Space is added to the Title on research and technological development. The EU Treaty of Lisbon picks up some improvements from the Constitutional Treaty: the European research area and the free movement of researchers (fifth freedom).
***
Article 163 TEC
Article 163 TEC (ex Article 130f) sets out the research and technology aims of the European Community (European Union), namely to:
1. strengthen the scientific and technological bases of industry,
2. make industry more competitive internationally and
3. promote other research activities.
The second paragraph of Article 163 TEC presents a rough sketch of activities addressed at businesses, research centres and universities. Small and medium-sized enterprises (SMEs) are indicated specifically among the businesses (undertakings).
Research and technological development is mentioned alongside actions to open up the potential of the internal market (public procurement, common standards and the removal of legal and fiscal obstacles to cooperation).
The third paragraph presents the new concept ‘demonstration projects’, but otherwise it just refers the reader to the following Articles of the Title.
The current Article 163 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/120:
TITLE XVIII
RESEARCH AND TECHNOLOGICAL DEVELOPMENT
Article 163 TEC
1. The Community shall have the objective of strengthening the scientific and technological bases of Community industry and encouraging it to become more competitive at international level, while promoting all the research activities deemed necessary by virtue of other Chapters of this Treaty.
2. For this purpose the Community shall, throughout the Community, encourage undertakings, including small and medium-sized undertakings, research centres and universities in their research and technological development activities of high quality; it shall support their efforts to cooperate with one another, aiming, notably, at enabling undertakings to exploit the internal market potential to the full, in particular through the opening-up of national public contracts, the definition of common standards and the removal of legal and fiscal obstacles to that cooperation.
3. All Community activities under this Treaty in the area of research and technological development, including demonstration projects, shall be decided on and implemented in accordance with the provisions of this title.
***
Original Lisbon Treaty (ToL)
Article 2, point 135 of the Lisbon Treaty amended the Title and point 136 amended Article 163 TEC (OJEU 17.12.2007 C 306/85–86):
RESEARCH AND TECHNOLOGICAL DEVELOPMENT
135) The words ‘AND SPACE’ shall be added to the heading of Title XVIII.
136) Article 163 shall be amended as follows:
(a) paragraph 1 shall be replaced by the following:
‘1. The Union shall have the objective of strengthening its scientific and technological bases by achieving a European research area in which researchers, scientific knowledge and technology circulate freely, and encouraging it to become more competitive, including in its industry, while promoting all the research activities deemed necessary by virtue of other Chapters of the Treaties.’;
(b) in paragraph 2, the words ‘enabling undertakings to exploit the internal market potential
to the full,’ shall be replaced by ‘permitting researchers to cooperate freely across borders
and at enabling undertakings to exploit the internal market potential to the full,’.
***
Renumbering the Treaty of Lisbon (ToL)
The Table of equivalences of the original Treaty of Lisbon tells us that Title XVIII first became Title XVIII with the addition of space in the TFEU (ToL), and renumbered Title XIX Research and technological development and space in the consolidated version.
Article 163 TEC initially became Article 163 TFEU (ToL) before the renumbering of the treaty made it into Article 179 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/217–218).
***
Lisbon Treaty consolidated
Article 179 TFEU
After specific and horizontal amendments the Article 179 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/128–129):
TITLE XIX
RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE
Article 179 TFEU
(ex Article 163 TEC)
1. The Union shall have the objective of strengthening its scientific and technological bases by achieving a European research area in which researchers, scientific knowledge and technology circulate freely, and encouraging it to become more competitive, including in its industry, while promoting all the research activities deemed necessary by virtue of other Chapters of the Treaties.
2. For this purpose the Union shall, throughout the Union, encourage undertakings, including small and medium-sized undertakings, research centres and universities in their research and technological development activities of high quality; it shall support their efforts to cooperate with one another, aiming, notably, at permitting researchers to cooperate freely across borders and at enabling undertakings to exploit the internal market potential to the full, in particular through the opening-up of national public contracts, the definition of common standards and the removal of legal and fiscal obstacles to that cooperation.
3. All Union activities under the Treaties in the area of research and technological development, including demonstration projects, shall be decided on and implemented in accordance with the provisions of this Title.
***
What changes?
We have seen that space was added to the Title, which has been renumbered XIX. This corresponds with the heading of Section 9 in the Constitutional Treaty.
The first paragraph has taken over the substantial part of Article III-248(1) of the Constitution. The European research area and its description as one in which researchers, scientific knowledge and technology circulate freely can be interpreted to enhance the role of science and technology.
The objective of a more competitive (Union or European research area?) is now more general and less tied in with industry alone.
Permitting researchers to cooperate freely across borders adds a new element from Article III-248(2) of the Constitutional Treaty. The European Council has called for this “fifth freedom” – the free movement of researchers – to become a reality.
In my view, the changes mark a positive qualitative step towards recognition of the importance of knowledge and a more ‘global Europe’. Let us leave a dysfunctional EU budget to another year.
***
I wish all the readers of the Grahnlaw blawg a happy, secure and prosperous new year 2009!
Ralf Grahn
Wednesday, 31 December 2008
EU procurement: Threshold amounts for public contracts
Even if the EC (EU) treaty principles of free movement, equal treatment and transparency apply to all public procurement in the internal market, the detailed provisions of the Procurement Directive 2004/18/EC apply to contracts with more significance for the single market and relevant to the WTO Government Procurement Agreement (GPA).
The rough and ready answer has been to devise monetary thresholds for different types of public contracts, with the amounts originally defined in special drawing rights (SDR), but “translated” into euros in the Procurement Directive. These contract thresholds have to be adjusted from time to time to the changing values of the SDRs to comply with the GPA.
***
Revision of the thresholds
The thresholds in euros are set out in Article 7 of the Procurement Directive, based on the system for revision in Article 78. The references to Article 77(2) point to the advisory procedure (Advisory Committee for Public Contracts).
The thresholds are verified (and revised) every two years:
Article 78
Revision of the thresholds
1. The Commission shall verify the thresholds established in Article 7 every two years from the entry into force of this Directive and shall, if necessary, revise them in accordance with the procedure laid down in Article 77(2).
The calculation of the value of these thresholds shall be based on the average daily value of the euro, expressed in SDRs, over the 24 months terminating on the last day of August preceding the revision with effect from 1 January. The value of the thresholds thus revised shall, where necessary, be rounded down to the nearest thousand euro so as to ensure that the thresholds in force provided for by the Agreement, expressed in SDRs, are observed.
2. At the same time as the revision under paragraph 1, the Commission, in accordance with the procedure under Article 77(2), shall align:
(a) the thresholds established in (a) of the first subparagraph of Article 8, in Article 56 and in the first subparagraph of Article 63(1) on the revised threshold applying to public works contracts;
(b) the threshold established in Article 67(1)(a) on the revised threshold applying to public service contracts awarded by the contracting authorities referred to in Annex IV;
(c) the thresholds established in (b) of the first subparagraph of Article 8 and in Article 67(1)(b) and (c) on the revised threshold applying to public service contracts awarded by contracting authorities other than those referred to in Annex IV.
3. The value of the thresholds set pursuant to paragraph 1 in the national currencies of the Member States which are not participating in monetary union is normally to be adjusted every two years from 1 January 2004 onwards. The calculation of such value shall be based on the average daily values of those currencies expressed in euro over the 24 months terminating on the last day of August preceding the revision with effect from 1 January.
4. The revised thresholds referred to in paragraph 1 and their corresponding values in the national currencies referred to in paragraph 3 shall be published by the Commission in the Official Journal of the European Union at the beginning of the month of November following their revision.
***
Revised thresholds from 2008
The thresholds were revised by Commission Regulation (EC) No 1422/2007 of 4 December 2007 amending Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council in respect of their application thresholds for the procedures for the award of contracts (OJEU 5.12.2007 L 317/34).
The Regulation entered into force on 1 January 2008.
***
Amended Procurement Directive
Based on Commission Regulation 1422/2007, Article 7 of the Procurement Directive 2004/18/EC appears like this in the consolidated version (of 15 September 2008):
CHAPTER II
Scope
S e c t i o n 1
Thresholds
Article 7
Threshold amounts for public contracts
This Directive shall apply to public contracts which are not excluded in accordance with the exceptions provided for in Articles 10 and 11 and Articles 12 to 18 and which have a value exclusive of value-added tax (VAT) estimated to be equal to or greater than the following thresholds:
(a) EUR 133 000 for public supply and service contracts others than those covered by point (b), third indent, awarded by contracting authorities which are listed as central government authorities in Annex IV; in the case of public supply contracts awarded by contracting authorities operating in the field of defence, this shall apply only to contracts involving products covered by Annex V;
(b) EUR 206 000
— for public supply and service contracts awarded by contracting authorities other than those listed in Annex IV,
— for public supply contracts awarded by contracting authorities which are listed in Annex IV and operate in the field of defence, where these contracts involve products not covered by Annex V,
— for public service contracts awarded by any contracting authority in respect of the services listed in Category 8 of Annex IIA, Category 5 telecommunications services the positions of which in the CPV are equivalent to CPC reference Nos 7524, 7525 and 7526 and/or the services listed in Annex II B;
(c) EUR 5 150 000 for public works contracts.
***
Other threshold provisions
The thresholds appear in Article 8(1) on contracts subsidised by more than 50 % by contracting authorities, in Article 56 regarding public works concessions, in Article 63(1) on advertising public works concessions and Article 67(1) on design contests.
In addition, sums of EUR 80 000 and 1 000 000 with regard to lots are mentioned in Article 9(5)(a) and (b).
***
Thresholds in national currencies
The euro thresholds apply directly in the (from tomorrow) 16 eurozone countries, but this still leaves us with the amounts in national currencies of the countries outside the euro area (cf. Article 78(3) above).
The Commission has published the Corresponding values of the thresholds of Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council in the Official Journal of the European Union 13.12.2007 C 301/1. The sums were correct, but the reference bewildering.
After the corrigendum published in the OJEU 20.12.2007 C 310/77, the corresponding values in the national currencies other than euro of the thresholds of Directives 2004/17/EC and 2004/18/EC refer to the Directives as last amended by Commission Regulation (EC) No 1422/2007 (OJEU 5.12.2007 L 317/34).
When reading the Procurement Directive, you can easily find the corresponding value in the desired national currency:
EUR 80 000
BGN New Bulgarian Lev 156 464
CZK Czech Koruna 2 274 915
DKK Danish Krone 596 444
EEK Estonian Kroon 1 251 728
GBP Pound Sterling 54 327
HUF Hungarian forint 20 587 272
LTL Lithuanian Litas 276 224
LVL Latvian Lats 55 792
PLN New Polish Zloty 310 171
RON New Romanian Leu 276 865
SEK Swedish Krona 742 196
SKK Slovak Koruna 2 906 438
EUR 133 000
BGN New Bulgarian Lev 260 121
CZK Czech Koruna 3 782 045
DKK Danish Krone 991 589
EEK Estonian Kroon 2 080 998
GBP Pound Sterling 90 319
HUF Hungarian forint 34 226 339
LTL Lithuanian Litas 459 222
LVL Latvian Lats 92 755
PLN New Polish Zloty 515 660
RON New Romanian Leu 460 289
SEK Swedish Krona 1 233 901
SKK Slovak Koruna 4 831 953
EUR 206 000
BGN New Bulgarian Lev 402 894
CZK Czech Koruna 5 857 905
DKK Danish Krone 1 535 844
EEK Estonian Kroon 3 223 200
GBP Pound Sterling 139 893
HUF Hungarian forint 53 012 225
LTL Lithuanian Litas 711 277
LVL Latvian Lats 143 665
PLN New Polish Zloty 798 691
RON New Romanian Leu 712 928
SEK Swedish Krona 1 911 155
SKK Slovak Koruna 7 484 078
EUR 412 000
BGN New Bulgarian Lev 805 789
CZK Czech Koruna 11 715 810
DKK Danish Krone 3 071 689
EEK Estonian Kroon 6 446 399
GBP Pound Sterling 279 785
HUF Hungarian forint 106 024 450
LTL Lithuanian Litas 1 422 554
LVL Latvian Lats 287 331
PLN New Polish Zloty 1 597 381
RON New Romanian Leu 1 425 856
SEK Swedish Krona 3 822 309
SKK Slovak Koruna 14 968 156
EUR 1 000 000
BGN New Bulgarian Lev 1 955 798
CZK Czech Koruna 28 436 432
DKK Danish Krone 7 455 555
EEK Estonian Kroon 15 646 600
GBP Pound Sterling 679 090
HUF Hungarian forint 257 340 898
LTL Lithuanian Litas 3 452 800
LVL Latvian Lats 697 404
PLN New Polish Zloty 3 877 139
RON New Romanian Leu 3 460 816
SEK Swedish Krona 9 277 450
SKK Slovak Koruna 36 330 475
EUR 5 150 000
BGN New Bulgarian Lev 10 072 362
CZK Czech Koruna 146 447 623
DKK Danish Krone 38 396 109
EEK Estonian Kroon 80 579 990
GBP Pound Sterling 3 497 313
HUF Hungarian forint 1 325 305 627
LTL Lithuanian Litas 17 781 920
LVL Latvian Lats 3 591 633
PLN New Polish Zloty 19 967 267
RON New Romanian Leu 17 823 204
SEK Swedish Krona 47 778 869
SKK Slovak Koruna 187 101 944
***
Comments relevant to the subject are appreciated.
Ralf Grahn
The rough and ready answer has been to devise monetary thresholds for different types of public contracts, with the amounts originally defined in special drawing rights (SDR), but “translated” into euros in the Procurement Directive. These contract thresholds have to be adjusted from time to time to the changing values of the SDRs to comply with the GPA.
***
Revision of the thresholds
The thresholds in euros are set out in Article 7 of the Procurement Directive, based on the system for revision in Article 78. The references to Article 77(2) point to the advisory procedure (Advisory Committee for Public Contracts).
The thresholds are verified (and revised) every two years:
Article 78
Revision of the thresholds
1. The Commission shall verify the thresholds established in Article 7 every two years from the entry into force of this Directive and shall, if necessary, revise them in accordance with the procedure laid down in Article 77(2).
The calculation of the value of these thresholds shall be based on the average daily value of the euro, expressed in SDRs, over the 24 months terminating on the last day of August preceding the revision with effect from 1 January. The value of the thresholds thus revised shall, where necessary, be rounded down to the nearest thousand euro so as to ensure that the thresholds in force provided for by the Agreement, expressed in SDRs, are observed.
2. At the same time as the revision under paragraph 1, the Commission, in accordance with the procedure under Article 77(2), shall align:
(a) the thresholds established in (a) of the first subparagraph of Article 8, in Article 56 and in the first subparagraph of Article 63(1) on the revised threshold applying to public works contracts;
(b) the threshold established in Article 67(1)(a) on the revised threshold applying to public service contracts awarded by the contracting authorities referred to in Annex IV;
(c) the thresholds established in (b) of the first subparagraph of Article 8 and in Article 67(1)(b) and (c) on the revised threshold applying to public service contracts awarded by contracting authorities other than those referred to in Annex IV.
3. The value of the thresholds set pursuant to paragraph 1 in the national currencies of the Member States which are not participating in monetary union is normally to be adjusted every two years from 1 January 2004 onwards. The calculation of such value shall be based on the average daily values of those currencies expressed in euro over the 24 months terminating on the last day of August preceding the revision with effect from 1 January.
4. The revised thresholds referred to in paragraph 1 and their corresponding values in the national currencies referred to in paragraph 3 shall be published by the Commission in the Official Journal of the European Union at the beginning of the month of November following their revision.
***
Revised thresholds from 2008
The thresholds were revised by Commission Regulation (EC) No 1422/2007 of 4 December 2007 amending Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council in respect of their application thresholds for the procedures for the award of contracts (OJEU 5.12.2007 L 317/34).
The Regulation entered into force on 1 January 2008.
***
Amended Procurement Directive
Based on Commission Regulation 1422/2007, Article 7 of the Procurement Directive 2004/18/EC appears like this in the consolidated version (of 15 September 2008):
CHAPTER II
Scope
S e c t i o n 1
Thresholds
Article 7
Threshold amounts for public contracts
This Directive shall apply to public contracts which are not excluded in accordance with the exceptions provided for in Articles 10 and 11 and Articles 12 to 18 and which have a value exclusive of value-added tax (VAT) estimated to be equal to or greater than the following thresholds:
(a) EUR 133 000 for public supply and service contracts others than those covered by point (b), third indent, awarded by contracting authorities which are listed as central government authorities in Annex IV; in the case of public supply contracts awarded by contracting authorities operating in the field of defence, this shall apply only to contracts involving products covered by Annex V;
(b) EUR 206 000
— for public supply and service contracts awarded by contracting authorities other than those listed in Annex IV,
— for public supply contracts awarded by contracting authorities which are listed in Annex IV and operate in the field of defence, where these contracts involve products not covered by Annex V,
— for public service contracts awarded by any contracting authority in respect of the services listed in Category 8 of Annex IIA, Category 5 telecommunications services the positions of which in the CPV are equivalent to CPC reference Nos 7524, 7525 and 7526 and/or the services listed in Annex II B;
(c) EUR 5 150 000 for public works contracts.
***
Other threshold provisions
The thresholds appear in Article 8(1) on contracts subsidised by more than 50 % by contracting authorities, in Article 56 regarding public works concessions, in Article 63(1) on advertising public works concessions and Article 67(1) on design contests.
In addition, sums of EUR 80 000 and 1 000 000 with regard to lots are mentioned in Article 9(5)(a) and (b).
***
Thresholds in national currencies
The euro thresholds apply directly in the (from tomorrow) 16 eurozone countries, but this still leaves us with the amounts in national currencies of the countries outside the euro area (cf. Article 78(3) above).
The Commission has published the Corresponding values of the thresholds of Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council in the Official Journal of the European Union 13.12.2007 C 301/1. The sums were correct, but the reference bewildering.
After the corrigendum published in the OJEU 20.12.2007 C 310/77, the corresponding values in the national currencies other than euro of the thresholds of Directives 2004/17/EC and 2004/18/EC refer to the Directives as last amended by Commission Regulation (EC) No 1422/2007 (OJEU 5.12.2007 L 317/34).
When reading the Procurement Directive, you can easily find the corresponding value in the desired national currency:
EUR 80 000
BGN New Bulgarian Lev 156 464
CZK Czech Koruna 2 274 915
DKK Danish Krone 596 444
EEK Estonian Kroon 1 251 728
GBP Pound Sterling 54 327
HUF Hungarian forint 20 587 272
LTL Lithuanian Litas 276 224
LVL Latvian Lats 55 792
PLN New Polish Zloty 310 171
RON New Romanian Leu 276 865
SEK Swedish Krona 742 196
SKK Slovak Koruna 2 906 438
EUR 133 000
BGN New Bulgarian Lev 260 121
CZK Czech Koruna 3 782 045
DKK Danish Krone 991 589
EEK Estonian Kroon 2 080 998
GBP Pound Sterling 90 319
HUF Hungarian forint 34 226 339
LTL Lithuanian Litas 459 222
LVL Latvian Lats 92 755
PLN New Polish Zloty 515 660
RON New Romanian Leu 460 289
SEK Swedish Krona 1 233 901
SKK Slovak Koruna 4 831 953
EUR 206 000
BGN New Bulgarian Lev 402 894
CZK Czech Koruna 5 857 905
DKK Danish Krone 1 535 844
EEK Estonian Kroon 3 223 200
GBP Pound Sterling 139 893
HUF Hungarian forint 53 012 225
LTL Lithuanian Litas 711 277
LVL Latvian Lats 143 665
PLN New Polish Zloty 798 691
RON New Romanian Leu 712 928
SEK Swedish Krona 1 911 155
SKK Slovak Koruna 7 484 078
EUR 412 000
BGN New Bulgarian Lev 805 789
CZK Czech Koruna 11 715 810
DKK Danish Krone 3 071 689
EEK Estonian Kroon 6 446 399
GBP Pound Sterling 279 785
HUF Hungarian forint 106 024 450
LTL Lithuanian Litas 1 422 554
LVL Latvian Lats 287 331
PLN New Polish Zloty 1 597 381
RON New Romanian Leu 1 425 856
SEK Swedish Krona 3 822 309
SKK Slovak Koruna 14 968 156
EUR 1 000 000
BGN New Bulgarian Lev 1 955 798
CZK Czech Koruna 28 436 432
DKK Danish Krone 7 455 555
EEK Estonian Kroon 15 646 600
GBP Pound Sterling 679 090
HUF Hungarian forint 257 340 898
LTL Lithuanian Litas 3 452 800
LVL Latvian Lats 697 404
PLN New Polish Zloty 3 877 139
RON New Romanian Leu 3 460 816
SEK Swedish Krona 9 277 450
SKK Slovak Koruna 36 330 475
EUR 5 150 000
BGN New Bulgarian Lev 10 072 362
CZK Czech Koruna 146 447 623
DKK Danish Krone 38 396 109
EEK Estonian Kroon 80 579 990
GBP Pound Sterling 3 497 313
HUF Hungarian forint 1 325 305 627
LTL Lithuanian Litas 17 781 920
LVL Latvian Lats 3 591 633
PLN New Polish Zloty 19 967 267
RON New Romanian Leu 17 823 204
SEK Swedish Krona 47 778 869
SKK Slovak Koruna 187 101 944
***
Comments relevant to the subject are appreciated.
Ralf Grahn
Tuesday, 30 December 2008
EU Law: Legal base Structural Funds and Cohesion Fund
Secondary legislation of the Structural Funds and the Cohesion Fund of the European Community (European Union) is based on two Articles of the Treaty establishing the European Community.
We look at the current Treaty establishing the European Community and the Lisbon Treaty (Treaty on the Functioning of the European Union) before presenting references to the legal acts, which govern the second largest tranche of EU spending (hopefully investment).
Both projects and administrators have a tough job to fulfil all the requirements of the detailed provisions.
As always, readers are invited to share their experiences in the comments section.
***
Articles 161 and 162 TEC
The two Articles strive to accomplish a certain hierarchy of norms.
According to Article 161 TEC (ex Article 130d), the Council shall define the tasks, priority objectives and the organisation of the Structural Funds, which may involve grouping the Funds.
The Council, acting by the same procedure, shall also define the general rules applicable to them and the provisions necessary to ensure their effectiveness and the coordination of the Funds with one another and with the other existing Financial Instruments.
Article 161(2) TEC serves as the legal base for secondary legislation on the Cohesion Fund, aimed at the fields of environment and trans-European networks in the area of transport infrastructure (excluding energy and telecommunications networks).
The third paragraph of Article 161 TEC is now redundant.
Article 162 TEC (ex Article 130e) refers to implementing decisions relating to the European Regional Development Fund (ERDF), which indicates a difference between the general and coordinating norms issued pursuant to Article 161 TEC and these implementing decisions concerning the ERDF. It is less than clear where the more general norms end and where the more specific norms start.
Without distinguishing between more general and coordinating norms compared to implementing ‘decisions’, the second paragraph of Article 162 TEC states that there are separate legal bases for
· Article 37 TEC for the European Agricultural Guidance and Guarantee Fund, Guidance Section (now defunct or more precisely replaced and relocated)
· Article 148 TEC for the European Social Fund
.
Two things appear confusing for a reader. Article 159 TEC mentioned three Structural Funds, but they did not include the Cohesion Fund. Thus, the Cohesion Fund would seem to belong to the category ‘other financial existing instruments’, but the Cohesion Fund is actually treated as a structural fund.
On the other hand, the first of the three structural funds mentioned by Article 159 TEC was the European Agricultural Guidance and Guarantee Fund, Guidance Section (in addition to the European Social Fund and the European Regional Development Fund), but the European Agricultural Guidance and Guarantee Fund, Guidance Section has been replaced by the European Agricultural Fund for Rural Development (EAFRD) and fully integrated into the common agricultural policy (CAP).
Anyway, here are the current Articles 161 and 162 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/119–120:
(TITLE XVII
ECONOMIC AND SOCIAL COHESION)
Article 161 TEC
Without prejudice to Article 162, the Council, acting unanimously on a proposal from the Commission and after obtaining the assent of the European Parliament and consulting the Economic and Social Committee and the Committee of the Regions, shall define the tasks, priority objectives and the organisation of the Structural Funds, which may involve grouping the Funds. The Council, acting by the same procedure, shall also define the general rules applicable to them and the provisions necessary to ensure their effectiveness and the coordination of the Funds with one another and with the other existing Financial Instruments.
A Cohesion Fund set up by the Council in accordance with the same procedure shall provide a financial contribution to projects in the fields of environment and trans-European networks in the area of transport infrastructure.
From 1 January 2007, the Council shall act by a qualified majority on a proposal from the Commission after obtaining the assent of the European Parliament and after consulting the Economic and Social Committee and the Committee of the Regions if, by that date, the multiannual financial perspective applicable from 1 January 2007 and the Interinstitutional Agreement relating thereto have been adopted. If such is not the case, the procedure laid down by this paragraph shall apply from the date of their adoption.
Article 162 TEC
Implementing decisions relating to the European Regional Development Fund shall be taken by the Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions.
With regard to the European Agricultural Guidance and Guarantee Fund, Guidance Section, and the European Social Fund, Articles 37 and 148 respectively shall continue to apply.
***
Original Lisbon Treaty (ToL)
Article 2, points 133 and 134 of the Lisbon Treaty amended Articles 161 and 162 TEC respectively 161 (OJEU 17.12.2007 C 306/85):
133) Article 161 shall be amended as follows:
(a) at the beginning of the first paragraph, first sentence, the words ‘Without prejudice to Article 162, the Council, acting unanimously on a proposal from the Commission and after obtaining the assent of the European Parliament’ shall be replaced by ‘Without prejudice to Article 162, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure’. In the second sentence the words ‘The Council, acting by the same procedure, shall also define’ shall be deleted at the beginning and the words ‘shall also be defined by the same procedure’ added at the end;
(b) in the second paragraph the words ‘by the Council’ shall be deleted;
(c) the third paragraph shall be deleted.
134) In Article 162, first paragraph, the words ‘implementing decisions’ shall be replaced by ‘implementing regulations’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XVII first became Title XVII with the addition of territorial in the TFEU (ToL), and renumbered Title XVIII Economic, social and territorial cohesion in the consolidated version.
Article 161 TEC initially became Article 161 TFEU (ToL) before the renumbering of the treaty made it into Article 177 TFEU in the consolidated version.
Article 162 TEC initially became Article 162 TFEU (ToL) before the renumbering of the treaty made it into Article 178 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 177 and 178 TFEU
After specific and horizontal amendments the Articles 177 and 178 TFEU appear like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/128):
(TITLE XVIII
ECONOMIC, SOCIAL AND TERRITORIAL COHESION)
Article 177 TFEU
(ex Article 161 TEC)
Without prejudice to Article 178, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure and consulting the Economic and Social Committee and the Committee of the Regions, shall define the tasks, priority objectives and the organisation of the Structural Funds, which may involve grouping the Funds. The general rules applicable to them and the provisions necessary to ensure their effectiveness and the coordination of the Funds with one another and with the other existing Financial Instruments shall also be defined by the same procedure.
A Cohesion Fund set up in accordance with the same procedure shall provide a financial contribution to projects in the fields of environment and trans-European networks in the area of transport infrastructure.
Article 178 TFEU
(ex Article 162 TEC)
Implementing regulations relating to the European Regional Development Fund shall be taken by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.
With regard to the European Agricultural Guidance and Guarantee Fund, Guidance Section, and the
European Social Fund, Articles 43 and 164 respectively shall continue to apply.
***
Secondary legislation 2007–2013
Horizontal Regulations
General Regulation 1083/2006
General rules concerning the structural funds are set out in Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJEU 31.7.2006 L 210/25).
Article 161 TEC is cited as the principal legal base.
The 73 Recitals of Regulation 1083/2006 offer an overview of the aims of the structural funds from 2007 to 2013 and they highlight the changes compared to the previous programming period (2000–2006).
The General Regulation refers to the European Regional Development Fund (ERDF) and to the European Social Fund (ESF) and it integrates the Cohesion Fund ‘into the programming of structural assistance in the interest of greater coherence in the intervention of the various Funds’.
Rural development – through the European Agricultural Fund for Rural Development (EARDF) – and development of the fisheries sector – the European Fisheries Fund (EFF) – was integrated into the common agricultural policy and the common fisheries policy respectively.
In other words, there are differences between the classification (and naming) of the structural funds between the treaty level and the secondary (regulation) level, and this partial lack of similarity would persist under the Lisbon Treaty.
The detailed provisions of the General Regulation are essential for a deeper understanding of the main principles and how the structural funds work.
The Regulations together with a few corrigenda are available at:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/newregl0713_en.htm
A consolidated version (1 January 2007) of the General Regulation 1083/2006 is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2006R1083:20070101:EN:PDF
***
Implementing Regulation 1828/2006
The Implementing Regulation is clearly at a lower hierarchical level than the General Regulation and it is based on it and the ERDF Regulation, but it is horizontal in character.
The Commission has issued and implementing Regulation 1828/2006 with detailed provisions relating to the General Regulation 1083/2006 and the ERDF Regulation 1080/2006.
Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund (OJEU 27.12.2006 L 371/1) is available here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/fsfc/ce_1828(2006)_en.pdf
***
Cohesion policy guide
This could be called a horizontal aid, which includes sectoral Regulations.
For people working with the administration of structural funds or with projects co-financed by one of the funds, the Commission’s guide with commentaries and official texts is a very useful resource.
The 164 page publication Cohesion policy 2007–13 Commentaries and official texts is available here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/publications/guide2007_en.pdf
(Two caveats, nearly two years after the start of the 2007 to 2013 programme period: Look above for the remark on corrigenda concerning Regulations and notice that the Cohesion policy guide does not contain the Commission’s Implementing Regulation.)
***
Vertical Regulations
In addition to the reference to the Cohesion Guide, here are a few pointers to vertical or sector Regulations.
***
ERDF Regulation 1080/2006
The ERDF Regulation, officially Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006 on the European Regional Development Fund and repealing Regulation (EC) No 1783/1999 (OJEU 31.7.2006 L 210/1), can be found here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/feder/ce_1080(2006)_en.pdf
***
European Social Fund (ESF)
The ESF Regulation 1081/2006 is primarily based on Article 148 TEC.
Regulation (EC) No 1081/2006 of the European Parliament and of the Council of 5 July 2006 on the European Social Fund and repealing Regulation (EC) No 1784/1999 (OJEU 31.7.2006 L 210/12) is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0012:0018:EN:PDF
***
Cohesion Fund
As we have seen, the Cohesion Fund is in practice treated as a structural fund. The Regulation is based on Article 161(2) TEC.
Council Regulation (EC) No 1084/2006 of 11 July 2006 establishing a Cohesion Fund and repealing Regulation (EC) No 1164/94 (OJEU 31.7.2006 L 210/79) is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0079:0081:EN:PDF
***
European grouping of territorial cooperation (EGTC)
Regulation (EC) No 1082/2006 of the European Parliament and of the Council of 5 July 2006 on a European grouping of territorial cooperation (EGTC) (OJEU 31.7.2006 L 210/19) is based on Article 159(3) TEC (referring to specific actions).
The EGTC is an entity for cross-border cooperation, and the EGTC Regulation can be called a legal instrument. It is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0019:0024:EN:PDF
***
Rural development and fisheries
EAFRD Rural development
Rural development and fisheries are fully incorporated into the common agricultural policy and the common fisheries policy. In my understanding they fall outside the scope of the structural funds, despite Article 159 TEC (and Article 175 TFEU) referring to the European Agricultural Guidance and Guarantee Fund, Guidance Section, as one of the structural funds.
But they are important in their own spheres, so here are references to the current Regulations.
Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJEU 21.2.2005 L 316/10) is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:277:0001:0040:EN:PDF
EFF Fisheries
Council Regulation (EC) No 1198/2006 of 27 July 2006 on the European Fisheries Fund (OJEU 15.8.2006 L 223/1) is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:223:0001:0044:EN:PDF
Ralf Grahn
We look at the current Treaty establishing the European Community and the Lisbon Treaty (Treaty on the Functioning of the European Union) before presenting references to the legal acts, which govern the second largest tranche of EU spending (hopefully investment).
Both projects and administrators have a tough job to fulfil all the requirements of the detailed provisions.
As always, readers are invited to share their experiences in the comments section.
***
Articles 161 and 162 TEC
The two Articles strive to accomplish a certain hierarchy of norms.
According to Article 161 TEC (ex Article 130d), the Council shall define the tasks, priority objectives and the organisation of the Structural Funds, which may involve grouping the Funds.
The Council, acting by the same procedure, shall also define the general rules applicable to them and the provisions necessary to ensure their effectiveness and the coordination of the Funds with one another and with the other existing Financial Instruments.
Article 161(2) TEC serves as the legal base for secondary legislation on the Cohesion Fund, aimed at the fields of environment and trans-European networks in the area of transport infrastructure (excluding energy and telecommunications networks).
The third paragraph of Article 161 TEC is now redundant.
Article 162 TEC (ex Article 130e) refers to implementing decisions relating to the European Regional Development Fund (ERDF), which indicates a difference between the general and coordinating norms issued pursuant to Article 161 TEC and these implementing decisions concerning the ERDF. It is less than clear where the more general norms end and where the more specific norms start.
Without distinguishing between more general and coordinating norms compared to implementing ‘decisions’, the second paragraph of Article 162 TEC states that there are separate legal bases for
· Article 37 TEC for the European Agricultural Guidance and Guarantee Fund, Guidance Section (now defunct or more precisely replaced and relocated)
· Article 148 TEC for the European Social Fund
.
Two things appear confusing for a reader. Article 159 TEC mentioned three Structural Funds, but they did not include the Cohesion Fund. Thus, the Cohesion Fund would seem to belong to the category ‘other financial existing instruments’, but the Cohesion Fund is actually treated as a structural fund.
On the other hand, the first of the three structural funds mentioned by Article 159 TEC was the European Agricultural Guidance and Guarantee Fund, Guidance Section (in addition to the European Social Fund and the European Regional Development Fund), but the European Agricultural Guidance and Guarantee Fund, Guidance Section has been replaced by the European Agricultural Fund for Rural Development (EAFRD) and fully integrated into the common agricultural policy (CAP).
Anyway, here are the current Articles 161 and 162 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/119–120:
(TITLE XVII
ECONOMIC AND SOCIAL COHESION)
Article 161 TEC
Without prejudice to Article 162, the Council, acting unanimously on a proposal from the Commission and after obtaining the assent of the European Parliament and consulting the Economic and Social Committee and the Committee of the Regions, shall define the tasks, priority objectives and the organisation of the Structural Funds, which may involve grouping the Funds. The Council, acting by the same procedure, shall also define the general rules applicable to them and the provisions necessary to ensure their effectiveness and the coordination of the Funds with one another and with the other existing Financial Instruments.
A Cohesion Fund set up by the Council in accordance with the same procedure shall provide a financial contribution to projects in the fields of environment and trans-European networks in the area of transport infrastructure.
From 1 January 2007, the Council shall act by a qualified majority on a proposal from the Commission after obtaining the assent of the European Parliament and after consulting the Economic and Social Committee and the Committee of the Regions if, by that date, the multiannual financial perspective applicable from 1 January 2007 and the Interinstitutional Agreement relating thereto have been adopted. If such is not the case, the procedure laid down by this paragraph shall apply from the date of their adoption.
Article 162 TEC
Implementing decisions relating to the European Regional Development Fund shall be taken by the Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions.
With regard to the European Agricultural Guidance and Guarantee Fund, Guidance Section, and the European Social Fund, Articles 37 and 148 respectively shall continue to apply.
***
Original Lisbon Treaty (ToL)
Article 2, points 133 and 134 of the Lisbon Treaty amended Articles 161 and 162 TEC respectively 161 (OJEU 17.12.2007 C 306/85):
133) Article 161 shall be amended as follows:
(a) at the beginning of the first paragraph, first sentence, the words ‘Without prejudice to Article 162, the Council, acting unanimously on a proposal from the Commission and after obtaining the assent of the European Parliament’ shall be replaced by ‘Without prejudice to Article 162, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure’. In the second sentence the words ‘The Council, acting by the same procedure, shall also define’ shall be deleted at the beginning and the words ‘shall also be defined by the same procedure’ added at the end;
(b) in the second paragraph the words ‘by the Council’ shall be deleted;
(c) the third paragraph shall be deleted.
134) In Article 162, first paragraph, the words ‘implementing decisions’ shall be replaced by ‘implementing regulations’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XVII first became Title XVII with the addition of territorial in the TFEU (ToL), and renumbered Title XVIII Economic, social and territorial cohesion in the consolidated version.
Article 161 TEC initially became Article 161 TFEU (ToL) before the renumbering of the treaty made it into Article 177 TFEU in the consolidated version.
Article 162 TEC initially became Article 162 TFEU (ToL) before the renumbering of the treaty made it into Article 178 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 177 and 178 TFEU
After specific and horizontal amendments the Articles 177 and 178 TFEU appear like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/128):
(TITLE XVIII
ECONOMIC, SOCIAL AND TERRITORIAL COHESION)
Article 177 TFEU
(ex Article 161 TEC)
Without prejudice to Article 178, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure and consulting the Economic and Social Committee and the Committee of the Regions, shall define the tasks, priority objectives and the organisation of the Structural Funds, which may involve grouping the Funds. The general rules applicable to them and the provisions necessary to ensure their effectiveness and the coordination of the Funds with one another and with the other existing Financial Instruments shall also be defined by the same procedure.
A Cohesion Fund set up in accordance with the same procedure shall provide a financial contribution to projects in the fields of environment and trans-European networks in the area of transport infrastructure.
Article 178 TFEU
(ex Article 162 TEC)
Implementing regulations relating to the European Regional Development Fund shall be taken by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.
With regard to the European Agricultural Guidance and Guarantee Fund, Guidance Section, and the
European Social Fund, Articles 43 and 164 respectively shall continue to apply.
***
Secondary legislation 2007–2013
Horizontal Regulations
General Regulation 1083/2006
General rules concerning the structural funds are set out in Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJEU 31.7.2006 L 210/25).
Article 161 TEC is cited as the principal legal base.
The 73 Recitals of Regulation 1083/2006 offer an overview of the aims of the structural funds from 2007 to 2013 and they highlight the changes compared to the previous programming period (2000–2006).
The General Regulation refers to the European Regional Development Fund (ERDF) and to the European Social Fund (ESF) and it integrates the Cohesion Fund ‘into the programming of structural assistance in the interest of greater coherence in the intervention of the various Funds’.
Rural development – through the European Agricultural Fund for Rural Development (EARDF) – and development of the fisheries sector – the European Fisheries Fund (EFF) – was integrated into the common agricultural policy and the common fisheries policy respectively.
In other words, there are differences between the classification (and naming) of the structural funds between the treaty level and the secondary (regulation) level, and this partial lack of similarity would persist under the Lisbon Treaty.
The detailed provisions of the General Regulation are essential for a deeper understanding of the main principles and how the structural funds work.
The Regulations together with a few corrigenda are available at:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/newregl0713_en.htm
A consolidated version (1 January 2007) of the General Regulation 1083/2006 is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2006R1083:20070101:EN:PDF
***
Implementing Regulation 1828/2006
The Implementing Regulation is clearly at a lower hierarchical level than the General Regulation and it is based on it and the ERDF Regulation, but it is horizontal in character.
The Commission has issued and implementing Regulation 1828/2006 with detailed provisions relating to the General Regulation 1083/2006 and the ERDF Regulation 1080/2006.
Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund (OJEU 27.12.2006 L 371/1) is available here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/fsfc/ce_1828(2006)_en.pdf
***
Cohesion policy guide
This could be called a horizontal aid, which includes sectoral Regulations.
For people working with the administration of structural funds or with projects co-financed by one of the funds, the Commission’s guide with commentaries and official texts is a very useful resource.
The 164 page publication Cohesion policy 2007–13 Commentaries and official texts is available here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/publications/guide2007_en.pdf
(Two caveats, nearly two years after the start of the 2007 to 2013 programme period: Look above for the remark on corrigenda concerning Regulations and notice that the Cohesion policy guide does not contain the Commission’s Implementing Regulation.)
***
Vertical Regulations
In addition to the reference to the Cohesion Guide, here are a few pointers to vertical or sector Regulations.
***
ERDF Regulation 1080/2006
The ERDF Regulation, officially Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006 on the European Regional Development Fund and repealing Regulation (EC) No 1783/1999 (OJEU 31.7.2006 L 210/1), can be found here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/feder/ce_1080(2006)_en.pdf
***
European Social Fund (ESF)
The ESF Regulation 1081/2006 is primarily based on Article 148 TEC.
Regulation (EC) No 1081/2006 of the European Parliament and of the Council of 5 July 2006 on the European Social Fund and repealing Regulation (EC) No 1784/1999 (OJEU 31.7.2006 L 210/12) is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0012:0018:EN:PDF
***
Cohesion Fund
As we have seen, the Cohesion Fund is in practice treated as a structural fund. The Regulation is based on Article 161(2) TEC.
Council Regulation (EC) No 1084/2006 of 11 July 2006 establishing a Cohesion Fund and repealing Regulation (EC) No 1164/94 (OJEU 31.7.2006 L 210/79) is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0079:0081:EN:PDF
***
European grouping of territorial cooperation (EGTC)
Regulation (EC) No 1082/2006 of the European Parliament and of the Council of 5 July 2006 on a European grouping of territorial cooperation (EGTC) (OJEU 31.7.2006 L 210/19) is based on Article 159(3) TEC (referring to specific actions).
The EGTC is an entity for cross-border cooperation, and the EGTC Regulation can be called a legal instrument. It is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0019:0024:EN:PDF
***
Rural development and fisheries
EAFRD Rural development
Rural development and fisheries are fully incorporated into the common agricultural policy and the common fisheries policy. In my understanding they fall outside the scope of the structural funds, despite Article 159 TEC (and Article 175 TFEU) referring to the European Agricultural Guidance and Guarantee Fund, Guidance Section, as one of the structural funds.
But they are important in their own spheres, so here are references to the current Regulations.
Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJEU 21.2.2005 L 316/10) is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:277:0001:0040:EN:PDF
EFF Fisheries
Council Regulation (EC) No 1198/2006 of 27 July 2006 on the European Fisheries Fund (OJEU 15.8.2006 L 223/1) is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:223:0001:0044:EN:PDF
Ralf Grahn
EU procurement: Confidentiality
Trade secrets and other confidential information pose delicate problems in public procurement procedures geared towards undistorted competition, equal treatment, non-discrimination and transparency.
The European Community (European Union) Procurement Directive 2004/18/EC acknowledges the confidentiality of tenders, initially and possibly later.
Confidentiality, trade secrets, transparency, secrecy, disclosure and data security are some of the subjects briefly evoked in this blog post on obligations of contracting authorities.
***
Article 6
Under Title II Rules on public contracts, Chapter I General provisions, Article 6 of the Procurement Directive 2004/18/EC places on the contracting authority an obligation to respect the confidentiality of information from economic operators:
Article 6
Confidentiality
Without prejudice to the provisions of this Directive, in particular those concerning the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out in Articles 35(4) and 41, and in accordance with the national law to which the contracting authority is subject, the contracting authority shall not disclose information forwarded to it by economic operators which they have designated as confidential; such information includes, in particular, technical or trade secrets and the confidential aspects of tenders.
***
Transparency and secrecy
One of the principal aims of the Procurement Directive 2004/18/EC (or Classic Directive) is to ensure open, transparent and non-discriminatory award procedures, including reporting requirements and remedies. More generally, there is a body of law pertaining to freedom of information concerning public bodies.
On the other hand, tenders before they are opened and trade secrets beyond that oblige contracting authorities to respect the confidentiality of information communicated by tenderers.
Article 6 of the Procurement Directive tenderers have to designate information they regard as confidential. This does not mean a ‘carte blanche’ to withhold any information, since this would infringe upon the transparency of the award and the remedies available to unsuccessful competitors.
After indicating these conflicting interests and the respect for confidentiality, the Procurement Directive refers the detailed solutions to be sought in accordance with the national law to which the contracting authority is subject.
While the relevant national law has to be studied in each case, the problems encountered have many similarities across jurisdictions.
One example of a discussion of transparency versus secrecy is presented in Appendix III of the Irish guide Notifying Tenderers and Disclosure of Information, where the Information Commissioner’s views are summarised:
Appendix III
Summary of the Information Commissioner views regarding disclosure of records
relating to a tender competition given at conclusion of a ruling under Section 34(2)m of
the Freedom of Information Act 1997 in Case 98188.
· First, public bodies are obliged to treat all tenders as confidential at least until the time that the contract is awarded.
· Second, tender prices may be trade secrets during the currency of a tender competition, but only in exceptional circumstances, would historic prices remain trade secrets, As a general proposition, however, I accept that tender documents which “would reveal detailed information about a company's current pricing strategy” or about otherwise unavailable product information could fall within the scope of Section 27(I)(a) of the FOI Act even following the conclusion of a tender competition.
· Third, tender prices generally qualify as commercially sensitive information for the purposes of Sections 27(I)(b) and (c) of the FOI Act, Depending on the circumstances, product information can also be considered commercially sensitive under Section 27(I)(b).
· Fourth, when a contract is awarded, successful tender information loses confidentiality with respect to price and the type and quantity of the goods supplied. The public interest also favours the release of such information, but exceptions may arise (see Telecom Eireann and Mr. Mark Henry, Case Number 98114, to be published (13 Jan 2000).
· Fifth, other successful tender information which is commercially sensitive (for example, details of the internal organisation of a tenderer's business, analysis of the requirements of the public body, or detailed explanations as to how the tenderer proposed to meet these requirements) may remain confidential. Disclosure in the public interest ordinarily would not be required, unless it were necessary to explain the nature of goods or services purchased by the public body.
· Sixth, unsuccessful tender information which is commercially sensitive generally remains confidential after the award of a contract, and the public interest lies in protecting that information from disclosure.
I must stress, however, that no tender-related records are subject to either release or exemption as a class. Therefore each record must be examined on its own merits in light of the relevant circumstances.
***
Notifying Tenderers and Disclosure of Information is available at the Irish Government’s eTenders Public Procurement web site:
http://www.etenders.gov.ie/guides/Guides_show.aspx?id=1122
***
OECD: Integrity in public procurement
The OECD Council has adopted a Recommendation on enhancing integrity in public procurement
[C(2008)105], which evokes some of the challenges related to public procurement. It serves as a reminder of why openness is the norm and secrecy has to be interpreted restrictively.
The October 2008 OECD Recommendation is available at:
http://www.oecd.org/dataoecd/62/24/41549036.pdf
***
Competitive dialogue
The third subparagraph of Article 29(3) of the Procurement Directive 2004/18/EC on the competitive dialogue reminds contracting authorities of the obligation to confidentiality in the context of a procedure where particularly complex contracts are discussed:
Article 29(3) third subparagraph
Contracting authorities may not reveal to the other participants solutions proposed or other confidential information communicated by a candidate participating in the dialogue without his/her agreement.
***
UK OGC/HMT guidance
The competitive dialogue is more prone to confidentiality problems than other award procedures. Again we look at an example of national guidance on problems common in nature.
Competitive Dialogue in 2008 – OGC/HMT joint guidance on using the procedure contains a section Equal Treatment and Commercially Confidential Information with advice to bidders and contracting authorities to agree on which parts of the solutions should be treated as confidential (page 19):
http://www.ogc.gov.uk/documents/OGC_HMT_2008_Guidance_on_Competitive_Dialogue.pdf
***
Information security
One obligation of contracting authorities is secure handling of confidential information (as seen in various provisions of the Procurement Directive). For a discussion of these topics in public (ICT) procurement, you can read the UK OGC Procurement Policy Note: Data Handling Review (Information Note 13/08 – 26 November 2008), especially Annex 2 Information Assurance in Procurement. The Information Note is available here:
http://www.ogc.gov.uk/documents/PPN13_08_Data_Handling.pdf
***
As always, I would appreciate your comments with views or experiences.
Ralf Grahn
The European Community (European Union) Procurement Directive 2004/18/EC acknowledges the confidentiality of tenders, initially and possibly later.
Confidentiality, trade secrets, transparency, secrecy, disclosure and data security are some of the subjects briefly evoked in this blog post on obligations of contracting authorities.
***
Article 6
Under Title II Rules on public contracts, Chapter I General provisions, Article 6 of the Procurement Directive 2004/18/EC places on the contracting authority an obligation to respect the confidentiality of information from economic operators:
Article 6
Confidentiality
Without prejudice to the provisions of this Directive, in particular those concerning the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out in Articles 35(4) and 41, and in accordance with the national law to which the contracting authority is subject, the contracting authority shall not disclose information forwarded to it by economic operators which they have designated as confidential; such information includes, in particular, technical or trade secrets and the confidential aspects of tenders.
***
Transparency and secrecy
One of the principal aims of the Procurement Directive 2004/18/EC (or Classic Directive) is to ensure open, transparent and non-discriminatory award procedures, including reporting requirements and remedies. More generally, there is a body of law pertaining to freedom of information concerning public bodies.
On the other hand, tenders before they are opened and trade secrets beyond that oblige contracting authorities to respect the confidentiality of information communicated by tenderers.
Article 6 of the Procurement Directive tenderers have to designate information they regard as confidential. This does not mean a ‘carte blanche’ to withhold any information, since this would infringe upon the transparency of the award and the remedies available to unsuccessful competitors.
