I. Introduction 1. In 1996, the Commission published a Green Paper entitled 'Public Procurement in the European Union: Exploring the Way Forward'i, which drew almost 300 responses emanating from various economic sectors, the Member States and institutions.
[2]. The main theme to emerge from the Green Paper debate is the need to simplify the legal framework [3] and adapt it to the new electronic age while maintaining the stability of its basic structure. The Commission recognised the need to simplify the existing legal framework by clarifying provisions which were obscure or complex and by amending legislation where the problems to be addressed could not be solved through interpretation of the provisions [4]. This is prompted by the same concern about clarification expressed by the Commission in its Communication on Concessions in Community law [5], which does not prejudge any specific legislative proposal on concessions. Moreover, specifically regarding Directive 93/38/EEC, the Commission also undertook to reexamine the scope in order to verify whether it was still appropriate in the light of the gradual liberalisation in those sectors. [2] COM(98) 143 final of 11 March 1998. [3] Directives 93/36/EEC, 93/37/EEC and 92/50/EEC on public supplies, public works and public services (the public sector Directives), as amended by Directive 97/52/EC; Directive 93/38/EEC on procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (the Utilities Directive"), as last amended by Directive 98/4/EC; Directives 89/665/EEC and 92/13/EEC on review procedures (the 'Remedies Directives'). [4] Point 2.1.1. [5] Commission Interpretative Communication on Concessions under Community law (2000/C121/02). OJ C 121, p. 2. 2. This proposal meets these objectives. It was announced by the Commission in its Work Programme for 2000 [6]. It falls within the exclusive competence of the Community regarding the recasting of legislation for completion of the Internal Market and is based on Article 95 [7] of the EC Treaty. Moreover, it is in line with the conclusions of the Lisbon European Council calling for economic reforms to achieve the internal market and make it fully operational. [6] COM(2000) 155, 9.2.2000. [7] Ex Article 100a. 3. To facilitate the presentation of the proposal, the amendments are grouped into two parts: -simplification of the Directive; -amendments to the legal framework. The Explanatory Memorandum is followed by analysis of the recitals and of the Articles. II. Simplification - Restructuring And Clarification Of The Directive 1. Restructuring and clarifying the Directive without changing its substance. 1.1. The amendments described in this part do not include any fundamental changes compared with Directive 93/38/EEC [8], as last amended by Article 12 of Directive 94/22/EC [9] and Directive 98/4/EEC [10]. References to the 'Directive', the 'Sectors Directive', 'Directive 93/38/EEC' or the 'current Directive' are therefore to be understood as references to Directive 93/38/EEC, as amended. Similarly, references to the 'current Article' (or the 'current paragraph' or the 'current provision') are to be understood as references to the corresponding Article or paragraph or provision in Directive 93/38/EEC, as amended. [8] OJ L 199, 9.8.1993, p. 84. [9] Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons, OJ L 164, 30.6.1994, p. 3. Article 12 inserted Article 3(5) in Directive 93/38/EEC. [10] Directive 98/4/EC of the European Parliament and of the Council of 16 February 1998 amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors. OJ L 101, 1.4.1998, p. 1. 1.2. For the purpose of making the actual structure of the Directive clearer and easier to use, the provisions contained in the Directive have been set out in four Titles: General provisions applicable to contracts and design contests, Specific provisions applicable to contracts, Specific Provisions applicable to Design Contests and Final provisions. The provisions have been restructured, particularly in Title II with regard to the specific rules applicable to contracts, so as to follow logically the course of a contract award procedure, starting with definitions, the entities and activities covered and the scope. Chapters, sections and sub-sections have been introduced to make it easier for the reader. What is more, each title, chapter, section and sub-section and Article has a heading for quicker identification of the provisions sought by the reader. 1.3. When grouping the various provisions together, it was found that the insertion of 'introductory' Articles at the start of chapter provided a further aid to comprehension. The introductory provisions do not add any new obligations. Rather, they are intended to explain how Chapters and Articles link up with one another. By way of example, a new Article 14 has been added, explaining that the Directive shall apply where contracting entities award contracts whose value exceeds the stated thresholds, provided that the contracts are not excluded from the scope of the Directive under various Articles, which are then listed in the provision as a guide for the reader. All of this already applies, but there has hitherto been no provision explaining these rules. 