16. 3. 87 Official Journal of the European Communities No C 68/7
Opinion on the proposal for a Council Directive amending Directive 77/62/EEC relating to the
coordination of procedures on the award of public supply contracts and deleting certain provisions of
Directive 80/767/EEC
(87/C 68/06)
On 6 July 1986 the Council decided to consult the Economic and Social Committee under Article 100
of the Treaty establishing the European Economic Community on the abovementioned proposal.
The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 3 December 1986 in the light of the report by
Mr Kaaris.
At its 242nd plenary session (meeting of 16 December 1986), the Committee unanimously with two
abstentions adopted the following opinion.
The Committee approves the proposal of the Commission subject to the following reservations:
1. General comments — establishing statistical records,
— setting up an information campaign to emphasize and
explain the benefits of a Community-wide approach
111 LU13 c t J L ^ a , 1.1. The Committee refers to its opinion of 23 April
1986 (*) in which it stresses the importance of opening up
public contracts to competition as a key to the achievement of
an internal market. A compartmentalized captive
Community public purchasing market will make a nonsense
of efforts in other areas to create the optimal conditions for
European industry to
%face increasingly tough world
challenges. It will take away the incentive from the economic
operators to work together to achieve economies of scale and
to adopt common or mutually compatible standards without
which a single European market will not be possible. Indeed
the Committee feels that the political credibility of the
Community legislation introduced to bring about a true
internal market is at stake if serious efforts are not made to
finally bring true progress in this area.
1.2. The Committee in this earlier opinion proposed the
following specific measures:
— the setting up within the Commission of a public
procurement unit with clearly defined terms of reference
and adequate financial resources responsible for:
— monitoring the public procurement market; it would
examine published invitations to tender, investigate
complaints and identify practices contrary to the
spirit of the Directives; in particular, it would check
that no Member State wrongfully places only an
abnormally small percentage of its orders with
foreign firms and that no national firm wrongfully
obtains an abnormal percentage of the total orders in
a given sector,
(») OJ No C 189, 28. 7. 1986, p. 16.
— laying down uniform guidelines for the interpretation of
the Directives;
— setting up a system of secondment from national
authorities, the cost of which should be more than offset
by the potential savings of the realization of a common
market in public procurement;
— instituting a system of redress that works;
— setting up a system of mutual recognition of testing
stations in the Member States.
1.2.1. The Committee, in its opinion of April 1986,
also emphasized that the opening of the
Community-procurement market to non-member countries,
parties to the GATT Agreement on Government
Procurement, cannot take place unilaterally but at the same
time invited the Member States to take a more positive
approach in this area not least in view of the possibilities that
an opening up of international government procurement
markets might represent for European industries stymied by
too small national markets.
1.3. The Committee is fully supportive of the
Commission's present proposal which is clearly a step in the
right direction. A better transparency through
pre-information, the publication of information on awarded
contracts, better definition of exemptions, lengthening of
time limits, etc., all are necessary and, indeed, indispensable
No C 68/8 Official Journal of the European Communities 16. 3. 87
improvements; in particular it supports the proposal to make
it mandatory for contracting authorities to refer to European
standards or to documents on European harmonization
where these exist. The Committee stresses the importance of
completing these standards or documents as soon as
possible.
1.4. The Committee is not convinced, however, that the
solutions developed by the Commission will bring about the
anticipated success; indeed in the Committee's opinion they
are likely to prove as unsuccessful as the measures hitherto
applied if they are not improved in order to attack the
fundamental deficiency in the system: the basic Directive's
lack of credibility because it permits no efficient
sanctions.
1.5. After almost 10 years of Community legislation in
this field the Committee feels that the Commission
Directorate responsible for public purchasing, and thus the
abovementioned public procurement unit which the
Commission has already decided to set up, must be given the
power to enforce Community legislation in this area,
following the example which has already proved effective in
enforcement of competition policy.
1.6. The Committee therefore proposes that the
Commission be given the following administrative powers to
impose sanctions sufficiently significant to constitute a real
deterrent against circumvention of the Directives:
— sanctions for not publishing contracts above 200 000
ECU;
— sanctions for not satisfactorily justifying the use of
restricted, negotiated and single tender procedures under
the new draft Directive's Article 3;
— suspension of the tender procedure in the event of the
disclosure of irregularities as a result of independent
work by the Unit or on the basis of complaints;
— sanctions under the complaints procedure;
— sanctions against unjustified changes in the specifications
after award of the contract.
1.7. The unit should have the power to implement these
sanctions according to guidelines laid down by the
Committee on Public Procurement. The Commission should
also establish an appropriate forum for hearing appeals
against the imposition of sanctions. This procedure, as
opposed to the threat of increased use of Article 169, would
have the advantage of being practicable; the Commission
could be active instead of reactive, and not have to await
complaints of which there have so far been very few (around
10) each year; above all it would give the possibility of
intervention before the contract was awarded and thus lend
credibility to the Directive in the eyes of potential
suppliers.
