Friday, 7 November 2008

Recitals: EU Public Procurement Directive

The Procurement Directive 2004/18/EC is applicable to public procurement in the 30 states of the European Economic Area (EEA), namely non-EU Iceland, Liechtenstein and Norway, as well as the 27 member states of the European Union (EU).

We pursue (if not happiness, at least) our presentation of the main features of the Procurement Directive, by continuing our look at the Preamble recitals, adding headlines and short descriptions.



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Central purchasing bodies

The fifteenth recital of the Procurement Directive 2004/18/EC refers to the need to define central purchasing bodies and to ensure the application of the principles of non-discrimination and equal treatment:

(15) Certain centralised purchasing techniques have been developed in Member States. Several contracting authorities are responsible for making acquisitions or awarding public contracts/framework agreements for other contracting authorities. In view of the large volumes purchased, those techniques help increase competition and streamline public purchasing. Provision should therefore be made for a Community definition of central purchasing bodies dedicated to contracting authorities. A definition should also be given of the conditions under which, in accordance with the principles of non-discrimination and equal treatment, contracting authorities purchasing works, supplies and/or services through a central purchasing body may be deemed to have complied with this Directive.


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National choices

The sixteenth recital of the Procurement Directive indicates that the member states can choose which contracting methods they use:

(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.

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Thresholds in euros

Uniform thresholds in euros are seen as most practical, although they have to be in line with and revised according to the changing values of special drawing rights (derived from the treaty and the WTO GPA), as said in the seventeenth recital of the Procurement Directive:

(17) Multiplying the number of thresholds for applying the coordinating provisions complicates matters for contracting authorities. Furthermore, in the context of monetary union such thresholds should be established in euro. Accordingly, thresholds should be set, in euro, in such a way as to simplify the application of such provisions, while at the same time ensuring compliance with the thresholds provided for by the Agreement which are expressed in special drawing rights. In this context, provision should also be made for periodic reviews of the thresholds expressed in euro so as to adjust them, where necessary, in line with possible variations in the value of the euro in relation to the special drawing right.


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Services

The eighteenth recital of the Procurement Directive indicates the classification of different services:

(18) The field of services is best delineated, for the purpose of applying the procedural rules of this Directive and for monitoring purposes, by subdividing it into categories corresponding to particular headings of a common classification and by bringing them together in two Annexes, II A and II B, according to the regime to which they are subject. As regards services in Annex II B, the relevant provisions of this Directive should be without prejudice to the application of Community rules specific to the services in question.

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Restricted application to services

Some services are seen as essential to realize the potential for cross-border trade. Other services are, transitionally, exempt from the full application of the Procurement Directive, as stated in the nineteenth recital:


(19) As regards public service contracts, full application of this Directive should be limited, for a transitional period, to contracts where its provisions will permit the full potential for increased cross-frontier trade to be realised. Contracts for other services need to be monitored during this transitional period before a decision is taken on the full application of this Directive. In this respect, the mechanism for such monitoring needs to be defined. This mechanism should, at the same time, enable interested parties to have access to the relevant information.

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Utilities Directive

The twentieth recital refers to the sister Directive, the so called Utilities Directive 2004/17/EC regarding the water, transport and postal services sectors, but not maritime, coastal or river transport:


(20) Public contracts which are awarded by the contracting authorities operating in the water, energy, transport and postal services sectors and which fall within the scope of those activities are covered by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (1). However, contracts awarded by the contracting authorities in the context of their service activities for maritime, coastal or river transport must fall within the scope of this Directive.


(1) See OJ 30.4.2004 L 134/1 (and later amendments)

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Telecommunications exempted

Telecommunications are exempted from the scope of the Procurement Directive, as mentioned in the twenty first recital:

(21) In view of the situation of effective market competition in the telecommunications sector following the implementation of the Community rules aimed at liberalising that sector, public contracts in that area should be excluded from the scope of this Directive insofar as they are intended primarily to allow the contracting authorities to exercise certain activities in the telecommunications sector. Those activities are defined in accordance with the definitions used in Articles 1, 2 and 8 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sector (2), such that this Directive does not apply to contracts which have been excluded from the scope of Directive 93/38/EEC pursuant to Article 8 thereof.


(2) OJ 9.8.1993 L 199/84. Directive as last amended by Commission Directive 2001/78/EC (OJ 29.10.2001 L 285/1).

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State security and secrecy

Exemptions from the application of the Procurement Directive are made for reasons of state security and secrecy, as said in the twenty second recital:

(22) Provision should be made for cases in which it is possible to refrain from applying the measures for coordinating procedures on grounds relating to State security or secrecy, or because specific rules on the awarding of contracts which derive from international agreements, relating to the stationing of troops, or which are specific to international organisations are applicable.

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Procurement Directive 2004/18/EC

A notice to those readers, 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