After indicating these conflicting interests and the respect for confidentiality, the Procurement Directive refers the detailed solutions to be sought in accordance with the national law to which the contracting authority is subject.
While the relevant national law has to be studied in each case, the problems encountered have many similarities across jurisdictions.
One example of a discussion of transparency versus secrecy is presented in Appendix III of the Irish guide Notifying Tenderers and Disclosure of Information, where the Information Commissioner’s views are summarised:
Appendix III
Summary of the Information Commissioner views regarding disclosure of records
relating to a tender competition given at conclusion of a ruling under Section 34(2)m of
the Freedom of Information Act 1997 in Case 98188.
· First, public bodies are obliged to treat all tenders as confidential at least until the time that the contract is awarded.
· Second, tender prices may be trade secrets during the currency of a tender competition, but only in exceptional circumstances, would historic prices remain trade secrets, As a general proposition, however, I accept that tender documents which “would reveal detailed information about a company's current pricing strategy” or about otherwise unavailable product information could fall within the scope of Section 27(I)(a) of the FOI Act even following the conclusion of a tender competition.
· Third, tender prices generally qualify as commercially sensitive information for the purposes of Sections 27(I)(b) and (c) of the FOI Act, Depending on the circumstances, product information can also be considered commercially sensitive under Section 27(I)(b).
· Fourth, when a contract is awarded, successful tender information loses confidentiality with respect to price and the type and quantity of the goods supplied. The public interest also favours the release of such information, but exceptions may arise (see Telecom Eireann and Mr. Mark Henry, Case Number 98114, to be published (13 Jan 2000).
· Fifth, other successful tender information which is commercially sensitive (for example, details of the internal organisation of a tenderer's business, analysis of the requirements of the public body, or detailed explanations as to how the tenderer proposed to meet these requirements) may remain confidential. Disclosure in the public interest ordinarily would not be required, unless it were necessary to explain the nature of goods or services purchased by the public body.
· Sixth, unsuccessful tender information which is commercially sensitive generally remains confidential after the award of a contract, and the public interest lies in protecting that information from disclosure.
I must stress, however, that no tender-related records are subject to either release or exemption as a class. Therefore each record must be examined on its own merits in light of the relevant circumstances.
***
Notifying Tenderers and Disclosure of Information is available at the Irish Government’s eTenders Public Procurement web site:
http://www.etenders.gov.ie/guides/Guides_show.aspx?id=1122
***
OECD: Integrity in public procurement
The OECD Council has adopted a Recommendation on enhancing integrity in public procurement
[C(2008)105], which evokes some of the challenges related to public procurement. It serves as a reminder of why openness is the norm and secrecy has to be interpreted restrictively.
The October 2008 OECD Recommendation is available at:
http://www.oecd.org/dataoecd/62/24/41549036.pdf
***
Competitive dialogue
The third subparagraph of Article 29(3) of the Procurement Directive 2004/18/EC on the competitive dialogue reminds contracting authorities of the obligation to confidentiality in the context of a procedure where particularly complex contracts are discussed:
Article 29(3) third subparagraph
Contracting authorities may not reveal to the other participants solutions proposed or other confidential information communicated by a candidate participating in the dialogue without his/her agreement.
***
UK OGC/HMT guidance
The competitive dialogue is more prone to confidentiality problems than other award procedures. Again we look at an example of national guidance on problems common in nature.
Competitive Dialogue in 2008 – OGC/HMT joint guidance on using the procedure contains a section Equal Treatment and Commercially Confidential Information with advice to bidders and contracting authorities to agree on which parts of the solutions should be treated as confidential (page 19):
http://www.ogc.gov.uk/documents/OGC_HMT_2008_Guidance_on_Competitive_Dialogue.pdf
***
Information security
One obligation of contracting authorities is secure handling of confidential information (as seen in various provisions of the Procurement Directive). For a discussion of these topics in public (ICT) procurement, you can read the UK OGC Procurement Policy Note: Data Handling Review (Information Note 13/08 – 26 November 2008), especially Annex 2 Information Assurance in Procurement. The Information Note is available here:
http://www.ogc.gov.uk/documents/PPN13_08_Data_Handling.pdf
***
As always, I would appreciate your comments with views or experiences.
Ralf Grahn
Monday, 29 December 2008
EU Law: European Regional Development Fund (ERDF)
The European Union has nothing resembling a sizable federal budget enabling it to counter an economic recession effectively, but in good times and bad the EU’s structural funds strive to promote economic and social development in regions lagging behind.
In the face of the economic recession, the EU tries to accelerate cohesion spending.
Today we look at the legal framework of the European Regional Development Fund (ERDF).
***
Article 160 TEC
Article 160 TEC (ex Article 130c) sets out the existence of the European Regional Development Fund (ERDF) and its principal aim to help to redress the main regional imbalances in the European Community (European Union).
The ERDF participates in
1) the development and structural adjustment of regions whose development is lagging behind and
2) the conversion of declining industrial regions.
Here is the current Article 160 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/119:
(TITLE XVII
ECONOMIC AND SOCIAL COHESION)
Article 160 TEC
The European Regional Development Fund is intended to help to redress the main regional imbalances in the Community through participation in the development and structural adjustment of regions whose development is lagging behind and in the conversion of declining industrial regions.
***
Original Lisbon Treaty (ToL)
Article 2, point 132 of the Lisbon Treaty amended Article 159 TEC and point 133 Article 161 (OJEU 17.12.2007 C 306/85).
No specific amendment concerned Article 160 TEC.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XVII first became Title XVII with the addition of territorial in the TFEU (ToL), and renumbered Title XVIII Economic, social and territorial cohesion in the consolidated version.
Article 160 TEC initially became Article 160 TFEU (ToL) before the renumbering of the treaty made it into Article 176 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 176 TFEU
The Article has been renumbered. The Community has been replaced by the Union in line with the most common horizontal amendment.
Article 176 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/127):
(TITLE XVIII
ECONOMIC, SOCIAL AND TERRITORIAL COHESION)
Article 176 TFEU
(ex Article 160 TEC)
The European Regional Development Fund is intended to help to redress the main regional imbalances in the Union through participation in the development and structural adjustment of regions whose development is lagging behind and in the conversion of declining industrial regions.
***
European Regional Development Fund (ERDF)
You can access information about the European Regional Development Fund (ERDF) here:
http://ec.europa.eu/regional_policy/funds/feder/index_en.htm
The three regional policy objectives, where the ERDF intervenes are:
· Convergence
· Regional competitiveness and employment
· European territorial cooperation
***
Secondary legislation 2007–2013
General Regulation 1083/2006
General rules concerning the structural funds are set out in Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJEU 31.7.2006 L 210/25).
The 73 Recitals of Regulation 1083/2006 offer an overview of the aims of the structural funds from 2007 to 2013 and they highlight the changes compared to the previous programming period (2000–2006).
The detailed provisions are essential for a deeper understanding of how the structural funds work.
The Regulations together with a few corrigenda are available at:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/newregl0713_en.htm
***
ERDF Regulation 1080/2006
The ERDF Regulation, officially Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006 on the European Regional Development Fund and repealing Regulation (EC) No 1783/1999 (OJEU 31.7.2006 L 210/1), can be found here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/feder/ce_1080(2006)_en.pdf
***
Implementing Regulation 1828/2006
The Commission has issued and implementing Regulation 1828/2006 with detailed provisions relating to the General Regulation 1083/2006 and the ERDF Regulation 1080/2006.
Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund (OJEU 27.12.2006 L 371/1) is available here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/fsfc/ce_1828(2006)_en.pdf
***
Cohesion policy guide
For people working with the administration of structural funds or with projects co-financed by one of the funds, the Commission’s guide with commentaries and official texts is a very useful resource.
The 164 page publication Cohesion policy 2007–13 Commentaries and official texts is available here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/publications/guide2007_en.pdf
(Two caveats, nearly two years after the start of the 2007 to 2013 programme period: Look above for the remark on corrigenda concerning Regulations and notice that the Cohesion policy guide does not contain the Commission’s Implementing Regulation.)
***
Economic crisis and structural funds
For a brief topical look at the structural funds including the ERDF as a part of the European Economic Recovery Plan, you could read the Commission press release Investing in the real economy: Cohesion Policy at centre of Recovery Plan (Brussels, 16 December 2008, IP/08/1983), available here:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1983&format=HTML&aged=0&language=EN&guiLanguage=en
The Commission proposes measures to accelerate spending to counter the downturn.
Ralf Grahn
In the face of the economic recession, the EU tries to accelerate cohesion spending.
Today we look at the legal framework of the European Regional Development Fund (ERDF).
***
Article 160 TEC
Article 160 TEC (ex Article 130c) sets out the existence of the European Regional Development Fund (ERDF) and its principal aim to help to redress the main regional imbalances in the European Community (European Union).
The ERDF participates in
1) the development and structural adjustment of regions whose development is lagging behind and
2) the conversion of declining industrial regions.
Here is the current Article 160 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/119:
(TITLE XVII
ECONOMIC AND SOCIAL COHESION)
Article 160 TEC
The European Regional Development Fund is intended to help to redress the main regional imbalances in the Community through participation in the development and structural adjustment of regions whose development is lagging behind and in the conversion of declining industrial regions.
***
Original Lisbon Treaty (ToL)
Article 2, point 132 of the Lisbon Treaty amended Article 159 TEC and point 133 Article 161 (OJEU 17.12.2007 C 306/85).
No specific amendment concerned Article 160 TEC.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XVII first became Title XVII with the addition of territorial in the TFEU (ToL), and renumbered Title XVIII Economic, social and territorial cohesion in the consolidated version.
Article 160 TEC initially became Article 160 TFEU (ToL) before the renumbering of the treaty made it into Article 176 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 176 TFEU
The Article has been renumbered. The Community has been replaced by the Union in line with the most common horizontal amendment.
Article 176 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/127):
(TITLE XVIII
ECONOMIC, SOCIAL AND TERRITORIAL COHESION)
Article 176 TFEU
(ex Article 160 TEC)
The European Regional Development Fund is intended to help to redress the main regional imbalances in the Union through participation in the development and structural adjustment of regions whose development is lagging behind and in the conversion of declining industrial regions.
***
European Regional Development Fund (ERDF)
You can access information about the European Regional Development Fund (ERDF) here:
http://ec.europa.eu/regional_policy/funds/feder/index_en.htm
The three regional policy objectives, where the ERDF intervenes are:
· Convergence
· Regional competitiveness and employment
· European territorial cooperation
***
Secondary legislation 2007–2013
General Regulation 1083/2006
General rules concerning the structural funds are set out in Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJEU 31.7.2006 L 210/25).
The 73 Recitals of Regulation 1083/2006 offer an overview of the aims of the structural funds from 2007 to 2013 and they highlight the changes compared to the previous programming period (2000–2006).
The detailed provisions are essential for a deeper understanding of how the structural funds work.
The Regulations together with a few corrigenda are available at:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/newregl0713_en.htm
***
ERDF Regulation 1080/2006
The ERDF Regulation, officially Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006 on the European Regional Development Fund and repealing Regulation (EC) No 1783/1999 (OJEU 31.7.2006 L 210/1), can be found here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/feder/ce_1080(2006)_en.pdf
***
Implementing Regulation 1828/2006
The Commission has issued and implementing Regulation 1828/2006 with detailed provisions relating to the General Regulation 1083/2006 and the ERDF Regulation 1080/2006.
Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund (OJEU 27.12.2006 L 371/1) is available here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/fsfc/ce_1828(2006)_en.pdf
***
Cohesion policy guide
For people working with the administration of structural funds or with projects co-financed by one of the funds, the Commission’s guide with commentaries and official texts is a very useful resource.
The 164 page publication Cohesion policy 2007–13 Commentaries and official texts is available here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/publications/guide2007_en.pdf
(Two caveats, nearly two years after the start of the 2007 to 2013 programme period: Look above for the remark on corrigenda concerning Regulations and notice that the Cohesion policy guide does not contain the Commission’s Implementing Regulation.)
***
Economic crisis and structural funds
For a brief topical look at the structural funds including the ERDF as a part of the European Economic Recovery Plan, you could read the Commission press release Investing in the real economy: Cohesion Policy at centre of Recovery Plan (Brussels, 16 December 2008, IP/08/1983), available here:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1983&format=HTML&aged=0&language=EN&guiLanguage=en
The Commission proposes measures to accelerate spending to counter the downturn.
Ralf Grahn
EU procurement: WTO GPA standards
Public procurement within the European Community (European Union) has international dimensions through the plurilateral Agreement on Government Procurement (GPA), negotiated in parallel with the Uruguay Round negotiations leading to the establishment of the World Trade Organisation (WTO).
***
Background on WTO GPA
General information about the Government Procurement Agreement can be found on the WTO’s web page:
http://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm
The GPA entered into force on 1 January 1996. The EC and all the 27 member states of the European Community are bound by the agreement, Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxemburg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom (EU-15) from the beginning, the ten accession countries Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovak Republic and Slovenia since 1 May 2004 and the latest EU-entrants Bulgaria and Romania since 1 January 2007.
The other GPA states are Canada, Hong Kong (China), Iceland, Israel, Japan, Korea, Liechenstein, the Netherlands with respect to Aruba, Norway, Singapore, Switzerland and the United States.
Although the GPA covers only a fraction of the WTO members, it includes many of the most important states in world trade terms. From an EU viewpoint it can be noted that the members of the European Economic Area (EEA), namely Iceland, Liechtenstein and Norway are parties to the GPA, as well as Switzerland surrounded by EU member states.
The WTO offers an overview of the Government Procurement Agreement on:
http://www.wto.org/english/tratop_e/gproc_e/gpa_overview_e.htm
***
European Union and GPA
The European Community approved, among other things, the Government Procurement Agreement by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (published on the Official Journal 23.12.2994 L 336/1).
***
Procurement Directive and GPA
The relationship between the Procurement Directive 2004/18/EC and the WTO Government Procurement Agreement is explained in Directive Recital 7. The Recital refers to the Council Decision and it states that the GPA does not have direct effect.
The Procurement Directive has been drafted with the GPA in mind. The contracting authorities applying the Procurement Directive should therefore be in conformity with the GPA.
What about the opposite? The last sentence of Recital 7 brings a lingering doubt to the fore: What if the GPA is more favourable to tenderers from third countries than the Procurement Directive?
Recital 7 wants to prevent cases of reverse discrimination, stating that the coordinating provisions should guarantee for Community economic operators conditions for participation in public procurement which are just as favourable as those reserved for economic operators of third countries which are signatories to the Agreement:
Recital 7 (WTO GPA)
(7) Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the Agreements reached in the Uruguay Round multilateral negotiations (1986 to 1994), approved in particular the WTO Agreement on Government Procurement, hereinafter referred to as the ‘Agreement’, the aim of which is to establish a multilateral framework of balanced rights and obligations relating to public contracts with a view to achieving the liberalisation and expansion of world trade.
In view of the international rights and commitments devolving on the Community as a result of the acceptance of the Agreement, the arrangements to be applied to tenderers and products from signatory third countries are those defined by the Agreement. This Agreement does not have direct effect. The contracting authorities covered by the Agreement which comply with this Directive and which apply the latter to economic operators of third countries which are signatories to the Agreement should therefore be in conformity with the Agreement. It is also appropriate that those coordinating provisions should guarantee for Community economic operators conditions for participation in public procurement which are just as favourable as those reserved for economic operators of third countries which are signatories to the Agreement.
***
Article 5 Procurement Directive
Article 5 of the Procurement Directive 2004/18/EC sets out the principle mentioned in Recital 7. The conditions between the EC (EU) member states shall be as favourable as with regard to economic operators from third countries under the GPA.
The member states shall consult (if problems occur) within the Advisory Committee for Public Contracts referred to in Article 77 on the measures to be taken:
(TITLE II
RULES ON PUBLIC CONTRACTS
CHAPTER I
General provisions)
Article 5
Conditions relating to agreements concluded within the World Trade Organisation
For the purposes of the award of contracts by contracting authorities, Member States shall apply in their relations conditions as favourable as those which they grant to economic operators of third countries in implementation of the Agreement on Government Procurement (hereinafter referred to as ‘the Agreement’), concluded in the framework of the Uruguay Round multilateral negotiations. Member States shall, to this end, consult one another within the Advisory Committee for Public Contracts referred to in Article 77 on the measures to be taken pursuant to the Agreement.
***
Advisory Committee
Article 77 of the Procurement Directive is the basic provision on the Advisory Committee for Public Contracts:
Article 77
Advisory Committee
1. The Commission shall be assisted by the Advisory Committee for Public Contracts set up by Article 1 of Decision 71/306/EEC (1) (hereinafter referred to as ‘the Committee’).
2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply, in compliance with Article 8 thereof.
3. The Committee shall adopt its rules of procedure.
***
Council Decision 71/306/EEC
The consolidated version (15 January 1977) of Council Decision 71/306/EEC of 26 July 1971 setting up an Advisory Committee for Public Works Contracts (OJ 16.8.1971 L 185/15) is found here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1971D0306:19770115:EN:PDF
Since 1977 the Advisory Committee for Public Works Contracts is known as the Advisory Committee for Public Contracts.
***
Council Decision 1999/468/EC
The consolidated version (23 July 2006) of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 17.7.1999 L 184/23) is found here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1999D0468:20060723:EN:PDF
Article 3 of the Decision sets out the rules concerning the advisory procedure (advisory committee), Article 7 general rules concerning implementing committees and Article 8 refers to implementing measures potentially exceeding the powers of the Commission.
Ralf Grahn
***
Background on WTO GPA
General information about the Government Procurement Agreement can be found on the WTO’s web page:
http://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm
The GPA entered into force on 1 January 1996. The EC and all the 27 member states of the European Community are bound by the agreement, Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxemburg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom (EU-15) from the beginning, the ten accession countries Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovak Republic and Slovenia since 1 May 2004 and the latest EU-entrants Bulgaria and Romania since 1 January 2007.
The other GPA states are Canada, Hong Kong (China), Iceland, Israel, Japan, Korea, Liechenstein, the Netherlands with respect to Aruba, Norway, Singapore, Switzerland and the United States.
Although the GPA covers only a fraction of the WTO members, it includes many of the most important states in world trade terms. From an EU viewpoint it can be noted that the members of the European Economic Area (EEA), namely Iceland, Liechtenstein and Norway are parties to the GPA, as well as Switzerland surrounded by EU member states.
The WTO offers an overview of the Government Procurement Agreement on:
http://www.wto.org/english/tratop_e/gproc_e/gpa_overview_e.htm
***
European Union and GPA
The European Community approved, among other things, the Government Procurement Agreement by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (published on the Official Journal 23.12.2994 L 336/1).
***
Procurement Directive and GPA
The relationship between the Procurement Directive 2004/18/EC and the WTO Government Procurement Agreement is explained in Directive Recital 7. The Recital refers to the Council Decision and it states that the GPA does not have direct effect.
The Procurement Directive has been drafted with the GPA in mind. The contracting authorities applying the Procurement Directive should therefore be in conformity with the GPA.
What about the opposite? The last sentence of Recital 7 brings a lingering doubt to the fore: What if the GPA is more favourable to tenderers from third countries than the Procurement Directive?
Recital 7 wants to prevent cases of reverse discrimination, stating that the coordinating provisions should guarantee for Community economic operators conditions for participation in public procurement which are just as favourable as those reserved for economic operators of third countries which are signatories to the Agreement:
Recital 7 (WTO GPA)
(7) Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the Agreements reached in the Uruguay Round multilateral negotiations (1986 to 1994), approved in particular the WTO Agreement on Government Procurement, hereinafter referred to as the ‘Agreement’, the aim of which is to establish a multilateral framework of balanced rights and obligations relating to public contracts with a view to achieving the liberalisation and expansion of world trade.
In view of the international rights and commitments devolving on the Community as a result of the acceptance of the Agreement, the arrangements to be applied to tenderers and products from signatory third countries are those defined by the Agreement. This Agreement does not have direct effect. The contracting authorities covered by the Agreement which comply with this Directive and which apply the latter to economic operators of third countries which are signatories to the Agreement should therefore be in conformity with the Agreement. It is also appropriate that those coordinating provisions should guarantee for Community economic operators conditions for participation in public procurement which are just as favourable as those reserved for economic operators of third countries which are signatories to the Agreement.
***
Article 5 Procurement Directive
Article 5 of the Procurement Directive 2004/18/EC sets out the principle mentioned in Recital 7. The conditions between the EC (EU) member states shall be as favourable as with regard to economic operators from third countries under the GPA.
The member states shall consult (if problems occur) within the Advisory Committee for Public Contracts referred to in Article 77 on the measures to be taken:
(TITLE II
RULES ON PUBLIC CONTRACTS
CHAPTER I
General provisions)
Article 5
Conditions relating to agreements concluded within the World Trade Organisation
For the purposes of the award of contracts by contracting authorities, Member States shall apply in their relations conditions as favourable as those which they grant to economic operators of third countries in implementation of the Agreement on Government Procurement (hereinafter referred to as ‘the Agreement’), concluded in the framework of the Uruguay Round multilateral negotiations. Member States shall, to this end, consult one another within the Advisory Committee for Public Contracts referred to in Article 77 on the measures to be taken pursuant to the Agreement.
***
Advisory Committee
Article 77 of the Procurement Directive is the basic provision on the Advisory Committee for Public Contracts:
Article 77
Advisory Committee
1. The Commission shall be assisted by the Advisory Committee for Public Contracts set up by Article 1 of Decision 71/306/EEC (1) (hereinafter referred to as ‘the Committee’).
2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply, in compliance with Article 8 thereof.
3. The Committee shall adopt its rules of procedure.
***
Council Decision 71/306/EEC
The consolidated version (15 January 1977) of Council Decision 71/306/EEC of 26 July 1971 setting up an Advisory Committee for Public Works Contracts (OJ 16.8.1971 L 185/15) is found here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1971D0306:19770115:EN:PDF
Since 1977 the Advisory Committee for Public Works Contracts is known as the Advisory Committee for Public Contracts.
***
Council Decision 1999/468/EC
The consolidated version (23 July 2006) of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 17.7.1999 L 184/23) is found here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1999D0468:20060723:EN:PDF
Article 3 of the Decision sets out the rules concerning the advisory procedure (advisory committee), Article 7 general rules concerning implementing committees and Article 8 refers to implementing measures potentially exceeding the powers of the Commission.
Ralf Grahn
Sunday, 28 December 2008
EU Law: Structural Funds
Cohesion may be a concept difficult to understand, but the structural funds and related policy instruments of the European Community (European Union) are readily comprehended in terms of euros.
The resources are managed by the European Commission (Regional policy) and spent or invested in the EU member states.
This blog post offers information about both EU law and policy.
***
Article 159 TEC
Article 159 TEC (ex Article 130a) sets out the means to achieve the strengthening of economic and social cohesion.
The member states are primarily responsible for economic policies, but they have undertaken to coordinate them. Article 159 TEC adds the cohesion objectives to the factors to take into account when conducting and coordinating economic policies.
Article 159 lays down a horizontal requirement to take into account the cohesion objectives in Community actions and policies generally as well as the implementation of the internal market.
The European Community (European Union) supports the achievement of cohesion objectives through the Structural Funds. The following Structural Funds are specifically mentioned:
· European Agricultural Guidance and Guarantee Fund, Guidance Section
· European Social Fund
· European Regional Development Fund
In addition, the first paragraph mentions:
· the European Investment Bank
· the other existing Financial Instruments
The second paragraph of Article 159 TEC sets out an obligation for the Commission to report on economic and social cohesion every three years, if appropriate with proposals.
Other measures can be adopted according to the co-decision procedure.
Here is the current Article 159 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/118–119:
(TITLE XVII
ECONOMIC AND SOCIAL COHESION)
Article 159 TEC
Member States shall conduct their economic policies and shall coordinate them in such a way as, in addition, to attain the objectives set out in Article 158. The formulation and implementation of the Community's policies and actions and the implementation of the internal market shall take into account the objectives set out in Article 158 and shall contribute to their achievement. The Community shall also support the achievement of these objectives by the action it takes through the Structural Funds (European Agricultural Guidance and Guarantee Fund, Guidance Section; European Social Fund; European Regional Development Fund), the European Investment Bank and the other existing Financial Instruments.
The Commission shall submit a report to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions every three years on the progress made towards achieving economic and social cohesion and on the manner in which the various means provided for in this Article have contributed to it. This report shall, if necessary, be accompanied by appropriate proposals.
If specific actions prove necessary outside the Funds and without prejudice to the measures decided upon within the framework of the other Community policies, such actions may be adopted by the Council acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how or if the current treaties are amended.
Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.
Article 2, point 132 of the Lisbon Treaty amended Article 159 TEC (OJEU 17.12.2007 C 306/85):
132) In Article 159, second paragraph, the words ‘economic and social’ shall be replaced by ‘economic, social and territorial’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XVII first became Title XVII with the addition of territorial in the TFEU (ToL), and renumbered Title XVIII Economic, social and territorial cohesion in the consolidated version.
Article 159 TEC initially became Article 159 TFEU (ToL) before the renumbering of the treaty made it into Article 175 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 175 TFEU
Territorial was added to the Title and the preceding Article and consequently to Article 159 TEC. The Article has been renumbered. The Community has been replaced by the Union and the procedure referred to in Article 251 (co-decision) has been renamed the ordinary legislative procedure.
Article 175 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/127):
(TITLE XVIII
ECONOMIC, SOCIAL AND TERRITORIAL COHESION)
Article 175 TFEU
(ex Article 159 TEC)
Member States shall conduct their economic policies and shall coordinate them in such a way as, in addition, to attain the objectives set out in Article 174. The formulation and implementation of the Union's policies and actions and the implementation of the internal market shall take into account the objectives set out in Article 174 and shall contribute to their achievement. The Union shall also support the achievement of these objectives by the action it takes through the Structural Funds (European Agricultural Guidance and Guarantee Fund, Guidance Section; European Social Fund; European Regional Development Fund), the European Investment Bank and the other existing Financial Instruments.
The Commission shall submit a report to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions every three years on the progress made towards achieving economic, social and territorial cohesion and on the manner in which the various means provided for in this Article have contributed to it. This report shall, if necessary, be accompanied by appropriate proposals.
If specific actions prove necessary outside the Funds and without prejudice to the measures decided upon within the framework of the other Union policies, such actions may be adopted by the Council acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.
***
General EU aims
The third subparagraph of Article 3(3) of the amended Treaty on European Union (TEU) states that the EU shall promote economic, social and territorial cohesion, and solidarity among member states.
***
EU powers in general
The powers of the European Union are attributed or conferred by the member states through the treaties (including their aims). The Treaty of Lisbon makes an effort to present the different categories of powers (modestly called competences) in a systematic manner.
The taxonomy of EU competence is set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU: Shared competence
Economic, social and territorial cohesion is mentioned among the competences listed as shared in Article 4 TFEU:
Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Protocol (No 28)
The intergovernmental conference attached a Protocol (No 28) on economic, social and territorial cohesion to the treaties, perhaps indicating a growing willingness to take the capacity of less prosperous (new) member states into account both as contributors to the common coffers and as recipients of funds, when coming long term budgets (fiancial perspectives) are prepared and implemented:
PROTOCOL (No 28)
ON ECONOMIC, SOCIAL AND TERRITORIAL COHESION
THE HIGH CONTRACTING PARTIES,
RECALLING that Article 3 of the Treaty on European Union includes the objective of promoting economic, social and territorial cohesion and solidarity between Member States and that the said cohesion figures among the areas of shared competence of the Union listed in Article 4(2)(c) of the Treaty on the Functioning of the European Union,
RECALLING that the provisions of Part Three, Title XVIII, on economic, social and territorial cohesion as a whole provide the legal basis for consolidating and further developing the Union's action in the field of economic, social and territorial cohesion, including the creation of a new fund,
RECALLING that the provisions of Article 177 of the Treaty on the Functioning of the European Union envisage setting up a Cohesion Fund,
NOTING that the European Investment Bank is lending large and increasing amounts for the benefit of the poorer regions,
NOTING the desire for greater flexibility in the arrangements for allocations from the Structural Funds,
NOTING the desire for modulation of the levels of Union participation in programmes and projects in certain countries,
NOTING the proposal to take greater account of the relative prosperity of Member States in the system of own resources,
REAFFIRM that the promotion of economic, social and territorial cohesion is vital to the full development and enduring success of the Union,
REAFFIRM their conviction that the Structural Funds should continue to play a considerable part in the achievement of Union objectives in the field of cohesion,
REAFFIRM their conviction that the European Investment Bank should continue to devote the majority of its resources to the promotion of economic, social and territorial cohesion, and declare their willingness to review the capital needs of the European Investment Bank as soon as this is necessary for that purpose,
AGREE that the Cohesion Fund will provide Union financial contributions to projects in the fields of environment and trans-European networks in Member States with a per capita GNP of less than 90 % of the Union average which have a programme leading to the fulfilment of the conditions of economic convergence as set out in Article 126,
DECLARE their intention of allowing a greater margin of flexibility in allocating financing from the Structural Funds to specific needs not covered under the present Structural Funds regulations,
DECLARE their willingness to modulate the levels of Union participation in the context of programmes and projects of the Structural Funds, with a view to avoiding excessive increases in budgetary expenditure in the less prosperous Member States,
RECOGNISE the need to monitor regularly the progress made towards achieving economic, social and territorial cohesion and state their willingness to study all necessary measures in this respect,
DECLARE their intention of taking greater account of the contributive capacity of individual Member States in the system of own resources, and of examining means of correcting, for the less prosperous Member States, regressive elements existing in the present own resources system,
AGREE to annex this Protocol to the Treaty on the European Union and the Treaty on the Functioning of the European Union.
***
Structural Funds
Information about the Structural Funds can be found through the web page of the Directorate-General for Regional Policy, stating that in the period 2007-2013, cohesion policy will benefit from 35.7% of the total EU budget or 347.41 billion euros (current prices):
http://ec.europa.eu/regional_policy/policy/fonds/index_en.htm
The key objectives are presented on the web page:
http://ec.europa.eu/regional_policy/policy/object/index_en.htm
***
European Agricultural Guidance and Guarantee Fund, Guidance Section
We turn to the Structural Funds specifically mentioned by Article 159 TEC and Article 175 TFEU. In order of appearance the first one we encounter is the European Agricultural Guidance and Guarantee Fund, Guidance Section.
Instead we find the Directorate-General Agriculture and Rural Development responsible for Rural Development Policy 2007–2013, in other words outside the scope of Structural Funds managed by the Directorate-General Regional Policy.
http://ec.europa.eu/agriculture/rurdev/index_en.htm
Even the consolidated Lisbon Treaty seems to behind the times, when we see that the current legal act has created a fund with a new name:
Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJEU 21.10.2005 L 277/1).
The EAFRD Regulation is found here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:277:0001:0040:EN:PDF
***
Some have argued that structural funds spending is the biggest item on the EU budget, ahead of agriculture, but that would require the “second pillar” of the common agricultural policy (CAP) to be counted as part of the structural funds.
Arguably, during the period 2007–2013 structural measures within the context of rural policy are even more tied to the administration of agricultural policy than previously.
Accordingly, my view is still that agriculture is the greatest expense in the EU budget, ahead of the structural funds, and that this will be the case in 2009.
***
European Social Fund (ESF)
Basic information about the European Social Fund (ESF) can be found here:
http://ec.europa.eu/regional_policy/funds/fse/index_en.htm
The ESF Regulation, officially Regulation (EC) No 1081/2006 of the European Parliament and of the Council of 5 July 2006 on the European Social Fund and repealing Regulation (EC) No 1784/1999 (OJEU 31.7.2006 L 210/12), is available here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/fse/ce_1081(2006)_en.pdf
***
European Regional Development Fund (ERDF)
You can access information about the European Regional Development Fund (ERDF) here:
http://ec.europa.eu/regional_policy/funds/feder/index_en.htm
The ERDF Regulation, officially Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006 on the European Regional Development Fund and repealing Regulation (EC) No 1783/1999 (OJEU 31.7.2006 L 210/1), can be found here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/feder/ce_1080(2006)_en.pdf
***
European Investment Bank
The European Investment Bank (EIB) is mentioned as one of the actors supporting the cohesion objectives.
More information can be found on the web pages of the EIB:
http://www.eib.org/
The latest version of the legal framework of the European Investment Bank, although not in force, is Protocol (No 5) on the statute of the European Investment Bank, annexed to the Lisbon Treaty TEU and TFEU (OJEU 9.5.2007 C 115/251).
***
Cohesion Fund
Among other existing Financial Instruments we find the important Cohesion Fund, designed for the poorer member states. For the 2007-2013 period the Cohesion Fund concerns Bulgaria, Cyprus, the Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania, Malta, Poland, Portugal, Romania, Slovakia and Slovenia. Spain is eligible to a phase-out fund only as its GNI per inhabitant is less than the average of the EU-15.
Introductory information about the Cohesion Fund, important for infrastructure projects and the environment, can be found here:
http://ec.europa.eu/regional_policy/funds/cf/index_en.htm
Council Regulation (EC) No 1084/2006 of 11 July 2006 establishing a Cohesion Fund and repealing Regulation (EC) No 1164/94 (OJEU 31.7.2006 L 210/79) can be found here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/cohesion/ce_1084(2006)_en.pdf
***
European Union Solidarity Fund (EUSF)
The Member States and countries negotiating accession can request aid from the European Union Solidarity Fund (EUSF) in the event of a major natural disaster. Basic information is found here:
http://ec.europa.eu/regional_policy/funds/solidar/solid_en.htm
The legal act setting up the EUSF is Council Regulation (EC) No 2012/2002 of 11 November 2002 establishingthe European Union Solidarity Fund (OJEC 14.11.2002 L 311/3), which is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:311:0003:0008:EN:PDF
***
European Grouping for Territorial Cooperation (EGTC)
According to the Inforegio web page, the EGTC is a new European legal instrument designed to facilitate and promote cross-border, transnational and interregional cooperation. Unlike the structures which governed this kind of cooperation before 2007, the EGTC is a legal entity and as such, will enable regional and local authorities and other public bodies from different member states, to set up cooperation groupings with a legal personality.
Information about this new legal instrument is accessible here:
http://ec.europa.eu/regional_policy/funds/gect/index_en.htm
The establishment of the new legal instrument has required a legal instrument of its own. Regulation (EC) No 1082/2006 of the European Parliament and of the Council of 5 July 2006 on a European grouping of territorial cooperation (EGTC) (OJEU 31.7.2006 L 210/19) is accessible here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/gect/ce_1082(2006)_en.pdf
***
Instrument for Pre-Accession Assistance (IPA)
If we cast our net somewhat wider than the internal cohesion of the European Union, the work can be said to commence in advance with regard to candidate countries and potential candidate countries.
From January 2007 onwards, the Instrument for Pre-Accession Assistance (IPA) replaces a series of European Union programmes and financial instruments for candidate countries or potential candidate countries, namely PHARE, PHARE CBC, ISPA, SAPARD, CARDS and the financial instrument for Turkey.
Information is found here:
http://ec.europa.eu/regional_policy/funds/ipa/index_en.htm
The basic legal instrument is Council Regulation (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for Pre-Accession Assistance (IPA) (OJEU 31.7.2006 L 210/82), available here:
http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_210/l_21020060731en00820093.pdf
Implementing rules have been issued by the Commission, Commission Regulation (EC) No 718/2007 of 12 June 2007 implementing Council Regulation (EC) No 1085/2006 establishing an instrument for pre-accession assistance (IPA) (OJEU 29.7.2007 l 170/1), published here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:170:0001:0066:EN:PDF
***
Financial engineering
The Commission offers a web page on financial engineering with various combinations aiming at promoting development in EU regions:
http://ec.europa.eu/regional_policy/funds/2007/jjj/index_en.htm
Ralf Grahn
The resources are managed by the European Commission (Regional policy) and spent or invested in the EU member states.
This blog post offers information about both EU law and policy.
***
Article 159 TEC
Article 159 TEC (ex Article 130a) sets out the means to achieve the strengthening of economic and social cohesion.
The member states are primarily responsible for economic policies, but they have undertaken to coordinate them. Article 159 TEC adds the cohesion objectives to the factors to take into account when conducting and coordinating economic policies.
Article 159 lays down a horizontal requirement to take into account the cohesion objectives in Community actions and policies generally as well as the implementation of the internal market.
The European Community (European Union) supports the achievement of cohesion objectives through the Structural Funds. The following Structural Funds are specifically mentioned:
· European Agricultural Guidance and Guarantee Fund, Guidance Section
· European Social Fund
· European Regional Development Fund
In addition, the first paragraph mentions:
· the European Investment Bank
· the other existing Financial Instruments
The second paragraph of Article 159 TEC sets out an obligation for the Commission to report on economic and social cohesion every three years, if appropriate with proposals.
Other measures can be adopted according to the co-decision procedure.
Here is the current Article 159 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/118–119:
(TITLE XVII
ECONOMIC AND SOCIAL COHESION)
Article 159 TEC
Member States shall conduct their economic policies and shall coordinate them in such a way as, in addition, to attain the objectives set out in Article 158. The formulation and implementation of the Community's policies and actions and the implementation of the internal market shall take into account the objectives set out in Article 158 and shall contribute to their achievement. The Community shall also support the achievement of these objectives by the action it takes through the Structural Funds (European Agricultural Guidance and Guarantee Fund, Guidance Section; European Social Fund; European Regional Development Fund), the European Investment Bank and the other existing Financial Instruments.
The Commission shall submit a report to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions every three years on the progress made towards achieving economic and social cohesion and on the manner in which the various means provided for in this Article have contributed to it. This report shall, if necessary, be accompanied by appropriate proposals.
If specific actions prove necessary outside the Funds and without prejudice to the measures decided upon within the framework of the other Community policies, such actions may be adopted by the Council acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how or if the current treaties are amended.
Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.
Article 2, point 132 of the Lisbon Treaty amended Article 159 TEC (OJEU 17.12.2007 C 306/85):
132) In Article 159, second paragraph, the words ‘economic and social’ shall be replaced by ‘economic, social and territorial’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XVII first became Title XVII with the addition of territorial in the TFEU (ToL), and renumbered Title XVIII Economic, social and territorial cohesion in the consolidated version.
Article 159 TEC initially became Article 159 TFEU (ToL) before the renumbering of the treaty made it into Article 175 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 175 TFEU
Territorial was added to the Title and the preceding Article and consequently to Article 159 TEC. The Article has been renumbered. The Community has been replaced by the Union and the procedure referred to in Article 251 (co-decision) has been renamed the ordinary legislative procedure.
Article 175 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/127):
(TITLE XVIII
ECONOMIC, SOCIAL AND TERRITORIAL COHESION)
Article 175 TFEU
(ex Article 159 TEC)
Member States shall conduct their economic policies and shall coordinate them in such a way as, in addition, to attain the objectives set out in Article 174. The formulation and implementation of the Union's policies and actions and the implementation of the internal market shall take into account the objectives set out in Article 174 and shall contribute to their achievement. The Union shall also support the achievement of these objectives by the action it takes through the Structural Funds (European Agricultural Guidance and Guarantee Fund, Guidance Section; European Social Fund; European Regional Development Fund), the European Investment Bank and the other existing Financial Instruments.
The Commission shall submit a report to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions every three years on the progress made towards achieving economic, social and territorial cohesion and on the manner in which the various means provided for in this Article have contributed to it. This report shall, if necessary, be accompanied by appropriate proposals.
If specific actions prove necessary outside the Funds and without prejudice to the measures decided upon within the framework of the other Union policies, such actions may be adopted by the Council acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.
***
General EU aims
The third subparagraph of Article 3(3) of the amended Treaty on European Union (TEU) states that the EU shall promote economic, social and territorial cohesion, and solidarity among member states.
***
EU powers in general
The powers of the European Union are attributed or conferred by the member states through the treaties (including their aims). The Treaty of Lisbon makes an effort to present the different categories of powers (modestly called competences) in a systematic manner.
The taxonomy of EU competence is set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU: Shared competence
Economic, social and territorial cohesion is mentioned among the competences listed as shared in Article 4 TFEU:
Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Protocol (No 28)
The intergovernmental conference attached a Protocol (No 28) on economic, social and territorial cohesion to the treaties, perhaps indicating a growing willingness to take the capacity of less prosperous (new) member states into account both as contributors to the common coffers and as recipients of funds, when coming long term budgets (fiancial perspectives) are prepared and implemented:
PROTOCOL (No 28)
ON ECONOMIC, SOCIAL AND TERRITORIAL COHESION
THE HIGH CONTRACTING PARTIES,
RECALLING that Article 3 of the Treaty on European Union includes the objective of promoting economic, social and territorial cohesion and solidarity between Member States and that the said cohesion figures among the areas of shared competence of the Union listed in Article 4(2)(c) of the Treaty on the Functioning of the European Union,
RECALLING that the provisions of Part Three, Title XVIII, on economic, social and territorial cohesion as a whole provide the legal basis for consolidating and further developing the Union's action in the field of economic, social and territorial cohesion, including the creation of a new fund,
RECALLING that the provisions of Article 177 of the Treaty on the Functioning of the European Union envisage setting up a Cohesion Fund,
NOTING that the European Investment Bank is lending large and increasing amounts for the benefit of the poorer regions,
NOTING the desire for greater flexibility in the arrangements for allocations from the Structural Funds,
NOTING the desire for modulation of the levels of Union participation in programmes and projects in certain countries,
NOTING the proposal to take greater account of the relative prosperity of Member States in the system of own resources,
REAFFIRM that the promotion of economic, social and territorial cohesion is vital to the full development and enduring success of the Union,
REAFFIRM their conviction that the Structural Funds should continue to play a considerable part in the achievement of Union objectives in the field of cohesion,
REAFFIRM their conviction that the European Investment Bank should continue to devote the majority of its resources to the promotion of economic, social and territorial cohesion, and declare their willingness to review the capital needs of the European Investment Bank as soon as this is necessary for that purpose,
AGREE that the Cohesion Fund will provide Union financial contributions to projects in the fields of environment and trans-European networks in Member States with a per capita GNP of less than 90 % of the Union average which have a programme leading to the fulfilment of the conditions of economic convergence as set out in Article 126,
DECLARE their intention of allowing a greater margin of flexibility in allocating financing from the Structural Funds to specific needs not covered under the present Structural Funds regulations,
DECLARE their willingness to modulate the levels of Union participation in the context of programmes and projects of the Structural Funds, with a view to avoiding excessive increases in budgetary expenditure in the less prosperous Member States,
RECOGNISE the need to monitor regularly the progress made towards achieving economic, social and territorial cohesion and state their willingness to study all necessary measures in this respect,
DECLARE their intention of taking greater account of the contributive capacity of individual Member States in the system of own resources, and of examining means of correcting, for the less prosperous Member States, regressive elements existing in the present own resources system,
AGREE to annex this Protocol to the Treaty on the European Union and the Treaty on the Functioning of the European Union.
***
Structural Funds
Information about the Structural Funds can be found through the web page of the Directorate-General for Regional Policy, stating that in the period 2007-2013, cohesion policy will benefit from 35.7% of the total EU budget or 347.41 billion euros (current prices):
http://ec.europa.eu/regional_policy/policy/fonds/index_en.htm
The key objectives are presented on the web page:
http://ec.europa.eu/regional_policy/policy/object/index_en.htm
***
European Agricultural Guidance and Guarantee Fund, Guidance Section
We turn to the Structural Funds specifically mentioned by Article 159 TEC and Article 175 TFEU. In order of appearance the first one we encounter is the European Agricultural Guidance and Guarantee Fund, Guidance Section.
Instead we find the Directorate-General Agriculture and Rural Development responsible for Rural Development Policy 2007–2013, in other words outside the scope of Structural Funds managed by the Directorate-General Regional Policy.
http://ec.europa.eu/agriculture/rurdev/index_en.htm
Even the consolidated Lisbon Treaty seems to behind the times, when we see that the current legal act has created a fund with a new name:
Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJEU 21.10.2005 L 277/1).
The EAFRD Regulation is found here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:277:0001:0040:EN:PDF
***
Some have argued that structural funds spending is the biggest item on the EU budget, ahead of agriculture, but that would require the “second pillar” of the common agricultural policy (CAP) to be counted as part of the structural funds.
Arguably, during the period 2007–2013 structural measures within the context of rural policy are even more tied to the administration of agricultural policy than previously.
Accordingly, my view is still that agriculture is the greatest expense in the EU budget, ahead of the structural funds, and that this will be the case in 2009.
***
European Social Fund (ESF)
Basic information about the European Social Fund (ESF) can be found here:
http://ec.europa.eu/regional_policy/funds/fse/index_en.htm
The ESF Regulation, officially Regulation (EC) No 1081/2006 of the European Parliament and of the Council of 5 July 2006 on the European Social Fund and repealing Regulation (EC) No 1784/1999 (OJEU 31.7.2006 L 210/12), is available here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/fse/ce_1081(2006)_en.pdf
***
European Regional Development Fund (ERDF)
You can access information about the European Regional Development Fund (ERDF) here:
http://ec.europa.eu/regional_policy/funds/feder/index_en.htm
The ERDF Regulation, officially Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006 on the European Regional Development Fund and repealing Regulation (EC) No 1783/1999 (OJEU 31.7.2006 L 210/1), can be found here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/feder/ce_1080(2006)_en.pdf
***
European Investment Bank
The European Investment Bank (EIB) is mentioned as one of the actors supporting the cohesion objectives.
More information can be found on the web pages of the EIB:
http://www.eib.org/
The latest version of the legal framework of the European Investment Bank, although not in force, is Protocol (No 5) on the statute of the European Investment Bank, annexed to the Lisbon Treaty TEU and TFEU (OJEU 9.5.2007 C 115/251).
***
Cohesion Fund
Among other existing Financial Instruments we find the important Cohesion Fund, designed for the poorer member states. For the 2007-2013 period the Cohesion Fund concerns Bulgaria, Cyprus, the Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania, Malta, Poland, Portugal, Romania, Slovakia and Slovenia. Spain is eligible to a phase-out fund only as its GNI per inhabitant is less than the average of the EU-15.
Introductory information about the Cohesion Fund, important for infrastructure projects and the environment, can be found here:
http://ec.europa.eu/regional_policy/funds/cf/index_en.htm
Council Regulation (EC) No 1084/2006 of 11 July 2006 establishing a Cohesion Fund and repealing Regulation (EC) No 1164/94 (OJEU 31.7.2006 L 210/79) can be found here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/cohesion/ce_1084(2006)_en.pdf
***
European Union Solidarity Fund (EUSF)
The Member States and countries negotiating accession can request aid from the European Union Solidarity Fund (EUSF) in the event of a major natural disaster. Basic information is found here:
http://ec.europa.eu/regional_policy/funds/solidar/solid_en.htm
The legal act setting up the EUSF is Council Regulation (EC) No 2012/2002 of 11 November 2002 establishingthe European Union Solidarity Fund (OJEC 14.11.2002 L 311/3), which is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:311:0003:0008:EN:PDF
***
European Grouping for Territorial Cooperation (EGTC)
According to the Inforegio web page, the EGTC is a new European legal instrument designed to facilitate and promote cross-border, transnational and interregional cooperation. Unlike the structures which governed this kind of cooperation before 2007, the EGTC is a legal entity and as such, will enable regional and local authorities and other public bodies from different member states, to set up cooperation groupings with a legal personality.
Information about this new legal instrument is accessible here:
http://ec.europa.eu/regional_policy/funds/gect/index_en.htm
The establishment of the new legal instrument has required a legal instrument of its own. Regulation (EC) No 1082/2006 of the European Parliament and of the Council of 5 July 2006 on a European grouping of territorial cooperation (EGTC) (OJEU 31.7.2006 L 210/19) is accessible here:
http://ec.europa.eu/regional_policy/sources/docoffic/official/regulation/pdf/2007/gect/ce_1082(2006)_en.pdf
***
Instrument for Pre-Accession Assistance (IPA)
If we cast our net somewhat wider than the internal cohesion of the European Union, the work can be said to commence in advance with regard to candidate countries and potential candidate countries.
From January 2007 onwards, the Instrument for Pre-Accession Assistance (IPA) replaces a series of European Union programmes and financial instruments for candidate countries or potential candidate countries, namely PHARE, PHARE CBC, ISPA, SAPARD, CARDS and the financial instrument for Turkey.
Information is found here:
http://ec.europa.eu/regional_policy/funds/ipa/index_en.htm
The basic legal instrument is Council Regulation (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for Pre-Accession Assistance (IPA) (OJEU 31.7.2006 L 210/82), available here:
http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_210/l_21020060731en00820093.pdf
Implementing rules have been issued by the Commission, Commission Regulation (EC) No 718/2007 of 12 June 2007 implementing Council Regulation (EC) No 1085/2006 establishing an instrument for pre-accession assistance (IPA) (OJEU 29.7.2007 l 170/1), published here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:170:0001:0066:EN:PDF
***
Financial engineering
The Commission offers a web page on financial engineering with various combinations aiming at promoting development in EU regions:
http://ec.europa.eu/regional_policy/funds/2007/jjj/index_en.htm
Ralf Grahn
EU procurement: Economic operators
The internal market rules of the European Community (European Union) require equal and objective treatment of potential bidders and actual tenderers in public procurement.