1.4. Another element simplifying the Directive is the grouping together in one and the same Article of the specific provisions concerning a given activity. Thus, the provisions relating to water have been grouped together in the new Article 4 (see point IV.4 below), whereas in the current Directive these same provisions are set out in Articles 2(a)(i), 6(2) and 2(5)(a). Another example of this approach can be cited in relation to the provisions concerning the various types of notices. The provisions regarding the periodic indicative notice, for example, have been grouped together according to whether or not this notice is used as a means of calling for competition. (See points IV.40 and IV.41). 2. Simplification/clarification of the Directive also involving some changes to its substance. 2.1. In this proposal, simplifications of this type are proposed in three cases only. The first relates to the provisions set out in Article 48i and (2) of the present proposal. These provisions on the information to be given to participants in an award procedure regarding the outcome of that procedure have been grouped together with provisions on the information to be given to applicants for qualification under a qualification system set up in accordance with the Directive. The structure has thus been simplified. The substance has also been changed, however, as this proposal extends the obligation regarding the giving of information about the outcome of an award procedure to all contracting entities, whereas the corresponding provisions in the current Directive apply only to contracting entities which operate in the sectors (water, electricity, urban transport, ports and airports) covered by the Government Procurement Agreement reached in the Uruguay Round multilateral negotiations [11]. For further details see point IV.48.2. [11] Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the Agreements reached in the Uruguay Round multilateral negotiations (1986 to 1994) (OJ L 336, 23.12.1994, p.
1). 2.2. The second case relates to Article 51 of this proposal. Paragraph 1 of that Article, which corresponds to Article 30(5) of the current Directive, has been extended to include the selection of participants in a restricted or negotiated procedure, because it expresses general principles - mutual recognition and equality of treatment - the application of which cannot be limited only to those cases where the contracting entities operate a system of qualification. The provision is otherwise unchanged. Applying the same logic, and given that quality assurance systems can be applied equally well to service, works and supply contracts, the obligation to refer to European standards concerning quality assurance or certification (the standards of the series EN 29000 and EN 45 000) and to recognise other means of proof has been extended so as to apply when such requirements exist vis-à-vis contractors or suppliers. The provision is otherwise unchanged. 2.3. The final example of this approach is provided by Article 60(3) of this proposal. The text of the current Article 12i [12] is ambiguous, as it provides that the Directive shall not apply to 'contracts' - a concept which does not cover design contests - but nevertheless explicitly states that the international agreements in question may relate to '...design contests intended for the... implementation...' It thus appeared preferable to provide explicitly that this exclusion may also apply to design contests. At the same time, it appeared that the reasons justifying the exclusion from the Directive's scope of contracts, where they are governed by different procedural rules under an agreement relating to the stationing of troops or under the specific procedure of an international organisation, were also valid in the case of design contests organised under such circumstances. See also point IV.60.3. [12] 'This Directive shall not apply to contracts governed by different procedural rules and awarded: ... pursuant to an international agreement concluded in conformity with the Treaty between a Member State and one or more third countries and covering supplies, works, services or design contests intended for the joint implementation or exploitation of a project by the signatory States... ' III. Substantive Amendments 1. Introduction 1.1. The emergence of the information society, the gradual withdrawal of the state from certain economic activities, and increased budgetary austerity are leading the Commission to propose amendments to the existing legal framework. These have a threefold objective: modernisation, simplification and flexibility; modernisation to take account of new technologies and changes in the economic environment, simplification to lighten rules which are sometimes too detailed and complex, and flexibility to better respond to the criticism of procedures which are excessively rigid and do not meet the needs of public purchasers. 