Wednesday, 5 November 2008

EU Public Procurement Directive Preamble

The 84 Articles and twelve Annexes of the Procurement Directive 2004/18/EC are preceded by a long Preamble laying out the legal history and reasons behind the new Directive. These Preambles are not always easy to read, but they contain a wealth of information, offering an overview of a new EC legislative act.

We present the Preamble of the EC Procurement Directive over a number of posts to facilitate reading:


“THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 47(2) and Article 55 and Article 95 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Having regard to the opinion of the Committee of the Regions (3),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (4), in the light of the joint text approved by the Conciliation Committee on 9 December 2003,”


***


Drafting history

The footnotes refer to the various stages of the legislative process. This is how they appear at the bottom of the page of the Official Journal of the European Union, giving the detailed references to the Commission proposals, the opinions of the Economic and Social Committee (ESC) and the Committee of the Regions (CoR) as well as the European Parliament’s and the Council’s positions (incomplete):

(1) OJ C 29 E, 30.1.2001, p. 11 and OJ C 203 E, 27.8.2002, p. 210.
(2) OJ C 193, 10.7.2001, p. 7.
(3) OJ C 144, 16.5.2001, p. 23.
(4) Opinion of the European Parliament of 17 January 2002 (OJ C 271 E, 7.11.2002, p. 176), Council Common Position of 20 Mars 2003 (OJ C 147 E, 24.6.2003, p. 1) and Position of the European Parliament of 2 July 2003 (not yet published in the Official Journal). Legislative Resolution of the European Parliament of 29 January 2004 and Decision of the Council of 2 February 2004.

***

Legal base

Yesterday’s post briefly described the legal base of the Procurement Directive, i.e. the provisions regarding European Community competence to legislate.

***

Reasons

The first recital mentions simplification, modernisation and clarification among the reasons for recasting the Procurement Directives. In addition, ECJ case-law as well as environmental and social concerns are mentioned:

“Whereas:

(1) On the occasion of new amendments being made to Council Directives 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (5), 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (6) and 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (7), which are necessary to meet requests for simplification and modernisation made by contracting authorities and economic operators alike in their responses to the Green Paper adopted by the Commission on 27 November 1996, the Directives should, in the interests of clarity, be recast. This Directive is based on Court of Justice case-law, in particular case-law on award criteria, which clarifies the possibilities for the contracting authorities to meet the needs of the public concerned, including in the environmental and/or social area, provided that such criteria are linked to the subject-matter of the contract, do not confer an unrestricted freedom of choice on the contracting authority, are expressly mentioned and comply with the fundamental principles mentioned in recital 2.”

***

The footnotes give the exact references to the then existing Directives:

(5) OJ L 209, 24.7.1992, p. 1. Directive as last amended by Commission Directive 2001/78/EC (OJ L 285, 29.10.2001, p. 1).
(6) OJ L 199, 9.8.1993, p. 1. Directive as last amended by Commission Directive 2001/78/EC.
(7) OJ L 199, 9.8.1993, p. 54. Directive as last amended by Commission Directive 2001/78/EC.

***

Principles

The second recital draws attention to principles underlying the award of public contracts in the internal market, such as the free movement of goods, the freedom of establishment and the freedom to provide services. General principles mentioned are equal treatment, non-discrimination, mutual recognition, proportionality and transparency.

The award of public contracts above certain threshold values is made subject to coordinated procedures to ensure that the principles are applied and that public procurement is opened up to competition:




“(2) The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.”

***

Current practices

The third recital strives to reassure the reader that the (central) coordinating provisions build on existing national procedures and practices:

“(3) Such coordinating provisions should comply as far as possible with current procedures and practices in each of the Member States.”

***

Equal treatment

One aspect of the principle of equal treatment is mentioned in the fourth recital, namely the non-distortive treatment of public and private bidders:

“(4) Member States should ensure that the participation of a body governed by public law as a tenderer in a procedure for the award of a public contract does not cause any distortion of competition in relation to private tenderers.”

***

Green public procurement

Environmental concerns and sustainable development are specifically mentioned in the fifth recital, subject to clarifying Directive rules:

“(5) Under Article 6 of the Treaty, environmental protection requirements are to be integrated into the definition and implementation of the Community policies and activities referred to in Article 3 of that Treaty, in particular with a view to promoting sustainable development. This Directive therefore clarifies how the contracting authorities may contribute to the protection of the environment and the promotion of sustainable development, whilst ensuring the possibility of obtaining the best value for money for their contracts.”

***

Public policy derogations

Exceptions from the Procurement Directive may be made on customary public policy grounds, as well as to protect health, human and animal life or the preservation of plant life, but as always derogations have to be interpreted narrowly:

“(6) Nothing in this Directive should prevent the imposition or enforcement of measures necessary to protect public policy, public morality, public security, health, human and animal life or the preservation of plant life, in particular with a view to sustainable development, provided that these measures are in conformity with the Treaty.”

***

Procurement Directive 2004/18/EC

A notice to those who want to study the Procurement Directive.

Throughout, because of amendments, we refer to the consolidated version of 1 January 2008 of the Procurement Directive, officially Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 30.4.2004 L 134/114):

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0018:20080101:EN:PDF



Ralf Grahn