The treaty principles are set out in a more concrete manner in secondary legislation, here the Procurement Directive 2004/18/EC. We take a look at a basic Directive provision on economic operators, i.e. firms and individuals (potentially) participating in public contracts procedures.
The European Commission has shown interest in the opportunities for small and medium-sized enterprises (SMEs) to compete successfully in tender procedures. We add a few references for interested readers.
***
Article 4
The EC (EU) Classic Directive or Procurement Directive 2004/18/EC starts Title II Rules on public contracts, with Chapter I General provisions. Article 4 Economic operators concerns some aspects of equal treatment of tenderers from different member states:
TITLE II
RULES ON PUBLIC CONTRACTS
CHAPTER I
General provisions
Article 4
Economic operators
1. Candidates or tenderers who, under the law of the Member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of the Member State in which the contract is awarded, they would be required to be either natural or legal persons.
However, in the case of public service and public works contracts as well as public supply contracts covering in addition services and/or siting and installation operations, legal persons may be required to indicate in the tender or the request to participate, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question.
2. Groups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting authorities to assume a specific legal form; however, the group selected may be required to do so when it has been awarded the contract, to the extent that this change is necessary for the satisfactory performance of the contract.
***
Economic operator
We start by returning to the definition of economic operator.
Economic operator is a convenient term to cover the concepts of contractor, supplier and service provider, as described in Article 1(8):
8. The terms ‘contractor’, ‘supplier’ and ‘service provider’ mean any natural or legal person or public entity or group of such persons and/or bodies which offers on the market, respectively, the execution of works and/or a work, products or services.
The term ‘economic operator’ shall cover equally the concepts of contractor, supplier and service provider. It is used merely in the interest of simplification.
An economic operator who has submitted a tender shall be designated a ‘tenderer’. One which has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
***
Latest consolidation
The latest consolidated version of the Procurement Directive 2004/18/EC, found on Eur-Lex under legislation in force, is of 15 September 2008.
***
Equal treatment, non-discrimination and transparency
We are reminded of the general rules concerning equal treatment of companies and individuals vying for business contracts and of transparent procedures, in Article 2 of the Procurement Directive 2004/18/EC:
Article 2
Principles of awarding contracts
Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.
***
Mutual recognition
Article 4(1) evokes the principle of mutual recognition. To require domestic qualifications in the awarding member states tends to favour domestic bidders at the expense of firms or individuals from other member states and consequently against the internal market principles of free movement.
The Community rules on mutual recognition of diplomas and professional qualifications apply.
***
Professional qualifications
Legal persons can be required to show that they have suitably qualified individuals, who can fulfil the contract.
The Community rules on mutual recognition of diplomas and professional qualifications apply.
Under Freedom of establishment, the Commission’s Guide to the Community rules on public works contracts (based on the old Directive 93/37/EEC) explains some of the treaty provisions on professional qualifications (page 2 to 3):
However, the taking-up and pursuit of certain self-employed activities may be conditional on complying with certain provisions laid down by law, regulation or administrative action justified by the general good, such as rules relating to organization, qualifications, professional ethics, supervision and liability. Such provisions may stipulate in particular that pursuit of a particular activity is restricted to holders of a diploma, certificate or other evidence of formal qualifications, to persons belonging to a professional body or to persons subject to particular rules or supervision, as the case may be.
Where the taking-up or pursuit of a specific activity is subject to such conditions in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with them. It is for this reason that Article 57 provides that the Council is to issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications or, as the case may be, for the coordination of national provisions concerning the taking-up and pursuit of activities as self-employed persons.
It follows, however, from the Court’ s case-law that national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it.”
***
Joint bids
Article 4(2) allows companies to leave joint bids as groups. Only if necessary, can a group be demanded to assume a specific legal form.
The Commission’s Guide to the Community rules on public works contracts (based on the old Directive 93/37/EEC) explains how a group of companies can submit a tender without assuming a particular legal form. A successful group may be required to assume a certain legal form, indicated in advance (page 54):
6.4.3 Groups of contractors
Groups of contractors must be allowed to submit a tender or to negotiate without having to assume a particular legal form. However, a group may be required to assume a particular legal form if it is awarded the contract. In such a case, the contracting authority must have indicated beforehand, in the contract notice, the legal form required.
As was pointed out in connection with the definition of the contractor (point 1.2), the Court has stated that a company which has neither the intention nor the resources to carry out the works itself may participate in a procedure for the award of a public works contract. However, in order to prove that it has the required financial and economic standing and technical capability, it must establish that it actually has available to it the resources of the contractors by whom it intends to have the contract carried out and that those resources meet the requirements specified by the contracting authority.
***
SMEs: “Small Business Act” for Europe
Groups of contractors are important, because they offer small businesses opportunities to participate in joint bids for public contracts too large for them to handle on their own.
One of the ten principles of the “Small Business Act” for Europe is Principle V Adapt public policy tools to SME needs: facilitate SMEs’ participation in public procurement and better use State Aid possibilities for SMEs.
Source: Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: “Think Small First” A “Small Business Act” for Europe (Brussels, 25.6.2008 COM(2008) 394 final).
The Member States committed to implement the SBA by adopting the Competitiveness Council Conclusions of 1 December 2008.
The SBA Action Plan, annexed to the Competitiveness Council Conclusions, focuses on short and medium-term measures to improve SMEs’ access to finance, to improve the regulatory environment and to enhance market access for SMEs. These priority measures are an integral part of the Commission’s response to alleviate the negative impact of economic and financial crisis on enterprises, especially SMEs.
The European Council on 11-12 December 2008 supported the full implementation of the Action Plan for the SBA adopted by the Competitiveness Council on 1 December 2008.
***
Code of Best Practice(s)
The European SBA refers to the Code of Best Practice. Readers interested in improving the opportunities for small and medium-sized enterprises in public procurement are invited to look at the suggestions made by the Commission Staff Working Document: European Code of Best Practices Facilitating Access by SMEs to Public Procurement Contracts (Brussels, 25.6.2008 SEC(2008) 2193).
You can look at the proposals directly or read the earlier blog posts with summaries.
Ralf Grahn
The treaty principles are set out in a more concrete manner in secondary legislation, here the Procurement Directive 2004/18/EC. We take a look at a basic Directive provision on economic operators, i.e. firms and individuals (potentially) participating in public contracts procedures.
The European Commission has shown interest in the opportunities for small and medium-sized enterprises (SMEs) to compete successfully in tender procedures. We add a few references for interested readers.
***
Article 4
The EC (EU) Classic Directive or Procurement Directive 2004/18/EC starts Title II Rules on public contracts, with Chapter I General provisions. Article 4 Economic operators concerns some aspects of equal treatment of tenderers from different member states:
TITLE II
RULES ON PUBLIC CONTRACTS
CHAPTER I
General provisions
Article 4
Economic operators
1. Candidates or tenderers who, under the law of the Member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of the Member State in which the contract is awarded, they would be required to be either natural or legal persons.
However, in the case of public service and public works contracts as well as public supply contracts covering in addition services and/or siting and installation operations, legal persons may be required to indicate in the tender or the request to participate, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question.
2. Groups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting authorities to assume a specific legal form; however, the group selected may be required to do so when it has been awarded the contract, to the extent that this change is necessary for the satisfactory performance of the contract.
***
Economic operator
We start by returning to the definition of economic operator.
Economic operator is a convenient term to cover the concepts of contractor, supplier and service provider, as described in Article 1(8):
8. The terms ‘contractor’, ‘supplier’ and ‘service provider’ mean any natural or legal person or public entity or group of such persons and/or bodies which offers on the market, respectively, the execution of works and/or a work, products or services.
The term ‘economic operator’ shall cover equally the concepts of contractor, supplier and service provider. It is used merely in the interest of simplification.
An economic operator who has submitted a tender shall be designated a ‘tenderer’. One which has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
***
Latest consolidation
The latest consolidated version of the Procurement Directive 2004/18/EC, found on Eur-Lex under legislation in force, is of 15 September 2008.
***
Equal treatment, non-discrimination and transparency
We are reminded of the general rules concerning equal treatment of companies and individuals vying for business contracts and of transparent procedures, in Article 2 of the Procurement Directive 2004/18/EC:
Article 2
Principles of awarding contracts
Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.
***
Mutual recognition
Article 4(1) evokes the principle of mutual recognition. To require domestic qualifications in the awarding member states tends to favour domestic bidders at the expense of firms or individuals from other member states and consequently against the internal market principles of free movement.
The Community rules on mutual recognition of diplomas and professional qualifications apply.
***
Professional qualifications
Legal persons can be required to show that they have suitably qualified individuals, who can fulfil the contract.
The Community rules on mutual recognition of diplomas and professional qualifications apply.
Under Freedom of establishment, the Commission’s Guide to the Community rules on public works contracts (based on the old Directive 93/37/EEC) explains some of the treaty provisions on professional qualifications (page 2 to 3):
However, the taking-up and pursuit of certain self-employed activities may be conditional on complying with certain provisions laid down by law, regulation or administrative action justified by the general good, such as rules relating to organization, qualifications, professional ethics, supervision and liability. Such provisions may stipulate in particular that pursuit of a particular activity is restricted to holders of a diploma, certificate or other evidence of formal qualifications, to persons belonging to a professional body or to persons subject to particular rules or supervision, as the case may be.
Where the taking-up or pursuit of a specific activity is subject to such conditions in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with them. It is for this reason that Article 57 provides that the Council is to issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications or, as the case may be, for the coordination of national provisions concerning the taking-up and pursuit of activities as self-employed persons.
It follows, however, from the Court’ s case-law that national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it.”
***
Joint bids
Article 4(2) allows companies to leave joint bids as groups. Only if necessary, can a group be demanded to assume a specific legal form.
The Commission’s Guide to the Community rules on public works contracts (based on the old Directive 93/37/EEC) explains how a group of companies can submit a tender without assuming a particular legal form. A successful group may be required to assume a certain legal form, indicated in advance (page 54):
6.4.3 Groups of contractors
Groups of contractors must be allowed to submit a tender or to negotiate without having to assume a particular legal form. However, a group may be required to assume a particular legal form if it is awarded the contract. In such a case, the contracting authority must have indicated beforehand, in the contract notice, the legal form required.
As was pointed out in connection with the definition of the contractor (point 1.2), the Court has stated that a company which has neither the intention nor the resources to carry out the works itself may participate in a procedure for the award of a public works contract. However, in order to prove that it has the required financial and economic standing and technical capability, it must establish that it actually has available to it the resources of the contractors by whom it intends to have the contract carried out and that those resources meet the requirements specified by the contracting authority.
***
SMEs: “Small Business Act” for Europe
Groups of contractors are important, because they offer small businesses opportunities to participate in joint bids for public contracts too large for them to handle on their own.
One of the ten principles of the “Small Business Act” for Europe is Principle V Adapt public policy tools to SME needs: facilitate SMEs’ participation in public procurement and better use State Aid possibilities for SMEs.
Source: Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: “Think Small First” A “Small Business Act” for Europe (Brussels, 25.6.2008 COM(2008) 394 final).
The Member States committed to implement the SBA by adopting the Competitiveness Council Conclusions of 1 December 2008.
The SBA Action Plan, annexed to the Competitiveness Council Conclusions, focuses on short and medium-term measures to improve SMEs’ access to finance, to improve the regulatory environment and to enhance market access for SMEs. These priority measures are an integral part of the Commission’s response to alleviate the negative impact of economic and financial crisis on enterprises, especially SMEs.
The European Council on 11-12 December 2008 supported the full implementation of the Action Plan for the SBA adopted by the Competitiveness Council on 1 December 2008.
***
Code of Best Practice(s)
The European SBA refers to the Code of Best Practice. Readers interested in improving the opportunities for small and medium-sized enterprises in public procurement are invited to look at the suggestions made by the Commission Staff Working Document: European Code of Best Practices Facilitating Access by SMEs to Public Procurement Contracts (Brussels, 25.6.2008 SEC(2008) 2193).
You can look at the proposals directly or read the earlier blog posts with summaries.
Ralf Grahn
Saturday, 27 December 2008
EU Law: Cohesion: Economic and social plus territorial
Economic and social cohesion represents the second largest object of EU expenditure (after the common agricultural policy). Still, it is harder to find a definition of cohesion than descriptions of its components and policy instruments.
The policies are heavily weighted to combat regional disparities, and the Treaty of Lisbon would make express mention of the territorial dimension of cohesion.
Here is a treaty level introduction to the world of economic, social and territorial cohesion.
***
Article 158 TEC
Article 158 TEC (ex Article 130a) builds on the concept cohesion without defining it.
This takes the form of efforts to reduce the disparities between various regions. The backwardness of the least favoured regions or islands, including rural areas, is emphasised.
Here is the current Article 158 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/118:
TITLE XVII
ECONOMIC AND SOCIAL COHESION
Article 158 TEC
In order to promote its overall harmonious development, the Community shall develop and pursue its actions leading to the strengthening of its economic and social cohesion.
In particular, the Community shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions or islands, including rural areas.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how or if the current treaties are amended.
Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.
Article 2, points 130 and 131 of the Lisbon Treaty amended the Title heading and Article 158 TEC (OJEU 17.12.2007 C 306/84–85):
ECONOMIC, SOCIAL AND TERRITORIAL COHESION
130) The heading of Title XVII shall be replaced by: ‘ECONOMIC, SOCIAL AND TERRITORIAL COHESION’.
131) Article 158 shall be amended as follows:
(a) in the first paragraph, the words ‘economic and social cohesion’ shall be replaced by ‘economic, social and territorial cohesion’;
(b) in the second paragraph, the words ‘or islands, including rural areas’ shall be deleted;
(c) the following new paragraph shall be added:
‘Among the regions concerned, particular attention shall be paid to rural areas, areas affected by industrial transition, and regions which suffer from severe and permanent natural or demographic handicaps such as the northernmost regions with very low population density and island, cross-border and mountain regions.’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XVII first became Title XVII with the addition of territorial in the TFEU (ToL), and renumbered Title XVIII Economic, social and territorial cohesion in the consolidated version.
Article 158 TEC initially became Article 158 TFEU (ToL) before the renumbering of the treaty made it into Article 174 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 174 TFEU
Territorial has been added to the Title, which has been renumbered. The Article has been renumbered. The Community has been replaced by the Union. The specific amendments have been inserted.
Article 174 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/127):
TITLE XVIII
ECONOMIC, SOCIAL AND TERRITORIAL COHESION
Article 174 TFEU
(ex Article 158 TEC)
In order to promote its overall harmonious development, the Union shall develop and pursue its actions leading to the strengthening of its economic, social and territorial cohesion.
In particular, the Union shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions.
Among the regions concerned, particular attention shall be paid to rural areas, areas affected by industrial transition, and regions which suffer from severe and permanent natural or demographic handicaps such as the northernmost regions with very low population density and island, cross-border and mountain regions.
***
Main changes
Cohesion will henceforth evoke the economic, social and territorial dimensions of a concept not immediately clear to non-French readers. (But the concrete manifestations are measurable in euros.)
The new paragraphs 2 and 3 add up to the corresponding paragraphs of Article III-220 of the Constitutional Treaty.
***
EU aims
The third subparagraph of Article 3(3) of the amended Treaty on European Union (TEU) states that the EU shall promote economic, social and territorial cohesion, and solidarity among member states.
***
EU powers in general
The powers of the European Union are attributed or conferred by the member states through the treaties (including their aims). The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.
The taxonomy of EU competence is set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU: Shared competence
Economic, social and territorial cohesion is mentioned among the competences listed as shared in Article 4 TFEU:
Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Declaration 33
The intergovernmental conference approved a Declaration (33) on island states:
33. Declaration on Article 174 of the Treaty on the Functioning of the European Union
The Conference considers that the reference in Article 174 to island regions can include island States in their entirety, subject to the necessary criteria being met.
***
Cohesion
The concept cohesion seems to be rather elusive, but concrete policy instruments and budget lines are easier to come by. Here is the description offered by the Scadplus (Europa Glossary) web page Economic, social and territorial cohesion (no date given):
http://europa.eu/scadplus/glossary/economic_social_cohesion_en.htm
Ralf Grahn
The policies are heavily weighted to combat regional disparities, and the Treaty of Lisbon would make express mention of the territorial dimension of cohesion.
Here is a treaty level introduction to the world of economic, social and territorial cohesion.
***
Article 158 TEC
Article 158 TEC (ex Article 130a) builds on the concept cohesion without defining it.
This takes the form of efforts to reduce the disparities between various regions. The backwardness of the least favoured regions or islands, including rural areas, is emphasised.
Here is the current Article 158 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/118:
TITLE XVII
ECONOMIC AND SOCIAL COHESION
Article 158 TEC
In order to promote its overall harmonious development, the Community shall develop and pursue its actions leading to the strengthening of its economic and social cohesion.
In particular, the Community shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions or islands, including rural areas.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how or if the current treaties are amended.
Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.
Article 2, points 130 and 131 of the Lisbon Treaty amended the Title heading and Article 158 TEC (OJEU 17.12.2007 C 306/84–85):
ECONOMIC, SOCIAL AND TERRITORIAL COHESION
130) The heading of Title XVII shall be replaced by: ‘ECONOMIC, SOCIAL AND TERRITORIAL COHESION’.
131) Article 158 shall be amended as follows:
(a) in the first paragraph, the words ‘economic and social cohesion’ shall be replaced by ‘economic, social and territorial cohesion’;
(b) in the second paragraph, the words ‘or islands, including rural areas’ shall be deleted;
(c) the following new paragraph shall be added:
‘Among the regions concerned, particular attention shall be paid to rural areas, areas affected by industrial transition, and regions which suffer from severe and permanent natural or demographic handicaps such as the northernmost regions with very low population density and island, cross-border and mountain regions.’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XVII first became Title XVII with the addition of territorial in the TFEU (ToL), and renumbered Title XVIII Economic, social and territorial cohesion in the consolidated version.
Article 158 TEC initially became Article 158 TFEU (ToL) before the renumbering of the treaty made it into Article 174 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 174 TFEU
Territorial has been added to the Title, which has been renumbered. The Article has been renumbered. The Community has been replaced by the Union. The specific amendments have been inserted.
Article 174 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/127):
TITLE XVIII
ECONOMIC, SOCIAL AND TERRITORIAL COHESION
Article 174 TFEU
(ex Article 158 TEC)
In order to promote its overall harmonious development, the Union shall develop and pursue its actions leading to the strengthening of its economic, social and territorial cohesion.
In particular, the Union shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions.
Among the regions concerned, particular attention shall be paid to rural areas, areas affected by industrial transition, and regions which suffer from severe and permanent natural or demographic handicaps such as the northernmost regions with very low population density and island, cross-border and mountain regions.
***
Main changes
Cohesion will henceforth evoke the economic, social and territorial dimensions of a concept not immediately clear to non-French readers. (But the concrete manifestations are measurable in euros.)
The new paragraphs 2 and 3 add up to the corresponding paragraphs of Article III-220 of the Constitutional Treaty.
***
EU aims
The third subparagraph of Article 3(3) of the amended Treaty on European Union (TEU) states that the EU shall promote economic, social and territorial cohesion, and solidarity among member states.
***
EU powers in general
The powers of the European Union are attributed or conferred by the member states through the treaties (including their aims). The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.
The taxonomy of EU competence is set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU: Shared competence
Economic, social and territorial cohesion is mentioned among the competences listed as shared in Article 4 TFEU:
Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Declaration 33
The intergovernmental conference approved a Declaration (33) on island states:
33. Declaration on Article 174 of the Treaty on the Functioning of the European Union
The Conference considers that the reference in Article 174 to island regions can include island States in their entirety, subject to the necessary criteria being met.
***
Cohesion
The concept cohesion seems to be rather elusive, but concrete policy instruments and budget lines are easier to come by. Here is the description offered by the Scadplus (Europa Glossary) web page Economic, social and territorial cohesion (no date given):
http://europa.eu/scadplus/glossary/economic_social_cohesion_en.htm
Ralf Grahn
EU procurement: Exclusive rights and non-discrimination
When a contracting authority (a body governed by public law) grants a special or exclusive right to carry out a public service activity to another entity, which is not a contracting authority, the latter must comply with the principle of non-discrimination on the basis of nationality.
The EC (EU) Procurement Directive 2004/18/EC tries to ensure this through Article 3. The act by which the special or exclusive right is granted shall provide that the entity complies with the principle of non-discrimination on the basis of nationality, when it awards contracts to third parties as part of its activities:
Article 3
Granting of special or exclusive rights: non-discrimination clause
Where a contracting authority grants special or exclusive rights to carry out a public service activity to an entity other than such a contracting authority, the act by which that right is granted shall provide that, in respect of the supply contracts which it awards to third parties as part of its activities, the entity concerned must comply with the principle of non-discrimination on the basis of nationality.
***
ECJ Case C-275/98.
In the Case C-275/98 Unitron Scandinavia A/S and 3-S A/S, Danske Svineproducenters Serviceselskab v Ministeriet for Fødevarer, Landbrug og Fiskeri, the ECJ’s preliminary ruling based on the old Directive 93/36 neatly laid out two principles. The tendering procedures need not apply, but the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively (and it implies an obligation of transparency):
30 A systematic interpretation of that provision therefore shows that the contracting authority is not required to demand that the body in question comply with the tendering procedures laid down by Directive 93/36.
31 It should be noted, however, that the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively. It implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that it has been complied with.
Ralf Grahn
The EC (EU) Procurement Directive 2004/18/EC tries to ensure this through Article 3. The act by which the special or exclusive right is granted shall provide that the entity complies with the principle of non-discrimination on the basis of nationality, when it awards contracts to third parties as part of its activities:
Article 3
Granting of special or exclusive rights: non-discrimination clause
Where a contracting authority grants special or exclusive rights to carry out a public service activity to an entity other than such a contracting authority, the act by which that right is granted shall provide that, in respect of the supply contracts which it awards to third parties as part of its activities, the entity concerned must comply with the principle of non-discrimination on the basis of nationality.
***
ECJ Case C-275/98.
In the Case C-275/98 Unitron Scandinavia A/S and 3-S A/S, Danske Svineproducenters Serviceselskab v Ministeriet for Fødevarer, Landbrug og Fiskeri, the ECJ’s preliminary ruling based on the old Directive 93/36 neatly laid out two principles. The tendering procedures need not apply, but the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively (and it implies an obligation of transparency):
30 A systematic interpretation of that provision therefore shows that the contracting authority is not required to demand that the body in question comply with the tendering procedures laid down by Directive 93/36.
31 It should be noted, however, that the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively. It implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that it has been complied with.
Ralf Grahn
Friday, 26 December 2008
Official Journal of the European Union
Is the Official Journal of the European Union (OJEU or OJ for short) in need of improvement?
It started with a blog post by Julien Frisch over at:
http://julienfrisch.blogspot.com
Julien’s article was called Decision on the legal nature of the electronic version of the Official Journal of the European Union, and it referred to an official document discussing technical options.
He went on to invite a comment from me. While my technical ‘nous’ score hovers around zilch, it led me to jot down a few practical thoughts about the Official Journal and the Eur-Lex portal from the viewpoint of a daily user and an EU citizen.
The practical message is: Improvements are needed and there are examples that it can be done.
Here is the comment on Julien’s blog:
Julien,
Thank you for your invitation to comment, although I feel more like a car driver or even passenger than an auto mechanic or assembler of cars. In other words, my experience of the Official Journal is that of a daily user, who tries to think about the needs of other EU citizens, not a technical expert.
My layman’s guess would be that in the long run we are either going to have an authentic digital Official Journal, with paper copies stored away as a back-up, which would mean that the signatures would be electronic, or the symbolic importance of signing is seen as great enough to attach the signatures to paper, but the digital OJ would be as official.
For a practitioner, the availability of the OJ (and its different language versions) on the web is crucial. Real time delivery, instead of snail mail is one evident advantage.
I already mentioned the language versions. Occasionally I use a number of them for comparison, but it would lead to storage problems and to expense to have to subscribe to several versions.
One of the problems facing historians, political scientists and lawyers is the lack of certain key pieces of legislation in currently used formats, like pdf. I hope that the EU would make available at least all the treaties since 1951 and a number of older crucial documents (like the White Book leading to the Single European Act and the intergovernmental conferences) in an accessible format and somewhere easy to find.
Even if the paper you referred to was quite technical, there were some heartening words about improved search facilities.
It is often hard to know if a certain feature is lacking or if I just lack the technical ‘nous’ to find desired items, but in my experience the Official Journal functions well if you already have the exact reference or a link leading to the exact act.
If not, the searches sometimes turn out to be laborious.
Consolidated versions of legislative acts are unofficial, but for users with practical aims legislation in force is a great help. I have found national legal portals in Sweden and Finland much easier to use in this respect, and the acts much easier to find than when I search on Eur-Lex.
These portals usually offer you options to go for the original act (or amending act), the legislation in force (continuously updated consolidated versions), the preparatory works (governemtn bills) and information about the legislative process including links to parliamentary committee documents etc., as well as secondary legislation like regulations.
All this is available with a few clicks, without time-consuming searches.
Evidently something needs to be done and could be done at EU level.
The EU could definitively learn from some of the member states, because accessible legislation for free is, in my humble opinion, a fundamental democratic right.
It is easy to see the multitude of European languages, even the 23 official EU languages, as a drain on resources. But my view is that this diversity is a European reality, and our common legislation has to be accessible to EU citizens in their own languages.
It started with a blog post by Julien Frisch over at:
http://julienfrisch.blogspot.com
Julien’s article was called Decision on the legal nature of the electronic version of the Official Journal of the European Union, and it referred to an official document discussing technical options.
He went on to invite a comment from me. While my technical ‘nous’ score hovers around zilch, it led me to jot down a few practical thoughts about the Official Journal and the Eur-Lex portal from the viewpoint of a daily user and an EU citizen.
The practical message is: Improvements are needed and there are examples that it can be done.
Here is the comment on Julien’s blog:
Julien,
Thank you for your invitation to comment, although I feel more like a car driver or even passenger than an auto mechanic or assembler of cars. In other words, my experience of the Official Journal is that of a daily user, who tries to think about the needs of other EU citizens, not a technical expert.
My layman’s guess would be that in the long run we are either going to have an authentic digital Official Journal, with paper copies stored away as a back-up, which would mean that the signatures would be electronic, or the symbolic importance of signing is seen as great enough to attach the signatures to paper, but the digital OJ would be as official.
For a practitioner, the availability of the OJ (and its different language versions) on the web is crucial. Real time delivery, instead of snail mail is one evident advantage.
I already mentioned the language versions. Occasionally I use a number of them for comparison, but it would lead to storage problems and to expense to have to subscribe to several versions.
One of the problems facing historians, political scientists and lawyers is the lack of certain key pieces of legislation in currently used formats, like pdf. I hope that the EU would make available at least all the treaties since 1951 and a number of older crucial documents (like the White Book leading to the Single European Act and the intergovernmental conferences) in an accessible format and somewhere easy to find.
Even if the paper you referred to was quite technical, there were some heartening words about improved search facilities.
It is often hard to know if a certain feature is lacking or if I just lack the technical ‘nous’ to find desired items, but in my experience the Official Journal functions well if you already have the exact reference or a link leading to the exact act.
If not, the searches sometimes turn out to be laborious.
Consolidated versions of legislative acts are unofficial, but for users with practical aims legislation in force is a great help. I have found national legal portals in Sweden and Finland much easier to use in this respect, and the acts much easier to find than when I search on Eur-Lex.
These portals usually offer you options to go for the original act (or amending act), the legislation in force (continuously updated consolidated versions), the preparatory works (governemtn bills) and information about the legislative process including links to parliamentary committee documents etc., as well as secondary legislation like regulations.
All this is available with a few clicks, without time-consuming searches.
Evidently something needs to be done and could be done at EU level.
The EU could definitively learn from some of the member states, because accessible legislation for free is, in my humble opinion, a fundamental democratic right.
It is easy to see the multitude of European languages, even the 23 official EU languages, as a drain on resources. But my view is that this diversity is a European reality, and our common legislation has to be accessible to EU citizens in their own languages.
EU Law: Industry
Is industry a cuckoo among the policy areas of the European Community (European Union), laying its eggs in the nests of industrious builders of the internal market and sound competition rules?
Should the European Union have more or less industrial policy?
Take a look at what the current and future treaties say, before taking a dogmatic stand.
***
Article 157 TEC
Article 157 TEC (ex Article 130) is the result of difficult rounds of treaty negotiations between proponents of dirigisme and supporters of undistorted competition.
In addition, the contours of “industry” or “industrial policy” are less than clear, because a number of existing European Community (European Union) policies affect industrial enterprises: the internal market, the competition regime including state aid, research and development etc.
To the extent that we speak about a European level industrial policy, its aim would arguably have to seen in the context of global competition, aiming at adaptation to structural change.
An environment favourable to initiative has as its objective to promote entrepreneurship, a somewhat scarce European commodity.
From the beginning of 2005 small and medium-sized undertakings (enterprises) are defined according to Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ 20.5.2003 L 124/36).
The category of micro, small and medium-sized enterprises (SMEs) is made up of enterprises which employ fewer than 250 persons and which have an annual turnover not exceeding EUR 50 million, and/or an annual balance sheet total not exceeding EUR 43 million.
This environment favourable to initiative (entrepreneurship) and development should be encouraged aiming particularly at the SMEs, which constitute 99 per cent of the businesses in the European Union.
Cooperation between businesses can be encouraged by suitable (European) companies as well as information and partner search.
Innovation, research and technological development are other worthy causes, although covered by their own, more specific treaty provisions.
The Commission can act as a catalyst to consultation and cooperation between member states.
The horizontal nature of “industrial policy” is seen in paragraph 3.
Supporting action can be launched according to the co-decision procedure, after consulting the Economic and Social Committee (ESC).
The last subparagraph serves as a reminder of the delicate balancing acts, which have led to the current Article. Open market member states demanded clear guarantees that the industry Article 157 TEC would not become a back door to “colbertist” dilution of competition or harmonisation of provisions on tax or pay and other employee benefits.
Thus, this title shall not provide a basis for the introduction by the Community of any measure which could lead to a distortion of competition or contains tax provisions or provisions relating to the rights and interests of employed persons.
Here is the current Article 157 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/117–118:
TITLE XVI
INDUSTRY
Article 157 TEC
1. The Community and the Member States shall ensure that the conditions necessary for the competitiveness of the Community's industry exist.
For that purpose, in accordance with a system of open and competitive markets, their action shall be aimed at:
— speeding up the adjustment of industry to structural changes,
— encouraging an environment favourable to initiative and to the development of undertakings throughout the Community, particularly small and medium-sized undertakings,
— encouraging an environment favourable to cooperation between undertakings,
— fostering better exploitation of the industrial potential of policies of innovation, research and technological development.
2. The Member States shall consult each other in liaison with the Commission and, where necessary, shall coordinate their action. The Commission may take any useful initiative to promote such coordination.
3. The Community shall contribute to the achievement of the objectives set out in paragraph 1 through the policies and activities it pursues under other provisions of this Treaty. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, may decide on specific measures in support of action taken in the Member States to achieve the objectives set out in paragraph 1.
This title shall not provide a basis for the introduction by the Community of any measure which could lead to a distortion of competition or contains tax provisions or provisions relating to the rights and interests of employed persons.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how or if the current treaties are amended.
Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.
Article 2, point 129 of the Lisbon Treaty amended Article 157 TEC (OJ 17.12.2007 C 306/84):
INDUSTRY
129) Article 157 shall be amended as follows:
(a) at the end of paragraph 2, the following shall be added: ‘, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.’;
(b) in paragraph 3, first subparagraph, the following phrase shall be added at the end of the second sentence: ‘, excluding any harmonisation of the laws and regulations of the Member States’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XVI first became Title XVI in the TFEU (ToL), but renumbered Title XVII Industry in the consolidated version.
Article 157 TEC initially became Article 157 TFEU (ToL) before the renumbering of the treaty made it into Article 173 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 173 TFEU
The Title and the Article have been renumbered. The customary (horizontal) replacement of the procedure referred to in Article 251 by the ordinary legislative procedure has been made and the Community has been replaced by the Union. The specific amendments have been inserted.
Article 173 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/126):
TITLE XVII
INDUSTRY
Article 173 TFEU
(ex Article 157 TEC)
1. The Union and the Member States shall ensure that the conditions necessary for the competitiveness of the Union's industry exist.
For that purpose, in accordance with a system of open and competitive markets, their action shall be aimed at:
— speeding up the adjustment of industry to structural changes,
— encouraging an environment favourable to initiative and to the development of undertakings throughout the Union, particularly small and medium-sized undertakings,
— encouraging an environment favourable to cooperation between undertakings,
— fostering better exploitation of the industrial potential of policies of innovation, research and technological development.
2. The Member States shall consult each other in liaison with the Commission and, where necessary, shall coordinate their action. The Commission may take any useful initiative to promote such coordination, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.
3. The Union shall contribute to the achievement of the objectives set out in paragraph 1 through the policies and activities it pursues under other provisions of the Treaties. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, may decide on specific measures in support of action taken in the Member States to achieve the objectives set out in paragraph 1, excluding any harmonisation of the laws and regulations of the Member States.
This Title shall not provide a basis for the introduction by the Union of any measure which could lead to a distortion of competition or contains tax provisions or provisions relating to the rights and interests of employed persons.
***
Main changes
The main amendments are taken over from the Constitutional Treaty, the guidelines and indicators etc. from Article III-279(2).
The first five years of the Lisbon Strategy were a disappointment, but the re-launched Lisbon Strategy for Growth and Jobs offers at least the opportunity of a coherent policy framework for the Commission and the member states.
The powers of the European Community (European Union) are fairly weak, but the open method of coordination (OMC) is ‘institutionalised’ in the Treaty of Lisbon, and in the long run it may contribute to progress in the member states and the European Union at large.
Although supporting activities generally exclude harmonising measures (see below), the Lisbon Treaty adopts the style of the Constitutional Treaty to mention the exclusion of any harmonisation of laws and regulations of member states specifically in each provision. Here the Lisbon Treaty adopts the wording of Constitution Article III-279(3).
***
EU powers in general
The powers of the European Union are attributed or conferred by the member states through the treaties (including their aims). The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.
The taxonomy of EU competence is set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 3 TFEU: Exclusive competence
Because industry is at a cross-road of other aims and policies, with more distinct powers, we can mention the customs union and the common commercial policy as well as the competition rules among the areas of exclusive competence.
***
Article 4 TFEU: Shared competence
The internal market (outside the competition regime), as well as the transport and energy sectors are among the competences listed as shared in Article 4 TFEU. The area of research, technological development and space is mentioned specifically in paragraph 3:
Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Article 6 TFEU: Supporting competence
Article 6 TFEU mentions areas of action at European level, where the Union can support, coordinate or supplement member states’ actions. Industry is mentioned among them:
Article 6
The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Summary of legislation: Industry
On the Commission’s Scadplus web pages with summaries of legislation, the page Industry offers links to pages on general activities and actions concerning particular sectors of industry:
http://europa.eu/scadplus/leg/en/s25002.htm
The approach is broad enough to include agriculture, fisheries and tourism among sectors of “industry” or at least the links, making the industry concept even more amorphous.
***
Commission activities
Commission activities and news can be approached through the web page Industrial policy of the Directorate-General Enterprise and Industry:
http://ec.europa.eu/enterprise/enterprise_policy/industry/index_en.htm
Taking into account the political and rhetorical importance attributed to small and medium-sized enterprises, there is cause to mention the new European portal for SMEs:
http://ec.europa.eu/enterprise/sme/index_en.htm
The latest Commission decision on the Lisbon Growth and Jobs Strategy (16 December 2008, IP/08/1987) can be found here:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1987&format=HTML&aged=0&language=EN&guiLanguage=en
The financial turmoil, the economic recession and the national stimulus packages affect both the Stability and Convergence Programmes and the Lisbon National Reform Programmes of the member states.
Ralf Grahn
Should the European Union have more or less industrial policy?
Take a look at what the current and future treaties say, before taking a dogmatic stand.
***
Article 157 TEC
Article 157 TEC (ex Article 130) is the result of difficult rounds of treaty negotiations between proponents of dirigisme and supporters of undistorted competition.
In addition, the contours of “industry” or “industrial policy” are less than clear, because a number of existing European Community (European Union) policies affect industrial enterprises: the internal market, the competition regime including state aid, research and development etc.
To the extent that we speak about a European level industrial policy, its aim would arguably have to seen in the context of global competition, aiming at adaptation to structural change.
An environment favourable to initiative has as its objective to promote entrepreneurship, a somewhat scarce European commodity.
From the beginning of 2005 small and medium-sized undertakings (enterprises) are defined according to Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ 20.5.2003 L 124/36).
The category of micro, small and medium-sized enterprises (SMEs) is made up of enterprises which employ fewer than 250 persons and which have an annual turnover not exceeding EUR 50 million, and/or an annual balance sheet total not exceeding EUR 43 million.
This environment favourable to initiative (entrepreneurship) and development should be encouraged aiming particularly at the SMEs, which constitute 99 per cent of the businesses in the European Union.
Cooperation between businesses can be encouraged by suitable (European) companies as well as information and partner search.
Innovation, research and technological development are other worthy causes, although covered by their own, more specific treaty provisions.
The Commission can act as a catalyst to consultation and cooperation between member states.
The horizontal nature of “industrial policy” is seen in paragraph 3.
Supporting action can be launched according to the co-decision procedure, after consulting the Economic and Social Committee (ESC).
The last subparagraph serves as a reminder of the delicate balancing acts, which have led to the current Article. Open market member states demanded clear guarantees that the industry Article 157 TEC would not become a back door to “colbertist” dilution of competition or harmonisation of provisions on tax or pay and other employee benefits.
Thus, this title shall not provide a basis for the introduction by the Community of any measure which could lead to a distortion of competition or contains tax provisions or provisions relating to the rights and interests of employed persons.
Here is the current Article 157 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/117–118:
TITLE XVI
INDUSTRY
Article 157 TEC
1. The Community and the Member States shall ensure that the conditions necessary for the competitiveness of the Community's industry exist.
For that purpose, in accordance with a system of open and competitive markets, their action shall be aimed at:
— speeding up the adjustment of industry to structural changes,
— encouraging an environment favourable to initiative and to the development of undertakings throughout the Community, particularly small and medium-sized undertakings,
— encouraging an environment favourable to cooperation between undertakings,
— fostering better exploitation of the industrial potential of policies of innovation, research and technological development.
2. The Member States shall consult each other in liaison with the Commission and, where necessary, shall coordinate their action. The Commission may take any useful initiative to promote such coordination.
3. The Community shall contribute to the achievement of the objectives set out in paragraph 1 through the policies and activities it pursues under other provisions of this Treaty. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, may decide on specific measures in support of action taken in the Member States to achieve the objectives set out in paragraph 1.
This title shall not provide a basis for the introduction by the Community of any measure which could lead to a distortion of competition or contains tax provisions or provisions relating to the rights and interests of employed persons.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how or if the current treaties are amended.
Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.
Article 2, point 129 of the Lisbon Treaty amended Article 157 TEC (OJ 17.12.2007 C 306/84):
INDUSTRY
129) Article 157 shall be amended as follows:
(a) at the end of paragraph 2, the following shall be added: ‘, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.’;
(b) in paragraph 3, first subparagraph, the following phrase shall be added at the end of the second sentence: ‘, excluding any harmonisation of the laws and regulations of the Member States’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XVI first became Title XVI in the TFEU (ToL), but renumbered Title XVII Industry in the consolidated version.
Article 157 TEC initially became Article 157 TFEU (ToL) before the renumbering of the treaty made it into Article 173 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 173 TFEU
The Title and the Article have been renumbered. The customary (horizontal) replacement of the procedure referred to in Article 251 by the ordinary legislative procedure has been made and the Community has been replaced by the Union. The specific amendments have been inserted.
Article 173 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/126):
TITLE XVII
INDUSTRY
Article 173 TFEU
(ex Article 157 TEC)
1. The Union and the Member States shall ensure that the conditions necessary for the competitiveness of the Union's industry exist.
For that purpose, in accordance with a system of open and competitive markets, their action shall be aimed at:
— speeding up the adjustment of industry to structural changes,
— encouraging an environment favourable to initiative and to the development of undertakings throughout the Union, particularly small and medium-sized undertakings,
— encouraging an environment favourable to cooperation between undertakings,
— fostering better exploitation of the industrial potential of policies of innovation, research and technological development.
2. The Member States shall consult each other in liaison with the Commission and, where necessary, shall coordinate their action. The Commission may take any useful initiative to promote such coordination, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.
3. The Union shall contribute to the achievement of the objectives set out in paragraph 1 through the policies and activities it pursues under other provisions of the Treaties. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, may decide on specific measures in support of action taken in the Member States to achieve the objectives set out in paragraph 1, excluding any harmonisation of the laws and regulations of the Member States.
This Title shall not provide a basis for the introduction by the Union of any measure which could lead to a distortion of competition or contains tax provisions or provisions relating to the rights and interests of employed persons.
***
Main changes
The main amendments are taken over from the Constitutional Treaty, the guidelines and indicators etc. from Article III-279(2).
The first five years of the Lisbon Strategy were a disappointment, but the re-launched Lisbon Strategy for Growth and Jobs offers at least the opportunity of a coherent policy framework for the Commission and the member states.
The powers of the European Community (European Union) are fairly weak, but the open method of coordination (OMC) is ‘institutionalised’ in the Treaty of Lisbon, and in the long run it may contribute to progress in the member states and the European Union at large.
Although supporting activities generally exclude harmonising measures (see below), the Lisbon Treaty adopts the style of the Constitutional Treaty to mention the exclusion of any harmonisation of laws and regulations of member states specifically in each provision. Here the Lisbon Treaty adopts the wording of Constitution Article III-279(3).
***
EU powers in general
The powers of the European Union are attributed or conferred by the member states through the treaties (including their aims). The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.
The taxonomy of EU competence is set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 3 TFEU: Exclusive competence
Because industry is at a cross-road of other aims and policies, with more distinct powers, we can mention the customs union and the common commercial policy as well as the competition rules among the areas of exclusive competence.
***
Article 4 TFEU: Shared competence
The internal market (outside the competition regime), as well as the transport and energy sectors are among the competences listed as shared in Article 4 TFEU. The area of research, technological development and space is mentioned specifically in paragraph 3:
Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Article 6 TFEU: Supporting competence
Article 6 TFEU mentions areas of action at European level, where the Union can support, coordinate or supplement member states’ actions. Industry is mentioned among them:
Article 6
The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Summary of legislation: Industry
On the Commission’s Scadplus web pages with summaries of legislation, the page Industry offers links to pages on general activities and actions concerning particular sectors of industry:
http://europa.eu/scadplus/leg/en/s25002.htm
The approach is broad enough to include agriculture, fisheries and tourism among sectors of “industry” or at least the links, making the industry concept even more amorphous.
***
Commission activities
Commission activities and news can be approached through the web page Industrial policy of the Directorate-General Enterprise and Industry:
http://ec.europa.eu/enterprise/enterprise_policy/industry/index_en.htm
Taking into account the political and rhetorical importance attributed to small and medium-sized enterprises, there is cause to mention the new European portal for SMEs:
http://ec.europa.eu/enterprise/sme/index_en.htm
The latest Commission decision on the Lisbon Growth and Jobs Strategy (16 December 2008, IP/08/1987) can be found here:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1987&format=HTML&aged=0&language=EN&guiLanguage=en
The financial turmoil, the economic recession and the national stimulus packages affect both the Stability and Convergence Programmes and the Lisbon National Reform Programmes of the member states.
Ralf Grahn
EU procurement: Equal treatment, non-discrimination and transparency
Cavalier or corrupt contracting authorities are a menace to the public purse, taxpayer value and competitive businesses.
Is the European Community (European Union) concerned with public procurement only above certain threshold levels?
For those interested in good public governance and value for money, it is a relief to know that some common principles apply to all public contracts within the European Economic Area (EEA).
***
Article 2 principles
Article 2 of the Procurement Directive 2004/18/EC reminds us of three principles, which apply to public procurement, namely equal treatment, non-discrimination and transparency:
Article 2
Principles of awarding contracts
Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.
***
Recital 2
Recital 2 of the Procurement Directive 2004/18/EC, also known as the Classic Directive, explains that the provisions of the Treaty establishing the European Community (TEC) apply to all public procurement contracts. However, above certain threshold levels more detailed harmonised EC (EU) secondary legislation kicks in:
(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.
***
Treaty provisions
Here we look briefly at some of the main treaty provisions, which apply to public procurement contracts. (More detail can be found, in the light of the Lisbon Treaty, in previous blog posts on individual Articles.)
***
Article 2 TEC Common market
Article 2 of the Treaty establishing the European Community (TEC) states:
The Community shall have as its task, by establishing a common market…
The common market is the original concept enshrined in the Treaty of Rome (EEC Treaty). Since the Single European Act (SEA) it has gradually been replaced by the term internal market in the treaty and secondary legislation. (The Commission seems to favour the single market.) The Treaty of Lisbon would replace the common market by the internal market throughout.
***
Article 3 TEC Community activities
Article 3 TEC sets out Community activities based on the objectives (tasks) mentioned in the previous Article. At least the following are relevant to the common market (internal market) and consequently to public procurement:
Article 3 TEC (parts)
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
-----
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
-----
***
Four freedoms
The four market freedoms – free movement of goods, persons, services and capital – meet the material scope of the Procurement Directive, which concerns the execution of works (buildings and civil engineering works), the supply of products (goods) and the provision of services.
The ECJ has given the fundamental treaty principles concrete meaning based on the specific treaty provisions.
***
Free movement of goods
TEC Articles 23 to 31 contain the main principles regarding the free movement of goods.
Article 28 TEC prohibits all restrictions on imports an all measures having equivalent effect between member states.
***
Free movement of services
The free movement of services is set out in Articles 49 to 55 TEC.
Article 49 TEC prohibits restrictions on the freedom to provide services in another member state.
***
Right of establishment
Restrictions on the freedom of establishment of nationals of a member state in another member state are prohibited according to Article 43 TEC (to Article 48 TEC).
***
Free movement for workers
Articles 39 to 42 TEC aim at securing the free movement for workers within the Community.
***
Non-discrimination
The four freedoms can be seen as expressions of a principle of equal treatment of all economic actors and persons within the internal market.
Equality comprises both (active) equal treatment and (passive) absence of discrimination.
Normally, acts in breach of the specific market freedoms also constitute discrimination on grounds of nationality, but in any case the fundamental prohibition against discrimination on grounds of nationality stands as a reminder to contracting authorities and as an anchor for economic operators from other member states:
Article 12 TEC
Within the scope of application of this Treaty, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules
designed to prohibit such discrimination.
***
Interpretative Communication
If a public contract falls within the scope of the Procurement Directive 2004/18/EC, the detailed rules apply to the award procedure above the thresholds.
The Commission has offered guidance on public procurement procedures in cases where the specific rules of the Directives do not apply:
Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives (OJ 1.8.2006 C 179/2).
The Interpretative Communication refers to the EU-wide competitive tendering procedures set up in the Procurement Directive 2004/18/EC and the Utilities Directive 2004/17/EC, but refers to two kinds of contracts that are not or only partially covered by the Directives:
— Contracts below the thresholds for application of the Public Procurement Directives;
— Contracts for services listed in Annex II B to Directive 2004/18/EC and in Annex XVII B to Directive 2004/17/EC that exceed the thresholds for application of these Directives.
(Concessions are a third such category, mentioned in footnote 3 on the first page.)
***
Obligation of transparency
After summarizing the EC Treaty rules and the basic standards for the award of contracts, the Communication reminds the contracting entities (authorities) of the obligation to evaluate if an intended contract might potentially be of interest to economic operators located in other member states.
The Commission proceeds to deal with adequate advertising:
According to the ECJ, the principles of equal treatment and of non-discrimination imply an obligation of transparency which consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the market to be opened up to competition.
The obligation of transparency requires that an undertaking located in another Member State has access to appropriate information regarding the contract before it is awarded, so that, if it so wishes, it would be in a position to express its interest in obtaining that contract.
Ralf Grahn
Is the European Community (European Union) concerned with public procurement only above certain threshold levels?
For those interested in good public governance and value for money, it is a relief to know that some common principles apply to all public contracts within the European Economic Area (EEA).
***
Article 2 principles
Article 2 of the Procurement Directive 2004/18/EC reminds us of three principles, which apply to public procurement, namely equal treatment, non-discrimination and transparency:
Article 2
Principles of awarding contracts
Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.
***
Recital 2
Recital 2 of the Procurement Directive 2004/18/EC, also known as the Classic Directive, explains that the provisions of the Treaty establishing the European Community (TEC) apply to all public procurement contracts. However, above certain threshold levels more detailed harmonised EC (EU) secondary legislation kicks in:
(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.
***
Treaty provisions
Here we look briefly at some of the main treaty provisions, which apply to public procurement contracts. (More detail can be found, in the light of the Lisbon Treaty, in previous blog posts on individual Articles.)
***
Article 2 TEC Common market
Article 2 of the Treaty establishing the European Community (TEC) states:
The Community shall have as its task, by establishing a common market…
The common market is the original concept enshrined in the Treaty of Rome (EEC Treaty). Since the Single European Act (SEA) it has gradually been replaced by the term internal market in the treaty and secondary legislation. (The Commission seems to favour the single market.) The Treaty of Lisbon would replace the common market by the internal market throughout.