1.2. The Commission has identified six areas in which this threefold objective has prompted it to propose amendments to Directive 93/38/EEC. These are: -the scope of Directive 93/38/EEC on contracts concluded in the water, energy, transport and telecommunications sectors, which has to be reviewed in the light of the gradual liberalisation in those sectors; -the introduction of electronic purchasing mechanisms and the consequences of these in terms of reducing the length of an award procedure; -clarification of provisions relating to technical specifications; this will encourage effective competition through the participation of the greatest possible number of tenderers and, in particular, innovative businesses; -a strengthening of the provisions relating to award criteria; -a simplification of thresholds; the previously large number of thresholds - differing only slightly among themselves - has been reduced; -the introduction of a common procurement vocabulary. 2. The scope of Directive 93/38/EEC on public procurement in the water, energy, transport and telecommunications sectors 2.1. Introduction In its aforementioned Communication (see footnote 2), the Commission stated that "Following the liberalisation of some of the sectors covered by Directive 93/38/EEC (water, energy, transport and telecommunications), it is necessary to examine the degree of openness to competition of the liberalised sectors with a view to deciding whether the constraints the Directive imposes on contracting entities are still justified. They were introduced because of the lack of competition resulting from the State's decision to grant a monopoly or a privileged position to an operator. In return for this preferential treatment by the State, monopoly operators had to comply with certain advertising and procedural requirements when awarding contracts. If a sector is found to be effectively open to competition, the constraints imposed by the Directive should be removed." On this point, the Commission has concluded that it would submit proposals to exclude from the scope of Directive 93/38/EEC those sectors or services to which it applies (water, energy, transport and telecommunications) which, in a given Member State, operate in conditions of effective competition. Given the different state of liberalisation and the intended moves towards complete liberalisation of the telecommunications sector, on the one hand, and of the other sectors within the scope of Directive 93/38/EEC, on the other, this proposal introduces different types of solution for those sectors. Furthermore, where the liberalisation of a sector is such that the contracting entities operating in that sector may be exempt from application of this Directive, a necessary counterpart must be that purchases by other entities of the products or services offered by the 'liberalised' entities fall within the scope of Directive 93/38/EEC. Such amendments will be proposed wherever necessary. It has been found, however, that the reasons which led to the Community legislator to exclude from the current Article 9 purchases of water by entities distributing water remain valid, and that there is therefore no reason to amend this text. 2.2. The telecommunications sector 2.2.1. The regulatory framework for the liberalisation of telecommunications is based on Article 86(3) [13] of the EC Treaty (liberalisation Directives [14]) and Article 95 [15] (harmonisation Directives [16]) of the EC Treaty. Furthermore, any undertaking providing telecommunications services is subject to the prohibition of any prevention, restriction or distortion of competition in the common market, as laid down in Articles 81, 82 and 86 [17] of the EC Treaty. [13] Ex Article 90(3). [14] The liberalisation Directives in force are Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services, OJ L 192, 24.7.1990, p. 10; Commission Directive 94/46/EC of 13 October 1994 amending Directive 88/301/EEC and Directive 90/388/EEC in particular with regard to satellite communications, OJ L 268, 19.10.1994, p. 15; Commission Directive 95/51/EC of 18 October 1995 amending Directive 90/388/EEC with regard to the abolition of the restrictions on the use of cable television networks for the provision of already liberalised telecommunications services, OJ L 256, 26.10.1995, p. 49; Commission Directive 96/2/EC of 16 January 1996 amending Directive 90/388/EEC with regard to mobile and personal communications, OJ L 20, 26.1.1996, p. 59; and Commission Directive 96/19/EC of 13 March 1996 amending Directive 90/388/EEC with regard to the implementation of full competition in telecommunications markets, OJ L 74, 22.3.1996, p. 13. [15] Ex Article 100(a). [16] The relevant harmonisation directives in force are Council Directive 87/372/EEC of 25 June 1987 on the frequency bands to be reserved for the coordinated introduction of public pan-European cellular digital land-based mobile communications in the Community, OJ L 196, 17.7.1987, p. 85; Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provisional directive, OJ L 192, 24.7.1990, p. 1; Council Directive 90/544/EEC of 9 October 1990 on the frequency bands designated for the coordinated introduction of pan-European land-based public radio paging in the Community, OJ L 310, 9.11.1990, p. 28; Council Directive 91/287/EEC of 3 June 1991 on the frequency band to be designated for the coordinated