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
Saturday, 27 December 2008
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
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