***
Article 3 TEC Community activities
Article 3 TEC sets out Community activities based on the objectives (tasks) mentioned in the previous Article. At least the following are relevant to the common market (internal market) and consequently to public procurement:
Article 3 TEC (parts)
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
-----
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
-----
***
Four freedoms
The four market freedoms – free movement of goods, persons, services and capital – meet the material scope of the Procurement Directive, which concerns the execution of works (buildings and civil engineering works), the supply of products (goods) and the provision of services.
The ECJ has given the fundamental treaty principles concrete meaning based on the specific treaty provisions.
***
Free movement of goods
TEC Articles 23 to 31 contain the main principles regarding the free movement of goods.
Article 28 TEC prohibits all restrictions on imports an all measures having equivalent effect between member states.
***
Free movement of services
The free movement of services is set out in Articles 49 to 55 TEC.
Article 49 TEC prohibits restrictions on the freedom to provide services in another member state.
***
Right of establishment
Restrictions on the freedom of establishment of nationals of a member state in another member state are prohibited according to Article 43 TEC (to Article 48 TEC).
***
Free movement for workers
Articles 39 to 42 TEC aim at securing the free movement for workers within the Community.
***
Non-discrimination
The four freedoms can be seen as expressions of a principle of equal treatment of all economic actors and persons within the internal market.
Equality comprises both (active) equal treatment and (passive) absence of discrimination.
Normally, acts in breach of the specific market freedoms also constitute discrimination on grounds of nationality, but in any case the fundamental prohibition against discrimination on grounds of nationality stands as a reminder to contracting authorities and as an anchor for economic operators from other member states:
Article 12 TEC
Within the scope of application of this Treaty, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules
designed to prohibit such discrimination.
***
Interpretative Communication
If a public contract falls within the scope of the Procurement Directive 2004/18/EC, the detailed rules apply to the award procedure above the thresholds.
The Commission has offered guidance on public procurement procedures in cases where the specific rules of the Directives do not apply:
Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives (OJ 1.8.2006 C 179/2).
The Interpretative Communication refers to the EU-wide competitive tendering procedures set up in the Procurement Directive 2004/18/EC and the Utilities Directive 2004/17/EC, but refers to two kinds of contracts that are not or only partially covered by the Directives:
— Contracts below the thresholds for application of the Public Procurement Directives;
— Contracts for services listed in Annex II B to Directive 2004/18/EC and in Annex XVII B to Directive 2004/17/EC that exceed the thresholds for application of these Directives.
(Concessions are a third such category, mentioned in footnote 3 on the first page.)
***
Obligation of transparency
After summarizing the EC Treaty rules and the basic standards for the award of contracts, the Communication reminds the contracting entities (authorities) of the obligation to evaluate if an intended contract might potentially be of interest to economic operators located in other member states.
The Commission proceeds to deal with adequate advertising:
According to the ECJ, the principles of equal treatment and of non-discrimination imply an obligation of transparency which consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the market to be opened up to competition.
The obligation of transparency requires that an undertaking located in another Member State has access to appropriate information regarding the contract before it is awarded, so that, if it so wishes, it would be in a position to express its interest in obtaining that contract.
Ralf Grahn
Thursday, 25 December 2008
EU Law: TEN legislation
Guidelines and measures concerning trans-European transport, energy and telecommunications networks (TEN) are adopted by the co-decision procedure, renamed the ordinary legislative procedure in the Treaty of Lisbon.
Some Commission documents illustrate the state of the play.
***
Article 156 TEC
Article 156 TEC (ex Article 129d) on trans-European networks (TEN) refers to the guidelines and measures mentioned in Article 155(1) TEC, which concern:
— establishing a series of guidelines covering the objectives, priorities and broad lines of measures envisaged in the sphere of trans-European networks; these guidelines shall identify projects of common interest,
— implementing any measures that may prove necessary to ensure the interoperability of the networks, in particular in the field of technical standardisation,
— supporting projects of common interest supported by Member States, which are identified in the framework of the guidelines referred to in the first indent, particularly through feasibility studies, loan guarantees or interest-rate subsidies; the Community may also contribute, through the Cohesion Fund set up pursuant to Article 161, to the financing of specific projects in Member States in the area of transport infrastructure.
The Community's activities shall take into account the potential economic viability of the projects.
According to Article 156(1) TEC these guidelines and measures are adopted by the procedure referred to in Article 251 (codecision).
When guidelines and projects of common interest relate to the territory of a member state, the approval of that state is needed. This gives the member state a veto power over these acts. If the guidelines or projects relate to the territories of all member states, every member state has a veto.
Here is the current Article 156 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/117:
(TITLE XV
TRANS-EUROPEAN NETWORKS)
Article 156 TEC
The guidelines and other measures referred to in Article 155(1) shall be adopted by the Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions.
Guidelines and projects of common interest which relate to the territory of a Member State shall require the approval of the Member State concerned.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how or if the current treaties are amended.
Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.
Article 2, point 128 of the Lisbon Treaty dealt with consumer protection in Article 153 TEC and point 129 concerns industry, in Article 157 TEC (OJ 17.12.2007 C 306/84).
In other words, Articles 154 to 156 TEC (ex Articles 129b, 129c and 129d) with provisions on trans-European networks are unaffected by specific amendments.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XV first became Title XV in the TFEU (ToL), but renumbered Title XVI Trans-European networks in the consolidated version.
Article 156 TEC initially became Article 156 TFEU (ToL) before the renumbering of the treaty made it into Article 172 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 172 TFEU
After renumbering the Title and the Article as well as the referral and the customary (horizontal) replacement of the procedure referred to in Article 251 by the ordinary legislative procedure, Article 172 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/125):
(TITLE XVI
TRANS-EUROPEAN NETWORKS)
Article 172 TFEU
(ex Article 156 TEC)
The guidelines and other measures referred to in Article 171(1) shall be adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.
Guidelines and projects of common interest which relate to the territory of a Member State shall require the approval of the Member State concerned.
***
EU powers in general
The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.
The taxonomy (categories) of EU competence is set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU: Taxonomy of powers
As an area of shared competence between the EU and the member states, Article 4(2)(h) mentions trans-European networks.
Because the TENs can be seen as flanking measures to other aims and policies, we can mention the internal market, economic, social and territorial cohesion, transport and energy among the competences listed as shared in Article 4 TFEU:
Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Absentee: Telecommunications
The reader may have noticed that the areas of competence listed as exclusive, shared or supporting do not mention telecommunications specifically.
While other infrastructure relies heavily on public financing, investment in telecommunications networks is expected to come mainly from the liberalised markets (with the exception of remote and sparsely populated areas).
***
Summary of legislation: Trans-European networks
On the Commission’s Scadplus web pages with summaries of legislation, the page Trans-European networks offers links to pages with guidelines concerning transport, energy and telecommunications networks, including Community funding:
http://europa.eu/scadplus/leg/en/s06019.htm
***
Financial aid
General rules are found on the web page Community financial aid to trans-European networks (last update 6 April 2007):
http://europa.eu/scadplus/leg/en/lvb/l24096.htm
***
New integrated approach
For an assessment and a forward look at trans-European networks, you can read the Communication from the Commission Trans-European networks: Towards an integrated approach (21.3.2007, COM(2007) 135 final):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0135:FIN:EN:PDF
***
New initiatives 2008
Here are some Commission papers on TEN issues in 2008:
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Legal Framework for Mobile TV Networks and Services: Best Practice for Authorisation – The EU Model; COM(2008) 845 final
Proposal for a Council Decision on establishing the European Community position within the Ministerial Council of the Energy Community (Tirana, 11 December 2008); COM(2008) 783 final
Green Paper - Towards a secure, sustainable and competitive European energy network; COM(2008) 782 final
Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the implementation of the trans-European energy networks programme in the period 2002-2006 Pursuant to Article 16 of Regulation 2236/1995/EC; COM(2008) 770 final
***
For ease of use, here are the references to the transport, energy and telecommunications networks mentioned in yesterday’s post:
TEN-T (transport networks)
Community guidelines for the development of the trans-European transport network (last update 29 January 2008):
http://europa.eu/scadplus/leg/en/lvb/l24094.htm
Interoperability of the trans-European high-speed rail system (last update 9 April 2008):
http://europa.eu/scadplus/leg/en/lvb/l24095.htm
Interoperability of the trans-European conventional rail system (last update 24 November 2005):
http://europa.eu/scadplus/leg/en/lvb/l24229.htm
Satellite navigation: Galileo (last update 13 January 2006):
http://europa.eu/scadplus/leg/en/lvb/l24205.htm
Galileo Joint Undertaking (last update 2 August 2007):
http://europa.eu/scadplus/leg/en/lvb/l24098.htm
***
TEN-E (energy networks)
Trans-European energy networks (last update 5 April 2008) on new guidelines:
http://europa.eu/scadplus/leg/en/lvb/l27066.htm
***
eTEN (TEN-Telecom) (telecommunications networks)
Guidelines for trans-European telecommunications networks (last update 23 May 2007):
http://europa.eu/scadplus/leg/en/lvb/l24145.htm
***
Commission activities
Commission activities and news can be approached through the web page Trans-European Networks:
http://ec.europa.eu/ten/index_en.html
For a more detailed view, you have to look at the different sectors.
Transport (TEN-T):
http://ec.europa.eu/transport/infrastructure/index_en.htm
Energy (TEN-E):
http://ec.europa.eu/energy/infrastructure/index_en.htm
Telecommunications (eTEN):
http://ec.europa.eu/information_society/activities/eten/index_en.htm
The projects under the eTEN umbrella are drawing to a close. You can read the eTEN Newsletter Quarter 4 – 2008:
http://ec.europa.eu/information_society/activities/eten/newsletters/q4_2008.htm
These first references do not give instant answers concerning the possible current role of the European Union with regard to telecommunications networks, but the web page Telecoms in the European Union refers to both telecoms networks and services:
http://ec.europa.eu/information_society/policy/ecomm/index_en.htm .
Ralf Grahn
Some Commission documents illustrate the state of the play.
***
Article 156 TEC
Article 156 TEC (ex Article 129d) on trans-European networks (TEN) refers to the guidelines and measures mentioned in Article 155(1) TEC, which concern:
— establishing a series of guidelines covering the objectives, priorities and broad lines of measures envisaged in the sphere of trans-European networks; these guidelines shall identify projects of common interest,
— implementing any measures that may prove necessary to ensure the interoperability of the networks, in particular in the field of technical standardisation,
— supporting projects of common interest supported by Member States, which are identified in the framework of the guidelines referred to in the first indent, particularly through feasibility studies, loan guarantees or interest-rate subsidies; the Community may also contribute, through the Cohesion Fund set up pursuant to Article 161, to the financing of specific projects in Member States in the area of transport infrastructure.
The Community's activities shall take into account the potential economic viability of the projects.
According to Article 156(1) TEC these guidelines and measures are adopted by the procedure referred to in Article 251 (codecision).
When guidelines and projects of common interest relate to the territory of a member state, the approval of that state is needed. This gives the member state a veto power over these acts. If the guidelines or projects relate to the territories of all member states, every member state has a veto.
Here is the current Article 156 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/117:
(TITLE XV
TRANS-EUROPEAN NETWORKS)
Article 156 TEC
The guidelines and other measures referred to in Article 155(1) shall be adopted by the Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions.
Guidelines and projects of common interest which relate to the territory of a Member State shall require the approval of the Member State concerned.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how or if the current treaties are amended.
Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.
Article 2, point 128 of the Lisbon Treaty dealt with consumer protection in Article 153 TEC and point 129 concerns industry, in Article 157 TEC (OJ 17.12.2007 C 306/84).
In other words, Articles 154 to 156 TEC (ex Articles 129b, 129c and 129d) with provisions on trans-European networks are unaffected by specific amendments.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XV first became Title XV in the TFEU (ToL), but renumbered Title XVI Trans-European networks in the consolidated version.
Article 156 TEC initially became Article 156 TFEU (ToL) before the renumbering of the treaty made it into Article 172 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 172 TFEU
After renumbering the Title and the Article as well as the referral and the customary (horizontal) replacement of the procedure referred to in Article 251 by the ordinary legislative procedure, Article 172 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/125):
(TITLE XVI
TRANS-EUROPEAN NETWORKS)
Article 172 TFEU
(ex Article 156 TEC)
The guidelines and other measures referred to in Article 171(1) shall be adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.
Guidelines and projects of common interest which relate to the territory of a Member State shall require the approval of the Member State concerned.
***
EU powers in general
The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.
The taxonomy (categories) of EU competence is set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU: Taxonomy of powers
As an area of shared competence between the EU and the member states, Article 4(2)(h) mentions trans-European networks.
Because the TENs can be seen as flanking measures to other aims and policies, we can mention the internal market, economic, social and territorial cohesion, transport and energy among the competences listed as shared in Article 4 TFEU:
Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Absentee: Telecommunications
The reader may have noticed that the areas of competence listed as exclusive, shared or supporting do not mention telecommunications specifically.
While other infrastructure relies heavily on public financing, investment in telecommunications networks is expected to come mainly from the liberalised markets (with the exception of remote and sparsely populated areas).
***
Summary of legislation: Trans-European networks
On the Commission’s Scadplus web pages with summaries of legislation, the page Trans-European networks offers links to pages with guidelines concerning transport, energy and telecommunications networks, including Community funding:
http://europa.eu/scadplus/leg/en/s06019.htm
***
Financial aid
General rules are found on the web page Community financial aid to trans-European networks (last update 6 April 2007):
http://europa.eu/scadplus/leg/en/lvb/l24096.htm
***
New integrated approach
For an assessment and a forward look at trans-European networks, you can read the Communication from the Commission Trans-European networks: Towards an integrated approach (21.3.2007, COM(2007) 135 final):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0135:FIN:EN:PDF
***
New initiatives 2008
Here are some Commission papers on TEN issues in 2008:
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Legal Framework for Mobile TV Networks and Services: Best Practice for Authorisation – The EU Model; COM(2008) 845 final
Proposal for a Council Decision on establishing the European Community position within the Ministerial Council of the Energy Community (Tirana, 11 December 2008); COM(2008) 783 final
Green Paper - Towards a secure, sustainable and competitive European energy network; COM(2008) 782 final
Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the implementation of the trans-European energy networks programme in the period 2002-2006 Pursuant to Article 16 of Regulation 2236/1995/EC; COM(2008) 770 final
***
For ease of use, here are the references to the transport, energy and telecommunications networks mentioned in yesterday’s post:
TEN-T (transport networks)
Community guidelines for the development of the trans-European transport network (last update 29 January 2008):
http://europa.eu/scadplus/leg/en/lvb/l24094.htm
Interoperability of the trans-European high-speed rail system (last update 9 April 2008):
http://europa.eu/scadplus/leg/en/lvb/l24095.htm
Interoperability of the trans-European conventional rail system (last update 24 November 2005):
http://europa.eu/scadplus/leg/en/lvb/l24229.htm
Satellite navigation: Galileo (last update 13 January 2006):
http://europa.eu/scadplus/leg/en/lvb/l24205.htm
Galileo Joint Undertaking (last update 2 August 2007):
http://europa.eu/scadplus/leg/en/lvb/l24098.htm
***
TEN-E (energy networks)
Trans-European energy networks (last update 5 April 2008) on new guidelines:
http://europa.eu/scadplus/leg/en/lvb/l27066.htm
***
eTEN (TEN-Telecom) (telecommunications networks)
Guidelines for trans-European telecommunications networks (last update 23 May 2007):
http://europa.eu/scadplus/leg/en/lvb/l24145.htm
***
Commission activities
Commission activities and news can be approached through the web page Trans-European Networks:
http://ec.europa.eu/ten/index_en.html
For a more detailed view, you have to look at the different sectors.
Transport (TEN-T):
http://ec.europa.eu/transport/infrastructure/index_en.htm
Energy (TEN-E):
http://ec.europa.eu/energy/infrastructure/index_en.htm
Telecommunications (eTEN):
http://ec.europa.eu/information_society/activities/eten/index_en.htm
The projects under the eTEN umbrella are drawing to a close. You can read the eTEN Newsletter Quarter 4 – 2008:
http://ec.europa.eu/information_society/activities/eten/newsletters/q4_2008.htm
These first references do not give instant answers concerning the possible current role of the European Union with regard to telecommunications networks, but the web page Telecoms in the European Union refers to both telecoms networks and services:
http://ec.europa.eu/information_society/policy/ecomm/index_en.htm .
Ralf Grahn
EU procurement: Telecommunications networks and services
The EC (EU) Procurement Directive 2004/18/EC defines public telecommunications networks, network termination points, public telecommunications services and telecommunications services in Article 1.15:
15. For the purposes of Article 13, Article 57(a) and Article 68(b), the following phrases shall have the following meanings:
(a) ‘public telecommunications network’ means the public telecommunications infrastructure which enables signals to be conveyed between defined network termination points by wire, by microwave, by optical means or by other electromagnetic means;
(b) a ‘network termination point’ means all physical connections and their technical access specifications which form part of the public telecommunications network and are necessary for access to, and efficient communication through, that public network;
(c) ‘public telecommunications services’ means telecommunications services the provision of which the Member States have specifically assigned, in particular, to one or more telecommunications entities;
(d) ‘telecommunications services’ means services the provision of which consists wholly or partly in the transmission and routing of signals on the public telecommunications network by means of telecommunications processes, with the exception of broadcasting and television.
***
Recital 21
Recital 21 of the Procurement Directive or Classic Directive makes an effort to explain and to delimit the exclusion of public telecommunications contracts from the scope of the Directive:
(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, 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.
***
Excluded contracts
Under Section 3 Excluded contracts, Article 13 of the Procurement Directive lays down the following rules:
Article 13
Specific exclusions in the field of telecommunications
This Directive shall not apply to public contracts for the principal purpose of permitting the contracting authorities to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services.
***
Article 57(a) and 68(b) contain further exclusions.
***
Utilities Directive 2004/17/EC
The Utilities Directive, officially the 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 (OJ 30.4.2004 L 134/1; later amendments) excluded purchases by telecommunications entities from the new Utilities Directive, as described in Recital 5:
(5) The scope of Directive 98/38/EEC covers, at present, certain contracts awarded by contracting entities operating in the telecommunications sector. A legislative framework, as mentioned in the Fourth report on the implementation of the telecommunications regulations of 25 November 1998, has been adopted to open this sector. One of its consequences has been the introduction of effective competition, both de jure and de facto, in this sector. For information purposes, and in the light of this situation, the Commission has published a list of telecommunications services which may already be excluded from the scope of that Directive by virtue of Article 8 thereof. Further progress has been confirmed in the Seventh report on the implementation of telecommunications regulations of 26 November 2001. It is therefore no longer necessary to regulate purchases by entities operating in this sector.
***
The exclusion of public telecommunications contracts from the scope of the new Utilities Directive would have brought them under the new general Procurement Directive.
The contracts by contracting authorities would have fallen under the new Procurement Directive, but Article 13 specifically excludes this.
***
Background: Effective competition
A Communication from the Commission evaluated the development of effective competition within the telecommunications sector:
Communication from the Commission pursuant to Article 8 of Directive 93/38/EEC List of services regarded as excluded from the scope of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors pursuant to Article 8 thereof (OJ 30.4.2004 C 115/7)
Directive 93/38/EEC is applicable in particular to contracts awarded by telecommunications operators; however its constraints are no longer justified where there is effective competition after the liberalisation of this sector. For this purpose Article 8 of the Directive lays down that where there is effective competition in the telecommunications services market, procurements for the provision of these services may be exempted from the scope of the Directive. In its Communication on public procurement in the European Union, the Commission indicated that it would examine whether this Article could be applied.
Ralf Grahn
15. For the purposes of Article 13, Article 57(a) and Article 68(b), the following phrases shall have the following meanings:
(a) ‘public telecommunications network’ means the public telecommunications infrastructure which enables signals to be conveyed between defined network termination points by wire, by microwave, by optical means or by other electromagnetic means;
(b) a ‘network termination point’ means all physical connections and their technical access specifications which form part of the public telecommunications network and are necessary for access to, and efficient communication through, that public network;
(c) ‘public telecommunications services’ means telecommunications services the provision of which the Member States have specifically assigned, in particular, to one or more telecommunications entities;
(d) ‘telecommunications services’ means services the provision of which consists wholly or partly in the transmission and routing of signals on the public telecommunications network by means of telecommunications processes, with the exception of broadcasting and television.
***
Recital 21
Recital 21 of the Procurement Directive or Classic Directive makes an effort to explain and to delimit the exclusion of public telecommunications contracts from the scope of the Directive:
(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, 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.
***
Excluded contracts
Under Section 3 Excluded contracts, Article 13 of the Procurement Directive lays down the following rules:
Article 13
Specific exclusions in the field of telecommunications
This Directive shall not apply to public contracts for the principal purpose of permitting the contracting authorities to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services.
***
Article 57(a) and 68(b) contain further exclusions.
***
Utilities Directive 2004/17/EC
The Utilities Directive, officially the 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 (OJ 30.4.2004 L 134/1; later amendments) excluded purchases by telecommunications entities from the new Utilities Directive, as described in Recital 5:
(5) The scope of Directive 98/38/EEC covers, at present, certain contracts awarded by contracting entities operating in the telecommunications sector. A legislative framework, as mentioned in the Fourth report on the implementation of the telecommunications regulations of 25 November 1998, has been adopted to open this sector. One of its consequences has been the introduction of effective competition, both de jure and de facto, in this sector. For information purposes, and in the light of this situation, the Commission has published a list of telecommunications services which may already be excluded from the scope of that Directive by virtue of Article 8 thereof. Further progress has been confirmed in the Seventh report on the implementation of telecommunications regulations of 26 November 2001. It is therefore no longer necessary to regulate purchases by entities operating in this sector.
***
The exclusion of public telecommunications contracts from the scope of the new Utilities Directive would have brought them under the new general Procurement Directive.
The contracts by contracting authorities would have fallen under the new Procurement Directive, but Article 13 specifically excludes this.
***
Background: Effective competition
A Communication from the Commission evaluated the development of effective competition within the telecommunications sector:
Communication from the Commission pursuant to Article 8 of Directive 93/38/EEC List of services regarded as excluded from the scope of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors pursuant to Article 8 thereof (OJ 30.4.2004 C 115/7)
Directive 93/38/EEC is applicable in particular to contracts awarded by telecommunications operators; however its constraints are no longer justified where there is effective competition after the liberalisation of this sector. For this purpose Article 8 of the Directive lays down that where there is effective competition in the telecommunications services market, procurements for the provision of these services may be exempted from the scope of the Directive. In its Communication on public procurement in the European Union, the Commission indicated that it would examine whether this Article could be applied.
Ralf Grahn
Wednesday, 24 December 2008
EU Law: Trans-European Network action
Article 155 TEC
Article 155 TEC (ex Article 129c) spells out the activities of the European Community and the member states to achieve the aims of the trans-European networks (TEN).
A main activity for the European Community (European Union) is to identify projects of common interest.
Standardisation is important to ensure interoperability of networks.
Support measures are envisioned for projects of common interest, taking into account their economic viability.
The member states coordinate their network policies, with the support of the Commission.
International cooperation is foreseen with third countries.
Here is the current Article 15 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/116–117:
(TITLE XV
TRANS-EUROPEAN NETWORKS)
Article 155 TEC
1. In order to achieve the objectives referred to in Article 154, the Community:
— shall establish a series of guidelines covering the objectives, priorities and broad lines of measures envisaged in the sphere of trans-European networks; these guidelines shall identify projects of common interest,
— shall implement any measures that may prove necessary to ensure the interoperability of the networks, in particular in the field of technical standardisation,
— may support projects of common interest supported by Member States, which are identified in the framework of the guidelines referred to in the first indent, particularly through feasibility studies, loan guarantees or interest-rate subsidies; the Community may also contribute, through the Cohesion Fund set up pursuant to Article 161, to the financing of specific projects in Member States in the area of transport infrastructure.
The Community's activities shall take into account the potential economic viability of the projects.
2. Member States shall, in liaison with the Commission, coordinate among themselves the policies pursued at national level which may have a significant impact on the achievement of the objectives referred to in Article 154. The Commission may, in close cooperation with the Member State, take any useful initiative to promote such coordination.
3. The Community may decide to cooperate with third countries to promote projects of mutual interest and to ensure the interoperability of networks.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how or if the current treaties are amended.
Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.
Article 2, point 128 of the Lisbon Treaty dealt with consumer protection in Article 153 TEC and point 129 concerns industry, in Article 157 TEC (OJ 17.12.2007 C 306/84).
In other words, Articles 154 to 156 TEC (ex Articles 129b, 129c and 129d) with provisions on trans-European networks were not affected by specific amendments.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XV first became Title XV in the TFEU (ToL), but renumbered Title XVI Trans-European networks in the consolidated version.
Article 155 TEC initially became Article 155 TFEU (ToL) before the renumbering of the treaty made it into Article 171 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 171 TFEU
After renumbering the Title and the Article as well as the referrals and the customary (horizontal) replacement of Community by Union, Article 171 TFEU shapes up like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/125):
(TITLE XVI
TRANS-EUROPEAN NETWORKS)
Article 171 TFEU
(ex Article 155 TEC)
1. In order to achieve the objectives referred to in Article 170, the Union:
— shall establish a series of guidelines covering the objectives, priorities and broad lines of measures envisaged in the sphere of trans-European networks; these guidelines shall identify projects of common interest,
— shall implement any measures that may prove necessary to ensure the interoperability of the networks, in particular in the field of technical standardisation,
— may support projects of common interest supported by Member States, which are identified in the framework of the guidelines referred to in the first indent, particularly through feasibility studies, loan guarantees or interest-rate subsidies; the Union may also contribute, through the Cohesion Fund set up pursuant to Article 177, to the financing of specific projects in Member States in the area of transport infrastructure.
The Union's activities shall take into account the potential economic viability of the projects.
2. Member States shall, in liaison with the Commission, coordinate among themselves the policies pursued at national level which may have a significant impact on the achievement of the objectives referred to in Article 170. The Commission may, in close cooperation with the Member State, take any useful initiative to promote such coordination.
3. The Union may decide to cooperate with third countries to promote projects of mutual interest and to ensure the interoperability of networks.
***
EU powers
The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.
The taxonomy (categories) of EU competence is set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU
As an area of shared competence between the EU and the member states, Article 4(2)(h) mentions trans-European networks.
Because the TENs can be seen as flanking measures to other aims and policies, we can mention the internal market, economic, social and territorial cohesion, transport and energy among the competences listed as shared in Article 4 TFEU:
Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Absentee: Telecommunications
The reader may have noticed that the areas of competence listed as exclusive, shared or supporting do not mention telecommunications specifically.
***
Summary of legislation: Trans-European networks
On the Commission’s Scadplus web pages with summaries of legislation, the page Trans-European networks offers links to pages with guidelines concerning transport, energy and telecommunications networks, including Community funding:
http://europa.eu/scadplus/leg/en/s06019.htm
***
Financial aid
General rules are found on the web page Community financial aid to trans-European networks (last update 6 April 2007):
http://europa.eu/scadplus/leg/en/lvb/l24096.htm
***
TEN-T (transport networks)
Community guidelines for the development of the trans-European transport network (last update 29 January 2008):
http://europa.eu/scadplus/leg/en/lvb/l24094.htm
Interoperability of the trans-European high-speed rail system (last update 9 April 2008):
http://europa.eu/scadplus/leg/en/lvb/l24095.htm
Interoperability of the trans-European conventional rail system (last update 24 November 2005):
http://europa.eu/scadplus/leg/en/lvb/l24229.htm
Satellite navigation: Galileo (last update 13 January 2006):
http://europa.eu/scadplus/leg/en/lvb/l24205.htm
Galileo Joint Undertaking (last update 2 August 2007):
http://europa.eu/scadplus/leg/en/lvb/l24098.htm
***
TEN-E (energy networks)
Trans-European energy networks (last update 5 April 2008) on new guidelines:
http://europa.eu/scadplus/leg/en/lvb/l27066.htm
***
eTEN (TEN-Telecom) (telecommunications networks)
Guidelines for trans-European telecommunications networks (last update 23 May 2007):
http://europa.eu/scadplus/leg/en/lvb/l24145.htm
***
Commission activities
Commission activities and news can be approached through the web page Trans-European Networks:
http://ec.europa.eu/ten/index_en.html
For a more detailed view, you have to look at the different sectors.
Transport (TEN-T):
http://ec.europa.eu/transport/infrastructure/index_en.htm
Energy (TEN-E):
http://ec.europa.eu/energy/infrastructure/index_en.htm
Telecommunications (eTEN):
http://ec.europa.eu/information_society/activities/eten/index_en.htm
The projects under the eTEN umbrella are drawing to a close. You can read the eTEN Newsletter Quarter 4 – 2008:
http://ec.europa.eu/information_society/activities/eten/newsletters/q4_2008.htm
These first references do not give instant answers concerning the possible current role of the European Union with regard to telecommunications networks, but the web page Telecoms in the European Union refers to both telecoms networks and services:
http://ec.europa.eu/information_society/policy/ecomm/index_en.htm .
Ralf Grahn
Article 155 TEC (ex Article 129c) spells out the activities of the European Community and the member states to achieve the aims of the trans-European networks (TEN).
A main activity for the European Community (European Union) is to identify projects of common interest.
Standardisation is important to ensure interoperability of networks.
Support measures are envisioned for projects of common interest, taking into account their economic viability.
The member states coordinate their network policies, with the support of the Commission.
International cooperation is foreseen with third countries.
Here is the current Article 15 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/116–117:
(TITLE XV
TRANS-EUROPEAN NETWORKS)
Article 155 TEC
1. In order to achieve the objectives referred to in Article 154, the Community:
— shall establish a series of guidelines covering the objectives, priorities and broad lines of measures envisaged in the sphere of trans-European networks; these guidelines shall identify projects of common interest,
— shall implement any measures that may prove necessary to ensure the interoperability of the networks, in particular in the field of technical standardisation,
— may support projects of common interest supported by Member States, which are identified in the framework of the guidelines referred to in the first indent, particularly through feasibility studies, loan guarantees or interest-rate subsidies; the Community may also contribute, through the Cohesion Fund set up pursuant to Article 161, to the financing of specific projects in Member States in the area of transport infrastructure.
The Community's activities shall take into account the potential economic viability of the projects.
2. Member States shall, in liaison with the Commission, coordinate among themselves the policies pursued at national level which may have a significant impact on the achievement of the objectives referred to in Article 154. The Commission may, in close cooperation with the Member State, take any useful initiative to promote such coordination.
3. The Community may decide to cooperate with third countries to promote projects of mutual interest and to ensure the interoperability of networks.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how or if the current treaties are amended.
Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.
Article 2, point 128 of the Lisbon Treaty dealt with consumer protection in Article 153 TEC and point 129 concerns industry, in Article 157 TEC (OJ 17.12.2007 C 306/84).
In other words, Articles 154 to 156 TEC (ex Articles 129b, 129c and 129d) with provisions on trans-European networks were not affected by specific amendments.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XV first became Title XV in the TFEU (ToL), but renumbered Title XVI Trans-European networks in the consolidated version.
Article 155 TEC initially became Article 155 TFEU (ToL) before the renumbering of the treaty made it into Article 171 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 171 TFEU
After renumbering the Title and the Article as well as the referrals and the customary (horizontal) replacement of Community by Union, Article 171 TFEU shapes up like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/125):
(TITLE XVI
TRANS-EUROPEAN NETWORKS)
Article 171 TFEU
(ex Article 155 TEC)
1. In order to achieve the objectives referred to in Article 170, the Union:
— shall establish a series of guidelines covering the objectives, priorities and broad lines of measures envisaged in the sphere of trans-European networks; these guidelines shall identify projects of common interest,
— shall implement any measures that may prove necessary to ensure the interoperability of the networks, in particular in the field of technical standardisation,
— may support projects of common interest supported by Member States, which are identified in the framework of the guidelines referred to in the first indent, particularly through feasibility studies, loan guarantees or interest-rate subsidies; the Union may also contribute, through the Cohesion Fund set up pursuant to Article 177, to the financing of specific projects in Member States in the area of transport infrastructure.
The Union's activities shall take into account the potential economic viability of the projects.
2. Member States shall, in liaison with the Commission, coordinate among themselves the policies pursued at national level which may have a significant impact on the achievement of the objectives referred to in Article 170. The Commission may, in close cooperation with the Member State, take any useful initiative to promote such coordination.
3. The Union may decide to cooperate with third countries to promote projects of mutual interest and to ensure the interoperability of networks.
***
EU powers
The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.
The taxonomy (categories) of EU competence is set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU
As an area of shared competence between the EU and the member states, Article 4(2)(h) mentions trans-European networks.
Because the TENs can be seen as flanking measures to other aims and policies, we can mention the internal market, economic, social and territorial cohesion, transport and energy among the competences listed as shared in Article 4 TFEU:
Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Absentee: Telecommunications
The reader may have noticed that the areas of competence listed as exclusive, shared or supporting do not mention telecommunications specifically.
***
Summary of legislation: Trans-European networks
On the Commission’s Scadplus web pages with summaries of legislation, the page Trans-European networks offers links to pages with guidelines concerning transport, energy and telecommunications networks, including Community funding:
http://europa.eu/scadplus/leg/en/s06019.htm
***
Financial aid
General rules are found on the web page Community financial aid to trans-European networks (last update 6 April 2007):
http://europa.eu/scadplus/leg/en/lvb/l24096.htm
***
TEN-T (transport networks)
Community guidelines for the development of the trans-European transport network (last update 29 January 2008):
http://europa.eu/scadplus/leg/en/lvb/l24094.htm
Interoperability of the trans-European high-speed rail system (last update 9 April 2008):
http://europa.eu/scadplus/leg/en/lvb/l24095.htm
Interoperability of the trans-European conventional rail system (last update 24 November 2005):
http://europa.eu/scadplus/leg/en/lvb/l24229.htm
Satellite navigation: Galileo (last update 13 January 2006):
http://europa.eu/scadplus/leg/en/lvb/l24205.htm
Galileo Joint Undertaking (last update 2 August 2007):
http://europa.eu/scadplus/leg/en/lvb/l24098.htm
***
TEN-E (energy networks)
Trans-European energy networks (last update 5 April 2008) on new guidelines:
http://europa.eu/scadplus/leg/en/lvb/l27066.htm
***
eTEN (TEN-Telecom) (telecommunications networks)
Guidelines for trans-European telecommunications networks (last update 23 May 2007):
http://europa.eu/scadplus/leg/en/lvb/l24145.htm
***
Commission activities
Commission activities and news can be approached through the web page Trans-European Networks:
http://ec.europa.eu/ten/index_en.html
For a more detailed view, you have to look at the different sectors.
Transport (TEN-T):
http://ec.europa.eu/transport/infrastructure/index_en.htm
Energy (TEN-E):
http://ec.europa.eu/energy/infrastructure/index_en.htm
Telecommunications (eTEN):
http://ec.europa.eu/information_society/activities/eten/index_en.htm
The projects under the eTEN umbrella are drawing to a close. You can read the eTEN Newsletter Quarter 4 – 2008:
http://ec.europa.eu/information_society/activities/eten/newsletters/q4_2008.htm
These first references do not give instant answers concerning the possible current role of the European Union with regard to telecommunications networks, but the web page Telecoms in the European Union refers to both telecoms networks and services:
http://ec.europa.eu/information_society/policy/ecomm/index_en.htm .
Ralf Grahn
Christmas statement to Latvia
The Nordic Finance Ministers have issued a Christmas statement to the beleaguered Latvian Government, promising supplementary credits. Here is the 23 December 2008 joint statement:
Joint statement from the Ministers of Finance in Denmark, Finland, Norway and Sweden regarding lending to Latvia
The IMF Executive Board has today approved a financial package for Latvia. The package is linked to an extraordinary strong economic reform programme that includes a fiscal consolidation of around 7 percent of GDP already in 2009. The Nordic countries stand ready to provide credits of up to €1.8 billion contingent on the successful implementation of the reform programme.
Like in the case of Iceland, the Nordic countries - Denmark, Finland, Norway and Sweden - have worked closely together and jointly decided to contribute to the financing of the IMF-programme. The total amount the Nordic countries are prepared to lend equals the support provided for Iceland 1.8 billion euro.
The programme is very ambitious and shows that Latvia is firmly committed to stick to the present currency peg. It will be particularly important to rebalance the current account and improve the economy’s external competitiveness through the full implementation of the fiscal plans and ensuring that wages develop in line with the requirements that come with the fixed exchange rate. The authorities also need to work hard with structural reforms aiming at developing a competitive export sector and improving the institutional framework of the economy.
With the implementation of the programme Latvia should be in a position to weather the present turbulence and move towards a path of sustainable growth and more balanced macroeconomic developments.
Anders Borg, Kristin Halvorsen, Jyrki Katainen and Lars Løkke Rasmussen
***
Despite the IMF rescue package and coordinated help from the Nordic countries, Latvia faces a rough 2009 and beyond.
Ralf Grahn
Joint statement from the Ministers of Finance in Denmark, Finland, Norway and Sweden regarding lending to Latvia
The IMF Executive Board has today approved a financial package for Latvia. The package is linked to an extraordinary strong economic reform programme that includes a fiscal consolidation of around 7 percent of GDP already in 2009. The Nordic countries stand ready to provide credits of up to €1.8 billion contingent on the successful implementation of the reform programme.
Like in the case of Iceland, the Nordic countries - Denmark, Finland, Norway and Sweden - have worked closely together and jointly decided to contribute to the financing of the IMF-programme. The total amount the Nordic countries are prepared to lend equals the support provided for Iceland 1.8 billion euro.
The programme is very ambitious and shows that Latvia is firmly committed to stick to the present currency peg. It will be particularly important to rebalance the current account and improve the economy’s external competitiveness through the full implementation of the fiscal plans and ensuring that wages develop in line with the requirements that come with the fixed exchange rate. The authorities also need to work hard with structural reforms aiming at developing a competitive export sector and improving the institutional framework of the economy.
With the implementation of the programme Latvia should be in a position to weather the present turbulence and move towards a path of sustainable growth and more balanced macroeconomic developments.
Anders Borg, Kristin Halvorsen, Jyrki Katainen and Lars Løkke Rasmussen
***
Despite the IMF rescue package and coordinated help from the Nordic countries, Latvia faces a rough 2009 and beyond.
Ralf Grahn
EU procurement: Common Procurement Vocabulary (CPV)
Within the European Union the updated Common Procurement Vocabulary CPV 2008 is in use since 17 September 2008.
The EC (EU) Procurement Directive 2004/18/EC, also known as the Classic Directive, defines the Common Procurement Vocabulary (CPV) in the following way in Article 1.14:
14. The ‘Common Procurement Vocabulary (CPV)’ shall designate the reference nomenclature applicable to public contracts as adopted by Regulation (EC) No 2195/2002, while ensuring equivalence with the other existing nomenclatures.
In the event of varying interpretations of the scope of this Directive, owing to possible differences between the CPV and NACE nomenclatures listed in Annex I, or between the CPV and CPC (provisional version) nomenclatures listed in Annex II, the NACE or the CPC nomenclature respectively shall take precedence.
***
CPV Regulation No 2195/2002
The Regulation referred to in Article 1.14 is officially Regulation (EC) No 2195/2002 of the European Parliament and of the Council of 5 November 2002 on the Common Procurement Vocabulary (CPV).
The CPV Regulation has been amended, so this is where you find the consolidated version from 15 September 2008:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002R2195:20080915:EN:PDF
There is an amendment in the pipeline, a Commission proposal concerning regulatory procedures (implementing powers): Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, as amended by Decision 2006/512/EC, with regard to the regulatory procedure with scrutiny – Adaptation to the regulatory procedure with scrutiny Part Four (11.2.2008, COM(2008) 71 final):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0071:FIN:EN:PDF
The Recitals of the CPV Regulation present the reasons for a single reference system which uses the same description of goods in the official languages of the European Community and the legislative choices:
Whereas:
(1) The use of different classifications is detrimental to the openness and transparency of public procurement in Europe. Its impact on the quality of notices and the time needed to publish them is a de facto restriction on the access of economic operators to public contracts.
(2) In its Recommendation 96/527/EC (5) the Commission invited contracting entities and authorities to use the Common Procurement Vocabulary (CPV), developed on the basis of certain existing classifications with a view to gearing them more closely to the particular features of the public procurement sector, when describing the subjects of their contracts.
(3) There is a need to standardise, by means of a single classification system for public procurement, the references used by the contracting authorities and entities to describe the subject of contracts.
(4) The Member States need to have a single reference system which uses the same description of goods in the official languages of the Community and the same corresponding alphanumeric code, thus making it possible to overcome the language barriers at Community level.
(5) A revised version of the CPV therefore needs to be adopted under this Regulation as a single classification system for public procurement, the implementation of which is covered by the Directives on the coordination of procedures for the award of public contracts.
(6) Illustrative tables must also be drawn up showing the correspondence between the CPV and the Statistical Classification of Products by Activity in the EEC (CPA), the Provisional Central Product Classification (CPC Prov.) of the United Nations, the General Industrial Classification of Economic Activities within the European Communities (NACE Rev. 1) and the Combined Nomenclature (CN).
(7) The structure and codes of the CPV may need to be adapted or amended, in the light of developments in the markets and users' needs. A suitable revision procedure must therefore be established.
(8) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.
(9) Since the objective of the proposed action, namely the drawing up of a classification system for public contracts, cannot be sufficiently achieved by the Member States and can therefore, by reason of the dimensions and effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
(10) A Regulation has been chosen rather than a Directive as the establishment of a classification system for public contracts does not require implementation by the Member States.
(11) With a view to familiarising users with a unified classification system that will eventually be compulsory, the implementation of this CPV Regulation should be preceded by a period of adjustment.
Article 1 of the CPV Regulation enshrines the adoption of the Common Procurement Vocabulary and the relationship between the CPV and the other product nomenclatures:
Article 1
1. A single classification system applicable to public procurement, known as the ‘Common Procurement Vocabulary’ or ‘CPV’ is hereby established.
2. The text of the CPV is set out in Annex I.
3. The illustrative tables showing the correspondence between the CPV and the Statistical Classification of Products by Activity in the EEC (CPA), the Provisional Central Product Classification (CPC Prov.) of the United Nations, the General Industrial Classification of Economic Activities within the European Communities (NACE Rev. 1) and the Combined Nomenclature (CN) are set out in Annexes II, III, IV and V respectively.
***
CPV 2008
On the occasion of the 28 November 2007 amendment to the CPV Regulation, the Commission painted a broad picture of the CPV and the reasons behind the change in the press release Public procurement: new classification system to provide EU businesses with easier access to public contracts (28 November, 2007IP/07/1787):
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1787&format=HTML&aged=0&language=EN&guiLanguage=fr
More detail on the latest major update is offered by the amending Regulation: Commission Regulation (EC) No 213/2008 of 28 November 2007 amending Regulation (EC) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (CPV) and Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council on public procurement procedures, as regards the revision of the CPV (OJ 15.3.2008 L 74/1):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:074:0001:0375:EN:PDF
***
SIMAP guidance: CPV 2008
SIMAP – the gateway to European public procurement – explains the CPV classification system and offers links to in depth guidance: CPV 2008 Guide, CPV 2008 Explanatory Notes, CPV 2008 Supplementary Codex Explanatory Notes and Correspondence tables:
http://simap.europa.eu/codes-and-nomenclatures/codes-cpv_en.html
The CPV 2008 is in use since 17 September 2008.
***
I wish my procurement readers a Merry Christmas or equivalent.
Ralf Grahn
The EC (EU) Procurement Directive 2004/18/EC, also known as the Classic Directive, defines the Common Procurement Vocabulary (CPV) in the following way in Article 1.14:
14. The ‘Common Procurement Vocabulary (CPV)’ shall designate the reference nomenclature applicable to public contracts as adopted by Regulation (EC) No 2195/2002, while ensuring equivalence with the other existing nomenclatures.
In the event of varying interpretations of the scope of this Directive, owing to possible differences between the CPV and NACE nomenclatures listed in Annex I, or between the CPV and CPC (provisional version) nomenclatures listed in Annex II, the NACE or the CPC nomenclature respectively shall take precedence.
***
CPV Regulation No 2195/2002
The Regulation referred to in Article 1.14 is officially Regulation (EC) No 2195/2002 of the European Parliament and of the Council of 5 November 2002 on the Common Procurement Vocabulary (CPV).
The CPV Regulation has been amended, so this is where you find the consolidated version from 15 September 2008:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002R2195:20080915:EN:PDF
There is an amendment in the pipeline, a Commission proposal concerning regulatory procedures (implementing powers): Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, as amended by Decision 2006/512/EC, with regard to the regulatory procedure with scrutiny – Adaptation to the regulatory procedure with scrutiny Part Four (11.2.2008, COM(2008) 71 final):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0071:FIN:EN:PDF
The Recitals of the CPV Regulation present the reasons for a single reference system which uses the same description of goods in the official languages of the European Community and the legislative choices:
Whereas:
(1) The use of different classifications is detrimental to the openness and transparency of public procurement in Europe. Its impact on the quality of notices and the time needed to publish them is a de facto restriction on the access of economic operators to public contracts.
(2) In its Recommendation 96/527/EC (5) the Commission invited contracting entities and authorities to use the Common Procurement Vocabulary (CPV), developed on the basis of certain existing classifications with a view to gearing them more closely to the particular features of the public procurement sector, when describing the subjects of their contracts.
(3) There is a need to standardise, by means of a single classification system for public procurement, the references used by the contracting authorities and entities to describe the subject of contracts.
(4) The Member States need to have a single reference system which uses the same description of goods in the official languages of the Community and the same corresponding alphanumeric code, thus making it possible to overcome the language barriers at Community level.
(5) A revised version of the CPV therefore needs to be adopted under this Regulation as a single classification system for public procurement, the implementation of which is covered by the Directives on the coordination of procedures for the award of public contracts.
(6) Illustrative tables must also be drawn up showing the correspondence between the CPV and the Statistical Classification of Products by Activity in the EEC (CPA), the Provisional Central Product Classification (CPC Prov.) of the United Nations, the General Industrial Classification of Economic Activities within the European Communities (NACE Rev. 1) and the Combined Nomenclature (CN).
(7) The structure and codes of the CPV may need to be adapted or amended, in the light of developments in the markets and users' needs. A suitable revision procedure must therefore be established.
(8) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.
(9) Since the objective of the proposed action, namely the drawing up of a classification system for public contracts, cannot be sufficiently achieved by the Member States and can therefore, by reason of the dimensions and effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
(10) A Regulation has been chosen rather than a Directive as the establishment of a classification system for public contracts does not require implementation by the Member States.
(11) With a view to familiarising users with a unified classification system that will eventually be compulsory, the implementation of this CPV Regulation should be preceded by a period of adjustment.
Article 1 of the CPV Regulation enshrines the adoption of the Common Procurement Vocabulary and the relationship between the CPV and the other product nomenclatures:
Article 1
1. A single classification system applicable to public procurement, known as the ‘Common Procurement Vocabulary’ or ‘CPV’ is hereby established.
2. The text of the CPV is set out in Annex I.
3. The illustrative tables showing the correspondence between the CPV and the Statistical Classification of Products by Activity in the EEC (CPA), the Provisional Central Product Classification (CPC Prov.) of the United Nations, the General Industrial Classification of Economic Activities within the European Communities (NACE Rev. 1) and the Combined Nomenclature (CN) are set out in Annexes II, III, IV and V respectively.
***
CPV 2008
On the occasion of the 28 November 2007 amendment to the CPV Regulation, the Commission painted a broad picture of the CPV and the reasons behind the change in the press release Public procurement: new classification system to provide EU businesses with easier access to public contracts (28 November, 2007IP/07/1787):
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1787&format=HTML&aged=0&language=EN&guiLanguage=fr
More detail on the latest major update is offered by the amending Regulation: Commission Regulation (EC) No 213/2008 of 28 November 2007 amending Regulation (EC) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (CPV) and Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council on public procurement procedures, as regards the revision of the CPV (OJ 15.3.2008 L 74/1):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:074:0001:0375:EN:PDF
***
SIMAP guidance: CPV 2008
SIMAP – the gateway to European public procurement – explains the CPV classification system and offers links to in depth guidance: CPV 2008 Guide, CPV 2008 Explanatory Notes, CPV 2008 Supplementary Codex Explanatory Notes and Correspondence tables:
http://simap.europa.eu/codes-and-nomenclatures/codes-cpv_en.html
The CPV 2008 is in use since 17 September 2008.
***
I wish my procurement readers a Merry Christmas or equivalent.
Ralf Grahn
Tuesday, 23 December 2008
EU Law: Trans-European Networks (TENs)
Since the Roman roads, the importance of good communications has been evident. Transport, energy and telecommunications infrastructure is crucial to the internal market and to cross-border contacts, fostering cohesion.
Although the aims of the European Union seem to be greater than the means, “carrot money” has achieved some progress in improving European networks.
We look at how trans-European networks (TENs) are treated at treaty level, before presenting gateways to further information.
***
Article 154 TEC
Article 154 (ex Article 129b) on trans-European networks links them to the objectives referred to in Articles 14 and 158 TEC.
The objective of Article 14 TEC is the internal market, potentially an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.
The objective of Article 158 TEC is the strengthening of economic and social cohesion, especially reducing the backwardness of the least favoured regions or islands, including rural areas.
Three crucial areas of infrastructure fall within the scope of TENs: transport, telecommunications and energy networks.
The aim is to achieve cross-border effects, by promoting the interconnection and interoperability of national networks. Access to such networks is also promoted.
In line with the territorial and social cohesion objectives, the need to link island, landlocked and peripheral regions with the central regions of the Community is stressed.
Here is the current Article 154 (ex Article 129b) of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/116:
TITLE XV
TRANS-EUROPEAN NETWORKS
Article 154 TEC
1. To help achieve the objectives referred to in Articles 14 and 158 and to enable citizens of the Union, economic operators and regional and local communities to derive full benefit from the setting-up of an area without internal frontiers, the Community shall contribute to the establishment and development of trans-European networks in the areas of transport, telecommunications and energy infrastructures.
2. Within the framework of a system of open and competitive markets, action by the Community shall aim at promoting the interconnection and interoperability of national networks as well as access to such networks. It shall take account in particular of the need to link island, landlocked and peripheral regions with the central regions of the Community.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.
Article 2, point 128 of the Lisbon Treaty dealt with consumer protection in Article 153 TEC and point 129 concerns industry, in Article 157 TEC (OJ 17.12.2007 C 306/84).
In other words, Articles 154 to 156 TEC (ex Articles 129b, 129c and 129d) with provisions on trans-European networks were not affected by specific amendments.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XV first became Title XV in the TFEU (ToL), but renumbered Title XVI Trans-European networks in the consolidated version.
Article 154 TEC initially became Article 154 TFEU (ToL) before the renumbering of the treaty made it into Article 170 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 170 TFEU
After renumbering the Title and the Article as well as the referrals and the customary (horizontal) replacement of Community by Union, Article 170 TFEU shapes up like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/124–125):
TITLE XVI
TRANS-EUROPEAN NETWORKS
Article 170 TFEU
(ex Article 154 TEC)
1. To help achieve the objectives referred to in Articles 26 and 174 and to enable citizens of the Union, economic operators and regional and local communities to derive full benefit from the setting-up of an area without internal frontiers, the Union shall contribute to the establishment and development of trans-European networks in the areas of transport, telecommunications and energy infrastructures.
2. Within the framework of a system of open and competitive markets, action by the Union shall aim at promoting the interconnection and interoperability of national networks as well as access to such networks. It shall take account in particular of the need to link island, landlocked and peripheral regions with the central regions of the Union.
***
Cohesion
Article 170 TFEU refers to Article 174 TFEU, which has undergone a change. The Lisbon Treaty has included territorial cohesion, so the aim is now to strengthen economic, social and territorial cohesion.
(Those interested in this change may wish to look at the activities of Michel Barnier, then Commission member responsible for Regional policy, during the European Convention. Currently Barnier is Minister for Agriculture in the French Government.)
***
EU powers
The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.
The categories of EU competence (taxonomy) are set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU
As an area of shared competence between the EU and the member states, Article 4(2)(h) mentions trans-European networks.
Because the TENs can be seen as flanking measures to other aims and policies, we can mention the internal market, economic, social and territorial cohesion, transport and energy among the competences listed as shared in Article 4 TFEU:
Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Absentee: Telecommunications
The reader may have noticed that the areas of competence listed as exclusive, shared or supporting do not mention telecommunications specifically.
***
Summary of legislation: Trans-European networks
On the Commission’s Scadplus web pages with summaries of legislation, the page Trans-European networks offers links to pages with guidelines concerning transport, energy and telecommunications networks, including Community funding:
http://europa.eu/scadplus/leg/en/s06019.htm
***
Commission activities
Commission activities and news can be approached through the web page Trans-European Networks:
http://ec.europa.eu/ten/index_en.html
The TENs are split among the Directorate-General for Energy and Transport and the administratively somewhat more amorphous Information Society pages, so you might want to check them too.
Ralf Grahn
Although the aims of the European Union seem to be greater than the means, “carrot money” has achieved some progress in improving European networks.
We look at how trans-European networks (TENs) are treated at treaty level, before presenting gateways to further information.
***
Article 154 TEC
Article 154 (ex Article 129b) on trans-European networks links them to the objectives referred to in Articles 14 and 158 TEC.
The objective of Article 14 TEC is the internal market, potentially an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.
The objective of Article 158 TEC is the strengthening of economic and social cohesion, especially reducing the backwardness of the least favoured regions or islands, including rural areas.
Three crucial areas of infrastructure fall within the scope of TENs: transport, telecommunications and energy networks.
The aim is to achieve cross-border effects, by promoting the interconnection and interoperability of national networks. Access to such networks is also promoted.
In line with the territorial and social cohesion objectives, the need to link island, landlocked and peripheral regions with the central regions of the Community is stressed.
Here is the current Article 154 (ex Article 129b) of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/116:
TITLE XV
TRANS-EUROPEAN NETWORKS
Article 154 TEC
1. To help achieve the objectives referred to in Articles 14 and 158 and to enable citizens of the Union, economic operators and regional and local communities to derive full benefit from the setting-up of an area without internal frontiers, the Community shall contribute to the establishment and development of trans-European networks in the areas of transport, telecommunications and energy infrastructures.
2. Within the framework of a system of open and competitive markets, action by the Community shall aim at promoting the interconnection and interoperability of national networks as well as access to such networks. It shall take account in particular of the need to link island, landlocked and peripheral regions with the central regions of the Community.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.
Article 2, point 128 of the Lisbon Treaty dealt with consumer protection in Article 153 TEC and point 129 concerns industry, in Article 157 TEC (OJ 17.12.2007 C 306/84).
In other words, Articles 154 to 156 TEC (ex Articles 129b, 129c and 129d) with provisions on trans-European networks were not affected by specific amendments.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XV first became Title XV in the TFEU (ToL), but renumbered Title XVI Trans-European networks in the consolidated version.
Article 154 TEC initially became Article 154 TFEU (ToL) before the renumbering of the treaty made it into Article 170 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
Article 170 TFEU
After renumbering the Title and the Article as well as the referrals and the customary (horizontal) replacement of Community by Union, Article 170 TFEU shapes up like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/124–125):
TITLE XVI
TRANS-EUROPEAN NETWORKS
Article 170 TFEU
(ex Article 154 TEC)
1. To help achieve the objectives referred to in Articles 26 and 174 and to enable citizens of the Union, economic operators and regional and local communities to derive full benefit from the setting-up of an area without internal frontiers, the Union shall contribute to the establishment and development of trans-European networks in the areas of transport, telecommunications and energy infrastructures.
2. Within the framework of a system of open and competitive markets, action by the Union shall aim at promoting the interconnection and interoperability of national networks as well as access to such networks. It shall take account in particular of the need to link island, landlocked and peripheral regions with the central regions of the Union.
***
Cohesion
Article 170 TFEU refers to Article 174 TFEU, which has undergone a change. The Lisbon Treaty has included territorial cohesion, so the aim is now to strengthen economic, social and territorial cohesion.
(Those interested in this change may wish to look at the activities of Michel Barnier, then Commission member responsible for Regional policy, during the European Convention. Currently Barnier is Minister for Agriculture in the French Government.)
***
EU powers
The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.
The categories of EU competence (taxonomy) are set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU
As an area of shared competence between the EU and the member states, Article 4(2)(h) mentions trans-European networks.
Because the TENs can be seen as flanking measures to other aims and policies, we can mention the internal market, economic, social and territorial cohesion, transport and energy among the competences listed as shared in Article 4 TFEU:
Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Absentee: Telecommunications
The reader may have noticed that the areas of competence listed as exclusive, shared or supporting do not mention telecommunications specifically.
***
Summary of legislation: Trans-European networks
On the Commission’s Scadplus web pages with summaries of legislation, the page Trans-European networks offers links to pages with guidelines concerning transport, energy and telecommunications networks, including Community funding:
http://europa.eu/scadplus/leg/en/s06019.htm
***
Commission activities
Commission activities and news can be approached through the web page Trans-European Networks:
http://ec.europa.eu/ten/index_en.html
The TENs are split among the Directorate-General for Energy and Transport and the administratively somewhat more amorphous Information Society pages, so you might want to check them too.
Ralf Grahn
EU procurement: Electronic means
The EC (EU) Procurement Directive 2004/18/EC defines electronic means in Article 1.13:
13. ‘Electronic means’ means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.
***
Electronic equals writing
In the preceding post, EU procurement: Written or in writing, we saw that electronic information is included in the definition of written and in writing.
We also saw that a public contract must be in writing and that written communication is essential throughout the award process.
Here is the EC (EU) Procurement Directive 2004/18/EC definition of written and in writing in Article 1.12, which we looked at yesterday:
12. ‘Written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means.
***
Use of electronic means
We have seen that electronic means have been put on an equal footing with other written communication, but the bare definition of electronic means does not even begin to convey the importance attached to the concept.
We look at just a few of the many examples in the Procurement Directive of electronic communication used in procurement procedures.
***
Electronic auctions
The Recitals present the background and the reasons for the new Procurement Directive or Classic Directive.
Recital 14 describes electronic auctions:
(14) Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with the principles of equal treatment, non-discrimination and transparency. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also to be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of the tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions.
***
Advantages
Recital 35 describes the potential advantages of electronic information exchange:
(35) In view of new developments in information and communications technology, and the simplifications these can bring in terms of publicising contracts and the efficiency and transparency of procurement processes, electronic means should be put on a par with traditional means of communication and information exchange. As far as possible, the means and technology chosen should be compatible with the technologies used in other Member States.
***
Electronic signatures
Recital 37 mentions the aim to encourage the use of advanced electronic signatures:
(37) Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures (3) and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’) should, in the context of this Directive, apply to the transmission of information by electronic means. The public procurement procedures and the rules applicable to service contests require a level of security and confidentiality higher than that required by these Directives. Accordingly, the devices for the electronic receipt of offers, requests to participate and plans and projects should comply with specific additional requirements. To this end, use of electronic signatures, in particular advanced electronic signatures, should, as far as possible, be encouraged. Moreover, the existence of voluntary accreditation schemes could constitute a favourable framework for enhancing the level of certification service provision for these devices.
***
SIMAP
Beyond the definitions, we turn to European public procurement practice and projects aiming at reaping the benefits of electronic communications, important for the future of procurement and government services in general.
SIMAP describes itself as the gateway to European public procurement. The following greeting refers to electronic means:
Information system for European public procurement
The SIMAP portal provides access to most important information about public procurement in Europe.
Tender notices are published on TED website, the single official source of public contracts in Europe. Most of public procurement notices are sent for publication through an electronic channel. A web-based tool — eNotices — simplifies and speeds up preparation and publication of tender notices. eSenders service allows qualified organisations to submit notices directly as XML files.
http://simap.europa.eu/index_en.html
***
TED – Tenders Electronic Daily
TED (Tenders Electronic Daily) is the online version of the 'Supplement to the Official Journal of the European Union', dedicated to European public procurement. This is the meeting place for notices from contracting authorities and businesses looking for opportunities in the procurement markets:
http://ted.europa.eu/Exec?Template=TED/editorial_page.htm&DataFlow=ShowPage.dfl&StatLang=EN
***
IDABC
Further proof of the EU’s drive towards electronic services is IDABC.
The IDABC Programme stands for Interoperable Delivery of European eGovernment Services to public Administrations, Business and Citizens. It takes advantage of the opportunities offered by information and communication technologies:
http://ec.europa.eu/idabc/en/chapter/3
***
ePractice.eu
ePractice is a web portal dedicated the development of eGovernment services, with news and information:
http://www.epractice.eu/home
Ralf Grahn
13. ‘Electronic means’ means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.
***
Electronic equals writing
In the preceding post, EU procurement: Written or in writing, we saw that electronic information is included in the definition of written and in writing.
We also saw that a public contract must be in writing and that written communication is essential throughout the award process.
Here is the EC (EU) Procurement Directive 2004/18/EC definition of written and in writing in Article 1.12, which we looked at yesterday:
12. ‘Written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means.
***
Use of electronic means
We have seen that electronic means have been put on an equal footing with other written communication, but the bare definition of electronic means does not even begin to convey the importance attached to the concept.
We look at just a few of the many examples in the Procurement Directive of electronic communication used in procurement procedures.
***
Electronic auctions
The Recitals present the background and the reasons for the new Procurement Directive or Classic Directive.
Recital 14 describes electronic auctions:
(14) Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with the principles of equal treatment, non-discrimination and transparency. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also to be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of the tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions.
***
Advantages
Recital 35 describes the potential advantages of electronic information exchange:
(35) In view of new developments in information and communications technology, and the simplifications these can bring in terms of publicising contracts and the efficiency and transparency of procurement processes, electronic means should be put on a par with traditional means of communication and information exchange. As far as possible, the means and technology chosen should be compatible with the technologies used in other Member States.
***
Electronic signatures
Recital 37 mentions the aim to encourage the use of advanced electronic signatures:
(37) Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures (3) and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’) should, in the context of this Directive, apply to the transmission of information by electronic means. The public procurement procedures and the rules applicable to service contests require a level of security and confidentiality higher than that required by these Directives. Accordingly, the devices for the electronic receipt of offers, requests to participate and plans and projects should comply with specific additional requirements. To this end, use of electronic signatures, in particular advanced electronic signatures, should, as far as possible, be encouraged. Moreover, the existence of voluntary accreditation schemes could constitute a favourable framework for enhancing the level of certification service provision for these devices.
***
SIMAP
Beyond the definitions, we turn to European public procurement practice and projects aiming at reaping the benefits of electronic communications, important for the future of procurement and government services in general.
SIMAP describes itself as the gateway to European public procurement. The following greeting refers to electronic means:
Information system for European public procurement
The SIMAP portal provides access to most important information about public procurement in Europe.
Tender notices are published on TED website, the single official source of public contracts in Europe. Most of public procurement notices are sent for publication through an electronic channel. A web-based tool — eNotices — simplifies and speeds up preparation and publication of tender notices. eSenders service allows qualified organisations to submit notices directly as XML files.
http://simap.europa.eu/index_en.html
***
TED – Tenders Electronic Daily
TED (Tenders Electronic Daily) is the online version of the 'Supplement to the Official Journal of the European Union', dedicated to European public procurement. This is the meeting place for notices from contracting authorities and businesses looking for opportunities in the procurement markets:
http://ted.europa.eu/Exec?Template=TED/editorial_page.htm&DataFlow=ShowPage.dfl&StatLang=EN
***
IDABC
Further proof of the EU’s drive towards electronic services is IDABC.
The IDABC Programme stands for Interoperable Delivery of European eGovernment Services to public Administrations, Business and Citizens. It takes advantage of the opportunities offered by information and communication technologies:
http://ec.europa.eu/idabc/en/chapter/3
***
ePractice.eu
ePractice is a web portal dedicated the development of eGovernment services, with news and information:
http://www.epractice.eu/home
Ralf Grahn
Monday, 22 December 2008
European Union Law: Consumer protection
There are almost 500 million EU consumers, so the European Union should take an interest. Perhaps we should, too.
***
Article 153 TEC
Article 153 spells out the aims of the European Community’s action in the area of consumer protection.
Consumers’ health, safety and economic interests are mentioned first.
Consumers’ right to information, education and organisation are mentioned second.
Consumer protection is seen as a horizontal activity.
Article 153(3)(a) refers to measures taken under the provisions on approximation (harmonisation) of laws, which have as their object the establishment and functioning of the internal market (Article 95 TEC).
The cooperation procedure applies to supporting, supplementing and monitoring measures mentioned in Article 153(3)(b).
Higher national standards (more stringent measures) are allowed, but not in the form of a blank cheque. Such protective measures have to be compatible with the treaty, and the Commission has to be notified by the member state.
The current Article 153 (ex Article 129a) of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/115–116:
TITLE XIV
CONSUMER PROTECTION
Article 153 TEC
1. In order to promote the interests of consumers and to ensure a high level of consumer protection, the Community shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests.
2. Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.
3. The Community shall contribute to the attainment of the objectives referred to in paragraph 1 through:
(a) measures adopted pursuant to Article 95 in the context of the completion of the internal market;
(b) measures which support, supplement and monitor the policy pursued by the Member States.
4. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, shall adopt the measures referred to in paragraph 3(b).
5. Measures adopted pursuant to paragraph 4 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty. The Commission shall be notified of them.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 127 of the original Treaty of Lisbon (ToL) shows that Article 152 TEC underwent several specific amendments (OJ 17.12.2007 C 306/84):
CONSUMER PROTECTION
128) Article 153(2) shall become Article 6a and paragraphs 3, 4 and 5 shall be renumbered 2, 3 and 4 respectively.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XIV first became Title XIV in the TFEU (ToL), but renumbered Title XV Consumer protection in the consolidated version.
Paragraphs 1, 3, 4 and 5 of Article 153 TEC initially became Article 153 TFEU (ToL) before the renumbering of the treaty made it into Article 169. Paragraph 2 of Article 153 TEC, first became Article 6a TFEU (ToL), before being renumbered Article 12 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
After the explicit amendment, horizontal amendments and renumbering, we have two consolidated TFEU Articles to present.
They appear as follows in the consolidated Treaty on the Functioning of the European Union (TFEU), published in the Official Journal of the European Union, OJ 9.5.2008 C 115/54 and 124:
Article 12 TFEU
(ex Article 153(2) TEC)
Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.
TITLE XV
CONSUMER PROTECTION
Article 169 TFEU
(ex Article 153 TEC)
1. In order to promote the interests of consumers and to ensure a high level of consumer protection, the Union shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests.
2. The Union shall contribute to the attainment of the objectives referred to in paragraph 1 through:
(a) measures adopted pursuant to Article 114 in the context of the completion of the internal market;
(b) measures which support, supplement and monitor the policy pursued by the Member States.
3. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall adopt the measures referred to in paragraph 2(b).
4. Measures adopted pursuant to paragraph 3 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. The Commission shall be notified of them.
***
EU powers
The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.
The categories of EU competence (taxonomy) are set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU
As an area of shared competence between the EU and the member states, Article 4(2)(a) mentions the internal market and in Article 4(2)(f) consumer protection is specifically mentioned.
***
Summary of legislation: Consumer protection
On the Commission’s Scadplus web pages with summaries of legislation, the page Consumers: General framework and priorities offers access to consumer issues generally, including the Programme of Community action in the field of consumer policy (2007-2013):
http://europa.eu/scadplus/leg/en/s16100.htm
Protection of consumers’ economic and legal interests offers a number of links relevant to these aspects of consumer protection:
http://europa.eu/scadplus/leg/en/s16300.htm
Consumer safety issues can be accessed through:
http://europa.eu/scadplus/leg/en/s16200.htm
***
Commission activities
Because consumer health and safety are closely linked to other aspects of consumer protection, it may be a good idea to gather news and information on Commission activities from the Directorate General for Health and Consumers as a whole before surfing in either direction:
http://ec.europa.eu/dgs/health_consumer/index_en.htm
***
Consumer safety
Here are a few additional links on consumer safety.
Scientific Committees for consumer safety, public health and the environment (last update 2 May 2007):
http://europa.eu/scadplus/leg/en/lvb/l28153.htm
The precautionary principle (last update 2 November 2005):
http://europa.eu/scadplus/leg/en/lvb/l32042.htm
Programme of Community action in the field of health and consumer protection (2008–2013) (last update 8 April 2008):
http://europa.eu/scadplus/leg/en/cha/c11503c.htm
***
Consumer affairs
Here is the web page to start looking at Consumer Affairs more specifically:
http://ec.europa.eu/consumers/index_en.htm
Ralf Grahn
***
Article 153 TEC
Article 153 spells out the aims of the European Community’s action in the area of consumer protection.
Consumers’ health, safety and economic interests are mentioned first.
Consumers’ right to information, education and organisation are mentioned second.
Consumer protection is seen as a horizontal activity.
Article 153(3)(a) refers to measures taken under the provisions on approximation (harmonisation) of laws, which have as their object the establishment and functioning of the internal market (Article 95 TEC).
The cooperation procedure applies to supporting, supplementing and monitoring measures mentioned in Article 153(3)(b).
Higher national standards (more stringent measures) are allowed, but not in the form of a blank cheque. Such protective measures have to be compatible with the treaty, and the Commission has to be notified by the member state.
The current Article 153 (ex Article 129a) of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/115–116:
TITLE XIV
CONSUMER PROTECTION
Article 153 TEC
1. In order to promote the interests of consumers and to ensure a high level of consumer protection, the Community shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests.
2. Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.
3. The Community shall contribute to the attainment of the objectives referred to in paragraph 1 through:
(a) measures adopted pursuant to Article 95 in the context of the completion of the internal market;
(b) measures which support, supplement and monitor the policy pursued by the Member States.
4. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, shall adopt the measures referred to in paragraph 3(b).
5. Measures adopted pursuant to paragraph 4 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty. The Commission shall be notified of them.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 127 of the original Treaty of Lisbon (ToL) shows that Article 152 TEC underwent several specific amendments (OJ 17.12.2007 C 306/84):
CONSUMER PROTECTION
128) Article 153(2) shall become Article 6a and paragraphs 3, 4 and 5 shall be renumbered 2, 3 and 4 respectively.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XIV first became Title XIV in the TFEU (ToL), but renumbered Title XV Consumer protection in the consolidated version.
Paragraphs 1, 3, 4 and 5 of Article 153 TEC initially became Article 153 TFEU (ToL) before the renumbering of the treaty made it into Article 169. Paragraph 2 of Article 153 TEC, first became Article 6a TFEU (ToL), before being renumbered Article 12 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
After the explicit amendment, horizontal amendments and renumbering, we have two consolidated TFEU Articles to present.
They appear as follows in the consolidated Treaty on the Functioning of the European Union (TFEU), published in the Official Journal of the European Union, OJ 9.5.2008 C 115/54 and 124:
Article 12 TFEU
(ex Article 153(2) TEC)
Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.
TITLE XV
CONSUMER PROTECTION
Article 169 TFEU
(ex Article 153 TEC)
1. In order to promote the interests of consumers and to ensure a high level of consumer protection, the Union shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests.
2. The Union shall contribute to the attainment of the objectives referred to in paragraph 1 through:
(a) measures adopted pursuant to Article 114 in the context of the completion of the internal market;
(b) measures which support, supplement and monitor the policy pursued by the Member States.
3. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall adopt the measures referred to in paragraph 2(b).
4. Measures adopted pursuant to paragraph 3 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. The Commission shall be notified of them.
***
EU powers
The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.
The categories of EU competence (taxonomy) are set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
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Article 4 TFEU
As an area of shared competence between the EU and the member states, Article 4(2)(a) mentions the internal market and in Article 4(2)(f) consumer protection is specifically mentioned.
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Summary of legislation: Consumer protection
On the Commission’s Scadplus web pages with summaries of legislation, the page Consumers: General framework and priorities offers access to consumer issues generally, including the Programme of Community action in the field of consumer policy (2007-2013):
http://europa.eu/scadplus/leg/en/s16100.htm
Protection of consumers’ economic and legal interests offers a number of links relevant to these aspects of consumer protection:
http://europa.eu/scadplus/leg/en/s16300.htm
Consumer safety issues can be accessed through:
http://europa.eu/scadplus/leg/en/s16200.htm
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Commission activities
Because consumer health and safety are closely linked to other aspects of consumer protection, it may be a good idea to gather news and information on Commission activities from the Directorate General for Health and Consumers as a whole before surfing in either direction:
http://ec.europa.eu/dgs/health_consumer/index_en.htm
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Consumer safety
Here are a few additional links on consumer safety.
Scientific Committees for consumer safety, public health and the environment (last update 2 May 2007):
http://europa.eu/scadplus/leg/en/lvb/l28153.htm
The precautionary principle (last update 2 November 2005):
http://europa.eu/scadplus/leg/en/lvb/l32042.htm
Programme of Community action in the field of health and consumer protection (2008–2013) (last update 8 April 2008):
http://europa.eu/scadplus/leg/en/cha/c11503c.htm
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Consumer affairs
Here is the web page to start looking at Consumer Affairs more specifically:
http://ec.europa.eu/consumers/index_en.htm
Ralf Grahn
EU procurement: Written or in writing
The EC (EU) Procurement Directive 2004/18/EC defines written and in writing broadly in Article 1.12, including electronic means:
12. ‘Written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means.
***
Written contract
Public works contracts, public supply contracts and public service contracts – public contracts – must be concluded in writing. This is one of the essential characteristics according to Article 1.2(a) of the Procurement Directive, also called the Classic Directive:
2. (a) ‘Public contracts’ are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.
***
Written documentation
The written form does not apply only to the final contract, but the main stages such as invitations to tender and tenders have to be in writing and the main stages of the procurement process documented.
The contracting authorities act under public law and the remedies on offer require documentation.
Ralf Grahn
12. ‘Written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means.
***
Written contract
Public works contracts, public supply contracts and public service contracts – public contracts – must be concluded in writing. This is one of the essential characteristics according to Article 1.2(a) of the Procurement Directive, also called the Classic Directive:
2. (a) ‘Public contracts’ are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.
***
Written documentation
The written form does not apply only to the final contract, but the main stages such as invitations to tender and tenders have to be in writing and the main stages of the procurement process documented.
The contracting authorities act under public law and the remedies on offer require documentation.
Ralf Grahn
Sunday, 21 December 2008
European Union: Temporary state aid
Temporary state aid will be available for businesses in the EU member states until the end of 2010.
One of the measures to stimulate economy finding favour with the European Council on 11 to 12 December 2008 was a temporary exemption of two years beyond the de minimis threshold for State aid in respect of an amount of up to EUR 500 000 and the adaptation of the framework, as required to increase support for enterprises, especially SMEs, and full implementation of the action plan for a Small Business Act adopted by the Council on 1 December 2008.
Source: Presidency Conclusions 11 to 12 December 2008 (Council document 17271/08)
***
The Commissission has released additional information of interest to member states’ governments and to businesses, including small and medium sized enterprises (SMEs).
Quick view
The Commission has presented an overview of the temporary aid measures in a press release.
State aid: Commission adopts temporary framework for Member States to tackle effects of credit squeeze on real economy (17 December 2008, IP/08/1993):
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/795&format=HTML&aged=0&language=EN&guiLanguage=en
Under these temporary measures, Member States may grant, under certain conditions and until the end of 2010 e.g.:
- a lump sum of aid up to €500,000 per company for the next two years, to relieve them from current difficulties
- state guarantees for loans at a reduced premium
- subsidised loans, in particular for the production of green products (meeting environmental protection standards early or going beyond such standards)
- risk capital aid up to € 2.5 million per SME per year (instead of the current €1.5 million) in cases where at least 30% (instead of the current 50%) of the investment cost comes from private investors.
***
Detailed framework
More detail is found in the Communication from the Commission: Temporary framework for State aid measures to support access to finance in the current financial and economic crisis (17 pages). At this point in time, the Communication is available only in English, from here:
http://ec.europa.eu/competition/state_aid/legislation/temp_framework_en.pdf
After describing the background, the Commission reminds the readers of existing state aid instruments at the disposal of member states, such as the revised de minimis Regulation (published OJ 28.12.2006 L 379) and the General Block Exemption Regulation (GBER; OJ 9.8.2008 L 241) as well as the new Community guidelines on state aid for environmental protection (OJ 1.4.2008 C 82).
The Commission then moves on to describe the existing framework and the details of new measures, which will be available on a temporary basis.
Although the credit squeeze is an acute problem for many companies, especially small and medium sized enterprises, DG Competition tries to emphasise forward looking aid instruments compatible with the Lisbon Strategy for Growth and Jobs.
The Commission invites the member states’ governments to inform the Commission of their intentions and notify plans to introduce aid measures as early and comprehensively as possible.
Ralf Grahn
One of the measures to stimulate economy finding favour with the European Council on 11 to 12 December 2008 was a temporary exemption of two years beyond the de minimis threshold for State aid in respect of an amount of up to EUR 500 000 and the adaptation of the framework, as required to increase support for enterprises, especially SMEs, and full implementation of the action plan for a Small Business Act adopted by the Council on 1 December 2008.
Source: Presidency Conclusions 11 to 12 December 2008 (Council document 17271/08)
***
The Commissission has released additional information of interest to member states’ governments and to businesses, including small and medium sized enterprises (SMEs).
Quick view
The Commission has presented an overview of the temporary aid measures in a press release.
State aid: Commission adopts temporary framework for Member States to tackle effects of credit squeeze on real economy (17 December 2008, IP/08/1993):
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/795&format=HTML&aged=0&language=EN&guiLanguage=en
Under these temporary measures, Member States may grant, under certain conditions and until the end of 2010 e.g.:
- a lump sum of aid up to €500,000 per company for the next two years, to relieve them from current difficulties
- state guarantees for loans at a reduced premium
- subsidised loans, in particular for the production of green products (meeting environmental protection standards early or going beyond such standards)
- risk capital aid up to € 2.5 million per SME per year (instead of the current €1.5 million) in cases where at least 30% (instead of the current 50%) of the investment cost comes from private investors.
***
Detailed framework
More detail is found in the Communication from the Commission: Temporary framework for State aid measures to support access to finance in the current financial and economic crisis (17 pages). At this point in time, the Communication is available only in English, from here:
http://ec.europa.eu/competition/state_aid/legislation/temp_framework_en.pdf
After describing the background, the Commission reminds the readers of existing state aid instruments at the disposal of member states, such as the revised de minimis Regulation (published OJ 28.12.2006 L 379) and the General Block Exemption Regulation (GBER; OJ 9.8.2008 L 241) as well as the new Community guidelines on state aid for environmental protection (OJ 1.4.2008 C 82).
The Commission then moves on to describe the existing framework and the details of new measures, which will be available on a temporary basis.
Although the credit squeeze is an acute problem for many companies, especially small and medium sized enterprises, DG Competition tries to emphasise forward looking aid instruments compatible with the Lisbon Strategy for Growth and Jobs.
The Commission invites the member states’ governments to inform the Commission of their intentions and notify plans to introduce aid measures as early and comprehensively as possible.
Ralf Grahn
EU procurement: Award procedures
Open procedure, restricted procedure, competitive dialogue, negotiated procedure and design contest are defined in Article 1.11 of the EC (EU) Procurement Directive 2004/18/EC:
11. (a) ‘Open procedures’ means those procedures whereby any interested economic operator may submit a tender.
(b) ‘Restricted procedures’ means those procedures in which any economic operator may request to participate and whereby only those economic operators invited by the contracting authority may submit a tender.
(c) ‘Competitive dialogue’ is a procedure in which any economic operator may request to participate and whereby the contracting authority conducts a dialogue with the candidates admitted to that procedure, with the aim of developing one or more suitable alternatives capable of meeting its requirements, and on the basis of which the candidates chosen are invited to tender.
For the purpose of recourse to the procedure mentioned in the first subparagraph, a public contract is considered to be ‘particularly complex’ where the contracting authorities:
— are not objectively able to define the technical means in accordance with Article 23(3)(b), (c) or (d), capable of satisfying their needs or objectives, and/or
— are not objectively able to specify the legal and/or financial make-up of a project.
(d) ‘Negotiated procedures’ means those procedures whereby the contracting authorities consult the economic operators of their choice and negotiate the terms of contract with one or more of these.
(e) ‘Design contests’ means those procedures which enable the contracting authority to acquire, mainly in the fields of town and country planning, architecture and engineering or data processing, a plan or design selected by a jury after being put out to competition with or without the award of prizes.
***
Award procedures
The definitions are given some substance in Article 28 in Chapter V of the Procurement Directive. The procedures to follow generally are the open procedure, where any economic operator can submit a tender, or the restricted procedure, where any economic operator may request to be invited to submit a tender. The contracting authority can choose between the use of the open procedure and the restricted procedure.
If the normal procedures (open or restricted) are unsuitable, the contracting authority can use the competitive dialogue or a design contest on certain grounds:
Chapter V
Procedures
Article 28
Use of open, restricted and negotiated procedures and of competitive dialogue
In awarding their public contracts, contracting authorities shall apply the national procedures adjusted for the purposes of this Directive.
They shall award these public contracts by applying the open or restricted procedure. In the specific circumstances expressly provided for in Article 29, contracting authorities may award their public contracts by means of the competitive dialogue. In the specific cases and circumstances referred to expressly in Articles 30 and 31, they may apply a negotiated procedure, with or without publication of the contract notice.
***
Competitive dialogue
Article 29 of the Procurement Directive or Classic Directive sets out the circumstances allowing the use of a competitive dialogue, which can be employed only in the case of particularly complex contracts:
Article 29
Competitive dialogue
1. In the case of particularly complex contracts, Member States may provide that where contracting authorities consider that the use of the open or restricted procedure will not allow the award of the contract, the latter may make use of the competitive dialogue in accordance with this Article.
A public contract shall be awarded on the sole basis of the award criterion for the most economically advantageous tender.
2. Contracting authorities shall publish a contract notice setting out their needs and requirements, which they shall define in that notice and/or in a descriptive document.
3. Contracting authorities shall open, with the candidates selected in accordance with the relevant provisions of Articles 44 to 52, a dialogue the aim of which shall be to identify and define the means best suited to satisfying their needs. They may discuss all aspects of the contract with the chosen candidates during this dialogue.
During the dialogue, contracting authorities shall ensure equality of treatment among all tenderers. In particular, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others.
Contracting authorities may not reveal to the other participants solutions proposed or other confidential information communicated by a candidate participating in the dialogue without his/her agreement.
4. Contracting authorities may provide for the procedure to take place in successive stages in order to reduce the number of solutions to be discussed during the dialogue stage by applying the award criteria in the contract notice or the descriptive document. The contract notice or the descriptive document shall indicate that recourse may be had to this option.
5. The contracting authority shall continue such dialogue until it can identify the solution or solutions, if necessary after comparing them, which are capable of meeting its needs.
6. Having declared that the dialogue is concluded and having so informed the participants, contracting authorities shall ask them to submit their final tenders on the basis of the solution or solutions presented and specified during the dialogue. These tenders shall contain all the elements required and necessary for the performance of the project.
These tenders may be clarified, specified and fine-tuned at the request of the contracting authority. However, such clarification, specification, fine-tuning or additional information may not involve changes to the basic features of the tender or the call for tender, variations in which are likely to distort competition or have a discriminatory effect.
7. Contracting authorities shall assess the tenders received on the basis of the award criteria laid down in the contract notice or the descriptive document and shall choose the most economically advantageous tender in accordance with Article 53.
At the request of the contracting authority, the tenderer identified as having submitted the most economically advantageous tender may be asked to clarify aspects of the tender or confirm commitments contained in the tender provided this does not have the effect of modifying substantial aspects of the tender or of the call for tender and does not risk distorting competition or causing discrimination.
8. The contracting authorities may specify prices or payments to the participants in the dialogue.
***
Competitive dialogue explained
Additional guidance has been published by the Commission’s Directorate General Internal Market and Services: Explanatory note – competitive dialogue – Classic Directive (10 pages):
http://ec.europa.eu/internal_market/publicprocurement/docs/explan-notes/classic-dir-dialogue_en.pdf
Another guide to the competitive dialogue has been published in the United Kingdom, by HM Treasury and the Office of Government Commerce (OGC): Competitive Dialogue in 2008 – OGC/HMT joint guidance on using the procedure (37 pages):
http://www.ogc.gov.uk/documents/OGC_HMT_2008_Guidance_on_Competitive_Dialogue.pdf
***
Negotiated procedure
Article 30 of the Procurement Directive 2004/18/EC sets out when a negotiated procedure can be used with the prior publication of a contract notice.
Article 31 of the Classic Directive lays down the justifications for a negotiated procedure without a prior contract notice.
Article 30
Cases justifying use of the negotiated procedure with prior publication of a contract notice
1. Contracting authorities may award their public contracts by negotiated procedure, after publication of a contract notice, in the following cases:
(a) in the event of irregular tenders or the submission of tenders which are unacceptable under national provisions compatible with Articles 4, 24, 25, 27 and Chapter VII, in response to an open or restricted procedure or a competitive dialogue insofar as the original terms of the contract are not substantially altered.
Contracting authorities need not publish a contract notice where they include in the negotiated procedure all of, and only, the tenderers which satisfy the criteria of Articles 45 to 52 and which, during the prior open or restricted procedure or competitive dialogue, have submitted tenders in accordance with the formal requirements of the tendering procedure;
(b) in exceptional cases, when the nature of the works, supplies, or services or the risks attaching thereto do not permit prior overall pricing;
(c) in the case of services, inter alia services within category 6 of Annex II A, and intellectual services such as services involving the design of works, insofar as the nature of the services to be provided is such that contract specifications cannot be established with sufficient precision to permit the award of the contract by selection of the best tender according to the rules governing open or restricted procedures;
(d) in respect of public works contracts, for works which are performed solely for purposes of research, testing or development and not with the aim of ensuring profitability or recovering research and development costs.
2. In the cases referred to in paragraph 1, contracting authorities shall negotiate with tenderers the tenders submitted by them in order to adapt them to the requirements which they have set in the contract notice, the specifications and additional documents, if any, and to seek out the best tender in accordance with Article 53(1).
3. During the negotiations, contracting authorities shall ensure the equal treatment of all tenderers. In particular, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others.
4. Contracting authorities may provide for the negotiated procedure to take place in successive stages in order to reduce the number of tenders to be negotiated by applying the award criteria in the contract notice or the specifications. The contract notice or the specifications shall indicate whether recourse has been had to this option.
Article 31
Cases justifying use of the negotiated procedure without publication of a contract notice
Contracting authorities may award public contracts by a negotiated procedure without prior publication of a contract notice in the following cases:
(1) for public works contracts, public supply contracts and public service contracts:
(a) when no tenders or no suitable tenders or no applications have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of contract are not substantially altered and on condition that a report is sent to the Commission if it so requests;
(b) when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator;
(c) insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities in question, the time limit for the open, restricted or negotiated procedures with publication of a contract notice as referred to in Article 30 cannot be complied with. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authority;
(2) for public supply contracts:
(a) when the products involved are manufactured purely for the purpose of research, experimentation, study or development; this provision does not extend to quantity production to establish commercial viability or to recover research and development costs;
(b) for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the length of such contracts as well as that of recurrent contracts may not, as a general rule, exceed three years;
(c) for supplies quoted and purchased on a commodity market;
(d) for the purchase of supplies on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or the receivers or liquidators of a bankruptcy, an arrangement with creditors, or a similar procedure under national laws or regulations;
(3) for public service contracts, when the contract concerned follows a design contest and must, under the applicable rules, be awarded to the successful candidate or to one of the successful candidates, in the latter case, all successful candidates must be invited to participate in the negotiations;
(4) for public works contracts and public service contracts:
(a) for additional works or services not included in the project initially considered or in the original contract but which have, through unforeseen circumstances, become necessary for the performance of the works or services described therein, on condition that the award is made to the economic operator performing such works or services:
— when such additional works or services cannot be technically or economically separated from the original contract without major inconvenience to the contracting authorities,
or
— when such works or services, although separable from the performance of the original contract, are strictly necessary for its completion.
However, the aggregate value of contracts awarded for additional works or services may not exceed 50 % of the amount of the original contract;
(b) for new works or services consisting in the repetition of similar works or services entrusted to the economic operator to whom the same contracting authorities awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded according to the open or restricted procedure.
As soon as the first project is put up for tender, the possible use of this procedure shall be disclosed and the total estimated cost of subsequent works or services shall be taken into consideration by the contracting authorities when they apply the provisions of Article 7.
This procedure may be used only during the three years following the conclusion of the original contract.
***
Award procedures explained
The Commission’s Guides offer more or less the same explanations, but the details may change between the different contract types.
Public works contracts
Under 3. Award procedures, the Commission’s Guide to the Community rules on public works (based on the old Directive 93/37/EEC) explains the open and the restricted procedure and the negotiated procedure on page 23 to 27.
Public supply contracts
The award procedures are discussed in the context of supply contracts in the Commission’s Guide to the Community rules on public supply contracts (based on the old Directive 93/36/EEC), pages 21 to 25.
Public service contracts
The Commission’s Guide to the Community rules on public procurement of services (based on the old Directive 92/50/EEC) has a corresponding chapter on contract award procedures, from page 19 to page 25.
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Design contest
Title IV of the Procurement directive 2004/18/EC, comprising Articles 66 to 74, deals with rules concerning design contests. Here we present only the introductory Article 66:
TITLE IV
RULES GOVERNING DESIGN CONTESTS
Article 66
General provisions
1. The rules for the organisation of design contests shall be in conformity with Articles 66 to 74 and shall be communicated to those interested in participating in the contest.
2. The admission of participants to design contests shall not be limited:
(a) by reference to the territory or part of the territory of a Member State;
(b) on the grounds that, under the law of the Member State in which the contest is organised, they would be required to be either natural or legal persons.
***
Design contests explained
The Commission’s Guide to the Community rules on public procurement of services (based on the old Directive 92/50/EEC) has a chapter 8 on design contests, from page 62 to page 63.
Ralf Grahn
11. (a) ‘Open procedures’ means those procedures whereby any interested economic operator may submit a tender.
(b) ‘Restricted procedures’ means those procedures in which any economic operator may request to participate and whereby only those economic operators invited by the contracting authority may submit a tender.
(c) ‘Competitive dialogue’ is a procedure in which any economic operator may request to participate and whereby the contracting authority conducts a dialogue with the candidates admitted to that procedure, with the aim of developing one or more suitable alternatives capable of meeting its requirements, and on the basis of which the candidates chosen are invited to tender.
For the purpose of recourse to the procedure mentioned in the first subparagraph, a public contract is considered to be ‘particularly complex’ where the contracting authorities:
— are not objectively able to define the technical means in accordance with Article 23(3)(b), (c) or (d), capable of satisfying their needs or objectives, and/or
— are not objectively able to specify the legal and/or financial make-up of a project.
(d) ‘Negotiated procedures’ means those procedures whereby the contracting authorities consult the economic operators of their choice and negotiate the terms of contract with one or more of these.
(e) ‘Design contests’ means those procedures which enable the contracting authority to acquire, mainly in the fields of town and country planning, architecture and engineering or data processing, a plan or design selected by a jury after being put out to competition with or without the award of prizes.
***
Award procedures
The definitions are given some substance in Article 28 in Chapter V of the Procurement Directive. The procedures to follow generally are the open procedure, where any economic operator can submit a tender, or the restricted procedure, where any economic operator may request to be invited to submit a tender. The contracting authority can choose between the use of the open procedure and the restricted procedure.
If the normal procedures (open or restricted) are unsuitable, the contracting authority can use the competitive dialogue or a design contest on certain grounds:
Chapter V
Procedures
Article 28
Use of open, restricted and negotiated procedures and of competitive dialogue
In awarding their public contracts, contracting authorities shall apply the national procedures adjusted for the purposes of this Directive.
They shall award these public contracts by applying the open or restricted procedure. In the specific circumstances expressly provided for in Article 29, contracting authorities may award their public contracts by means of the competitive dialogue. In the specific cases and circumstances referred to expressly in Articles 30 and 31, they may apply a negotiated procedure, with or without publication of the contract notice.
***
Competitive dialogue
Article 29 of the Procurement Directive or Classic Directive sets out the circumstances allowing the use of a competitive dialogue, which can be employed only in the case of particularly complex contracts:
Article 29
Competitive dialogue
1. In the case of particularly complex contracts, Member States may provide that where contracting authorities consider that the use of the open or restricted procedure will not allow the award of the contract, the latter may make use of the competitive dialogue in accordance with this Article.
A public contract shall be awarded on the sole basis of the award criterion for the most economically advantageous tender.
2. Contracting authorities shall publish a contract notice setting out their needs and requirements, which they shall define in that notice and/or in a descriptive document.
3. Contracting authorities shall open, with the candidates selected in accordance with the relevant provisions of Articles 44 to 52, a dialogue the aim of which shall be to identify and define the means best suited to satisfying their needs. They may discuss all aspects of the contract with the chosen candidates during this dialogue.
During the dialogue, contracting authorities shall ensure equality of treatment among all tenderers. In particular, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others.
Contracting authorities may not reveal to the other participants solutions proposed or other confidential information communicated by a candidate participating in the dialogue without his/her agreement.
4. Contracting authorities may provide for the procedure to take place in successive stages in order to reduce the number of solutions to be discussed during the dialogue stage by applying the award criteria in the contract notice or the descriptive document. The contract notice or the descriptive document shall indicate that recourse may be had to this option.
5. The contracting authority shall continue such dialogue until it can identify the solution or solutions, if necessary after comparing them, which are capable of meeting its needs.
6. Having declared that the dialogue is concluded and having so informed the participants, contracting authorities shall ask them to submit their final tenders on the basis of the solution or solutions presented and specified during the dialogue. These tenders shall contain all the elements required and necessary for the performance of the project.
These tenders may be clarified, specified and fine-tuned at the request of the contracting authority. However, such clarification, specification, fine-tuning or additional information may not involve changes to the basic features of the tender or the call for tender, variations in which are likely to distort competition or have a discriminatory effect.
7. Contracting authorities shall assess the tenders received on the basis of the award criteria laid down in the contract notice or the descriptive document and shall choose the most economically advantageous tender in accordance with Article 53.
At the request of the contracting authority, the tenderer identified as having submitted the most economically advantageous tender may be asked to clarify aspects of the tender or confirm commitments contained in the tender provided this does not have the effect of modifying substantial aspects of the tender or of the call for tender and does not risk distorting competition or causing discrimination.
8. The contracting authorities may specify prices or payments to the participants in the dialogue.
***
Competitive dialogue explained
Additional guidance has been published by the Commission’s Directorate General Internal Market and Services: Explanatory note – competitive dialogue – Classic Directive (10 pages):
http://ec.europa.eu/internal_market/publicprocurement/docs/explan-notes/classic-dir-dialogue_en.pdf
Another guide to the competitive dialogue has been published in the United Kingdom, by HM Treasury and the Office of Government Commerce (OGC): Competitive Dialogue in 2008 – OGC/HMT joint guidance on using the procedure (37 pages):
http://www.ogc.gov.uk/documents/OGC_HMT_2008_Guidance_on_Competitive_Dialogue.pdf
***
Negotiated procedure
Article 30 of the Procurement Directive 2004/18/EC sets out when a negotiated procedure can be used with the prior publication of a contract notice.
Article 31 of the Classic Directive lays down the justifications for a negotiated procedure without a prior contract notice.
Article 30
Cases justifying use of the negotiated procedure with prior publication of a contract notice
1. Contracting authorities may award their public contracts by negotiated procedure, after publication of a contract notice, in the following cases:
(a) in the event of irregular tenders or the submission of tenders which are unacceptable under national provisions compatible with Articles 4, 24, 25, 27 and Chapter VII, in response to an open or restricted procedure or a competitive dialogue insofar as the original terms of the contract are not substantially altered.
Contracting authorities need not publish a contract notice where they include in the negotiated procedure all of, and only, the tenderers which satisfy the criteria of Articles 45 to 52 and which, during the prior open or restricted procedure or competitive dialogue, have submitted tenders in accordance with the formal requirements of the tendering procedure;
(b) in exceptional cases, when the nature of the works, supplies, or services or the risks attaching thereto do not permit prior overall pricing;
(c) in the case of services, inter alia services within category 6 of Annex II A, and intellectual services such as services involving the design of works, insofar as the nature of the services to be provided is such that contract specifications cannot be established with sufficient precision to permit the award of the contract by selection of the best tender according to the rules governing open or restricted procedures;
(d) in respect of public works contracts, for works which are performed solely for purposes of research, testing or development and not with the aim of ensuring profitability or recovering research and development costs.
2. In the cases referred to in paragraph 1, contracting authorities shall negotiate with tenderers the tenders submitted by them in order to adapt them to the requirements which they have set in the contract notice, the specifications and additional documents, if any, and to seek out the best tender in accordance with Article 53(1).
3. During the negotiations, contracting authorities shall ensure the equal treatment of all tenderers. In particular, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others.
4. Contracting authorities may provide for the negotiated procedure to take place in successive stages in order to reduce the number of tenders to be negotiated by applying the award criteria in the contract notice or the specifications. The contract notice or the specifications shall indicate whether recourse has been had to this option.
Article 31
Cases justifying use of the negotiated procedure without publication of a contract notice
Contracting authorities may award public contracts by a negotiated procedure without prior publication of a contract notice in the following cases:
(1) for public works contracts, public supply contracts and public service contracts:
(a) when no tenders or no suitable tenders or no applications have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of contract are not substantially altered and on condition that a report is sent to the Commission if it so requests;
(b) when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator;
(c) insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities in question, the time limit for the open, restricted or negotiated procedures with publication of a contract notice as referred to in Article 30 cannot be complied with. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authority;
(2) for public supply contracts:
(a) when the products involved are manufactured purely for the purpose of research, experimentation, study or development; this provision does not extend to quantity production to establish commercial viability or to recover research and development costs;
(b) for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the length of such contracts as well as that of recurrent contracts may not, as a general rule, exceed three years;
(c) for supplies quoted and purchased on a commodity market;
(d) for the purchase of supplies on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or the receivers or liquidators of a bankruptcy, an arrangement with creditors, or a similar procedure under national laws or regulations;
(3) for public service contracts, when the contract concerned follows a design contest and must, under the applicable rules, be awarded to the successful candidate or to one of the successful candidates, in the latter case, all successful candidates must be invited to participate in the negotiations;
(4) for public works contracts and public service contracts:
(a) for additional works or services not included in the project initially considered or in the original contract but which have, through unforeseen circumstances, become necessary for the performance of the works or services described therein, on condition that the award is made to the economic operator performing such works or services:
— when such additional works or services cannot be technically or economically separated from the original contract without major inconvenience to the contracting authorities,
or
— when such works or services, although separable from the performance of the original contract, are strictly necessary for its completion.
However, the aggregate value of contracts awarded for additional works or services may not exceed 50 % of the amount of the original contract;
(b) for new works or services consisting in the repetition of similar works or services entrusted to the economic operator to whom the same contracting authorities awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded according to the open or restricted procedure.
As soon as the first project is put up for tender, the possible use of this procedure shall be disclosed and the total estimated cost of subsequent works or services shall be taken into consideration by the contracting authorities when they apply the provisions of Article 7.
This procedure may be used only during the three years following the conclusion of the original contract.
***
Award procedures explained
The Commission’s Guides offer more or less the same explanations, but the details may change between the different contract types.
Public works contracts
Under 3. Award procedures, the Commission’s Guide to the Community rules on public works (based on the old Directive 93/37/EEC) explains the open and the restricted procedure and the negotiated procedure on page 23 to 27.
Public supply contracts
The award procedures are discussed in the context of supply contracts in the Commission’s Guide to the Community rules on public supply contracts (based on the old Directive 93/36/EEC), pages 21 to 25.
Public service contracts
The Commission’s Guide to the Community rules on public procurement of services (based on the old Directive 92/50/EEC) has a corresponding chapter on contract award procedures, from page 19 to page 25.
***
Design contest
Title IV of the Procurement directive 2004/18/EC, comprising Articles 66 to 74, deals with rules concerning design contests. Here we present only the introductory Article 66:
TITLE IV
RULES GOVERNING DESIGN CONTESTS
Article 66
General provisions
1. The rules for the organisation of design contests shall be in conformity with Articles 66 to 74 and shall be communicated to those interested in participating in the contest.
2. The admission of participants to design contests shall not be limited:
(a) by reference to the territory or part of the territory of a Member State;
(b) on the grounds that, under the law of the Member State in which the contest is organised, they would be required to be either natural or legal persons.
***
Design contests explained
The Commission’s Guide to the Community rules on public procurement of services (based on the old Directive 92/50/EEC) has a chapter 8 on design contests, from page 62 to page 63.
Ralf Grahn
Saturday, 20 December 2008
Fast-tracking EU procurement 2009 and 2010
Accelerated procurement procedures are important for contracting authorities and for businesses desperate to secure contracts during the economic recession.
The European Commission is going to allow speedy procurement procedures during 2009 and 2010 for major public projects in order to combat the economic recession. The Commission made public its intent to shorten the overall time limit from 87 days to 30 days in a press release issued on Friday:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/2040&format=HTML&aged=0&language=EN&guiLanguage=en
Here is the text of the Commission’s press release:
In its conclusions of 12 December the European Council invited the Commission to adopt a number of measures in response to the financial crisis. One of these measures concerns the use of accelerated procedures in public procurement.
The public procurement Directive 2004/18/EC allows recourse to accelerated procedures where justified on the grounds of urgency. The Commission recognizes that the exceptional nature of the current economic situation can justify the use of the accelerated procedure reducing considerably the overall time limit of the procedure from 87 days to 30 days. Such presumption of urgency should apply throughout 2009 and 2010 for all major public projects.
Background
The Commission considers that speeding up procurement procedures can significantly support Member State action to foster their economies through rapid execution of major public investment projects. Such action should be based on the existing internal market acquis.
The time limits set out by the public procurement Directive 2004/18/EC include a certain time frame for potential bidders to decide whether to participate and to draw up their tenders. Furthermore the Remedies Directive 2007/66/EC provides for a standstill period between the award decision and the conclusion of the contract to allow for review of the award decisions. In the restricted procedure, bidders first have to request to participate. Subsequently, selected candidates are invited to submit their tenders.
The regular regime for the restricted procedure, leading to the above time limit of 87 days, provides for minimum 37 days from the date on which the contract notice is sent for lodging requests to participate as well as for another minimum 40 days for the selected candidates to submit their tenders. After the award decision, the abovementioned "standstill period" of 10 days applies before the contract can be concluded.
Under the accelerated restricted procedure, which the Commission considers justified in the light of the financial crisis, contracting authorities can shorten the time limit for requests to participate from 37 to 10 days if the contract notice was sent by electronic means and the subsequent time limit for the selected candidates to submit their tenders from 40 to 10 days. With the remaining standstill period of 10 days, time limits for the restricted procedure can therefore be ultimately shortened to 30 days all in all.
Further details about public procurement legislation can be found at:
http://ec.europa.eu/internal_market/publicprocurement/index_en.htm
Source:
Commission press release: Public procurement: Commission recognises need for accelerated procurement procedure (19 December 2008, IP/08/2040)
***
Procurement time limits
The main provision on time limits of the Procurement Directive 2004/18/EC is Article 38. Paragraph 8 sets out the grounds for a contracting authority to shorten the time limits as well as the minimum delays to apply under any circumstances:
S e c t i o n 2
Time limits
Article 38
Time limits for receipt of requests to participate and for receipt of tenders
1. When fixing the time limits for the receipt of tenders and requests to participate, contracting authorities shall take account in particular of the complexity of the contract and the time required for drawing up tenders, without prejudice to the minimum time limits set by this Article.
2. In the case of open procedures, the minimum time limit for the receipt of tenders shall be 52 days from the date on which the contract notice was sent.
3. In the case of restricted procedures, negotiated procedures with publication of a contract notice referred to in Article 30 and the competitive dialogue:
(a) the minimum time limit for receipt of requests to participate shall be 37 days from the date on which the contract notice is sent;
(b) in the case of restricted procedures, the minimum time limit for the receipt of tenders shall be 40 days from the date on which the invitation is sent.
4. When contracting authorities have published a prior information notice, the minimum time limit for the receipt of tenders under paragraphs 2 and 3(b) may, as a general rule, be shortened to 36 days, but under no circumstances to less than 22 days.
The time limit shall run from the date on which the contract notice was sent in open procedures, and from the date on which the invitation to tender was sent in restricted procedures.
The shortened time limits referred to in the first subparagraph shall be permitted, provided that the prior information notice has included all the information required for the contract notice in Annex VII A, insofar as that information is available at the time the notice is published and that the prior information notice was sent for publication between 52 days and 12 months before the date on which the contract notice was sent.
5. Where notices are drawn up and transmitted by electronic means in accordance with the format and procedures for transmission indicated in point 3 of Annex VIII, the time limits for the receipt of tenders referred to in paragraphs 2 and 4 in open procedures, and the time limit for the receipt of the requests to participate referred to in paragraph 3(a), in restricted and negotiated procedures and the competitive dialogue, may be shortened by seven days.
6. The time limits for receipt of tenders referred to in paragraphs 2 and 3(b) may be reduced by five days where the contracting authority offers unrestricted and full direct access by electronic means to the contract documents and any supplementary documents from the date of publication of the notice in accordance with Annex VIII, specifying in the text of the notice the internet address at which this documentation is accessible.
This reduction may be added to that referred to in paragraph 5.
7. If, for whatever reason, the specifications and the supporting documents or additional information, although requested in good time, are not supplied within the time limits set in Articles 39 and 40, or where tenders can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the contract documents, the time limits for the receipt of tenders shall be extended so that all economic operators concerned may be aware of all the information needed to produce tenders.
8. In the case of restricted procedures and negotiated procedures with publication of a contract notice referred to in Article 30, where urgency renders impracticable the time limits laid down in this Article, contracting authorities may fix:
(a) a time limit for the receipt of requests to participate which may not be less than 15 days from the date on which the contract notice was sent, or less than 10 days if the notice was sent by electronic means, in accordance with the format and procedure for sending notices indicated in point 3 of Annex VIII;
(b) and, in the case of restricted procedures, a time limit for the receipt of tenders which shall be not less than 10 days from the date of the invitation to tender.
***
Standstill period
The Remedies Directive 2007/66/EC referred to by the Commission is officially Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (published exactly a year ago, OJ 20.12.2007 L 335/31).
The amended Directive 89/665/EEC is officially Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts.
The Remedies Directive came into force on the 20th day after publication, but the member states still have a year to transpose its provisions (by 20 December 2009).
The Remedies Directive 2007/66/EC inserted a new Article 2a into the existing Directive:
‘Article 2a
Standstill period
1. The Member States shall ensure that the persons referred to in Article 1(3) have sufficient time for effective review of the contract award decisions taken by contracting authorities, by adopting the necessary provisions respecting the minimum conditions set out in paragraph 2 of this Article and in Article 2c.
2. A contract may not be concluded following the decision to award a contract falling within the scope of Directive 2004/18/EC before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.
Tenderers shall be deemed to be concerned if they have not yet been definitively excluded. An exclusion is definitive if it has been notified to the tenderers concerned and has either been considered lawful by an independent review body or can no longer be subject to a review procedure.
Candidates shall be deemed to be concerned if the contracting authority has not made available information about the rejection of their application before the notification of the contract award decision to the tenderers concerned.
The communication of the award decision to each tenderer and candidate concerned shall be accompanied by the following:
— a summary of the relevant reasons as set out in Article 41(2) of Directive 2004/18/EC, subject to the provisions of Article 41(3) of that Directive, and,
— a precise statement of the exact standstill period applicable pursuant to the provisions of national law transposing this paragraph.
***
Guidance
The Commission’s press release serves as an advance notice for contracting authorities planning public projects for 2009 and 2010 as well as for businesses aiming to secure government contracts during these desperate times.
The minimum time limits of 10 plus 10 days in Article 38(8) of the Procurement Directive have to be applied by the contracting authorities, as well as the standstill period of 10 days provided for in the Remedies Directive 2007/66/EC, at least after 20 December 2009.
The concrete decisions are up to the contracting authorities in the EU member states and the Commission’s press release mentions a “presumption of urgency”, which indicates a benevolent attitude with regard to accelerated procurement procedures.
Still, I presume that there is a need for more exact guidance among contracting authorities and economic operators both from the Commission and from the relevant national governments. Hopefully added information is in the pipeline.
Ralf Grahn
The European Commission is going to allow speedy procurement procedures during 2009 and 2010 for major public projects in order to combat the economic recession. The Commission made public its intent to shorten the overall time limit from 87 days to 30 days in a press release issued on Friday:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/2040&format=HTML&aged=0&language=EN&guiLanguage=en
Here is the text of the Commission’s press release:
In its conclusions of 12 December the European Council invited the Commission to adopt a number of measures in response to the financial crisis. One of these measures concerns the use of accelerated procedures in public procurement.
The public procurement Directive 2004/18/EC allows recourse to accelerated procedures where justified on the grounds of urgency. The Commission recognizes that the exceptional nature of the current economic situation can justify the use of the accelerated procedure reducing considerably the overall time limit of the procedure from 87 days to 30 days. Such presumption of urgency should apply throughout 2009 and 2010 for all major public projects.
Background
The Commission considers that speeding up procurement procedures can significantly support Member State action to foster their economies through rapid execution of major public investment projects. Such action should be based on the existing internal market acquis.
The time limits set out by the public procurement Directive 2004/18/EC include a certain time frame for potential bidders to decide whether to participate and to draw up their tenders. Furthermore the Remedies Directive 2007/66/EC provides for a standstill period between the award decision and the conclusion of the contract to allow for review of the award decisions. In the restricted procedure, bidders first have to request to participate. Subsequently, selected candidates are invited to submit their tenders.
The regular regime for the restricted procedure, leading to the above time limit of 87 days, provides for minimum 37 days from the date on which the contract notice is sent for lodging requests to participate as well as for another minimum 40 days for the selected candidates to submit their tenders. After the award decision, the abovementioned "standstill period" of 10 days applies before the contract can be concluded.
Under the accelerated restricted procedure, which the Commission considers justified in the light of the financial crisis, contracting authorities can shorten the time limit for requests to participate from 37 to 10 days if the contract notice was sent by electronic means and the subsequent time limit for the selected candidates to submit their tenders from 40 to 10 days. With the remaining standstill period of 10 days, time limits for the restricted procedure can therefore be ultimately shortened to 30 days all in all.
Further details about public procurement legislation can be found at:
http://ec.europa.eu/internal_market/publicprocurement/index_en.htm
Source:
Commission press release: Public procurement: Commission recognises need for accelerated procurement procedure (19 December 2008, IP/08/2040)
***
Procurement time limits
The main provision on time limits of the Procurement Directive 2004/18/EC is Article 38. Paragraph 8 sets out the grounds for a contracting authority to shorten the time limits as well as the minimum delays to apply under any circumstances:
S e c t i o n 2
Time limits
Article 38
Time limits for receipt of requests to participate and for receipt of tenders
1. When fixing the time limits for the receipt of tenders and requests to participate, contracting authorities shall take account in particular of the complexity of the contract and the time required for drawing up tenders, without prejudice to the minimum time limits set by this Article.
2. In the case of open procedures, the minimum time limit for the receipt of tenders shall be 52 days from the date on which the contract notice was sent.
3. In the case of restricted procedures, negotiated procedures with publication of a contract notice referred to in Article 30 and the competitive dialogue:
(a) the minimum time limit for receipt of requests to participate shall be 37 days from the date on which the contract notice is sent;
(b) in the case of restricted procedures, the minimum time limit for the receipt of tenders shall be 40 days from the date on which the invitation is sent.
4. When contracting authorities have published a prior information notice, the minimum time limit for the receipt of tenders under paragraphs 2 and 3(b) may, as a general rule, be shortened to 36 days, but under no circumstances to less than 22 days.
The time limit shall run from the date on which the contract notice was sent in open procedures, and from the date on which the invitation to tender was sent in restricted procedures.
The shortened time limits referred to in the first subparagraph shall be permitted, provided that the prior information notice has included all the information required for the contract notice in Annex VII A, insofar as that information is available at the time the notice is published and that the prior information notice was sent for publication between 52 days and 12 months before the date on which the contract notice was sent.
5. Where notices are drawn up and transmitted by electronic means in accordance with the format and procedures for transmission indicated in point 3 of Annex VIII, the time limits for the receipt of tenders referred to in paragraphs 2 and 4 in open procedures, and the time limit for the receipt of the requests to participate referred to in paragraph 3(a), in restricted and negotiated procedures and the competitive dialogue, may be shortened by seven days.
6. The time limits for receipt of tenders referred to in paragraphs 2 and 3(b) may be reduced by five days where the contracting authority offers unrestricted and full direct access by electronic means to the contract documents and any supplementary documents from the date of publication of the notice in accordance with Annex VIII, specifying in the text of the notice the internet address at which this documentation is accessible.
This reduction may be added to that referred to in paragraph 5.
7. If, for whatever reason, the specifications and the supporting documents or additional information, although requested in good time, are not supplied within the time limits set in Articles 39 and 40, or where tenders can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the contract documents, the time limits for the receipt of tenders shall be extended so that all economic operators concerned may be aware of all the information needed to produce tenders.
8. In the case of restricted procedures and negotiated procedures with publication of a contract notice referred to in Article 30, where urgency renders impracticable the time limits laid down in this Article, contracting authorities may fix:
(a) a time limit for the receipt of requests to participate which may not be less than 15 days from the date on which the contract notice was sent, or less than 10 days if the notice was sent by electronic means, in accordance with the format and procedure for sending notices indicated in point 3 of Annex VIII;
(b) and, in the case of restricted procedures, a time limit for the receipt of tenders which shall be not less than 10 days from the date of the invitation to tender.
***
Standstill period
The Remedies Directive 2007/66/EC referred to by the Commission is officially Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (published exactly a year ago, OJ 20.12.2007 L 335/31).
The amended Directive 89/665/EEC is officially Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts.
The Remedies Directive came into force on the 20th day after publication, but the member states still have a year to transpose its provisions (by 20 December 2009).
The Remedies Directive 2007/66/EC inserted a new Article 2a into the existing Directive:
‘Article 2a
Standstill period
1. The Member States shall ensure that the persons referred to in Article 1(3) have sufficient time for effective review of the contract award decisions taken by contracting authorities, by adopting the necessary provisions respecting the minimum conditions set out in paragraph 2 of this Article and in Article 2c.
2. A contract may not be concluded following the decision to award a contract falling within the scope of Directive 2004/18/EC before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.
Tenderers shall be deemed to be concerned if they have not yet been definitively excluded. An exclusion is definitive if it has been notified to the tenderers concerned and has either been considered lawful by an independent review body or can no longer be subject to a review procedure.
Candidates shall be deemed to be concerned if the contracting authority has not made available information about the rejection of their application before the notification of the contract award decision to the tenderers concerned.
The communication of the award decision to each tenderer and candidate concerned shall be accompanied by the following:
— a summary of the relevant reasons as set out in Article 41(2) of Directive 2004/18/EC, subject to the provisions of Article 41(3) of that Directive, and,
— a precise statement of the exact standstill period applicable pursuant to the provisions of national law transposing this paragraph.
***
Guidance
The Commission’s press release serves as an advance notice for contracting authorities planning public projects for 2009 and 2010 as well as for businesses aiming to secure government contracts during these desperate times.
The minimum time limits of 10 plus 10 days in Article 38(8) of the Procurement Directive have to be applied by the contracting authorities, as well as the standstill period of 10 days provided for in the Remedies Directive 2007/66/EC, at least after 20 December 2009.
The concrete decisions are up to the contracting authorities in the EU member states and the Commission’s press release mentions a “presumption of urgency”, which indicates a benevolent attitude with regard to accelerated procurement procedures.
Still, I presume that there is a need for more exact guidance among contracting authorities and economic operators both from the Commission and from the relevant national governments. Hopefully added information is in the pipeline.
Ralf Grahn
EU procurement: Central purchasing body (CPB)
The EC (EU) Procurement Directive 2004/18/EC, also known as the Classic Directive, defines a central purchasing body (CPB) in Article 1.10:
10. A ‘central purchasing body’ is a contracting authority which:
— acquires supplies and/or services intended for contracting authorities, or
— awards public contracts or concludes framework agreements for works, supplies or services intended for contracting authorities.
***
Contracting authority
The definition of a central purchasing body builds on the concept of a contracting authority.
You can turn to the blog post EU procurement: Contracting authority, at:
http://grahnlaw.blogspot.com/2008/12/eu-procurement-contracting-authority.html
***
Reasons given
The Recitals of the Procurement Directive present reasons for the consolidated legislation and for novelties. Recital 15 describes the central purchasing body (CPB):
(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.
***
Article 11
Procurement Directive Article 11 sets out the optional nature of central purchasing bodies, but complying with the procurement rules is mandatory:
Article 11
Public contracts and framework agreements awarded by central purchasing bodies
1. Member States may stipulate that contracting authorities may purchase works, supplies and/or services from or through a central purchasing body.
2. Contracting authorities which purchase works, supplies and/or services from or through a central purchasing body in the cases set out in Article 1(10) shall be deemed to have complied with this Directive insofar as the central purchasing body has complied with it.
***
UK OGC
The United Kingdom Office of Government Commerce has published OGC Guidance on Central Purchasing Bodies (March 2008):
http://www.ogc.gov.uk/documents/OGC_Guidance_on_Central_Purchasing_Bodies.pdf
The updated six page brochure (pdf) gives advice to contracting authorities entering into agreements with central purchasing bodies.
Ralf Grahn
10. A ‘central purchasing body’ is a contracting authority which:
— acquires supplies and/or services intended for contracting authorities, or
— awards public contracts or concludes framework agreements for works, supplies or services intended for contracting authorities.
***
Contracting authority
The definition of a central purchasing body builds on the concept of a contracting authority.
You can turn to the blog post EU procurement: Contracting authority, at:
http://grahnlaw.blogspot.com/2008/12/eu-procurement-contracting-authority.html
***
Reasons given
The Recitals of the Procurement Directive present reasons for the consolidated legislation and for novelties. Recital 15 describes the central purchasing body (CPB):
(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.
***
Article 11
Procurement Directive Article 11 sets out the optional nature of central purchasing bodies, but complying with the procurement rules is mandatory:
Article 11
Public contracts and framework agreements awarded by central purchasing bodies
1. Member States may stipulate that contracting authorities may purchase works, supplies and/or services from or through a central purchasing body.
2. Contracting authorities which purchase works, supplies and/or services from or through a central purchasing body in the cases set out in Article 1(10) shall be deemed to have complied with this Directive insofar as the central purchasing body has complied with it.
***
UK OGC
The United Kingdom Office of Government Commerce has published OGC Guidance on Central Purchasing Bodies (March 2008):
http://www.ogc.gov.uk/documents/OGC_Guidance_on_Central_Purchasing_Bodies.pdf
The updated six page brochure (pdf) gives advice to contracting authorities entering into agreements with central purchasing bodies.
Ralf Grahn
Friday, 19 December 2008
Sarkozy’s Holy Alliance
Six months at the helm of the European Council has taught French President Nicolas Sarkozy the wrong lessons.
According to Sarkozy, only the heads of state (France) or government (most of the others) have the legitimacy to move Europe forward.
This fallacy is the nearest thing imaginable in modern day Europe to the paternalistic world-view of the rulers who formed the brittle Holy Alliance against the democratic aspirations of ‘their’ peoples.
As long as the unanimity rules are in place, a European Union of state leaders will stand on feet of clay.
Instead of ‘ad hoc’ summits issuing statements, the European Union needs real powers where they matter, namely on the world stage. But real powers and robust institutions at European level are legitimate only if based on the voters in their capacity as EU citizens.
***
The European Union stands at a crossroads. It can continue to emulate the Holy Alliance or it can transform itself into a robust and democratic union.
For the briefest of outlines on the Holy Alliance, read the Wikipedia article:
http://en.wikipedia.org/wiki/Holy_Alliance
***
Robust means a union able to reform and to decide, without being frustrated by its own ‘liberum veto’ (unanimity).
The tragicomic histories of treaty reform, international weakness and stalled accession negotiations show how the European leaders have almost invented the ‘perpetuum mobile’, an unending sequence of failure.
Institutional reform is not navel-gazing, because it is a precondition for the ability to deliver common public goods still outside the effective reach of the European Union, for instance security.
Democratic means giving the citizens of the European Union the power to vote the legislators into and out of office and to set the course for the union in all questions European, through the composition of a politically accountable government.
***
The paternalistic order of President Sarkozy will fail and it deserves to fail, until the ‘Copernican revolution’ of democracy dawns on the European Council.
Powers and democracy have to meet at the same level. Double legitimacy is as true as double speak.
***
Two paradigm shifts are needed to save the European project: Robust rules and the EU citizens at the centre.
President Nicolas Sarkozy has shown that he is alien to true reform. De Gaulle may be pleased and anti-Europeans have cause for celebration, but history will hardly judge President Sarkozy’s ego-centric lack of vision kindly.
In this context, it does not matter too much if the Treaty of Lisbon enters into force. It does contain a few inter-institutional improvements, but it only prolongs the life of a union of leaders without citizens.
Instead of taking up the cause of EU citizens, the political parties at European level and the European Parliament seem to have become oblivious courtiers.
The prospects for the European elections in June 2009 and beyond are far from rosy.
Ralf Grahn
According to Sarkozy, only the heads of state (France) or government (most of the others) have the legitimacy to move Europe forward.
This fallacy is the nearest thing imaginable in modern day Europe to the paternalistic world-view of the rulers who formed the brittle Holy Alliance against the democratic aspirations of ‘their’ peoples.
As long as the unanimity rules are in place, a European Union of state leaders will stand on feet of clay.
Instead of ‘ad hoc’ summits issuing statements, the European Union needs real powers where they matter, namely on the world stage. But real powers and robust institutions at European level are legitimate only if based on the voters in their capacity as EU citizens.
***
The European Union stands at a crossroads. It can continue to emulate the Holy Alliance or it can transform itself into a robust and democratic union.
For the briefest of outlines on the Holy Alliance, read the Wikipedia article:
http://en.wikipedia.org/wiki/Holy_Alliance
***
Robust means a union able to reform and to decide, without being frustrated by its own ‘liberum veto’ (unanimity).
The tragicomic histories of treaty reform, international weakness and stalled accession negotiations show how the European leaders have almost invented the ‘perpetuum mobile’, an unending sequence of failure.
Institutional reform is not navel-gazing, because it is a precondition for the ability to deliver common public goods still outside the effective reach of the European Union, for instance security.
Democratic means giving the citizens of the European Union the power to vote the legislators into and out of office and to set the course for the union in all questions European, through the composition of a politically accountable government.
***
The paternalistic order of President Sarkozy will fail and it deserves to fail, until the ‘Copernican revolution’ of democracy dawns on the European Council.
Powers and democracy have to meet at the same level. Double legitimacy is as true as double speak.
***
Two paradigm shifts are needed to save the European project: Robust rules and the EU citizens at the centre.
President Nicolas Sarkozy has shown that he is alien to true reform. De Gaulle may be pleased and anti-Europeans have cause for celebration, but history will hardly judge President Sarkozy’s ego-centric lack of vision kindly.
In this context, it does not matter too much if the Treaty of Lisbon enters into force. It does contain a few inter-institutional improvements, but it only prolongs the life of a union of leaders without citizens.
Instead of taking up the cause of EU citizens, the political parties at European level and the European Parliament seem to have become oblivious courtiers.
The prospects for the European elections in June 2009 and beyond are far from rosy.
Ralf Grahn
EU procurement: Contracting authority
Contracting authority is one of the key concepts of the EC (EU) Procurement Directive 2004/18/EC, popping up in almost every provision. With the position as a contracting authority goes the responsibility to follow the right procedures.
Even if state, regional and local authorities are normally easy to recognise, the role of other bodies or associations can be tricky.
Here is the definition of a contracting authority in Article 1.9 of the Procurement Directive, also known as the Classic Directive:
9. ‘Contracting authorities’ means the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law.
A ‘body governed by public law’ means any body:
(a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b) having legal personality; and
(c) financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.
Non-exhaustive lists of bodies and categories of bodies governed by public law which fulfil the criteria referred to in (a), (b) and (c) of the second subparagraph are set out in Annex III. Member States shall periodically notify the Commission of any changes to their lists of bodies and categories of bodies.
***
Annex III
The quick route to check if a body is a contracting authority, is in principle, to look at the relevant country list in Annex III List of bodies and categories of bodies governed by public law as referred to in the second subparagraph of Article 1(9).
Notice that the Commission has updated its country lists 15 December 2008. They are available on the web page Contracting authorities bound by EU public procurement rules:
http://ec.europa.eu/internal_market/publicprocurement/authorities_en.htm
For an overview of the changes, you can read the press release Public procurement: updated lists of Contracting Authorities give better access to public contracts for businesses (IP/08/1971, Brussels, 15 December 2008). The press release paints a broad picture of EU public procurement, potential savings to taxpayers and it contains the current contract thresholds, in force since 1 January 2008:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1971&format=HTML&aged=0&language=EN&guiLanguage=en
But even if updated, the list does not exclude other organisations from the responsibilities of a contracting authority. The interpretation is functional.
***
Commission Guide
To mention one example, the Commission’s Guide to Community rules on public works contracts (based on the old Directive 93/37/EEC) explains the contracting authority in the following way (page 9 to 11):
1.3 The contracting authority
The Directive defines contracting authorities as the State, regional or local authorities, bodies governed by public law, or associations formed by one or more such authorities or bodies governed by public law.
The State
It is worth stressing that for the purposes of applying the Directive, the concept of the State is not confined to the administration as such, but also covers bodies which, albeit not formally part of the traditional structures of the administration, have no legal personality of their own and carry out tasks that are normally the responsibility of the State administration, which they merely represent in different ways. This point was clarified by the Court of Justice in Beentjes v Netherlands State, in which it had to rule whether Directive 71/305/EEC applied to the award of public works contracts by the Waterland Local Land Consolidation Committee, a body with no legal personality of its own. To that end, the Court stressed that “the objective of Directive 71/305/EEC is to coordinate national procedures for the award of public works contracts concluded in Member States on behalf of the State, regional or local authorities or other legal persons governed by public law” and that the term “the State” within the meaning of Article 1(b) Directive 71/305/EEC defining contracting authorities “must be interpreted in functional terms. The aim of the Directive, which is to ensure the effective attainment of freedom of establishment and freedom to provide services in respect of public works contracts, would be jeopardized if the provisions of the Directive were to be held to be inapplicable solely because a public works contract is awarded by a body which, although it was set up to carry out tasks entrusted to it by legislation, is not formally a part of the State administration.
Consequently, a body such as that in question here, whose composition and functions are laid down by legislation and which depends on the authorities for the appointment of its members, the observance of the obligations arising out of its measures and the financing of the public works contracts which it is its task to award, must be regarded as falling within the notion of the State for the purpose of the abovementioned provision, even though it is not part of the State administration in formal terms.”
Bodies governed by public law
The Directive defines bodies governed by public law on the basis of three cumulative criteria. A body governed by public law thus means any body:
(1) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and
(2) having legal personality, and
(3) * either financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law,
* or subject to management supervision by those bodies,
* or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law.
The Directive thus applies to any body with legal personality under public or private law, established in the general interest, whose operational choices and activities are or may be influenced by a contracting authority as a result of the links between them by virtue of one or more of the conditions that go to make up the third criterion.
The only bodies which are established in the general interest and fulfil the other criteria but are not regarded as contracting authorities by the Directive are those set up for the specific purpose of meeting needs of an industrial or commercial nature, i.e. needs which they satisfy by carrying on economic activities in the industrial or commercial field that involve supplying goods or services on markets which are open to other public or private operators under fully competitive conditions. These are therefore bodies which carry on a business equivalent to that of a private operator.
It should be emphasized that the exemption provided for by the Directive applies only to bodies which carry on such economic activities since they were set up in order specifically to do so. Consequently, the exemption does not apply to bodies which, while carrying on commercial or industrial activities, were in fact set up to satisfy a different general interest: e.g. a body set up specifically to carry out administrative tasks so as to meet general–interest needs of a social nature, which, to ensure that its books balance, also carries on a profitable commercial activity.
Nevertheless, each individual case must be analysed to determine whether the body governed by public law is subject to the Directive.
In the interests of greater transparency in application, the Directive sets out, in Annex I, a list19 of bodies and categories of bodies fulfilling the criteria for bodies governed by public law and lays down a procedure for updating the list to ensure that it is as exhaustive as possible.
The obligation on a body governed by public law to comply with the Directive does not, however, depend on its prior inclusion in the list: it is under such an obligation as soon as it fulfils the criteria. Similarly, although a body may be on the list, it could be exempted from complying with the Directive if it were no longer to meet one or more of the cumulative criteria.
***
Procurement Guidelines
Once you have established that you are a contracting authority or aim to do business with one, the procedures become important.
Because the procedures are mandatory for contracting authorities and valuable to know for contractors, suppliers and service providers, step by step guides have been published.
Although the implementing national legislation differs from jurisdiction to jurisdiction, the legal background (EC/EU) and the basic challenges remain the same. Here is one example in English:
The Irish Government has published Public Procurement Guidelines – Competitive Process, which apply to supplies and services (39 pages) as well as other guides for public purchasers:
http://www.e-tenders.gov.ie/guides/guides_list.aspx?Type=2
Ralf Grahn
Even if state, regional and local authorities are normally easy to recognise, the role of other bodies or associations can be tricky.
Here is the definition of a contracting authority in Article 1.9 of the Procurement Directive, also known as the Classic Directive:
9. ‘Contracting authorities’ means the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law.
A ‘body governed by public law’ means any body:
(a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b) having legal personality; and
(c) financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.
Non-exhaustive lists of bodies and categories of bodies governed by public law which fulfil the criteria referred to in (a), (b) and (c) of the second subparagraph are set out in Annex III. Member States shall periodically notify the Commission of any changes to their lists of bodies and categories of bodies.
***
Annex III
The quick route to check if a body is a contracting authority, is in principle, to look at the relevant country list in Annex III List of bodies and categories of bodies governed by public law as referred to in the second subparagraph of Article 1(9).
Notice that the Commission has updated its country lists 15 December 2008. They are available on the web page Contracting authorities bound by EU public procurement rules:
http://ec.europa.eu/internal_market/publicprocurement/authorities_en.htm
For an overview of the changes, you can read the press release Public procurement: updated lists of Contracting Authorities give better access to public contracts for businesses (IP/08/1971, Brussels, 15 December 2008). The press release paints a broad picture of EU public procurement, potential savings to taxpayers and it contains the current contract thresholds, in force since 1 January 2008:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1971&format=HTML&aged=0&language=EN&guiLanguage=en
But even if updated, the list does not exclude other organisations from the responsibilities of a contracting authority. The interpretation is functional.
***
Commission Guide
To mention one example, the Commission’s Guide to Community rules on public works contracts (based on the old Directive 93/37/EEC) explains the contracting authority in the following way (page 9 to 11):
1.3 The contracting authority
The Directive defines contracting authorities as the State, regional or local authorities, bodies governed by public law, or associations formed by one or more such authorities or bodies governed by public law.
The State
It is worth stressing that for the purposes of applying the Directive, the concept of the State is not confined to the administration as such, but also covers bodies which, albeit not formally part of the traditional structures of the administration, have no legal personality of their own and carry out tasks that are normally the responsibility of the State administration, which they merely represent in different ways. This point was clarified by the Court of Justice in Beentjes v Netherlands State, in which it had to rule whether Directive 71/305/EEC applied to the award of public works contracts by the Waterland Local Land Consolidation Committee, a body with no legal personality of its own. To that end, the Court stressed that “the objective of Directive 71/305/EEC is to coordinate national procedures for the award of public works contracts concluded in Member States on behalf of the State, regional or local authorities or other legal persons governed by public law” and that the term “the State” within the meaning of Article 1(b) Directive 71/305/EEC defining contracting authorities “must be interpreted in functional terms. The aim of the Directive, which is to ensure the effective attainment of freedom of establishment and freedom to provide services in respect of public works contracts, would be jeopardized if the provisions of the Directive were to be held to be inapplicable solely because a public works contract is awarded by a body which, although it was set up to carry out tasks entrusted to it by legislation, is not formally a part of the State administration.
Consequently, a body such as that in question here, whose composition and functions are laid down by legislation and which depends on the authorities for the appointment of its members, the observance of the obligations arising out of its measures and the financing of the public works contracts which it is its task to award, must be regarded as falling within the notion of the State for the purpose of the abovementioned provision, even though it is not part of the State administration in formal terms.”
Bodies governed by public law
The Directive defines bodies governed by public law on the basis of three cumulative criteria. A body governed by public law thus means any body:
(1) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and
(2) having legal personality, and
(3) * either financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law,
* or subject to management supervision by those bodies,
* or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law.
The Directive thus applies to any body with legal personality under public or private law, established in the general interest, whose operational choices and activities are or may be influenced by a contracting authority as a result of the links between them by virtue of one or more of the conditions that go to make up the third criterion.
The only bodies which are established in the general interest and fulfil the other criteria but are not regarded as contracting authorities by the Directive are those set up for the specific purpose of meeting needs of an industrial or commercial nature, i.e. needs which they satisfy by carrying on economic activities in the industrial or commercial field that involve supplying goods or services on markets which are open to other public or private operators under fully competitive conditions. These are therefore bodies which carry on a business equivalent to that of a private operator.
It should be emphasized that the exemption provided for by the Directive applies only to bodies which carry on such economic activities since they were set up in order specifically to do so. Consequently, the exemption does not apply to bodies which, while carrying on commercial or industrial activities, were in fact set up to satisfy a different general interest: e.g. a body set up specifically to carry out administrative tasks so as to meet general–interest needs of a social nature, which, to ensure that its books balance, also carries on a profitable commercial activity.
Nevertheless, each individual case must be analysed to determine whether the body governed by public law is subject to the Directive.
In the interests of greater transparency in application, the Directive sets out, in Annex I, a list19 of bodies and categories of bodies fulfilling the criteria for bodies governed by public law and lays down a procedure for updating the list to ensure that it is as exhaustive as possible.
The obligation on a body governed by public law to comply with the Directive does not, however, depend on its prior inclusion in the list: it is under such an obligation as soon as it fulfils the criteria. Similarly, although a body may be on the list, it could be exempted from complying with the Directive if it were no longer to meet one or more of the cumulative criteria.
***
Procurement Guidelines
Once you have established that you are a contracting authority or aim to do business with one, the procedures become important.
Because the procedures are mandatory for contracting authorities and valuable to know for contractors, suppliers and service providers, step by step guides have been published.
Although the implementing national legislation differs from jurisdiction to jurisdiction, the legal background (EC/EU) and the basic challenges remain the same. Here is one example in English:
The Irish Government has published Public Procurement Guidelines – Competitive Process, which apply to supplies and services (39 pages) as well as other guides for public purchasers:
http://www.e-tenders.gov.ie/guides/guides_list.aspx?Type=2
Ralf Grahn
Thursday, 18 December 2008
Die Europäische Union
The German Bundeszentrale für politische Bildung continues its impressive publishing activity to inform and educate students, teachers and the general public. History, politics, society and culture are among the key areas, without forgetting the world outside Germany.
One of the latest publications on Europe is Werner Weidenfeld (Hrsg.): Die Europäische Union – Politisches System und Politikbereiche (Bundeszentrale für politische Bildung, Schriftenreihe Band 689, 2008, 832 pages).
Die Europäische Union and other BPB publications can be found at:
http://www.bpb.de/publikationen
Part I looks at the historic background and development of European integration, Part II analyses the EU as a political system, Part III sheds light on the main policy areas, Part IV describes the EU’s role in the wider world and Part V presents views on Europe’s future. The 35 articles have been authored by renowned experts. Main developments are chronicled in an annex.
The book costs a nominal two euros, but postage is added for orders outside Germany. Still, at € 16.10 in total, I don’t complain.
Ralf Grahn
One of the latest publications on Europe is Werner Weidenfeld (Hrsg.): Die Europäische Union – Politisches System und Politikbereiche (Bundeszentrale für politische Bildung, Schriftenreihe Band 689, 2008, 832 pages).
Die Europäische Union and other BPB publications can be found at:
http://www.bpb.de/publikationen
Part I looks at the historic background and development of European integration, Part II analyses the EU as a political system, Part III sheds light on the main policy areas, Part IV describes the EU’s role in the wider world and Part V presents views on Europe’s future. The 35 articles have been authored by renowned experts. Main developments are chronicled in an annex.
The book costs a nominal two euros, but postage is added for orders outside Germany. Still, at € 16.10 in total, I don’t complain.
Ralf Grahn
European Union: Public health
Global and continental health threats have hardly diminished, although media attention has turned to the financial meltdown and the economic recession.
Originally, the European Economic Community (EEC) had no specific policy, but little by little common concerns have led to joint action within the European Union. The Treaty of Lisbon would confer some shared competence on the EU and clarify areas where the union supports, coordinates or supplements member states’ health policies.
***
Article 152 TEC
Global and continental health concerns are precariously balanced with traditional member states’ powers in the Title on public health.
The current Article 152 (ex Article 129) of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/114–115:
TITLE XIII
PUBLIC HEALTH
Article 152 TEC
1. A high level of human health protection shall be ensured in the definition and implementation of all Community policies and activities.
Community action, which shall complement national policies, shall be directed towards improving public health, preventing human illness and diseases, and obviating sources of danger to human health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education.
The Community shall complement the Member States' action in reducing drugs-related health damage, including information and prevention.
2. The Community shall encourage cooperation between the Member States in the areas referred to in this Article and, if necessary, lend support to their action.
Member States shall, in liaison with the Commission, coordinate among themselves their policies and programmes in the areas referred to in paragraph 1. The Commission may, in close contact with the Member States, take any useful initiative to promote such coordination.
3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of public health.
4. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, shall contribute to the achievement of the objectives referred to in this Article through adopting:
(a) measures setting high standards of quality and safety of organs and substances of human origin, blood and blood derivatives; these measures shall not prevent any Member State from maintaining or introducing more stringent protective measures;
(b) by way of derogation from Article 37, measures in the veterinary and phytosanitary fields which have as their direct objective the protection of public health;
(c) incentive measures designed to protect and improve human health, excluding any harmonisation of the laws and regulations of the Member States.
The Council, acting by a qualified majority on a proposal from the Commission, may also adopt recommendations for the purposes set out in this Article.
5. Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care. In particular, measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 127 of the original Treaty of Lisbon (ToL) shows that Article 152 TEC underwent several specific amendments (OJ 17.12.2007 C 306/83–84):
PUBLIC HEALTH
127) Article 152 shall be amended as follows:
(a) in paragraph 1, second subparagraph, the word ‘human’ shall be replaced by ‘physical and
mental’ and, at the end of that subparagraph, the following shall be added: ‘, and monitoring, early warning of and combating serious cross-border threats to health’;
(b) in paragraph 2, at the end of the first subparagraph, the following sentence shall be added:
‘It shall in particular encourage cooperation between the Member States to improve the complementarity of their health services in cross-border areas.’;
(c) In paragraph 2, the following shall be added at the end of the second subparagraph: ‘, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.’;
(d) paragraph 4 shall be amended as follows:
(i) in the introductory wording to the first subparagraph, the following words shall be inserted at the beginning: ‘By way of derogation from Article 2 A(5) and Article 2 E(a) and in accordance with Article 2 C(2)(k)’ and the following shall be added at the end: ‘in order to meet common safety concerns:’;
(ii) in point (b), the words ‘by way of derogation from Article 37,’ shall be deleted;
(iii) the following new point (c) shall be inserted:
‘(c) measures setting high standards of quality and safety for medicinal products and devices for medical use.’;
(iv) the current point (c) shall be renumbered paragraph 5 and replaced by the following:
‘5. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, may also adopt incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, xcluding any harmonisation of the laws and regulations of the Member States.’;
(e) the second subparagraph of the current paragraph 4 shall become paragraph 6 and paragraph 5, renumbered 7, shall be replaced by the following:
‘7. Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them. The measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XIII first became Title XIII in the TFEU (ToL), but renumbered Title XIV Public helath in the consolidated version.
Article 152 TEC initially became Article 152 TFEU (ToL) before the renumbering of the treaty made it into Article 168 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
After the explicit amendments, horizontal amendments and renumbering, Article 168 of the Treaty on the Functioning of the European Union (TFEU) appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/122–124:
TITLE XIV
PUBLIC HEALTH
Article 168 TFEU
(ex Article 152 TEC)
1. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.
Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education, and monitoring, early warning of and combating serious cross-border threats to health.
The Union shall complement the Member States' action in reducing drugs-related health damage, including information and prevention.
2. The Union shall encourage cooperation between the Member States in the areas referred to in this Article and, if necessary, lend support to their action. It shall in particular encourage cooperation between the Member States to improve the complementarity of their health services in cross-border areas.
Member States shall, in liaison with the Commission, coordinate among themselves their policies and programmes in the areas referred to in paragraph 1. The Commission may, in close contact with the Member States, take any useful initiative to promote such coordination, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.
3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of public health.
4. By way of derogation from Article 2(5) and Article 6(a) and in accordance with Article 4(2)(k) the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall contribute to the achievement of the objectives referred to in this Article through adopting in order to meet common safety concerns:
(a) measures setting high standards of quality and safety of organs and substances of human origin, blood and blood derivatives; these measures shall not prevent any Member State from maintaining or introducing more stringent protective measures;
(b) measures in the veterinary and phytosanitary fields which have as their direct objective the protection of public health;
(c) measures setting high standards of quality and safety for medicinal products and devices for medical use.
5. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, may also adopt incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding any harmonisation of the laws and regulations of the Member States.
6. The Council, on a proposal from the Commission, may also adopt recommendations for the purposes set out in this Article.
7. Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them. The measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.
***
Amendments
There has been a growing awareness of the cross-border nature and even global character of health threats, so in general the treaty reform stages point in the direction of more effective means to combat common threats. But this movement has not been straightforward, partly due to concerns about handing the European Union powers.
Interested readers are invited to track Article III-179 of the draft constitution, Article III-278 of the Constitutional Treaty, the IGC 2007 Mandate and the final TFEU.
Supplementing information is offered by:
Klemens H. Fischer: Der Vertrag von Lissabon (pages 302 to 305)
François-Xavier Priollaud & David Siritzky: Le traité de Lisbonne (pages 279 to 281)
If your main focus is the change between the current TEC and the TFEU, you may find the following comment by professor Steve Peers helpful:
The amendments: add a reference to ‘physical and mental’ health; refer to action on monitoring, etc. public health; encourage cooperation on cross-border health services; make the Commission’s role clearer; create a specific legal base for legislation on medical products and medical devices; set out in more detail the power to adopt incentive measures; and clarify further the boundary between EU and Member State competences in this area.
In accordance with the Reform Treaty mandate, the new express EU competence concerning serious cross-border health threats has been moved from a shared power (ie a power for the EU to harmonise national law) to a supporting power only. Also, a declaration clarifying the internal market aspects of the new express power to harmonise law concerning medical devices, etc. is attached to the draft Reform Treaty. In fact, Article 95 EC is used at present to adopt legislation on this issue, so the ‘new’ legal base on this issue is not new in practice.
The draft Reform Treaty has also added a reference to the financing of health services.
(Source: Steve Peers: Statewatch Analysis, EU Reform Treaty Analysis no. 3.4: Revised text of Part Three, Titles VII to XVII of the Treaty establishing the European Community (TEC): Other internal EC policies; Version 2, October 2007)
***
Declaration No 32
The member states agreed on a declaration concerning measures setting high standards of quality and safety for medicinal products and devices for medical use, mentioned in Article 168(4)(c) TFEU (OJ 9.5.2008 C 115/348):
32. Declaration on Article 168(4)(c) of the Treaty on the Functioning of the European Union
The Conference declares that the measures to be adopted pursuant to Article 168(4)(c) must meet common safety concerns and aim to set high standards of quality and safety where national standards affecting the internal market would otherwise prevent a high level of human health protection being achieved.
***
EU powers
The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence in a systematic manner.
The categories of EU competence (the taxonomy) are set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU
As an area of shared competence between the EU and the member states, Article 4(2)(k) mentions common safety concerns in public health matters for the aspects defined in this Treaty.
***
Article 6 TFEU
The European Union has competence to carry out actions to support, coordinate or supplement the actions of the Member States. Among the areas of such action, at European level, Article 6(1)(a) mentions the protection and improvement of human health.
In other words, different aspects of public health are subject to shared competence, supporting, coordinating or supplementing action or remain wholly with the member states.
***
Summary of legislation: Public health
On the Commission’s Scadplus web pages with summaries of legislation, there is several dedicated to public health issues.
A new strategic approach to health for the EU (2008–2013) (last update 19 February 2008):
http://europa.eu/scadplus/leg/en/cha/c11579.htm
New Community health strategy (last update 26 July 2006):
http://europa.eu/scadplus/leg/en/cha/c11563.htm
Scientific Committees for consumer safety, public health and the environment (last update 2 May 2007):
http://europa.eu/scadplus/leg/en/lvb/l28153.htm
The precautionary principle (last update 2 November 2005):
http://europa.eu/scadplus/leg/en/lvb/l32042.htm
Programme of Community action in the field of health and consumer protection (2008–2013) (last update 8 April 2008):
http://europa.eu/scadplus/leg/en/cha/c11503c.htm
e-Health: improving health and healthcare through the use of information and communication technologies (last update 20 May 2005):
http://europa.eu/scadplus/leg/en/lvb/l24226f.htm
***
News and links
General Commission news and links on Public Health can be found here:
http://ec.europa.eu/health/index_en.htm
Ralf Grahn
Originally, the European Economic Community (EEC) had no specific policy, but little by little common concerns have led to joint action within the European Union. The Treaty of Lisbon would confer some shared competence on the EU and clarify areas where the union supports, coordinates or supplements member states’ health policies.
***
Article 152 TEC
Global and continental health concerns are precariously balanced with traditional member states’ powers in the Title on public health.
The current Article 152 (ex Article 129) of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/114–115:
TITLE XIII
PUBLIC HEALTH
Article 152 TEC
1. A high level of human health protection shall be ensured in the definition and implementation of all Community policies and activities.
Community action, which shall complement national policies, shall be directed towards improving public health, preventing human illness and diseases, and obviating sources of danger to human health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education.
The Community shall complement the Member States' action in reducing drugs-related health damage, including information and prevention.
2. The Community shall encourage cooperation between the Member States in the areas referred to in this Article and, if necessary, lend support to their action.
Member States shall, in liaison with the Commission, coordinate among themselves their policies and programmes in the areas referred to in paragraph 1. The Commission may, in close contact with the Member States, take any useful initiative to promote such coordination.
3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of public health.
4. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, shall contribute to the achievement of the objectives referred to in this Article through adopting:
(a) measures setting high standards of quality and safety of organs and substances of human origin, blood and blood derivatives; these measures shall not prevent any Member State from maintaining or introducing more stringent protective measures;
(b) by way of derogation from Article 37, measures in the veterinary and phytosanitary fields which have as their direct objective the protection of public health;
(c) incentive measures designed to protect and improve human health, excluding any harmonisation of the laws and regulations of the Member States.
The Council, acting by a qualified majority on a proposal from the Commission, may also adopt recommendations for the purposes set out in this Article.
5. Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care. In particular, measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 127 of the original Treaty of Lisbon (ToL) shows that Article 152 TEC underwent several specific amendments (OJ 17.12.2007 C 306/83–84):
PUBLIC HEALTH
127) Article 152 shall be amended as follows:
(a) in paragraph 1, second subparagraph, the word ‘human’ shall be replaced by ‘physical and
mental’ and, at the end of that subparagraph, the following shall be added: ‘, and monitoring, early warning of and combating serious cross-border threats to health’;
(b) in paragraph 2, at the end of the first subparagraph, the following sentence shall be added:
‘It shall in particular encourage cooperation between the Member States to improve the complementarity of their health services in cross-border areas.’;
(c) In paragraph 2, the following shall be added at the end of the second subparagraph: ‘, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.’;
(d) paragraph 4 shall be amended as follows:
(i) in the introductory wording to the first subparagraph, the following words shall be inserted at the beginning: ‘By way of derogation from Article 2 A(5) and Article 2 E(a) and in accordance with Article 2 C(2)(k)’ and the following shall be added at the end: ‘in order to meet common safety concerns:’;
(ii) in point (b), the words ‘by way of derogation from Article 37,’ shall be deleted;
(iii) the following new point (c) shall be inserted:
‘(c) measures setting high standards of quality and safety for medicinal products and devices for medical use.’;
(iv) the current point (c) shall be renumbered paragraph 5 and replaced by the following:
‘5. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, may also adopt incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, xcluding any harmonisation of the laws and regulations of the Member States.’;
(e) the second subparagraph of the current paragraph 4 shall become paragraph 6 and paragraph 5, renumbered 7, shall be replaced by the following:
‘7. Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them. The measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XIII first became Title XIII in the TFEU (ToL), but renumbered Title XIV Public helath in the consolidated version.
Article 152 TEC initially became Article 152 TFEU (ToL) before the renumbering of the treaty made it into Article 168 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
After the explicit amendments, horizontal amendments and renumbering, Article 168 of the Treaty on the Functioning of the European Union (TFEU) appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/122–124:
TITLE XIV
PUBLIC HEALTH
Article 168 TFEU
(ex Article 152 TEC)
1. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.
Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education, and monitoring, early warning of and combating serious cross-border threats to health.
The Union shall complement the Member States' action in reducing drugs-related health damage, including information and prevention.
2. The Union shall encourage cooperation between the Member States in the areas referred to in this Article and, if necessary, lend support to their action. It shall in particular encourage cooperation between the Member States to improve the complementarity of their health services in cross-border areas.
Member States shall, in liaison with the Commission, coordinate among themselves their policies and programmes in the areas referred to in paragraph 1. The Commission may, in close contact with the Member States, take any useful initiative to promote such coordination, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.
3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of public health.
4. By way of derogation from Article 2(5) and Article 6(a) and in accordance with Article 4(2)(k) the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall contribute to the achievement of the objectives referred to in this Article through adopting in order to meet common safety concerns:
(a) measures setting high standards of quality and safety of organs and substances of human origin, blood and blood derivatives; these measures shall not prevent any Member State from maintaining or introducing more stringent protective measures;
(b) measures in the veterinary and phytosanitary fields which have as their direct objective the protection of public health;
(c) measures setting high standards of quality and safety for medicinal products and devices for medical use.
5. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, may also adopt incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding any harmonisation of the laws and regulations of the Member States.
6. The Council, on a proposal from the Commission, may also adopt recommendations for the purposes set out in this Article.
7. Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them. The measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.
***
Amendments
There has been a growing awareness of the cross-border nature and even global character of health threats, so in general the treaty reform stages point in the direction of more effective means to combat common threats. But this movement has not been straightforward, partly due to concerns about handing the European Union powers.
Interested readers are invited to track Article III-179 of the draft constitution, Article III-278 of the Constitutional Treaty, the IGC 2007 Mandate and the final TFEU.
Supplementing information is offered by:
Klemens H. Fischer: Der Vertrag von Lissabon (pages 302 to 305)
François-Xavier Priollaud & David Siritzky: Le traité de Lisbonne (pages 279 to 281)
If your main focus is the change between the current TEC and the TFEU, you may find the following comment by professor Steve Peers helpful:
The amendments: add a reference to ‘physical and mental’ health; refer to action on monitoring, etc. public health; encourage cooperation on cross-border health services; make the Commission’s role clearer; create a specific legal base for legislation on medical products and medical devices; set out in more detail the power to adopt incentive measures; and clarify further the boundary between EU and Member State competences in this area.
In accordance with the Reform Treaty mandate, the new express EU competence concerning serious cross-border health threats has been moved from a shared power (ie a power for the EU to harmonise national law) to a supporting power only. Also, a declaration clarifying the internal market aspects of the new express power to harmonise law concerning medical devices, etc. is attached to the draft Reform Treaty. In fact, Article 95 EC is used at present to adopt legislation on this issue, so the ‘new’ legal base on this issue is not new in practice.
The draft Reform Treaty has also added a reference to the financing of health services.
(Source: Steve Peers: Statewatch Analysis, EU Reform Treaty Analysis no. 3.4: Revised text of Part Three, Titles VII to XVII of the Treaty establishing the European Community (TEC): Other internal EC policies; Version 2, October 2007)
***
Declaration No 32
The member states agreed on a declaration concerning measures setting high standards of quality and safety for medicinal products and devices for medical use, mentioned in Article 168(4)(c) TFEU (OJ 9.5.2008 C 115/348):
32. Declaration on Article 168(4)(c) of the Treaty on the Functioning of the European Union
The Conference declares that the measures to be adopted pursuant to Article 168(4)(c) must meet common safety concerns and aim to set high standards of quality and safety where national standards affecting the internal market would otherwise prevent a high level of human health protection being achieved.
***
EU powers
The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence in a systematic manner.
The categories of EU competence (the taxonomy) are set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU
As an area of shared competence between the EU and the member states, Article 4(2)(k) mentions common safety concerns in public health matters for the aspects defined in this Treaty.
***
Article 6 TFEU
The European Union has competence to carry out actions to support, coordinate or supplement the actions of the Member States. Among the areas of such action, at European level, Article 6(1)(a) mentions the protection and improvement of human health.
In other words, different aspects of public health are subject to shared competence, supporting, coordinating or supplementing action or remain wholly with the member states.
***
Summary of legislation: Public health
On the Commission’s Scadplus web pages with summaries of legislation, there is several dedicated to public health issues.
A new strategic approach to health for the EU (2008–2013) (last update 19 February 2008):
http://europa.eu/scadplus/leg/en/cha/c11579.htm
New Community health strategy (last update 26 July 2006):
http://europa.eu/scadplus/leg/en/cha/c11563.htm
Scientific Committees for consumer safety, public health and the environment (last update 2 May 2007):
http://europa.eu/scadplus/leg/en/lvb/l28153.htm
The precautionary principle (last update 2 November 2005):
http://europa.eu/scadplus/leg/en/lvb/l32042.htm
Programme of Community action in the field of health and consumer protection (2008–2013) (last update 8 April 2008):
http://europa.eu/scadplus/leg/en/cha/c11503c.htm
e-Health: improving health and healthcare through the use of information and communication technologies (last update 20 May 2005):
http://europa.eu/scadplus/leg/en/lvb/l24226f.htm
***
News and links
General Commission news and links on Public Health can be found here:
http://ec.europa.eu/health/index_en.htm
Ralf Grahn
EU procurement: Economic operator
Economic operator is a term used to cover a contractor, supplier or service provider in the context of the Procurement Directive or Classic Directive 2004/18/EC. Article 1.8 also defines the terms tenderer and candidate:
8. The terms ‘contractor’, ‘supplier’ and ‘service provider’ mean any natural or legal person or public entity or group of such persons and/or bodies which offers on the market, respectively, the execution of works and/or a work, products or services.
The term ‘economic operator’ shall cover equally the concepts of contractor, supplier and service provider. It is used merely in the interest of simplification.
An economic operator who has submitted a tender shall be designated a ‘tenderer’. One which has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
***
Article 4
Since economic operator covers the different roles of a party selling or wanting to sell works, products or services, it appears throughout the Procurement Directive. However, Article 4 adds some features worth noting:
Article 4
Economic operators
1. Candidates or tenderers who, under the law of the Member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of the Member State in which the contract is awarded, they would be required to be either natural or legal persons.
However, in the case of public service and public works contracts as well as public supply contracts covering in addition services and/or siting and installation operations, legal persons may be required to indicate in the tender or the request to participate, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question.
2. Groups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting authorities to assume a specific legal form; however, the group selected may be required to do so when it has been awarded the contract, to the extent that this change is necessary for the satisfactory performance of the contract.
***
Contractor
Because we are not looking at the substantive provisions at this moment, only short and general descriptions of the terms are presented.
Contractor is used in the context of public works contracts. The Commission’s Guide to community rules on public works contracts (based on the old Directive 93/37/EEC) presents the following general characteristics (page 9):
1.2 The contractor
As the Court has stated, the concept of the contractor must be interpreted so as to include not only a natural or legal person who will himself carry out the works but also a person who will have the contract carried out through agencies or branches or will have recourse to technicians or outside technical divisions. or even a group of undertakings, whatever its legal form. In the case in point, the Court ruled that “a holding company which does not itself execute works may not, because its subsidiaries which do not carry out works are separate legal persons, be precluded on that ground from participation in public works contract procedures”.
***
Supplier
Supplier is used in relation to products. The Commission’s Guide to the Community rules on public supply contracts (based on the old Directive 93/36/EEC) makes the briefest introductory comment on supplier:
1.2 The supplier
The supplier may be a natural or legal person or a group of suppliers.
***
Service provider
Service provider is evidently used with regard to service contracts. The Commission’s Guide to the Community rules on public procurement of services (based on the old Directive 92/50/EEC) gives the following brief description:
1.2 Service providers
A service provider is any natural or legal person which offers to provide services. A public body may also be a service provider within the meaning of the Services Directive.
***
Tenderer
An economic operator who has submitted a tender is called a ‘tenderer’.
***
Candidate
An economic operator who has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
***
Key procurement terms: Glossaries
Public procurement is a tricky field with a number of specific terms. There are a number of glossaries available to find quick answers to key terms. Here are a few UK examples for practical use.
The North East Regional Portal (TNERP): Procurement Glossary
http://www.n-e-life.com/uploadedFiles/Procurement%20glossary%20final(1).pdf
Tendering for Care (TfC): The TfC Glossary of Terms for Tendering and Procurement
http://www.tenderingforcare.com/system/files/Glossary%200208.pdf
North Hertfordshire District Council: Glossary of Procurement Terms
http://www.north-herts.gov.uk/index/working/procurement/glossary_of_procurement_terms.htm
Sustainable Procurement Information Network (SPIN): Glossary
http://www.s-p-i-n.co.uk/glossary.asp
Tony Zemaitis Associates Limited: Tender Terminology / Tendering Glossary
http://www.zemaitis-uk.com/pdfs/Tender-Terms-and-Glossary-Tony-Zemaitis-Associates.pdf
National Council for Voluntary Organisations (NVCO): Glossary of Procurement and Commissioning Terms
http://www.ncvo-vol.org.uk/sfp/?id=10694
Ralf Grahn
8. The terms ‘contractor’, ‘supplier’ and ‘service provider’ mean any natural or legal person or public entity or group of such persons and/or bodies which offers on the market, respectively, the execution of works and/or a work, products or services.
The term ‘economic operator’ shall cover equally the concepts of contractor, supplier and service provider. It is used merely in the interest of simplification.
An economic operator who has submitted a tender shall be designated a ‘tenderer’. One which has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
***
Article 4
Since economic operator covers the different roles of a party selling or wanting to sell works, products or services, it appears throughout the Procurement Directive. However, Article 4 adds some features worth noting:
Article 4
Economic operators
1. Candidates or tenderers who, under the law of the Member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of the Member State in which the contract is awarded, they would be required to be either natural or legal persons.
However, in the case of public service and public works contracts as well as public supply contracts covering in addition services and/or siting and installation operations, legal persons may be required to indicate in the tender or the request to participate, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question.
2. Groups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting authorities to assume a specific legal form; however, the group selected may be required to do so when it has been awarded the contract, to the extent that this change is necessary for the satisfactory performance of the contract.
***
Contractor
Because we are not looking at the substantive provisions at this moment, only short and general descriptions of the terms are presented.
Contractor is used in the context of public works contracts. The Commission’s Guide to community rules on public works contracts (based on the old Directive 93/37/EEC) presents the following general characteristics (page 9):
1.2 The contractor
As the Court has stated, the concept of the contractor must be interpreted so as to include not only a natural or legal person who will himself carry out the works but also a person who will have the contract carried out through agencies or branches or will have recourse to technicians or outside technical divisions. or even a group of undertakings, whatever its legal form. In the case in point, the Court ruled that “a holding company which does not itself execute works may not, because its subsidiaries which do not carry out works are separate legal persons, be precluded on that ground from participation in public works contract procedures”.
***
Supplier
Supplier is used in relation to products. The Commission’s Guide to the Community rules on public supply contracts (based on the old Directive 93/36/EEC) makes the briefest introductory comment on supplier:
1.2 The supplier
The supplier may be a natural or legal person or a group of suppliers.
***
Service provider
Service provider is evidently used with regard to service contracts. The Commission’s Guide to the Community rules on public procurement of services (based on the old Directive 92/50/EEC) gives the following brief description:
1.2 Service providers
A service provider is any natural or legal person which offers to provide services. A public body may also be a service provider within the meaning of the Services Directive.
***
Tenderer
An economic operator who has submitted a tender is called a ‘tenderer’.
***
Candidate
An economic operator who has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
***
Key procurement terms: Glossaries
Public procurement is a tricky field with a number of specific terms. There are a number of glossaries available to find quick answers to key terms. Here are a few UK examples for practical use.
The North East Regional Portal (TNERP): Procurement Glossary
http://www.n-e-life.com/uploadedFiles/Procurement%20glossary%20final(1).pdf
Tendering for Care (TfC): The TfC Glossary of Terms for Tendering and Procurement
http://www.tenderingforcare.com/system/files/Glossary%200208.pdf
North Hertfordshire District Council: Glossary of Procurement Terms
http://www.north-herts.gov.uk/index/working/procurement/glossary_of_procurement_terms.htm
Sustainable Procurement Information Network (SPIN): Glossary
http://www.s-p-i-n.co.uk/glossary.asp
Tony Zemaitis Associates Limited: Tender Terminology / Tendering Glossary
http://www.zemaitis-uk.com/pdfs/Tender-Terms-and-Glossary-Tony-Zemaitis-Associates.pdf
National Council for Voluntary Organisations (NVCO): Glossary of Procurement and Commissioning Terms
http://www.ncvo-vol.org.uk/sfp/?id=10694
Ralf Grahn
Wednesday, 17 December 2008
Europarties
European level political parties will hopefully field candidates for the Commission Presidency and present platforms for an accountable, democratic and legitimate European Union ahead of the European elections in June 2009.
But until now, we have heard nothing or embarrassed murmurs from the established Europarties.
***
Background
Political parties at European level are recognised and funded by the European Union on certain conditions, including elected representatives in or from a quarter of the member states.
For an overview of the regulations and facts, you can read the Wikipedia article European political party:
http://en.wikipedia.org/wiki/European_political_party
***
Libertas
Declan Ganley has announced that Libertas launches a pan-European campaign for the 2009 European Parliament elections:
http://www.libertas.eu/
Newspapers have reported that Ganley has applied for European Union funding and called for donations.
Calling itself a pan-European political movement, the ‘About us’ web page of Libertas does not reveal who ‘we’ are.
As long as Libertas has not shown that it has elected representatives in at least a quarter of EU member states (seven), it is not formally a political party at European level.
Then there is the question if Libertas is the first potential pan-European party (possibly even truly based on EU citizens instead of being a confederation of national political parties).
At least two earlier and existing examples come to mind.
***
Europe United
Europe United claims to be a pan-European political party established by citizens who believe in a stronger and more accountable European Union. Europe United believes the EU is the best forum to deal with the challenges of globalisation. Europe United is in favour of greater European integration, but at the same time Europe United remains critical of the way the way the European Union currently works and believes that democratic reform of the EU is necessary.
Europe United wants a Europe of the people, by the people and for the people.
For more information, go to:
http://europeunited.eu/modules/start/
According to the party history, United Europe was established and registered in Denmark in 2005, so if it is as potential as a recognised Europarty as Libertas, it is clearly older.
***
Newropeans
Newropeans describes itself as the first trans-European political movement, which will run for European elections in 2009 in all EU Member States with the same name, the same programme and the same objective. Their aim is to help turn the EU from a bureaucratic top-down project into a democratically managed political entity.
The Newropeans refer to a history of twenty years of European networking, with the formal launch of the party dated to 2005.
The Newropeans’ web site is found here:
http://www.newropeans.eu/index.php?lang=en
***
Seniority
Despite media reports to the contrary, we can establish that Libertas is not the first pan-European movement intent on becoming an official trans-European political party.
Actually the older ones, both Europe United and Newropeans seem to offer broadly similar positive messages aiming at a democratic European Union,
For an outsider it is easy to think that these two parties would be wise to join forces, if they want to make an impact.
On the other hand, Libertas has yet to unfold anything but a No vote elevated to the European level.
While the established Europarties doze, President Nicolas Sarkozy glorifies the great nation(s) of Europe. The European Parliament, the Commission and the EU citizens are at the receiving end of the new style of the season: brittle coalitions within the European Council undermining robust institutions and democratic aspirations.
Ralf Grahn
But until now, we have heard nothing or embarrassed murmurs from the established Europarties.
***
Background
Political parties at European level are recognised and funded by the European Union on certain conditions, including elected representatives in or from a quarter of the member states.
For an overview of the regulations and facts, you can read the Wikipedia article European political party:
http://en.wikipedia.org/wiki/European_political_party
***
Libertas
Declan Ganley has announced that Libertas launches a pan-European campaign for the 2009 European Parliament elections:
http://www.libertas.eu/
Newspapers have reported that Ganley has applied for European Union funding and called for donations.
Calling itself a pan-European political movement, the ‘About us’ web page of Libertas does not reveal who ‘we’ are.
As long as Libertas has not shown that it has elected representatives in at least a quarter of EU member states (seven), it is not formally a political party at European level.
Then there is the question if Libertas is the first potential pan-European party (possibly even truly based on EU citizens instead of being a confederation of national political parties).
At least two earlier and existing examples come to mind.
***
Europe United
Europe United claims to be a pan-European political party established by citizens who believe in a stronger and more accountable European Union. Europe United believes the EU is the best forum to deal with the challenges of globalisation. Europe United is in favour of greater European integration, but at the same time Europe United remains critical of the way the way the European Union currently works and believes that democratic reform of the EU is necessary.
Europe United wants a Europe of the people, by the people and for the people.
For more information, go to:
http://europeunited.eu/modules/start/
According to the party history, United Europe was established and registered in Denmark in 2005, so if it is as potential as a recognised Europarty as Libertas, it is clearly older.
***
Newropeans
Newropeans describes itself as the first trans-European political movement, which will run for European elections in 2009 in all EU Member States with the same name, the same programme and the same objective. Their aim is to help turn the EU from a bureaucratic top-down project into a democratically managed political entity.
The Newropeans refer to a history of twenty years of European networking, with the formal launch of the party dated to 2005.
The Newropeans’ web site is found here:
http://www.newropeans.eu/index.php?lang=en
***
Seniority
Despite media reports to the contrary, we can establish that Libertas is not the first pan-European movement intent on becoming an official trans-European political party.
Actually the older ones, both Europe United and Newropeans seem to offer broadly similar positive messages aiming at a democratic European Union,
For an outsider it is easy to think that these two parties would be wise to join forces, if they want to make an impact.
On the other hand, Libertas has yet to unfold anything but a No vote elevated to the European level.
While the established Europarties doze, President Nicolas Sarkozy glorifies the great nation(s) of Europe. The European Parliament, the Commission and the EU citizens are at the receiving end of the new style of the season: brittle coalitions within the European Council undermining robust institutions and democratic aspirations.
Ralf Grahn
European Union: Culture
If you as an EU citizen visit a museum in another member state, your entrance fee is the same as for the locals.
Europe was arguably a cultural community long before the establishment of the European Economic Community (EEC), but the EEC Treaty had implications for non-discrimination as well as the free movement of persons, cultural goods and services.
Still, a distinct cultural policy had to wait for the Treaty on European Union (Maastricht Treaty) to be enshrined at treaty level.
The powers of the European Community (European Union) are of the supporting kind, but the Treaty of Lisbon would make it easier to reach decisions on incentive measures and recommendations, when Council moves from unanimity to qualified majority voting (QMV).
***
Article 151 TEC
If diversity was what the drafters were looking for, they could have underlined the cultures in the member states. As it is, Article 151 emphasises the division of powers between the member states and the European Community (European Union): cultures of the Member States.
National and regional diversity is brought to the fore, before our common cultural heritage is mentioned.
Encouraging cooperation between member states is mentioned as the main activity, with other supporting and supplementing action following.
Cooperation with the pan-European Council of Europe should not be underestimated.
Incentive measures and recommendations require unanimous Council decisions.
The current Article 151 (ex Article 128) of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/113–114:
TITLE XII
CULTURE
Article 151 TEC
1. The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.
2. Action by the Community shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas:
— improvement of the knowledge and dissemination of the culture and history of the European peoples,
— conservation and safeguarding of cultural heritage of European significance,
— non-commercial cultural exchanges,
— artistic and literary creation, including in the audiovisual sector.
3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of culture, in particular the Council of Europe.
4. The Community shall take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures.
5. In order to contribute to the achievement of the objectives referred to in this Article, the Council:
— acting in accordance with the procedure referred to in Article 251 and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States. The Council shall act unanimously throughout the procedure referred to in Article 251,
— acting unanimously on a proposal from the Commission, shall adopt recommendations.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 126 of the original Treaty of Lisbon (ToL) uses the following inspiring language to convey the specific amendments (OJ 17.12.2007 C 306/83):
CULTURE
126) Article 151(5) shall be amended as follows:
(a) in the introductory phrase, the words ‘the Council’ shall be deleted;
(b) in the first indent, the first sentence shall begin with the words ‘the European Parliament and the Council, acting’, and the second sentence shall be deleted;
(c) in the second indent, the words ‘acting unanimously’ shall be deleted and the indent shall begin with the words ‘the Council, on a proposal’.
*
The horizontal amendments replace ‘Community’ by ‘Union’ and the ‘procedure referred to in Article 251’ (cooperation procedure) is replaced by the more readable ‘ordinary legislative procedure’(page 42).
The intergovernmental conference 2007 was not an ‘innovating’ exercise, but a salvage operation, so the essence of the new decision making flows from Article III-280 of the Treaty establishing a Constitution for Europe and before that Article III-181 of the draft Constitution, although the terms used by the Lisbon Treaty are different.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XII Culture first became Title XII in the TFEU (ToL), but renumbered Title XIII Culture in the consolidated version.
Article 151 TEC first became Article 151 TFEU (ToL) before the renumbering of the treaty made it into Article 167 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
After the explicit amendments, horizontal amendments and renumbering, Article 167 of the Treaty on the Functioning of the European Union (TFEU) appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/121–122:
TITLE XIII
CULTURE
Article 167 TFEU
(ex Article 151 TEC)
1. The Union shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.
2. Action by the Union shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas:
— improvement of the knowledge and dissemination of the culture and history of the European peoples,
— conservation and safeguarding of cultural heritage of European significance,
— non-commercial cultural exchanges,
— artistic and literary creation, including in the audiovisual sector.
3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of culture, in particular the Council of Europe.
4. The Union shall take cultural aspects into account in its action under other provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures.
5. In order to contribute to the achievement of the objectives referred to in this Article:
— the European Parliament and the Council acting in accordance with the ordinary legislative procedure and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,
— the Council, on a proposal from the Commission, shall adopt recommendations.
***
Supporting, coordinating or supplementing EU action
Having looked at the powers of the European Union in the field of culture as set out by the Treaty of Lisbon, it might be helpful to recall the general TFEU provisions on categories and areas of Union competence.
Article 2 TFEU presents the main characteristics of exclusive competence and shared competence before the description in Article 2(5) TFEU:
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
***
Article 6 TFEU
The policy areas are then formed into rough groups in the following Articles. Here we are interested in Article 6 TFEU. Culture is mentioned among the areas where the EU supports, coordinates or supplements member states’ actions:
Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the
actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Summary of legislation: Culture
On the Commission’s Scadplus web pages with summaries of legislation, there is one describing the Culture Programme (2007 to 2013):
http://europa.eu/scadplus/leg/en/lvb/l29016.htm
The legal buffs and readers with a professional interest in culture may want to delve deeper into the Decision No 1855/2006/EC of the European Parliament and of the Council establishing the Culture Programme (2007 to 2013), published in the Official Journal of the European Union 27.12.2006 L 372/1:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:372:0001:0011:EN:PDF
News and links
General Commission news and links concerning culture can be found here:
http://ec.europa.eu/culture/index_en.htm
Ralf Grahn
Europe was arguably a cultural community long before the establishment of the European Economic Community (EEC), but the EEC Treaty had implications for non-discrimination as well as the free movement of persons, cultural goods and services.
Still, a distinct cultural policy had to wait for the Treaty on European Union (Maastricht Treaty) to be enshrined at treaty level.
The powers of the European Community (European Union) are of the supporting kind, but the Treaty of Lisbon would make it easier to reach decisions on incentive measures and recommendations, when Council moves from unanimity to qualified majority voting (QMV).
***
Article 151 TEC
If diversity was what the drafters were looking for, they could have underlined the cultures in the member states. As it is, Article 151 emphasises the division of powers between the member states and the European Community (European Union): cultures of the Member States.
National and regional diversity is brought to the fore, before our common cultural heritage is mentioned.
Encouraging cooperation between member states is mentioned as the main activity, with other supporting and supplementing action following.
Cooperation with the pan-European Council of Europe should not be underestimated.
Incentive measures and recommendations require unanimous Council decisions.
The current Article 151 (ex Article 128) of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/113–114:
TITLE XII
CULTURE
Article 151 TEC
1. The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.
2. Action by the Community shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas:
— improvement of the knowledge and dissemination of the culture and history of the European peoples,
— conservation and safeguarding of cultural heritage of European significance,
— non-commercial cultural exchanges,
— artistic and literary creation, including in the audiovisual sector.
3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of culture, in particular the Council of Europe.
4. The Community shall take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures.
5. In order to contribute to the achievement of the objectives referred to in this Article, the Council:
— acting in accordance with the procedure referred to in Article 251 and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States. The Council shall act unanimously throughout the procedure referred to in Article 251,
— acting unanimously on a proposal from the Commission, shall adopt recommendations.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 126 of the original Treaty of Lisbon (ToL) uses the following inspiring language to convey the specific amendments (OJ 17.12.2007 C 306/83):
CULTURE
126) Article 151(5) shall be amended as follows:
(a) in the introductory phrase, the words ‘the Council’ shall be deleted;
(b) in the first indent, the first sentence shall begin with the words ‘the European Parliament and the Council, acting’, and the second sentence shall be deleted;
(c) in the second indent, the words ‘acting unanimously’ shall be deleted and the indent shall begin with the words ‘the Council, on a proposal’.
*
The horizontal amendments replace ‘Community’ by ‘Union’ and the ‘procedure referred to in Article 251’ (cooperation procedure) is replaced by the more readable ‘ordinary legislative procedure’(page 42).
The intergovernmental conference 2007 was not an ‘innovating’ exercise, but a salvage operation, so the essence of the new decision making flows from Article III-280 of the Treaty establishing a Constitution for Europe and before that Article III-181 of the draft Constitution, although the terms used by the Lisbon Treaty are different.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XII Culture first became Title XII in the TFEU (ToL), but renumbered Title XIII Culture in the consolidated version.
Article 151 TEC first became Article 151 TFEU (ToL) before the renumbering of the treaty made it into Article 167 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
After the explicit amendments, horizontal amendments and renumbering, Article 167 of the Treaty on the Functioning of the European Union (TFEU) appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/121–122:
TITLE XIII
CULTURE
Article 167 TFEU
(ex Article 151 TEC)
1. The Union shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.
2. Action by the Union shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas:
— improvement of the knowledge and dissemination of the culture and history of the European peoples,
— conservation and safeguarding of cultural heritage of European significance,
— non-commercial cultural exchanges,
— artistic and literary creation, including in the audiovisual sector.
3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of culture, in particular the Council of Europe.
4. The Union shall take cultural aspects into account in its action under other provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures.
5. In order to contribute to the achievement of the objectives referred to in this Article:
— the European Parliament and the Council acting in accordance with the ordinary legislative procedure and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,
— the Council, on a proposal from the Commission, shall adopt recommendations.
***
Supporting, coordinating or supplementing EU action
Having looked at the powers of the European Union in the field of culture as set out by the Treaty of Lisbon, it might be helpful to recall the general TFEU provisions on categories and areas of Union competence.
Article 2 TFEU presents the main characteristics of exclusive competence and shared competence before the description in Article 2(5) TFEU:
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
***
Article 6 TFEU
The policy areas are then formed into rough groups in the following Articles. Here we are interested in Article 6 TFEU. Culture is mentioned among the areas where the EU supports, coordinates or supplements member states’ actions:
Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the
actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Summary of legislation: Culture
On the Commission’s Scadplus web pages with summaries of legislation, there is one describing the Culture Programme (2007 to 2013):
http://europa.eu/scadplus/leg/en/lvb/l29016.htm
The legal buffs and readers with a professional interest in culture may want to delve deeper into the Decision No 1855/2006/EC of the European Parliament and of the Council establishing the Culture Programme (2007 to 2013), published in the Official Journal of the European Union 27.12.2006 L 372/1:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:372:0001:0011:EN:PDF
News and links
General Commission news and links concerning culture can be found here:
http://ec.europa.eu/culture/index_en.htm
Ralf Grahn
EU procurement: Electronic auction
What is an electronic auction in EU procurement? What we see is typically an automated Dutch auction (reversed auction) of standard goods.
Article 1.7 of the Procurement Directive 2004/18/EC offers the following, more technical definition:
7. An ‘electronic auction’ is a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods.
Consequently, certain service contracts and certain works contracts having as their subject-matter intellectual performances, such as the design of works, may not be the object of electronic auctions.
***
Reasons given
Recital 14 of the Procurement Directive (Classic Directive) presents the following reasons for defining and regulating electronic auctions:
(14) Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with the principles of equal treatment, non-discrimination and transparency. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also to be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of the tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions.
***
Optional
Recital 16 of the Procurement Directive reminds us that the Community procurement legislation is harmonised, not unified. National differences and choices exist, and it is for the member states to choose if they want to employ electronic auctions:
(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.
***
Using electronic auctions
The main Procurement Directive 2004/18/EC provision concerning electronic auctions is Article 54. Having opted for electronic auctions, the transposing legislation of the member state and the procedures employed by the contracting authority must fulfil certain criteria:
Article 54
Use of electronic auctions
1. Member States may provide that contracting authorities may use electronic auctions.
2. In open, restricted or negotiated procedures in the case referred to in Article 30(1)(a), the contracting authorities may decide that the award of a public contract shall be preceded by an electronic auction when the contract specifications can be established with precision.
In the same circumstances, an electronic auction may be held on the reopening of competition among the parties to a framework agreement as provided for in the second indent of the second subparagraph of Article 32(4) and on the opening for competition of contracts to be awarded under the dynamic purchasing system referred to in Article 33.
The electronic auction shall be based:
— either solely on prices when the contract is awarded to the lowest price,
— or on prices and/or on the new values of the features of the tenders indicated in the specification when the contract is awarded to the most economically advantageous tender.
3. Contracting authorities which decide to hold an electronic auction shall state that fact in the contract notice.
The specifications shall include, inter alia, the following details:
(a) the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages;
(b) any limits on the values which may be submitted, as they result from the specifications relating to the subject of the contract;
(c) the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them;
(d) the relevant information concerning the electronic auction process;
(e) the conditions under which the tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding;
(f) the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection.
4. Before proceeding with an electronic auction, contracting authorities shall make a full initial evaluation of the tenders in accordance with the award criterion/criteria set and with the weighting fixed for them.
All tenderers who have submitted admissible tenders shall be invited simultaneously by electronic means to submit new prices and/or new values; the invitation shall contain all relevant information concerning individual connection to the electronic equipment being used and shall state the date and time of the start of the electronic auction. The electronic auction may take place in a number of successive phases. The electronic auction may not start sooner than two working days after the date on which invitations are sent out.
5. When the contract is to be awarded on the basis of the most economically advantageous tender, the invitation shall be accompanied by the outcome of a full evaluation of the relevant tenderer, carried out in accordance with the weighting provided for in the first subparagraph of Article 53(2).
The invitation shall also state the mathematical formula to be used in the electronic auction to determine automatic rerankings on the basis of the new prices and/or new values submitted. That formula shall incorporate the weighting of all the criteria fixed to determine the most economically advantageous tender, as indicated in the contract notice or in the specifications; for that purpose, any ranges shall, however, be reduced beforehand to a specified value.
Where variants are authorised, a separate formula shall be provided for each variant.
6. Throughout each phase of an electronic auction the contracting authorities shall instantaneously communicate to all tenderers at least sufficient information to enable them to ascertain their relative rankings at any moment. They may also communicate other information concerning other prices or values submitted, provided that that is stated in the specifications. They may also at any time announce the number of participants in that phase of the auction. In no case, however, may they disclose the identities of the tenderers during any phase of an electronic auction.
7. Contracting authorities shall close an electronic auction in one or more of the following manners:
(a) in the invitation to take part in the auction they shall indicate the date and time fixed in advance;
(b) when they receive no more new prices or new values which meet the requirements concerning minimum differences. In that event, the contracting authorities shall state in the invitation to take part in the auction the time which they will allow to elapse after receiving the last submission before they close the electronic auction;
(c) when the number of phases in the auction, fixed in the invitation to take part in the auction, has been completed.
When the contracting authorities have decided to close an electronic auction in accordance with subparagraph (c), possibly in combination with the arrangements laid down in subparagraph (b), the invitation to take part in the auction shall indicate the timetable for each phase of the auction.
8. After closing an electronic auction contracting authorities shall award the contract in accordance with Article 53 on the basis of the results of the electronic auction.
Contracting authorities may not have improper recourse to electronic auctions nor may they use them in such a way as to prevent, restrict or distort competition or to change the subject-matter of the contract, as put up for tender in the published contract notice and defined in the specification.
***
Scotland
The Scottish Government’s guide on public procurement chops the contents of the provisions into readable chunks for generations accustomed to Power Point or equal presentations.
http://www.scotland.gov.uk/Publications/2006/11/16102303/euguidance#a10
***
Ireland
The Irish Government’s eProcurement network offers policy and guidance documents on a number of issues. One of these documents is the Quick Guide to eAuctions, which explains electronic auctions step by step for contracting authorities. The guide is available here:
http://www.eprocnet.gov.ie/policy-guidance-documents
***
ePractice.eu
In its own words, ePractice.eu is a portal created by the European Commission which offers a new service for the professional community of eGovernment, eInclusion and eHealth practitioners. It is an interactive initiative that empowers its users to discuss and influence open government, policy-making and the way in which public administrations operate and deliver services. ePractice.eu involves practitioners from all 27 Member States, EU-member candidate states and EFTA countries. Practitioners from other countries outside the EU are also welcome to join.
A wealth of information and search options (including ‘electronic auction’) is available at the ePractice.eu site:
http://www.epractice.eu/home
***
By the way
The European Union and the European Economic Area bring together not only politicians, but also civil servants from the different states. Through regular contacts and exchanges of experiences, the EU becomes an important learning environment.
Is it realistic to think that this diffusion of knowledge would take place to the same extent without the European Union?
Ralf Grahn
Article 1.7 of the Procurement Directive 2004/18/EC offers the following, more technical definition:
7. An ‘electronic auction’ is a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods.
Consequently, certain service contracts and certain works contracts having as their subject-matter intellectual performances, such as the design of works, may not be the object of electronic auctions.
***
Reasons given
Recital 14 of the Procurement Directive (Classic Directive) presents the following reasons for defining and regulating electronic auctions:
(14) Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with the principles of equal treatment, non-discrimination and transparency. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also to be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of the tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions.
***
Optional
Recital 16 of the Procurement Directive reminds us that the Community procurement legislation is harmonised, not unified. National differences and choices exist, and it is for the member states to choose if they want to employ electronic auctions:
(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.
***
Using electronic auctions
The main Procurement Directive 2004/18/EC provision concerning electronic auctions is Article 54. Having opted for electronic auctions, the transposing legislation of the member state and the procedures employed by the contracting authority must fulfil certain criteria:
Article 54
Use of electronic auctions
1. Member States may provide that contracting authorities may use electronic auctions.
2. In open, restricted or negotiated procedures in the case referred to in Article 30(1)(a), the contracting authorities may decide that the award of a public contract shall be preceded by an electronic auction when the contract specifications can be established with precision.
In the same circumstances, an electronic auction may be held on the reopening of competition among the parties to a framework agreement as provided for in the second indent of the second subparagraph of Article 32(4) and on the opening for competition of contracts to be awarded under the dynamic purchasing system referred to in Article 33.
The electronic auction shall be based:
— either solely on prices when the contract is awarded to the lowest price,
— or on prices and/or on the new values of the features of the tenders indicated in the specification when the contract is awarded to the most economically advantageous tender.
3. Contracting authorities which decide to hold an electronic auction shall state that fact in the contract notice.
The specifications shall include, inter alia, the following details:
(a) the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages;
(b) any limits on the values which may be submitted, as they result from the specifications relating to the subject of the contract;
(c) the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them;
(d) the relevant information concerning the electronic auction process;
(e) the conditions under which the tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding;
(f) the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection.
4. Before proceeding with an electronic auction, contracting authorities shall make a full initial evaluation of the tenders in accordance with the award criterion/criteria set and with the weighting fixed for them.
All tenderers who have submitted admissible tenders shall be invited simultaneously by electronic means to submit new prices and/or new values; the invitation shall contain all relevant information concerning individual connection to the electronic equipment being used and shall state the date and time of the start of the electronic auction. The electronic auction may take place in a number of successive phases. The electronic auction may not start sooner than two working days after the date on which invitations are sent out.
5. When the contract is to be awarded on the basis of the most economically advantageous tender, the invitation shall be accompanied by the outcome of a full evaluation of the relevant tenderer, carried out in accordance with the weighting provided for in the first subparagraph of Article 53(2).
The invitation shall also state the mathematical formula to be used in the electronic auction to determine automatic rerankings on the basis of the new prices and/or new values submitted. That formula shall incorporate the weighting of all the criteria fixed to determine the most economically advantageous tender, as indicated in the contract notice or in the specifications; for that purpose, any ranges shall, however, be reduced beforehand to a specified value.
Where variants are authorised, a separate formula shall be provided for each variant.
6. Throughout each phase of an electronic auction the contracting authorities shall instantaneously communicate to all tenderers at least sufficient information to enable them to ascertain their relative rankings at any moment. They may also communicate other information concerning other prices or values submitted, provided that that is stated in the specifications. They may also at any time announce the number of participants in that phase of the auction. In no case, however, may they disclose the identities of the tenderers during any phase of an electronic auction.
7. Contracting authorities shall close an electronic auction in one or more of the following manners:
(a) in the invitation to take part in the auction they shall indicate the date and time fixed in advance;
(b) when they receive no more new prices or new values which meet the requirements concerning minimum differences. In that event, the contracting authorities shall state in the invitation to take part in the auction the time which they will allow to elapse after receiving the last submission before they close the electronic auction;
(c) when the number of phases in the auction, fixed in the invitation to take part in the auction, has been completed.
When the contracting authorities have decided to close an electronic auction in accordance with subparagraph (c), possibly in combination with the arrangements laid down in subparagraph (b), the invitation to take part in the auction shall indicate the timetable for each phase of the auction.
8. After closing an electronic auction contracting authorities shall award the contract in accordance with Article 53 on the basis of the results of the electronic auction.
Contracting authorities may not have improper recourse to electronic auctions nor may they use them in such a way as to prevent, restrict or distort competition or to change the subject-matter of the contract, as put up for tender in the published contract notice and defined in the specification.
***
Scotland
The Scottish Government’s guide on public procurement chops the contents of the provisions into readable chunks for generations accustomed to Power Point or equal presentations.
http://www.scotland.gov.uk/Publications/2006/11/16102303/euguidance#a10
***
Ireland
The Irish Government’s eProcurement network offers policy and guidance documents on a number of issues. One of these documents is the Quick Guide to eAuctions, which explains electronic auctions step by step for contracting authorities. The guide is available here:
http://www.eprocnet.gov.ie/policy-guidance-documents
***
ePractice.eu
In its own words, ePractice.eu is a portal created by the European Commission which offers a new service for the professional community of eGovernment, eInclusion and eHealth practitioners. It is an interactive initiative that empowers its users to discuss and influence open government, policy-making and the way in which public administrations operate and deliver services. ePractice.eu involves practitioners from all 27 Member States, EU-member candidate states and EFTA countries. Practitioners from other countries outside the EU are also welcome to join.
A wealth of information and search options (including ‘electronic auction’) is available at the ePractice.eu site:
http://www.epractice.eu/home
***
By the way
The European Union and the European Economic Area bring together not only politicians, but also civil servants from the different states. Through regular contacts and exchanges of experiences, the EU becomes an important learning environment.
Is it realistic to think that this diffusion of knowledge would take place to the same extent without the European Union?
Ralf Grahn
Tuesday, 16 December 2008
European Union: Vocational training policy
The European Community (European Union) implements a vocational training policy, which supports and supplements the action of the member states.
***
Article 150 TEC
Chapter 3 Education, vocational training and youth continues with Article 150 TEC (ex Article 127) setting out European Community (European Union) aims and activities concerning vocational training.
The attentive reader may have noticed that the Community contributes to the development of quality education in the preceding Article 149 TEC, whereas the treaty mentions a vocational training policy in Article 150 TEC.
In the field of vocational training, the aims are closely related to the original aims of the Treaty establishing the European Community (EEC), including the European Social Fund (ESF), but the difference compared to education is more of a nuance than a reality.
The vocational training activities are still to support and to supplement member states’ actions, and their responsibility is emphasised.
The current Article 150 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/113:
(CHAPTER 3
EDUCATION, VOCATIONAL TRAINING AND YOUTH)
Article 150 TEC
1. The Community shall implement a vocational training policy which shall support and supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training.
2. Community action shall aim to:
— facilitate adaptation to industrial changes, in particular through vocational training and retraining,
— improve initial and continuing vocational training in order to facilitate vocational integration and reintegration into the labour market,
— facilitate access to vocational training and encourage mobility of instructors and trainees and particularly young people,
— stimulate cooperation on training between educational or training establishments and firms,
— develop exchanges of information and experience on issues common to the training systems of the Member States.
3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of vocational training.
4. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt measures to contribute to the achievement of the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 125 of the original Treaty of Lisbon (ToL) adds recommendations to the policy instruments in the field of vocational training, with the following specific amendment (OJ 17.12.2007 C 306/82):
125) In Article 150(4), the following words shall be added at the end: ‘, and the Council, on a
proposal from the Commission, shall adopt recommendations’.
The horizontal amendments replace ‘Community’ by ‘Union’ and the ‘procedure referred to in Article 251’ (cooperation procedure) is replaced by the more readable ‘ordinary legislative procedure’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter 3 on education, vocational training and youth was first to become Title XI Education, vocational training, youth and sport, but renumbered Title XII in the consolidated version.
Article 150 TEC first became Article 150 TFEU (ToL), then renumbered Article 166 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
After the explicit amendment, horizontal amendments and renumbering, Article 166 of the Treaty on the Functioning of the European Union (TFEU) appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/121:
(TITLE XII
EDUCATION, VOCATIONAL TRAINING, YOUTH AND SPORT)
Article 166 TFEU
(ex Article 150 TEC)
1. The Union shall implement a vocational training policy which shall support and supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training.
2. Union action shall aim to:
— facilitate adaptation to industrial changes, in particular through vocational training and retraining,
— improve initial and continuing vocational training in order to facilitate vocational integration and reintegration into the labour market,
— facilitate access to vocational training and encourage mobility of instructors and trainees and particularly young people,
— stimulate cooperation on training between educational or training establishments and firms,
— develop exchanges of information and experience on issues common to the training systems of the Member States.
3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of vocational training.
4. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt measures to contribute to the achievement of the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States, and the Council, on a proposal from the Commission, shall adopt recommendations.
***
EU competence
Having looked at the powers of the European Union in the field of vocational training as set out by the Treaty of Lisbon, it might be helpful to recall the general TFEU provisions on categories and areas of Union competence.
Article 2 TFEU presents the main characteristics of exclusive competence and shared competence before the description in Article 2(5) TFEU:
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
***
Article 6 TFEU
The policy areas are then formed into rough groups in the following Articles. Here we are interested in Article 6 TFEU. Education, vocational training, youth and sport are mentioned among the areas, where the EU supports, coordinates or supplements member states’ actions:
Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the
actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Summary of legislation: Education and training
On the Commission’s Scadplus web pages with summaries of legislation, there is one offering a plethora of links to different aspects of Education and training: General framework:
http://europa.eu/scadplus/leg/en/s19004.htm
News and links
General Commission news and links concerning education and training can be found here:
http://ec.europa.eu/education/index_en.htm
***
Lifelong learning
Lifelong learning and the Lisbon Strategy for Growth and Jobs are common catchwords. The Lifelong learning programme 2007–2013 incorporates many of the best known activities of the European Union, such as the Comenius, Erasmus, Leonardo da Vinci, Grundtvig and Jean Monnet programmes as well as a transversal programme.
***
Leonardo da Vinci
Of these programmes, Leonardo da Vinci addresses vocational education and training. Additional information about the Leonardo da Vinci programme can be found through this web page:
http://ec.europa.eu/education/lifelong-learning-programme/doc82_en.htm
A page dedicated to Vocational education and training (VET) can be found here:
http://ec.europa.eu/education/lifelong-learning-policy/doc60_en.htm
Ralf Grahn
***
Article 150 TEC
Chapter 3 Education, vocational training and youth continues with Article 150 TEC (ex Article 127) setting out European Community (European Union) aims and activities concerning vocational training.
The attentive reader may have noticed that the Community contributes to the development of quality education in the preceding Article 149 TEC, whereas the treaty mentions a vocational training policy in Article 150 TEC.
In the field of vocational training, the aims are closely related to the original aims of the Treaty establishing the European Community (EEC), including the European Social Fund (ESF), but the difference compared to education is more of a nuance than a reality.
The vocational training activities are still to support and to supplement member states’ actions, and their responsibility is emphasised.
The current Article 150 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/113:
(CHAPTER 3
EDUCATION, VOCATIONAL TRAINING AND YOUTH)
Article 150 TEC
1. The Community shall implement a vocational training policy which shall support and supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training.
2. Community action shall aim to:
— facilitate adaptation to industrial changes, in particular through vocational training and retraining,
— improve initial and continuing vocational training in order to facilitate vocational integration and reintegration into the labour market,
— facilitate access to vocational training and encourage mobility of instructors and trainees and particularly young people,
— stimulate cooperation on training between educational or training establishments and firms,
— develop exchanges of information and experience on issues common to the training systems of the Member States.
3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of vocational training.
4. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt measures to contribute to the achievement of the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 125 of the original Treaty of Lisbon (ToL) adds recommendations to the policy instruments in the field of vocational training, with the following specific amendment (OJ 17.12.2007 C 306/82):
125) In Article 150(4), the following words shall be added at the end: ‘, and the Council, on a
proposal from the Commission, shall adopt recommendations’.
The horizontal amendments replace ‘Community’ by ‘Union’ and the ‘procedure referred to in Article 251’ (cooperation procedure) is replaced by the more readable ‘ordinary legislative procedure’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter 3 on education, vocational training and youth was first to become Title XI Education, vocational training, youth and sport, but renumbered Title XII in the consolidated version.
Article 150 TEC first became Article 150 TFEU (ToL), then renumbered Article 166 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
After the explicit amendment, horizontal amendments and renumbering, Article 166 of the Treaty on the Functioning of the European Union (TFEU) appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/121:
(TITLE XII
EDUCATION, VOCATIONAL TRAINING, YOUTH AND SPORT)
Article 166 TFEU
(ex Article 150 TEC)
1. The Union shall implement a vocational training policy which shall support and supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training.
2. Union action shall aim to:
— facilitate adaptation to industrial changes, in particular through vocational training and retraining,
— improve initial and continuing vocational training in order to facilitate vocational integration and reintegration into the labour market,
— facilitate access to vocational training and encourage mobility of instructors and trainees and particularly young people,
— stimulate cooperation on training between educational or training establishments and firms,
— develop exchanges of information and experience on issues common to the training systems of the Member States.
3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of vocational training.
4. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt measures to contribute to the achievement of the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States, and the Council, on a proposal from the Commission, shall adopt recommendations.
***
EU competence
Having looked at the powers of the European Union in the field of vocational training as set out by the Treaty of Lisbon, it might be helpful to recall the general TFEU provisions on categories and areas of Union competence.
Article 2 TFEU presents the main characteristics of exclusive competence and shared competence before the description in Article 2(5) TFEU:
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
***
Article 6 TFEU
The policy areas are then formed into rough groups in the following Articles. Here we are interested in Article 6 TFEU. Education, vocational training, youth and sport are mentioned among the areas, where the EU supports, coordinates or supplements member states’ actions:
Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the
actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Summary of legislation: Education and training
On the Commission’s Scadplus web pages with summaries of legislation, there is one offering a plethora of links to different aspects of Education and training: General framework:
http://europa.eu/scadplus/leg/en/s19004.htm
News and links
General Commission news and links concerning education and training can be found here:
http://ec.europa.eu/education/index_en.htm
***
Lifelong learning
Lifelong learning and the Lisbon Strategy for Growth and Jobs are common catchwords. The Lifelong learning programme 2007–2013 incorporates many of the best known activities of the European Union, such as the Comenius, Erasmus, Leonardo da Vinci, Grundtvig and Jean Monnet programmes as well as a transversal programme.
***
Leonardo da Vinci
Of these programmes, Leonardo da Vinci addresses vocational education and training. Additional information about the Leonardo da Vinci programme can be found through this web page:
http://ec.europa.eu/education/lifelong-learning-programme/doc82_en.htm
A page dedicated to Vocational education and training (VET) can be found here:
http://ec.europa.eu/education/lifelong-learning-policy/doc60_en.htm
Ralf Grahn
Dynamic purchasing system in EU procurement
A dynamic purchasing system is defined in Article 1.6 of the Procurement Directive 2004/18/EC:
6. A ‘dynamic purchasing system’ is a completely electronic process for making commonly used purchases, the characteristics of which, as generally available on the market, meet the requirements of the contracting authority, which is limited in duration and open throughout its validity to any economic operator which satisfies the selection criteria and has submitted an indicative tender that complies with the specification.
***
Recital explanations
Recitals 12 and 13 of the Procurement Directive offer the following explanation of a dynamic purchasing system:
(12) Certain new electronic purchasing techniques are continually being developed. Such techniques help to increase competition and streamline public purchasing, particularly in terms of the savings in time and money which their use will allow. Contracting authorities may make use of electronic purchasing techniques, providing such use complies with the rules drawn up under this Directive and the principles of equal treatment, non-discrimination and transparency. To that extent, a tender submitted by a tenderer, in particular where competition has been reopened under a framework agreement or where a dynamic purchasing system is being used, may take the form of that tenderer's electronic catalogue if the latter uses the means of communication chosen by the contracting authority in accordance with Article 42.
***
(13) In view of the rapid expansion of electronic purchasing systems, appropriate rules should now be introduced to enable contracting authorities to take full advantage of the possibilities afforded by these systems. Against this background, it is necessary to define a completely electronic dynamic purchasing system for commonly used purchases, and lay down specific rules for setting up and operating such a system in order to ensure the fair treatment of any economic operator who wishes to take part therein. Any economic operator which submits an indicative tender in accordance with the specification and meets the selection criteria should be allowed to join such a system. This purchasing technique allows the contracting authority, through the establishment of a list of tenderers already selected and the opportunity given to new tenderers to take part, to have a particularly broad range of tenders as a result of the electronic facilities available, and hence to ensure optimum use of public funds through broad competition.
***
Optional dynamics
Recital 16 of the Procurement Directive reminds us that the Community procurement legislation is harmonised, not unified. National differences and choices exist, and dynamic purchasing systems are among the options for the member states:
(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.
***
Procedure: Dynamic purchasing systems
Article 33 of the Procurement Directive or Classic Directive 2004/18/EC sets out the dynamic purchasing system procedures:
Article 33
Dynamic purchasing systems
1. Member States may provide that contracting authorities may use dynamic purchasing systems.
2. In order to set up a dynamic purchasing system, contracting authorities shall follow the rules of the open procedure in all its phases up to the award of the contracts to be concluded under this system. All the tenderers satisfying the selection criteria and having submitted an indicative tender which complies with the specification and any possible additional documents shall be admitted to the system; indicative tenders may be improved at any time provided that they continue to comply with the specification. With a view to setting up the system and to the award of contracts under that system, contracting authorities shall use solely electronic means in accordance with Article 42(2) to (5).
3. For the purposes of setting up the dynamic purchasing system, contracting authorities shall:
(a) publish a contract notice making it clear that a dynamic purchasing system is involved;
(b) indicate in the specification, amongst other matters, the nature of the purchases envisaged under that system, as well as all the necessary information concerning the purchasing system, the electronic equipment used and the technical connection arrangements and specifications;
(c) offer by electronic means, on publication of the notice and up to the expiry of the system, unrestricted, direct and full access to the specification and to any additional documents and shall indicate in the notice the internet address at which such documents may be consulted.
4. Contracting authorities shall give any economic operator, throughout the entire period of the dynamic purchasing system, the possibility of submitting an indicative tender and of being admitted to the system under the conditions referred to in paragraph 2. They shall complete evaluation within a maximum of 15 days from the date of submission of the indicative tender. However, they may extend the evaluation period provided that no invitation to tender is issued in the meantime.
The contracting authority shall inform the tenderer referred to in the first subparagraph at the earliest possible opportunity of its admittance to the dynamic purchasing system or of the rejection of its indicative tender.
5. Each specific contract must be the subject of an invitation to tender. Before issuing the invitation to tender, contracting authorities shall publish a simplified contract notice inviting all interested economic operators to submit an indicative tender, in accordance with paragraph 4, within a time limit that may not be less than 15 days from the date on which the simplified notice was sent. Contracting authorities may not proceed with tendering until they have completed evaluation of all the indicative tenders received by that deadline.
6. Contracting authorities shall invite all tenderers admitted to the system to submit a tender for each specific contract to be awarded under the system. To that end they shall set a time limit for the submission of tenders.
They shall award the contract to the tenderer which submitted the best tender on the basis of the award criteria set out in the contract notice for the establishment of the dynamic purchasing system. Those criteria may, if appropriate, be formulated more precisely in the invitation referred to in the first subparagraph.
7. A dynamic purchasing system may not last for more than four years, except in duly justified exceptional cases.
Contracting authorities may not resort to this system to prevent, restrict or distort competition.
No charges may be billed to the interested economic operators or to parties to the system.
***
Guide
The same ground is covered, but chopped into a reader friendly format by the UK Office of Government Commerce (OGC) guide Dynamic Purchasing Systems – OGC Guidance on Dynamic Purchasing Systems in the New Procurement Regulations (updated version March 2008):
http://www.ogc.gov.uk/documents/OGC_Guidance_on_Dynamic_Purchasing_Systems.pdf
***
eProcurement
From dynamic purchasing systems there is only a short step to electronic procurement. If you are interested in e-procurement in the European Union, you could start your tour by looking at the IDABC web page 2010: The e-procurement target for Europe:
http://ec.europa.eu/idabc/en/document/5467/5584
Ralf Grahn
6. A ‘dynamic purchasing system’ is a completely electronic process for making commonly used purchases, the characteristics of which, as generally available on the market, meet the requirements of the contracting authority, which is limited in duration and open throughout its validity to any economic operator which satisfies the selection criteria and has submitted an indicative tender that complies with the specification.
***
Recital explanations
Recitals 12 and 13 of the Procurement Directive offer the following explanation of a dynamic purchasing system:
(12) Certain new electronic purchasing techniques are continually being developed. Such techniques help to increase competition and streamline public purchasing, particularly in terms of the savings in time and money which their use will allow. Contracting authorities may make use of electronic purchasing techniques, providing such use complies with the rules drawn up under this Directive and the principles of equal treatment, non-discrimination and transparency. To that extent, a tender submitted by a tenderer, in particular where competition has been reopened under a framework agreement or where a dynamic purchasing system is being used, may take the form of that tenderer's electronic catalogue if the latter uses the means of communication chosen by the contracting authority in accordance with Article 42.
***
(13) In view of the rapid expansion of electronic purchasing systems, appropriate rules should now be introduced to enable contracting authorities to take full advantage of the possibilities afforded by these systems. Against this background, it is necessary to define a completely electronic dynamic purchasing system for commonly used purchases, and lay down specific rules for setting up and operating such a system in order to ensure the fair treatment of any economic operator who wishes to take part therein. Any economic operator which submits an indicative tender in accordance with the specification and meets the selection criteria should be allowed to join such a system. This purchasing technique allows the contracting authority, through the establishment of a list of tenderers already selected and the opportunity given to new tenderers to take part, to have a particularly broad range of tenders as a result of the electronic facilities available, and hence to ensure optimum use of public funds through broad competition.
***
Optional dynamics
Recital 16 of the Procurement Directive reminds us that the Community procurement legislation is harmonised, not unified. National differences and choices exist, and dynamic purchasing systems are among the options for the member states:
(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.
***
Procedure: Dynamic purchasing systems
Article 33 of the Procurement Directive or Classic Directive 2004/18/EC sets out the dynamic purchasing system procedures:
Article 33
Dynamic purchasing systems
1. Member States may provide that contracting authorities may use dynamic purchasing systems.
2. In order to set up a dynamic purchasing system, contracting authorities shall follow the rules of the open procedure in all its phases up to the award of the contracts to be concluded under this system. All the tenderers satisfying the selection criteria and having submitted an indicative tender which complies with the specification and any possible additional documents shall be admitted to the system; indicative tenders may be improved at any time provided that they continue to comply with the specification. With a view to setting up the system and to the award of contracts under that system, contracting authorities shall use solely electronic means in accordance with Article 42(2) to (5).
3. For the purposes of setting up the dynamic purchasing system, contracting authorities shall:
(a) publish a contract notice making it clear that a dynamic purchasing system is involved;
(b) indicate in the specification, amongst other matters, the nature of the purchases envisaged under that system, as well as all the necessary information concerning the purchasing system, the electronic equipment used and the technical connection arrangements and specifications;
(c) offer by electronic means, on publication of the notice and up to the expiry of the system, unrestricted, direct and full access to the specification and to any additional documents and shall indicate in the notice the internet address at which such documents may be consulted.
4. Contracting authorities shall give any economic operator, throughout the entire period of the dynamic purchasing system, the possibility of submitting an indicative tender and of being admitted to the system under the conditions referred to in paragraph 2. They shall complete evaluation within a maximum of 15 days from the date of submission of the indicative tender. However, they may extend the evaluation period provided that no invitation to tender is issued in the meantime.
The contracting authority shall inform the tenderer referred to in the first subparagraph at the earliest possible opportunity of its admittance to the dynamic purchasing system or of the rejection of its indicative tender.
5. Each specific contract must be the subject of an invitation to tender. Before issuing the invitation to tender, contracting authorities shall publish a simplified contract notice inviting all interested economic operators to submit an indicative tender, in accordance with paragraph 4, within a time limit that may not be less than 15 days from the date on which the simplified notice was sent. Contracting authorities may not proceed with tendering until they have completed evaluation of all the indicative tenders received by that deadline.
6. Contracting authorities shall invite all tenderers admitted to the system to submit a tender for each specific contract to be awarded under the system. To that end they shall set a time limit for the submission of tenders.
They shall award the contract to the tenderer which submitted the best tender on the basis of the award criteria set out in the contract notice for the establishment of the dynamic purchasing system. Those criteria may, if appropriate, be formulated more precisely in the invitation referred to in the first subparagraph.
7. A dynamic purchasing system may not last for more than four years, except in duly justified exceptional cases.
Contracting authorities may not resort to this system to prevent, restrict or distort competition.
No charges may be billed to the interested economic operators or to parties to the system.
***
Guide
The same ground is covered, but chopped into a reader friendly format by the UK Office of Government Commerce (OGC) guide Dynamic Purchasing Systems – OGC Guidance on Dynamic Purchasing Systems in the New Procurement Regulations (updated version March 2008):
http://www.ogc.gov.uk/documents/OGC_Guidance_on_Dynamic_Purchasing_Systems.pdf
***
eProcurement
From dynamic purchasing systems there is only a short step to electronic procurement. If you are interested in e-procurement in the European Union, you could start your tour by looking at the IDABC web page 2010: The e-procurement target for Europe:
http://ec.europa.eu/idabc/en/document/5467/5584
Ralf Grahn
Monday, 15 December 2008
European Union: Education and youth plus sport
The European Community (European Union) encourages cooperation between the member states in the areas of education and youth exchange. The Lisbon Treaty adds sport and embellishes youth.
There is no denying the importance of sport, from many angles, but lobbyists and lawyers can rejoice that the Lisbon Treaty is not content with the addition, but refers to the specific nature of sport. This is an open invitation to special pleading, of which we have already seen vigorous signs.
Although the Community (Union) powers are puny, the education sector hosts some of the most popular European mobility programmes.
***
Article 149 TEC
Chapter 3 Education, vocational training and youth starts with Article 149 TEC (ex Article 126) setting out European Community (European Union) aims and activities in the policy areas education and youth.
The current Article 149 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/112–113:
CHAPTER 3
EDUCATION, VOCATIONAL TRAINING AND YOUTH
Article 149 TEC
1. The Community shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.
2. Community action shall be aimed at:
— developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States,
— encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study,
— promoting cooperation between educational establishments,
— developing exchanges of information and experience on issues common to the education systems of the Member States,
— encouraging the development of youth exchanges and of exchanges of socioeducational instructors,
— encouraging the development of distance education.
3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education, in particular the Council of Europe.
4. In order to contribute to the achievement of the objectives referred to in this Article, the Council:
— acting in accordance with the procedure referred to in Article 251, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,
— acting by a qualified majority on a proposal from the Commission, shall adopt recommendations.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 123 of the original Treaty of Lisbon (ToL) tells us that Chapter 3 becomes the new Title XI Education, vocational training, youth and sport(OJ 17.12.2007 C 306/82):
EDUCATION, VOCATIONAL TRAINING, YOUTH AND SPORT
123) Chapter 3 shall be renumbered TITLE XI and the words ‘AND YOUTH’ at the end of the
heading shall be replaced by ‘, YOUTH AND SPORT’.
124) Article 149 shall be amended as follows:
(a) in paragraph 1, the following subparagraph shall be inserted:
‘The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.’;
(b) in paragraph 2, fifth indent, the words ‘and encouraging the participation of young people in democratic life in Europe,’ shall be added at the end; the following shall be inserted as the last indent:
‘— developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.’;
(c) in paragraph 3, the words ‘and sport’ shall be added after ‘in the field of education’;
(d) in paragraph 4, the words ‘the Council’ shall be deleted from the introductory phrase and the first indent shall begin with the words ‘the European Parliament and the Council, acting’; the second indent shall begin with the words ‘the Council, on a proposal’.
***
Convention and Constitution
European sporting issues and the European dimension in sport are the main novelties. The additions come from Article III-282 of the Treaty establishing a Constitution for Europe, word for word.
The indent on youth exchange was embellished with encouragement of the participation of young people in democratic life in Europe. Nice, to the extent there can said to be such life at European level, this addition too was taken over from Constitution Article III-282.
Like most of the ‘innovations’ of the Constitutional Treaty, these are based on the proposals of the European Convention in the draft Treaty establishing a Constitution for Europe, although the intergovernmental conference added the reference to the specific nature of sport, its structures based on voluntary activity…
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter 3 on education, vocational training and youth was first to become Title XI Education, vocational training, youth and sport, but renumbered Title XII in the consolidated version.
Article 149 TEC first became Article 149 TFEU (ToL), then renumbered Article 165 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/217).
***
Consolidated Lisbon Treaty
After the explicit amendments, horizontal amendments and renumbering, Article 165 of the Treaty on the Functioning of the European Union (TFEU) appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/120–121:
TITLE XII
EDUCATION, VOCATIONAL TRAINING, YOUTH AND SPORT
Article 165 TFEU
(ex Article 149 TEC)
1. The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.
The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.
2. Union action shall be aimed at:
— developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States,
— encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study,
— promoting cooperation between educational establishments,
— developing exchanges of information and experience on issues common to the education systems of the Member States,
— encouraging the development of youth exchanges and of exchanges of socio-educational instructors, and encouraging the participation of young people in democratic life in Europe,
— encouraging the development of distance education,
— developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.
3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education and sport, in particular the Council of Europe.
4. In order to contribute to the achievement of the objectives referred to in this Article:
— the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,
— the Council, on a proposal from the Commission, shall adopt recommendations.
***
EU competence
Having looked at the powers of the European Union in the areas of education, youth and sport, as set out by the Treaty of Lisbon, it might be helpful to recall the general TFEU provisions on categories and areas of Union competence.
Article 2 TFEU presents the main characteristics of exclusive competence and shared competence before the description in Article 2(5) TFEU:
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
***
Article 6 TFEU
The policy areas are then formed into rough groups in the following Articles. Here we are interested in Article 6 TFEU. Education, vocational training, youth and sport are mentioned among the areas, where the EU supports, coordinates or supplements member states’ actions:
Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the
actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Summaries of legislation: Education
On the Commission’s Scadplus web pages with summaries of legislation, there is one offering a plethora of links to different aspects of Education and training: General framework:
http://europa.eu/scadplus/leg/en/s19004.htm
Lifelong learning and the Lisbon Strategy for Growth and Jobs are common catchwords. The Lifelong learning programme 2007–2013 incorporates many of the best known activities of the European Union, such as the Comenius, Erasmus, Leonardo da Vinci, Grundtvig and Jean Monnet programmes as well as a transversal programme.
General Commission news and links concerning education and training can be found here:
http://ec.europa.eu/education/index_en.htm
***
Summaries of legislation: Youth
The Youth in Action programme 2007–2013 is presented on the following web page:
http://europa.eu/scadplus/leg/en/cha/c11080.htm
For general information about the Commission’s youth activities, you can start here:
http://ec.europa.eu/youth/index_en.htm
***
Sport
The Commission’s activities concerning sport have been targeted at specific issues like sport in education or the combat against doping, but the Lisbon Treaty would widen the scope for supporting action at European level.
You can explore the activities through the Commission’s web page:
http://ec.europa.eu/sport/index_en.htm
***
Specific nature of sport
For a first look at the specific nature of sport within the European Union, you can go to the Commission’s Scadplus web page Incorporating the specific characteristics of sport and its social functions into the implementation of common policies:
http://ec.europa.eu/youth/index_en.htm
An analysis of the issues at stake, by Dr Richard Parrish, can be found here:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62wef15.htm
Given the chance, President Nicolas Sarkozy is seldom tardy in challenging the internal market and competition rules forming the backbone of the European (Economic) Community. The EurActiv article Sarkozy backs European ‘sporting exception’ (14 July 2008):
http://www.euractiv.com/en/sports/sarkozy-backs-european-sporting-exception/article-174130
The big (business) federations of sport have all been keen to explore new possibilities to tailor European legislation to their needs. Here are a few introductory greetings from UEFA, FIFA and the IOC:
http://www.uefa.com/uefa/Keytopics/kind=2048/newsId=480464.html
http://www.fifa.com/aboutfifa/federation/releases/newsid=620034.html
http://www.olympic.org/uk/news/media_centre/press_release_uk.asp?release=2358
Ralf Grahn
There is no denying the importance of sport, from many angles, but lobbyists and lawyers can rejoice that the Lisbon Treaty is not content with the addition, but refers to the specific nature of sport. This is an open invitation to special pleading, of which we have already seen vigorous signs.
Although the Community (Union) powers are puny, the education sector hosts some of the most popular European mobility programmes.
***
Article 149 TEC
Chapter 3 Education, vocational training and youth starts with Article 149 TEC (ex Article 126) setting out European Community (European Union) aims and activities in the policy areas education and youth.
The current Article 149 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/112–113:
CHAPTER 3
EDUCATION, VOCATIONAL TRAINING AND YOUTH
Article 149 TEC
1. The Community shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.
2. Community action shall be aimed at:
— developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States,
— encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study,
— promoting cooperation between educational establishments,
— developing exchanges of information and experience on issues common to the education systems of the Member States,
— encouraging the development of youth exchanges and of exchanges of socioeducational instructors,
— encouraging the development of distance education.
3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education, in particular the Council of Europe.
4. In order to contribute to the achievement of the objectives referred to in this Article, the Council:
— acting in accordance with the procedure referred to in Article 251, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,
— acting by a qualified majority on a proposal from the Commission, shall adopt recommendations.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 123 of the original Treaty of Lisbon (ToL) tells us that Chapter 3 becomes the new Title XI Education, vocational training, youth and sport(OJ 17.12.2007 C 306/82):
EDUCATION, VOCATIONAL TRAINING, YOUTH AND SPORT
123) Chapter 3 shall be renumbered TITLE XI and the words ‘AND YOUTH’ at the end of the
heading shall be replaced by ‘, YOUTH AND SPORT’.
124) Article 149 shall be amended as follows:
(a) in paragraph 1, the following subparagraph shall be inserted:
‘The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.’;
(b) in paragraph 2, fifth indent, the words ‘and encouraging the participation of young people in democratic life in Europe,’ shall be added at the end; the following shall be inserted as the last indent:
‘— developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.’;
(c) in paragraph 3, the words ‘and sport’ shall be added after ‘in the field of education’;
(d) in paragraph 4, the words ‘the Council’ shall be deleted from the introductory phrase and the first indent shall begin with the words ‘the European Parliament and the Council, acting’; the second indent shall begin with the words ‘the Council, on a proposal’.
***
Convention and Constitution
European sporting issues and the European dimension in sport are the main novelties. The additions come from Article III-282 of the Treaty establishing a Constitution for Europe, word for word.
The indent on youth exchange was embellished with encouragement of the participation of young people in democratic life in Europe. Nice, to the extent there can said to be such life at European level, this addition too was taken over from Constitution Article III-282.
Like most of the ‘innovations’ of the Constitutional Treaty, these are based on the proposals of the European Convention in the draft Treaty establishing a Constitution for Europe, although the intergovernmental conference added the reference to the specific nature of sport, its structures based on voluntary activity…
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter 3 on education, vocational training and youth was first to become Title XI Education, vocational training, youth and sport, but renumbered Title XII in the consolidated version.
Article 149 TEC first became Article 149 TFEU (ToL), then renumbered Article 165 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/217).
***
Consolidated Lisbon Treaty
After the explicit amendments, horizontal amendments and renumbering, Article 165 of the Treaty on the Functioning of the European Union (TFEU) appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/120–121:
TITLE XII
EDUCATION, VOCATIONAL TRAINING, YOUTH AND SPORT
Article 165 TFEU
(ex Article 149 TEC)
1. The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.
The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.
2. Union action shall be aimed at:
— developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States,
— encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study,
— promoting cooperation between educational establishments,
— developing exchanges of information and experience on issues common to the education systems of the Member States,
— encouraging the development of youth exchanges and of exchanges of socio-educational instructors, and encouraging the participation of young people in democratic life in Europe,
— encouraging the development of distance education,
— developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.
3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education and sport, in particular the Council of Europe.
4. In order to contribute to the achievement of the objectives referred to in this Article:
— the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,
— the Council, on a proposal from the Commission, shall adopt recommendations.
***
EU competence
Having looked at the powers of the European Union in the areas of education, youth and sport, as set out by the Treaty of Lisbon, it might be helpful to recall the general TFEU provisions on categories and areas of Union competence.
Article 2 TFEU presents the main characteristics of exclusive competence and shared competence before the description in Article 2(5) TFEU:
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
***
Article 6 TFEU
The policy areas are then formed into rough groups in the following Articles. Here we are interested in Article 6 TFEU. Education, vocational training, youth and sport are mentioned among the areas, where the EU supports, coordinates or supplements member states’ actions:
Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the
actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Summaries of legislation: Education
On the Commission’s Scadplus web pages with summaries of legislation, there is one offering a plethora of links to different aspects of Education and training: General framework:
http://europa.eu/scadplus/leg/en/s19004.htm
Lifelong learning and the Lisbon Strategy for Growth and Jobs are common catchwords. The Lifelong learning programme 2007–2013 incorporates many of the best known activities of the European Union, such as the Comenius, Erasmus, Leonardo da Vinci, Grundtvig and Jean Monnet programmes as well as a transversal programme.
General Commission news and links concerning education and training can be found here:
http://ec.europa.eu/education/index_en.htm
***
Summaries of legislation: Youth
The Youth in Action programme 2007–2013 is presented on the following web page:
http://europa.eu/scadplus/leg/en/cha/c11080.htm
For general information about the Commission’s youth activities, you can start here:
http://ec.europa.eu/youth/index_en.htm
***
Sport
The Commission’s activities concerning sport have been targeted at specific issues like sport in education or the combat against doping, but the Lisbon Treaty would widen the scope for supporting action at European level.
You can explore the activities through the Commission’s web page:
http://ec.europa.eu/sport/index_en.htm
***
Specific nature of sport
For a first look at the specific nature of sport within the European Union, you can go to the Commission’s Scadplus web page Incorporating the specific characteristics of sport and its social functions into the implementation of common policies:
http://ec.europa.eu/youth/index_en.htm
An analysis of the issues at stake, by Dr Richard Parrish, can be found here:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62wef15.htm
Given the chance, President Nicolas Sarkozy is seldom tardy in challenging the internal market and competition rules forming the backbone of the European (Economic) Community. The EurActiv article Sarkozy backs European ‘sporting exception’ (14 July 2008):
http://www.euractiv.com/en/sports/sarkozy-backs-european-sporting-exception/article-174130
The big (business) federations of sport have all been keen to explore new possibilities to tailor European legislation to their needs. Here are a few introductory greetings from UEFA, FIFA and the IOC:
http://www.uefa.com/uefa/Keytopics/kind=2048/newsId=480464.html
http://www.fifa.com/aboutfifa/federation/releases/newsid=620034.html
http://www.olympic.org/uk/news/media_centre/press_release_uk.asp?release=2358
Ralf Grahn
EU procurement: Framework agreement
Framework agreement is one of the important terms defined at the beginning of the Procurement Directive 2004/18/EC.
***
Definition: Framework agreement
Article 1.5 of the Procurement Directive offers the following definition of a framework agreement:
5. A ‘framework agreement’ is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.
***
Recital 11
Recital 11 presents some important features of a framework agreement:
(11) A Community definition of framework agreements, together with specific rules on framework agreements concluded for contracts falling within the scope of this Directive, should be provided. Under these rules, when a contracting authority enters into a framework agreement in accordance with the provisions of this Directive relating, in particular, to advertising, time limits and conditions for the submission of tenders, it may enter into contracts based on such a framework agreement during its term of validity either by applying the terms set forth in the framework agreement or, if all terms have not been fixed in advance in the framework agreement, by reopening competition between the parties to the framework agreement in relation to those terms. The reopening of competition should comply with certain rules the aim of which is to guarantee the required flexibility and to guarantee respect for the general principles, in particular the principle of equal treatment. For the same reasons, the term of the framework agreements should not exceed four years, except in cases duly justified by the contracting authorities.
***
Recital 16
Recital 16 of the Procurement Directive serves as a reminder that the Community procurement legislation is harmonised, not unified. National differences and choices exist:
(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.
***
Article 32
The procedures are set out in more detail in the Procurement Directive, with framework agreements in Article 32:
Article 32
Framework agreements
1. Member States may provide that contracting authorities may conclude framework agreements.
2. For the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with Article 53.
Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.
When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3.
The term of a framework agreement may not exceed four years, save in exceptional cases duly justified, in particular by the subject of the framework agreement.
Contracting authorities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.
3. Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement.
For the award of those contracts, contracting authorities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.
4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators to satisfy the selection criteria and/or of admissible tenders which meet the award criteria.
Contracts based on framework agreements concluded with several economic operators may be awarded either:
— by application of the terms laid down in the framework agreement without reopening competition, or
— where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure:
(a) for every contract to be awarded, contracting authorities shall consult in writing the economic operators capable of performing the contract;
(b) contracting authorities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject-matter of the contract and the time needed to send in tenders;
(c) tenders shall be submitted in writing, and their content shall remain confidential until the stipulated time limit for reply has expired;
(d) contracting authorities shall award each contract to the tenderer who has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.
***
Detailed explanations
The Commission’s Directorate-General Internal market and services presents ten pages of detailed explanations in its Explanatory note – Framework agreements – Classic Directive [= Procurement Directive].
Ralf Grahn
***
Definition: Framework agreement
Article 1.5 of the Procurement Directive offers the following definition of a framework agreement:
5. A ‘framework agreement’ is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.
***
Recital 11
Recital 11 presents some important features of a framework agreement:
(11) A Community definition of framework agreements, together with specific rules on framework agreements concluded for contracts falling within the scope of this Directive, should be provided. Under these rules, when a contracting authority enters into a framework agreement in accordance with the provisions of this Directive relating, in particular, to advertising, time limits and conditions for the submission of tenders, it may enter into contracts based on such a framework agreement during its term of validity either by applying the terms set forth in the framework agreement or, if all terms have not been fixed in advance in the framework agreement, by reopening competition between the parties to the framework agreement in relation to those terms. The reopening of competition should comply with certain rules the aim of which is to guarantee the required flexibility and to guarantee respect for the general principles, in particular the principle of equal treatment. For the same reasons, the term of the framework agreements should not exceed four years, except in cases duly justified by the contracting authorities.
***
Recital 16
Recital 16 of the Procurement Directive serves as a reminder that the Community procurement legislation is harmonised, not unified. National differences and choices exist:
(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.
***
Article 32
The procedures are set out in more detail in the Procurement Directive, with framework agreements in Article 32:
Article 32
Framework agreements
1. Member States may provide that contracting authorities may conclude framework agreements.
2. For the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with Article 53.
Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.
When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3.
The term of a framework agreement may not exceed four years, save in exceptional cases duly justified, in particular by the subject of the framework agreement.
Contracting authorities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.
3. Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement.
For the award of those contracts, contracting authorities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.
4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators to satisfy the selection criteria and/or of admissible tenders which meet the award criteria.
Contracts based on framework agreements concluded with several economic operators may be awarded either:
— by application of the terms laid down in the framework agreement without reopening competition, or
— where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure:
(a) for every contract to be awarded, contracting authorities shall consult in writing the economic operators capable of performing the contract;
(b) contracting authorities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject-matter of the contract and the time needed to send in tenders;
(c) tenders shall be submitted in writing, and their content shall remain confidential until the stipulated time limit for reply has expired;
(d) contracting authorities shall award each contract to the tenderer who has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.
***
Detailed explanations
The Commission’s Directorate-General Internal market and services presents ten pages of detailed explanations in its Explanatory note – Framework agreements – Classic Directive [= Procurement Directive].
Ralf Grahn
Sunday, 14 December 2008
Regulations: European Social Fund (and Structural Funds)
The cooperation procedure is applied to implementing legislation concerning the European Social Fund (ESF).
The ESF has been incorporated into the structural funds, which means that we have to look at the Regulations common to the structural funds to know how the European Social Fund is supposed to work.
Implementing rules issued by the Commission try to keep the 2007 to 2013 projects on the actively communicative and virtuous path.
***
Article 148 TEC
The cooperation procedure is used for the implementing rules concerning the European Social Fund, according to Article 148 TEC (ex Article 125). Although the provision mentions decisions, in practice they are Regulations.
The current Article 148 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/112:
Article 148 TEC
The Council, acting in accordance with the procedure referred to in Article 251 and after
consulting the Economic and Social Committee and the Committee of the Regions, shall adopt
implementing decisions relating to the European Social Fund.
***
Original Lisbon Treaty (ToL)
Article 2, point 122 of the original Treaty of Lisbon (ToL) accepts that the implementing rules based on Article 148 are given in Regulations (OJ 17.12.2007 C 306/82):
122) In Article 148, the words ‘implementing decisions’ shall be replaced by ‘implementing
regulations’.
The horizontal amendment in Article 2, point 2(c) ToL introduces the ordinary legislative procedure, which is more readable, but the cooperation procedure already applies.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter on the European Social Fund was to become Title XI. Article 148 TEC first became Article 148 TFEU (ToL), then renumbered Article 164 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216–217).
***
Consolidated Lisbon Treaty
Article 164 of the Treaty on the Functioning of the European Union (TFEU, after these modest adjustments, appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/119:
(TITLE XI
THE EUROPEAN SOCIAL FUND)
Article 164 TFEU
(ex Article 148 TEC)
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt implementing regulations relating to the European Social Fund.
***
General ESF information
The Commission’s Directorate-General Employment, Social Affairs and Equal Opportunities offers a portal to the European Social Fund:
http://ec.europa.eu/employment_social/esf/index_en.htm
The ESF’s role in promoting the Lisbon Strategy for Growth and Jobs is clearly emphasised.
***
Structural Funds
The information on offer about the European Social Fund centrally is somewhat superficial, although the treaty text would lead one to believe that the ESF is an autonomous system.
In practice, the ESF has been incorporated into the structural funds under the banner of cohesion.
For news and actualities, you can go to the Commission’s Inforegio web pages:
http://ec.europa.eu/regional_policy/index_en.htm
***
Programming period 2007 – 2013
For a short description of the structural funds during the programming period 2007 to 2013, the Legislation page offers links to some of the relevant Regulations, although communications issues seem to be the real obsession:
http://ec.europa.eu/regional_policy/country/commu/leg_en.cfm?nmenu=2
As one of the structural funds, the European Social Fund is governed according to Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 31.7.2006 L 210/25), available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0025:0078:EN:PDF
***
Implementing Regulation No 1828/2006
For those actually working with the structural funds, the nitty-gritty is found in the implementing rules. Here, too, communicating the good works, seems to have been the main priority when writing the rules.
More exactly the implementing rules are: Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:371:0001:0163:EN:PDF
***
ESF Regulation No 1081/2006
Rules specific to the European Social Fund are set out in a separate Regulation.
Regulation (EC) No 1081/2006 of the European Parliament and of the Council of 5 July 2006 on the European Social Fund and repealing Regulation (EC) No 1784/1999 (OJ 31.7.2006 L 210/12) is available here:
http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_210/l_21020060731en00120018.pdf
Article 2 sets out the tasks of the European Social Fund and Article 3 its scope of assistance.
Ralf Grahn
The ESF has been incorporated into the structural funds, which means that we have to look at the Regulations common to the structural funds to know how the European Social Fund is supposed to work.
Implementing rules issued by the Commission try to keep the 2007 to 2013 projects on the actively communicative and virtuous path.
***
Article 148 TEC
The cooperation procedure is used for the implementing rules concerning the European Social Fund, according to Article 148 TEC (ex Article 125). Although the provision mentions decisions, in practice they are Regulations.
The current Article 148 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/112:
Article 148 TEC
The Council, acting in accordance with the procedure referred to in Article 251 and after
consulting the Economic and Social Committee and the Committee of the Regions, shall adopt
implementing decisions relating to the European Social Fund.
***
Original Lisbon Treaty (ToL)
Article 2, point 122 of the original Treaty of Lisbon (ToL) accepts that the implementing rules based on Article 148 are given in Regulations (OJ 17.12.2007 C 306/82):
122) In Article 148, the words ‘implementing decisions’ shall be replaced by ‘implementing
regulations’.
The horizontal amendment in Article 2, point 2(c) ToL introduces the ordinary legislative procedure, which is more readable, but the cooperation procedure already applies.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter on the European Social Fund was to become Title XI. Article 148 TEC first became Article 148 TFEU (ToL), then renumbered Article 164 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216–217).
***
Consolidated Lisbon Treaty
Article 164 of the Treaty on the Functioning of the European Union (TFEU, after these modest adjustments, appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/119:
(TITLE XI
THE EUROPEAN SOCIAL FUND)
Article 164 TFEU
(ex Article 148 TEC)
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt implementing regulations relating to the European Social Fund.
***
General ESF information
The Commission’s Directorate-General Employment, Social Affairs and Equal Opportunities offers a portal to the European Social Fund:
http://ec.europa.eu/employment_social/esf/index_en.htm
The ESF’s role in promoting the Lisbon Strategy for Growth and Jobs is clearly emphasised.
***
Structural Funds
The information on offer about the European Social Fund centrally is somewhat superficial, although the treaty text would lead one to believe that the ESF is an autonomous system.
In practice, the ESF has been incorporated into the structural funds under the banner of cohesion.
For news and actualities, you can go to the Commission’s Inforegio web pages:
http://ec.europa.eu/regional_policy/index_en.htm
***
Programming period 2007 – 2013
For a short description of the structural funds during the programming period 2007 to 2013, the Legislation page offers links to some of the relevant Regulations, although communications issues seem to be the real obsession:
http://ec.europa.eu/regional_policy/country/commu/leg_en.cfm?nmenu=2
As one of the structural funds, the European Social Fund is governed according to Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 31.7.2006 L 210/25), available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0025:0078:EN:PDF
***
Implementing Regulation No 1828/2006
For those actually working with the structural funds, the nitty-gritty is found in the implementing rules. Here, too, communicating the good works, seems to have been the main priority when writing the rules.
More exactly the implementing rules are: Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:371:0001:0163:EN:PDF
***
ESF Regulation No 1081/2006
Rules specific to the European Social Fund are set out in a separate Regulation.
Regulation (EC) No 1081/2006 of the European Parliament and of the Council of 5 July 2006 on the European Social Fund and repealing Regulation (EC) No 1784/1999 (OJ 31.7.2006 L 210/12) is available here:
http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_210/l_21020060731en00120018.pdf
Article 2 sets out the tasks of the European Social Fund and Article 3 its scope of assistance.
Ralf Grahn
Procurement in the European Union: Service concession
How does the Procurement Directive 2004/18/EC define a service concession?
***
Service concession
Article 1.4 of the Procurement Directive 2004/18/EC defines a service concession in the following way:
4. ‘Service concession’ is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.
***
Public service contract
First we have to return to the definition of a public service contract in Article 1.2(d) to find the similarities:
(d) ‘Public service contracts’ are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.
A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract.
A public contract having as its object services within the meaning of Annex II and including activities within the meaning of Annex I that are only incidental to the principal object of the contract shall be considered to be a public service contract.
***
Annex II services
Annex II Services referred to in Article 1(2)(d), from page 67 in the consolidated Directive, lists the following services (with further precisions in the Annex):
1. Maintenance and repair services
2. Land transport services, including armoured car services, and courier services, except transport of mail
3. Air transport services of passengers and freight, except transport of mail
4. Transport of mail by land and by air
5. Telecommunications services
6. Financial services: (a) Insurance services; (b) Banking and investment services
7. Computer and related services
8. Research and development services
9. Accounting, auditing and bookkeeping services
10. Market research and public opinion polling services
11. Management consulting services and related services
12. Architectural services; engineering services and integrated engineering services; urban planning and landscape engineering services; related scientific and technical consulting services; technical testing and analysis services
13. Advertising services
14. Building-cleaning services and property management services
15. Publishing and printing services on a fee or contract basis
16. Sewage and refuse disposal services; sanitation and similar services
***
Public service concession
What makes a public service contract into a service concession is that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.
The Commissions Guide to the Community rules on public procurement of services (based on the old Directive 92/50/EEC) explains the background and offers a broad description on page 5:
The Commission's original proposal contained provisions on public service concessions analogous to those existing in the Works Directive for public works concessions. However, the Member States in Council decided not to include this type of contract because of wide divergence of national practices in matters of public service concessions. Thus the Services Directive does not apply to public service concessions, which broadly means that the Directive does not apply to contracts whereby a public authority transfers the execution of a service to the public lying within its responsibility to an undertaking of its choice and the latter agrees to execute the activity in return for the right to exploit the service, or this right together with payment. Nevertheless, the award of such contracts is, of course, subject to the Treaty rules concerning the freedom to provide services and to the general principles of Community law such as non-discrimination, equality of treatment, transparency and mutual recognition.
Ralf Grahn
***
Service concession
Article 1.4 of the Procurement Directive 2004/18/EC defines a service concession in the following way:
4. ‘Service concession’ is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.
***
Public service contract
First we have to return to the definition of a public service contract in Article 1.2(d) to find the similarities:
(d) ‘Public service contracts’ are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.
A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract.
A public contract having as its object services within the meaning of Annex II and including activities within the meaning of Annex I that are only incidental to the principal object of the contract shall be considered to be a public service contract.
***
Annex II services
Annex II Services referred to in Article 1(2)(d), from page 67 in the consolidated Directive, lists the following services (with further precisions in the Annex):
1. Maintenance and repair services
2. Land transport services, including armoured car services, and courier services, except transport of mail
3. Air transport services of passengers and freight, except transport of mail
4. Transport of mail by land and by air
5. Telecommunications services
6. Financial services: (a) Insurance services; (b) Banking and investment services
7. Computer and related services
8. Research and development services
9. Accounting, auditing and bookkeeping services
10. Market research and public opinion polling services
11. Management consulting services and related services
12. Architectural services; engineering services and integrated engineering services; urban planning and landscape engineering services; related scientific and technical consulting services; technical testing and analysis services
13. Advertising services
14. Building-cleaning services and property management services
15. Publishing and printing services on a fee or contract basis
16. Sewage and refuse disposal services; sanitation and similar services
***
Public service concession
What makes a public service contract into a service concession is that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.
The Commissions Guide to the Community rules on public procurement of services (based on the old Directive 92/50/EEC) explains the background and offers a broad description on page 5:
The Commission's original proposal contained provisions on public service concessions analogous to those existing in the Works Directive for public works concessions. However, the Member States in Council decided not to include this type of contract because of wide divergence of national practices in matters of public service concessions. Thus the Services Directive does not apply to public service concessions, which broadly means that the Directive does not apply to contracts whereby a public authority transfers the execution of a service to the public lying within its responsibility to an undertaking of its choice and the latter agrees to execute the activity in return for the right to exploit the service, or this right together with payment. Nevertheless, the award of such contracts is, of course, subject to the Treaty rules concerning the freedom to provide services and to the general principles of Community law such as non-discrimination, equality of treatment, transparency and mutual recognition.
Ralf Grahn
Saturday, 13 December 2008
EU: European Social Fund Committee
The European Social Fund (ESF) is administered by the Commission, assisted by a Committee established under Article 147 of the Treaty establishing the European Community.
We look at the treaty provision and secondary legislation regulating the structural funds, including the ESF, and provisions concerning the European Social Fund Committee or Article 147 Committee. A whiff of comitology is promised.
***
Article 147 TEC
Article 147 TEC (ex Article 124) states that the European Social Fund is administered by the Commission. In addition to participating in enacting the secondary legislation mentioned in Article 164 TEC, the EU member states keep an eye on ESF governance through a tripartite Committee.
The current Article 147 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/111:
Article 147 TEC
The Fund shall be administered by the Commission.
The Commission shall be assisted in this task by a Committee presided over by a Member of the Commission and composed of representatives of governments, trade unions and employers' organisations.
***
Original Lisbon Treaty (ToL)
Article 2, point 121 of the original Treaty of Lisbon (ToL) makes Chapter 2 on the European Social Fund into a Title of its own and point 122 concerns Article 148 (OJ 17.12.2007 C 306/82).
This means that Article 147 TEC undergoes no specific amendments. As it happens, there are no horizontal amendments either.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter on the European Social Fund was to become Title XI. Article 147 TEC first became Article 147 TFEU (ToL), then renumbered Article 163 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216–217).
***
Consolidated Lisbon Treaty
The renumbered Article 163 of the Treaty on the Functioning of the European Union (TFEU), without specific or horizontal amendments, appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/119:
(TITLE XI
THE EUROPEAN SOCIAL FUND)
Article 163 TFEU
(ex Article 147 TEC)
The Fund shall be administered by the Commission.
The Commission shall be assisted in this task by a Committee presided over by a Member of the Commission and composed of representatives of governments, trade unions and employers' organisations.
***
Commission
The Commission’s Directorate-General Employment, Social Affairs and Equal Opportunities offers a portal to the European Social Fund:
http://ec.europa.eu/employment_social/esf/index_en.htm
The ESF’s role in promoting the Lisbon Strategy for Growth and Jobs is clearly emphasised.
Although the Commission administers the ESF, the money from the EU budget together with national co-financing is actually spent in the member states. Detailed rules have been drawn up for the period 2007 to 2013, including the responsibilities of the Commission and the member states.
***
Structural Funds
As one of the structural funds, the European Social Fund is governed according to Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 31.7.2006 L 210/25), available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0025:0078:EN:PDF
***
Article 147 Committee or European Social Fund Committee
The ESF Committee is one of the many without a proper name, but officially referred to by the Article number. Understandably many humans prefer more evocative names. Perhaps the European Social Fund Committee would be a preferable name.
Regulation No 1083/2006 sets out rules on the Committee mentioned in Article 147 TEC. During the programming period 2007–2013 the Article 147 Committee has been slimmed down to one government representative, one trade union representative and one employers’ representative per member state, although each representative has an alternate entitled to take part in the proceedings. In other words, 162 members and alternates may take part in addition to the Commission chair:
CHAPTER II
Committee under Article 147 of the treaty
Article 104
Committee under Article 147 of the Treaty
1. The Commission shall be assisted by a committee set up under Article 147 of the Treaty (hereinafter referred to as the Committee). The Committee shall be composed of one government representative, one representative of the workers' organizations and one representative of the employers' organizations from each Member State. The Member of the Commission responsible for chairing the Committee may delegate that responsibility to a senior Commission official.
2. Each Member State shall nominate a representative and an alternate for each representative of each category referred to in paragraph 1. In the absence of one member, the alternate shall be automatically entitled to take part in the proceedings.
3. The members and alternates shall be appointed by the Council, acting on a proposal from the Commission, for a period of three years. They may be reappointed. The Council shall, as regards the composition of the Committee, endeavour to ensure fair representation of the different categories concerned. For the items on the agenda affecting it, the EIB and the EIF may appoint a non-voting representative.
4. The Committee shall:
(a) deliver its opinion on the implementing rules of this Regulation;
(b) deliver opinions on the draft Commission decisions relating to programming in the case of support from the ESF;
(c) be consulted when it deals with the categories of technical assistance measure referred to in Article 45 in the case of support
We look at the treaty provision and secondary legislation regulating the structural funds, including the ESF, and provisions concerning the European Social Fund Committee or Article 147 Committee. A whiff of comitology is promised.
***
Article 147 TEC
Article 147 TEC (ex Article 124) states that the European Social Fund is administered by the Commission. In addition to participating in enacting the secondary legislation mentioned in Article 164 TEC, the EU member states keep an eye on ESF governance through a tripartite Committee.
The current Article 147 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/111:
Article 147 TEC
The Fund shall be administered by the Commission.
The Commission shall be assisted in this task by a Committee presided over by a Member of the Commission and composed of representatives of governments, trade unions and employers' organisations.
***
Original Lisbon Treaty (ToL)
Article 2, point 121 of the original Treaty of Lisbon (ToL) makes Chapter 2 on the European Social Fund into a Title of its own and point 122 concerns Article 148 (OJ 17.12.2007 C 306/82).
This means that Article 147 TEC undergoes no specific amendments. As it happens, there are no horizontal amendments either.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter on the European Social Fund was to become Title XI. Article 147 TEC first became Article 147 TFEU (ToL), then renumbered Article 163 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216–217).
***
Consolidated Lisbon Treaty
The renumbered Article 163 of the Treaty on the Functioning of the European Union (TFEU), without specific or horizontal amendments, appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/119:
(TITLE XI
THE EUROPEAN SOCIAL FUND)
Article 163 TFEU
(ex Article 147 TEC)
The Fund shall be administered by the Commission.
The Commission shall be assisted in this task by a Committee presided over by a Member of the Commission and composed of representatives of governments, trade unions and employers' organisations.
***
Commission
The Commission’s Directorate-General Employment, Social Affairs and Equal Opportunities offers a portal to the European Social Fund:
http://ec.europa.eu/employment_social/esf/index_en.htm
The ESF’s role in promoting the Lisbon Strategy for Growth and Jobs is clearly emphasised.
Although the Commission administers the ESF, the money from the EU budget together with national co-financing is actually spent in the member states. Detailed rules have been drawn up for the period 2007 to 2013, including the responsibilities of the Commission and the member states.
***
Structural Funds
As one of the structural funds, the European Social Fund is governed according to Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 31.7.2006 L 210/25), available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0025:0078:EN:PDF
***
Article 147 Committee or European Social Fund Committee
The ESF Committee is one of the many without a proper name, but officially referred to by the Article number. Understandably many humans prefer more evocative names. Perhaps the European Social Fund Committee would be a preferable name.
Regulation No 1083/2006 sets out rules on the Committee mentioned in Article 147 TEC. During the programming period 2007–2013 the Article 147 Committee has been slimmed down to one government representative, one trade union representative and one employers’ representative per member state, although each representative has an alternate entitled to take part in the proceedings. In other words, 162 members and alternates may take part in addition to the Commission chair:
CHAPTER II
Committee under Article 147 of the treaty
Article 104
Committee under Article 147 of the Treaty
1. The Commission shall be assisted by a committee set up under Article 147 of the Treaty (hereinafter referred to as the Committee). The Committee shall be composed of one government representative, one representative of the workers' organizations and one representative of the employers' organizations from each Member State. The Member of the Commission responsible for chairing the Committee may delegate that responsibility to a senior Commission official.
2. Each Member State shall nominate a representative and an alternate for each representative of each category referred to in paragraph 1. In the absence of one member, the alternate shall be automatically entitled to take part in the proceedings.
3. The members and alternates shall be appointed by the Council, acting on a proposal from the Commission, for a period of three years. They may be reappointed. The Council shall, as regards the composition of the Committee, endeavour to ensure fair representation of the different categories concerned. For the items on the agenda affecting it, the EIB and the EIF may appoint a non-voting representative.
4. The Committee shall:
(a) deliver its opinion on the implementing rules of this Regulation;
(b) deliver opinions on the draft Commission decisions relating to programming in the case of support from the ESF;
(c) be consulted when it deals with the categories of technical assistance measure referred to in Article 45 in the case of support