introduction of digital European cordless telecommunications (DECT) into the Community, OJ L 144, 8.6.1991, p. 45; Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased lines, OJ L 165, 19.6.1992, p. 27; Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services, OJ L 117, 7.5.1997, p. 15; Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP), OJ L 19, 26.7.1997, p. 32; Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997 amending Council Directives 90/387/EEC and 92/44/EEC for the purpose of adaptation to a competitive environment in telecommunications, OJ L 295, 29.10.1997, p. 23; Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, OJ L 24, 30.1.1998, p. 1; Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment, OJ L 101, 1.4.1998, p. 24; Directive 98/13/EC of the European Parliament and of the Council of 12 February 1998 relating to telecommunications terminal equipment and satellite earth station equipment, including the mutual recognition of their conformity, OJ L 74, 12.3.1998, p. 1; and Directive 98/61/EC of the European Parliament and of the Council of 24 September 1998 amending Directive 97/33/EC with regard to operator number portability and carrier pre-selection, OJ L 268, 3.10.1998, p. 37. [17] Ex Articles 85, 86 and 90, 2.2.2. Under Article 2(2) of Directive 90/388/EEC, as amended by Directive 96/19/EC, Member States shall take the measures necessary to ensure that any undertaking is entitled to provide telecommunications services or to establish or provide the telecommunications networks required for the provision of such services by 1 January 1998 at the latest. On request, an additional implementation period of a maximum of five years was granted to the Member States with the least developed networks, and an additional implementation period of two years to the Member States with very small networks. Additional implementation periods were granted to five Member States. These were Luxembourg [18] (1 July 1998), Spain [19] (1 December 1998), Ireland [20] and Portugal [21] (1 January 2000) and Greece [22] (31 December 2000). [18] Commission Decision 97/568/EC, OJ L 234, 26.8.1997, p. 7. [19] Commission Decision 97/603/EC, OJ L 243, 5.9.1997, p. 48. [20] Commission Decision 97/114/EC, OJ L 41, 12.2.1997, p. 8. [21] Commission Decision 97/310/EC, OJ L 133, 24.5.1997, p. 19. [22] Commission Decision 97/607/EC, OJ L 245, 9.9.1997, p. 6. According to its Fourth Report on the Implementation of the Telecommunications Regulatory Package of 25 November 1998 [23], the Commission's overall assessment was that most of the measures provided for in the package have been transposed into national legislation, and that the national measures implementing the principal regulatory topics in the package (regulatory authorities, authorisation, interconnection, universal service, tariffs, numbering, frequency) are being applied in practice. Additional progress was noted in the Fifth Report of 10 November 1999 on the implementation of the regulations in the field of telecommunications [24]. [23] COM(1998) 594 final. [24] COM(1999) 537 final. 2.2.3. The Commission published a notice in the Official Journal of the European Communities [25] inviting contracting entities in the telecommunications sector to indicate the services they consider to be excluded from the scope of Directive 93/38/EEC under the provisions of its Article 8(2). In the light of the responses, the Commission, in accordance with Article 8(2) of that Directive, reached the conclusion that public contracts relating to most telecommunications services in most Member States are considered to be excluded from the scope of that Directive. [25] OJ C 273, 2.9.1998, p. 12. In accordance with Article 8(2), and as confirmed by the Court of Justice [26], the list of telecommunications services which the Commission considers meet the criteria of Article 8i was published for information only in the Official Journal [27]. However, many operators called for a degree of legal certainty greater than that provided by such a list, which has no legal value and is published only for information purposes. [26] Case C-392/93, The Queen v H. M. Treasury, ex parte British Telecommunications plc, judgment of 26 March 1996, [1996] ECR I-1631. [27] OJ C 156, 3.6.1999, p. 3. 2.2.4. This proposal thus excludes the telecommunications sector from the scope of Directive 93/38/EEC. It is proposed that the amendments come into force simultaneously in all Member States, since the Commission is certain that the rapid progress towards liberalisation will continue and will produce effects before this proposal can come into force. This confidence is to some extent confirmed by the fact that effective competition has been introduced in Ireland, Greece and Portugal for certain telecommunications services almost one to two years before the expiry of the periods normally provided. 