The abovementioned Committee should also ensure, in line
with Article 20 of Directive 77/62/EEC, that checks to
determine whether tenders are reasonable cover compliance
with social legislation and collective wage agreements.
1.8. The Committee welcomes the Commission's
proposal (Article 6) to oblige contracting authorities to
publish the results of the tender by means of a notice. It is
particularly important that enough transparency be required
for a firm whose tender failed to be able to learn which offer
was successful and at what price. It might be added that
information about contact persons should be added to the
model notice to give interested parties a point of reference
and easy access to information.
2. New sectors
2.1. In view of the fact that those branches of industry
where public procurement plays the biggest role, i.e. energy,
telecoms, transport and water, must be fully opened to
competition in only 72 months if a real internal market is to
be achieved, the Committee invites the Commission to
establish early information contacts with these branches.
The past lack of success in making the Directive work
indicates in the Committee's view that the following
transitional measure might be envisaged for these new
sectors: so as to legitimize local employment concerns, the
present de facto situation should be made dejure by allowing
buying authorities the right to set aside a priori a certain
percentage of their contracts for local enterprises. At the
same time, however, it should be made equally clear that any
contracts above this percentage set aside for national
suppliers would be sanctioned as per point 1.6 above. This
would have the advantage of partly legalizing known
practices, but also of bringing them out into the open. The
longer-term objective of arriving at a situation of full
competition without restrictions would, of course, remain
intact.
2.2. The Committee finally proposes that the firm being
awarded the main contract should be obliged to publish
information on sub-contracts above a certain amount, which
should under no circumstances exceed the level fixed for
public purchasing organizations, i.e. 200 000 ECU. The
same time limits should be valid as for the main contracts and
the same conditions of public notices, i.e. cost paid by
the Community should apply. This would constitute an
important step in the direction of creating a European public
procurement data centre. Equally important, however, is the
fact that small and medium-sized businesses would then be
more clearly involved in official procurement and thus help
boost the main supplier's competitiveness by contributing to
16. 3. 87 Official Journal of the European Communities No C 68/9
an efficient sub-contractor network. Looking ahead in
particular to the extension of the Directive to new sectors, the
Committee regards such action as of key importance.
3. Lastly, the Committee wishes once again to draw
attention to its proposal (') concerning the introduction of a
system for secondment of staff (e.g. senior officials of
procurement and audit departments) from national
authorities for the purpose of working in the new public
procurement unit and liaison with their counterparts in other
Member States. It is out of the question for the Commission's
staff at its present strength to cope with the duties on which
the effectiveness of the Community Directive hinges and,
since difficulties are bound to arise in simply recruiting new
staff under the Community budget, other solutions such as
the one described above will have to be found.
4. Specific comments
4 .1 . Article 4
The Committee requests that point 2 (b) of the new Article 6
stipulating that contracts by single tender may be awarded
'when the articles involved are manufactured purely for
(!) OJ No C 189, 28. 7. 1986, p. 16.
Done at Brussels, 16 December 1986.
Introduction
1. The draft Directive on shipbuilding aid is a follow-up
to the orientation paper on future aid strategy for
(>) OJNoC281, 7. 11. 1986, p. 4.
purposes of research, experiment, study or development' be
deleted; otherwise the doors would be opened wide to abuse
and circumvention of the letter and the spirit of this Article,
i.e. that awards by single tender only take place under
exceptional circumstances.
4.2. Article 5
The Committee invites the Commission to make it clear that
the order of preference to be followed by the contracting
authorities in the absence of European standards or
documents on harmonization is mandatory, not optional. It
proposes to add the following phrase to point 4 'any other
standard': 'bearing in mind the climatic conditions
involved'.
4.3. Article 12
The Committee, though supporting the Commission's efforts
to obtain significant and reliable statistical information from
the Member States, feels that the Commission should specify
in point (a) which contracting authorities are obliged to
report, and that the data required concern only the total
number and value of awarded contracts both above and
below the threshold.
The Chairman
of the Economic and Social Committee
AlfonsMARGOT
shipbuilding on which the Committee was not officially
consulted - much to its astonishment. The proposals
contained in these documents arouse deep concern about the
future of the Community's shipbuilding industry and the jobs
it provides.
Opinion on the proposal for a Council Directive on aid to shipbuilding (*)
(87/C 68/07)
On 13 October 1986 the Council decided to consult the Economic and Social Committee, under
Article 198 of the Treaty establishing the European Economic Community, on the proposal for a
Council Directive on aid to shipbuilding.
The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 3 December 1986 in the light of the report by
Mr Arena.
At its 242nd plenary session (meeting of 16 December 1986), the Economic and Social Committee
adopted the following opinion by 88 votes to 15, with 5 abstentions.
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