IP/09/1752
Brussels, 20 November 2009
Public procurement: Commission refers Spain to Court of Justice over modification of contracts after award
The European Commission has decided to refer Spain to the European Court of Justice over a series of provisions of the new Spanish public procurement law (Ley 30/2007 de contratos del sector público – LCSP) governing modification of contracts.
In this instance, the Commission considers that the regime of modifications of contracts after award, as governed in LCSP, is not in line with the principles of equal treatment, non discrimination and transparency as derived from article 2 of Directive 2008/14/EC (on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts) and from Articles 12, 43 and 49 of the EC Treaty.
The LCSP gives contracting authorities a wide power to modify essential terms of public contracts after award, without the conditions of modification having been provided for in the contract documents in a clear, precise and unequivocal manner.
Furthermore, as regards the provision of additional works, services or supplies, the Commission also considers that the LCSP allows for the possibility of the contracting authority to resort to the use of negotiated procedures without publication in violation of article 31 of Directive 2008/14/EC.
Background
Total public procurement in the EU – i.e. the purchases of goods, services and public works by governments and public utilities – is estimated at about 16% of the Union’s GDP. The open and transparent tendering procedures required under EU public procurement law mean more competition, stronger safeguards against corruption, and better service and value for money for taxpayers.
Under the EC Treaty, the European Commission has powers 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 and has two months to respond. In case further compliance with EU legislation is needed, the Commission sends a reasoned opinion. Again the Member State has two months to reply. If there is no satisfactory reply, the Commission can refer the matter to the European Court of Justice in Luxembourg. It can also request that the Court impose a fine on the country concerned if it does not comply with the Court's ruling.
More information
EU public procurement:
http://ec.europa.eu/internal_market/publicprocurement/index_en.htm
Latest information on infringement proceedings concerning all Member States: