of candidates to be invited to participate in a restricted procedure
The Commission has decided to issue a reasoned opinion to the United Kingdom in relation to an official White Paper ("Setting New Standards: a strategy for Government Procurement"), which contains advice capable of being construed in such a way as to lead public purchasers to commit infringements against the public procurement rules.
The point at issue is that the advice appears to indicate that the number of candidates to be invited to participate in a restricted procedure may always and in all circumstances be set as low as three participants, irrespective of the fact that under the public procurement rules, in certain circumstances, at least five candidates must be invited.
Italy: Public procurement of banking services (cash-flow management) for the S.A.C.E.
The Commission has decided to send the Italian Government a reasoned opinion for violation of the provisions of Directive 92/50/EEC, and in particular Article 11 thereof. This reasoned opinion concerns the award of a banking services contract for cash-flow management for the S.A.C.E. (Special Department for Export Credit Insurance) to the San Paolo Banking Institute in Turin at the beginning of 1997.
The failure to implement this provision results from the fact that the S.A.C.E., a body governed by public law and, as such, obliged to observe the directives on public procurement, awarded the contract to the San Paolo Banking Institute in Turin without going through any public procedure.
The Commission found that none of the conditions laid down in Article 11(3) of Directive 92/50/EEC which permit the use of the negotiated procedure without prior publication of a tender notice had been fulfilled in this case.
Italy: public procurement of design services for the Classe Archeological Museum by the municipality of Ravenna
The Commission has decided to send the Italian Government a reasoned opinion for infringement of the provisions of Directive 92/50/EEC, and in particular Article 11 thereof. This reasoned opinion relates to the award by negotiated procedure, without prior publication of a tender notice, of design services for the Classe Archeological Museum by the of Ravenna.
The infringement results from the fact that the municipality of Ravenna awarded the contract following a negotiated procedure, without prior publication and without an invitation to tender, despite the fact that the conditions laid down in Article 11 of Directive 92/50/EEC, which are the only ones justifying the use of the negotiated procedure, were not met.
Greece: contract for the supply of operational leather belts with accessories by the Ministry for Development.
The Commission has decided to send the Hellenic Republic a reasoned opinion relating to the procedure for the award of a contract for the supply of operational leather belts with accessories by the Ministry for Development.
The Commission's objections are based on the incorrect use by the Hellenic Republic of the accelerated restricted procedure and deficiencies in the publication of the tender notice in the OJEC, as well as the confusion of selection and award criteria.
The Commission considers that the awarding authority has infringed the provisions of Articles 11 and 12 of Directive 93/36/EEC by having recourse to the accelerated restricted procedure in a case where the conditions for the use of this procedure were not fulfilled. The Commission also takes the view that Article 9(4) of Directive 93/36/EEC has been infringed because publication of the tender notice in the OJEC was incomplete, inasmuch as it did not give reasons for the use of the accelerated procedure.
Austria: construction of a by-pass in the City of Linz
The contract for the construction of a by-pass of Linz was brought to the attention of the Commission by a complaint. The city of Linz concluded two contracts, one with a local bank for the financing and a second with a subsidiary undertaking of the local bank for the construction of this by-pass, without a prior public procurement procedure.
The Commission takes the view that the abovementioned contracts are public works contracts as defined in Article 1(a) of Directive 93/37/EEC and that the City of Linz is a contracting authority under the terms of Article 1(b) of the same Directive. On the basis of these considerations the contracts for the financing and construction of the by-pass of Linz should have been awarded via a procurement procedure.
Spain - works at the experimental penitentiary centre in Segovia
The call for tenders to carry out works at the experimental penitentiary centre in Segovia, published in the national press but not in the OJEC, was launched in violation of the provisions of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts. The Spanish authorities contest the application of this Directive to the "Sociedad Estatal de Infraestructuras y Equipamientos Penitenciarios" on the grounds that it is a public commercial company governed by private law. The fact remains that the S.E.I.E.P.S.A. is a contracting authority within the meaning of the Directive, inasmuch as it fulfils the conditions of Article 1 thereof, in particular the condition that it has been established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character.