2.2.5. At the moment, the Directives on public procurement regulate two different aspects of the telecommunications sector in the broad sense. Procurement by entities which themselves operate a telecommunications network, or which offer a telecommunications service, is subject to the provisions of Directive 93/38/EEC. Moreover, when public authorities or entities operating in another sector of Directive 93/38/EEC purchase telecommunications services, they are, a priori, subject to the provisions of Directives 92/50/EEC [28] and 93/38/EEC. However, these Directives currently exclude from their scope purchases of voice telephony, telex, mobile telephone, paging and satellite services. The reason for this exclusion was that, when these Directives were being adopted, such services could frequently be provided by only a single provider in a given geographical area because of the absence of effective competition and the existence of special or exclusive rights. [28] Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, OJ L 209, 24.7.1992, p. 1, as last amended by Directive 97/52/EC, OJ L 328, 28.11.1997, p. 1. Now that effective competition has been introduced in the sector, these exclusions are no longer justified. It is therefore proposed that these exclusions be abolished, so that voice telephony, telex, mobile telephone, paging and satellite services will have to be purchased in accordance with the normal rules applying to service contracts, as is already the case with other telecommunications services. 2.2.6. Public authorities [29] engaged in an activity in the telecommunications sector are currently subject to the provisions of Directive 93/38/EEC, and their purchases for the exercise of that activity are excluded from the scope of the public sector Directives (92/50/EEC on public service contracts, 93/36/EEC [30] on public supply contracts, and 93/37/EEC [31] on public works contracts). If the public sector Directives were not amended, the proposed amendments to Directive 93/38/EEC would mean that public authorities would once again be subject to the public sector Directives as regards purchases relating to their activity in the telecommunications sector. However, it would run counter to the logic of the current public procurement Directives if the public authorities, who - even in the absence of effective competition in the telecommunications sector - were subject to the more flexible provisions of Directive 93/38/EEC, were to become subject to the stricter rules of the public sector Directives because effective competition has now been introduced in the sector. The proposal aimed at replacing the current public sector Directives - which is being submitted in parallel with this proposal - contains provisions intended to ensure that the public authorities continue to be excluded from the scope of these Directives as regards purchases related to their activities in the telecommunications sector. [29] This means the State, regional or local authorities, bodies governed by public law, or associations formed by one or more of such authorities or bodies governed by public law. See Article 1i of Directive 93/38/EEC and, unchanged, Article 2(1)(a) of this proposal. [30] Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, OJ L 199, 9.8.1993, p. 1, as last amended by Directive 97/52/EC, OJ L 328, 28.11.1997, p. 1. [31] Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, OJ L 199 of 9.8.1993, p. 54, as last amended by Directive 97/52/EC, OJ L 328, 28.11.1997, p. 1. 2.2.7. In addition, this proposal does not include (and therefore removes) all the current provisions specifically applying to the telecommunications sector, such as the current Article 2(2)(d) defining this activity as falling under Directive 93/38/EEC, the special thresholds applying to purchases by entities operating in this sector, and the provisions relating to the Advisory Committee on Telecommunications Procurement. 2.3. Other sectors 2.3.1. Directive 93/38/EEC does not currently contain any general provision which - as regards any of the sectors falling within its scope - would allow the liberalisation of a given sector to be taken into account. The aforementioned Article 8 currently relates exclusively to the telecommunications sector. The Directive contains other specific provisions. For instance, it excludes from its scope entities providing bus transport services to the public where other entities are free to provide such services, either in general or in a particular geographical area, under the same conditions as the contracting entities [32]. It also introduces a special system for entities exploiting a geographical area for the purpose of exploring for or extracting oil, gas, coal or other solid fuels. This system, provided for under Article 3 of the current Directive, allows the Commission, under certain conditions relating to the granting of operating licences, to provide that entities in Member States which have so requested shall not be subject to the detailed provisions set out in the Directive, but must simply respect the principle of non-discrimination and meet certain obligations to ensure competition when awarding contracts, as well as certain statistical obligations. [32] Article 2(4) of the current Directive. 2.3.2. At Community level, the liberalisation of certain sectors other than telecommunications has started, in particular in the energy sector. Nevertheless, since liberalisation has not progressed as far as in the telecommunications sector, a different solution has been adopted for those sectors. Instead of completely excluding these sectors from the scope of the Directive at this stage - which would presuppose that there was already effective competition in all the Member States - it was considered more appropriate to introduce a general mechanism allowing purchases in those sectors to be exempted as and when it was established that they were exposed directly to competition on markets to which access was not limited. Of course, if effective competition were introduced in a given sector, the Commission reserves the right to make an amended proposal to exclude it from the scope of the Directive. If that were not possible before the proposal is adopted, the Commission reserves the right to initiate its own procedure for exemption under Article 29 of the proposal. 2.3.3. To avoid the coexistence of several provisions allowing exemption or exclusion from the scope of the Directive on the basis of differing conditions relating to exposure to competition or access to the exercise of a specific activity, it is proposed that the current Article 2(4) and Article 3 of the current Directive be amended. As a result, entities providing bus transport services, or prospecting for or extracting oil, gas, coal or other solid fuels, may be exempted from the scope of the Directive under the same conditions as apply to any other sector covered by the Directive. However, the intention is not to bring back within the scope of the Directive entities which are currently excluded in accordance with Article 2(4). Similarly, the amendment to the current Article 3 will be without prejudice to Decisions 93/676/EEC [33] and 97/367/EC [34]. This means that entities operating off-shore in the Netherlands and the United Kingdom will continue to apply the special system currently provided for under Article 3(2) unless they are excluded from the scope of the Directive by a Decision in accordance with the general mechanism proposed. Similarly, entities which, on the date of entry into force of this Directive, are excluded from the scope of Directive 93/38/EEC, in accordance with the current Article 2(4), will remain excluded. [33] Commission Decision of 10 December 1993 establishing that the exploitation of geographical areas for the purpose of exploring for or extracting oil or gas does not constitute in the Netherlands an activity defined in Article 2(2)(b)(i) of Council Directive 90/531/EEC and that entities carrying on such an activity are not to be considered in the Netherlands as operating under special or exclusive rights within the meaning of Article 2(3)(b) of the Directive, OJ L 316, 17.12.1993, p. 41. [34] Commission Decision of 30 May 1997 establishing that the exploitation of geographical areas for the purpose of exploring for or extracting oil or gas does not constitute in the United Kingdom an activity defined in Article 2(2)(b)(i) of Council Directive 93/38/EEC and that entities carrying on such an activity are not to be considered in the United Kingdom as operating under special or exclusive rights within the meaning of Article 2(3)(b) of the Directive; OJ L 156, 13.6.1997, p. 55. 2.4. Special or exclusive rights 2.4.1. As things stand, special or exclusive rights are defined in Article 2(3) of Directive 93/38/EEC, which lays down that 'special or exclusive rights' are rights deriving from authorisations granted by a competent authority of the Member State concerned, by law, regulation or administrative action resulting in the reservation for one or more entities of the exploitation of an activity. It is also laid down that "a contracting entity shall be considered to enjoy special or exclusive rights in particular where: (a) for the purpose of constructing the networks or facilities referred to in paragraph 2, it may take advantage of a procedure for the expropriation or use of property or may place network equipment on, under or over the public highway; (b) in the case of paragraph 2(a), the entity supplies with drinking water, electricity, gas or heat a network which is itself operated by an entity enjoying special or exclusive rights granted by a competent authority of the Member State concerned." 2.4.2. In its judgment of 12 December 1996, the Court of Justice [35] stated that it was apparent from Article 2 of Directive 94/46 [36], amending the definitions laid down by Directive 90/388/EEC [37] and restated in Article 2i and (2) of Directive 90/387/EEC [38], as well as from the factual context in which Directives 90/387, 90/388/EEC and 92/44/EEC [39] were adopted and their objectives, 'that the exclusive or special rights referred to must generally be taken to be rights which are granted by the authorities of a Member State to an undertaking or a limited number of undertakings otherwise than according to objective, proportional and non-discriminatory criteria, and which substantially affect the ability of other undertakings to provide or operate telecommunications networks or to provide telecommunications services in the same geographical area under substantially equivalent conditions.' [35] The Queen v Secretary of State for Trade and Industry, ex parte British Telecommunications plc., Case C-302/94, [1996] ECR I-6417. [36] Commission Directive 94/46/EC of 13 October 1994 amending Directive 88/301/EEC and Directive 90/388/EEC in particular with regard to satellite communications, OJ L 268, 19.10.1994, p. 15. [37] Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services, OJ L 192, 24.7.1990, p. 10. [38] Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision, OJ L 192, 24.7.1990, p. 1. [39] Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased lines, OJ L 165, 19.6.1992, p. 27. The Court of Justice added that exclusive or special rights for the provision of a public telecommunications network and, where applicable, public telecommunications services within the meaning of Article 2 of Directive 90/387/EEC cannot be characterised by the possibility for the authorised telecommunications organisations to enjoy certain prerogatives, in particular the right to acquire land compulsorily, to enter land for exploratory purposes and to acquire land by agreement or to place network equipment in, over or under the public highway and to place apparatus on private land with the consent of the persons having an interest in that land, which consent can be dispensed with by the court, inasmuch as such rights, 'which are merely intended to facilitate the provision of networks by the operators concerned and are or may be conferred upon all those operators, do not give their holders any substantial advantage over their potential competitors.' It is true that the judgment interprets the concept of 'special or exclusive rights' only with regard to the telecommunications Directives concerned, and this interpretation cannot be applied to the definition of such rights in other Directives if their text clearly shows that the Community legislator explicitly intended to give this concept a different scope, or where the legislative context of the definition is different. This is precisely the case with Directive 93/38/EEC. In the first place, the provisions of the current Article 2(3)(a) and (b) show clearly that the definition covers situations which, for the purposes of the telecommunications Directives interpreted by the Court of Justice, do not amount to special or exclusive rights. Moreover, the general definition in Directive 93/38/EEC is accompanied by a set of specific definitions [40] intended to rectify certain situations for which the scope of the definition would otherwise lead to unsatisfactory results. [40] See, in particular, Article 2(5), Article 6i and, to some extent, Articles 2 (4), 7 and 8. 2.4.3. It is, however, detrimental to have one and the same concept defined in two such different ways in Community legislation on the internal market in the broad sense. It would thus seem appropriate to clarify the definition of special or exclusive rights in Directive 93/38/EEC. It is therefore proposed to amend the definition of exclusive and special rights by taking account of the definition given by the Court of Justice, in particular in the aforementioned Case C-302/94, examined in point III.2.4.2. This will have the effect that contracting entities falling under the scope of the current Directive exclusively because they are deemed to enjoy exclusive or special rights under Article 2(3)(a) or (b) [41] will no longer be subject to the Directive. [41] See point III.2.4.1 and the 11th recital to this proposal. 3. The introduction of electronic purchasing mechanisms 3.1. The emergence of the new Information and Communication Technologies (ICTs) offers promising opportunities as regards the efficiency, transparency and opening-up of public procurement. In its Communication on Public Procurement in the European Union of 11 March 1998, the Commission set itself a very ambitious target: 25% of all procurement transactions should take place using electronic means by the year 2003. Against this background, it called on all the players involved to develop such a system. This approach was endorsed by a large number of contributions and responses, particularly from the European Parliament and the Committee of the Regions. It also features amongst the conclusions of the Presidency of the Lisbon European Council of 23 and 24 March 2000, in which the Commission, the Council and the Member States are called upon 'to take the necessary steps to ensure that it is possible by 2003 for Community and government procurement to take place on-line' [42]. [42] See point 17, fourth indent, of the conclusions. Under current legislation on public procurement it is possible, under certain conditions, to use electronic means for the submission of tenders. However, there are procedures for which the use of electronic means has not been mentioned (i.e. transmission of notices) or is not authorised (i.e. accelerated procedure in the public sector Directives). As things stand, moreover, this possibility is left to Member States, which are able to authorise the use of means other than direct or postal delivery. The proposal is aimed at enabling each entity to decide in future to use electronic means to the exclusion of all others. 3.2. While some fear that businesses lagging behind in terms of electronic equipment could thus be precluded from public contracts which are awarded electronically, this situation is set to change rapidly. It would therefore not appear necessary to provide a transitional period during which the parallel use of traditional means would be compulsory, especially as business will benefit de facto from a transitional period by virtue of the time-limits for adoption and transposition put forward in this proposal. Permitting the use of electronic means in the area of public procurement requires inter alia that their use for communication and information exchange be put on an equal footing with other, more traditional means with the aim of encouraging greater recourse to electronic means in the future. 3.3. Finally, electronic contract award systems should yield a significant time saving in the course of a procedure. Electronic transmission will make it possible to reduce the time-limit of 12 days which is usually necessary at present for transmission to the Publication Office and publication in the Official Journal. It will thus be possible to shorten the maximum time-limit for publication from 12 to 5 days in the case of notices dispatched by electronic means in conformity with certain technical specifications for publication set out in a new Annex (Annex XIX). 3.4. The introduction of electronic means has also highlighted the difficulty which may result from laws prescribing the use of certain technical facilities, such as the TED database. Given the rapid development of the technologies used, this explicit reference in the legislation means that regular updating will be required. To lessen these difficulties involved in the adaptation of the legislation, this proposal no longer mentions specific means of publication in the operative provisions of the Directive. The provisions relating to more detailed technical specifications concerning publication are grouped together in a new Annex (Annex XIX). 3.5. In order to bring these provisions more quickly into line with technological developments, it is proposed to delegate to the Commission, assisted by the Committee provided for in Article 65, powers to amend this Annex so as to adapt it in step with technical progress. 4. Technical specifications 4.1. The current provisions on technical specifications [43] are designed to require (public) purchasers to define technical specifications by reference to an exhaustively listed set of instruments so as to avoid conferring any advantage on a given tenderer or preferring national production. These instruments are not only well known, transparent and publicly available but also represent, as far as possible, harmonisation of specifications at European or international level. The most important of these instruments is the standard - preferably European, international or, failing that, national. Other instruments which are more sector-specific (European Technical Approval for building products, as provided for in Directive 89/106/EEC) have also been retained as possible references. [43] The Supply (93/36/EEC), Works (93/37/EEC) and Services (92/50/EEC) Directives contain the same provisions regarding common technical rules. The utilities Directive (93/38/EEC) contains broadly equivalent provisions. Application of the provisions of the Directives has led in certain cases to a situation where standards have been treated as de facto requirements; as a result, these provisions can be construed as limiting the buyer's choice to only those products which comply with the standard. Such an interpretation does not fit with the notion of a 'reference' - according to which other solutions can be compared to the solution provided by the standard. In addition, it has also meant that technical solutions where a standard exists have been unduly preferred to the detriment of other solutions and of new technologies. The rapid technological obsolescence in certain sectors, coupled with the interpretation that standards are de facto requirements, is particularly harmful where, by the very nature of things, the adoption of a standard lags some way behind technological progress (as is the case in the information technology field). 4.2. Accordingly, there is a need to simplify these provisions so as to clarify the extent of the 'reference' obligation and limit referral to provisions specific to certain sectors, such as telecommunications and building, which add to the complexity of the current texts. These changes will also encourage effective competition through the participation of the greatest possible number of tenderers and in particular innovative businesses. The proposed changes apply to all purchases of goods, works and services under the so-called public sector Directives as well as purchases under the utilities Directives. This means that the texts of the Directives will be brought more into line with one another, adding to the simplification process. These amendments will enable contracting authorities and contracting entities to specify their requirements in terms of performance levels, while at the same time safeguarding what has been achieved in terms of European standardisation, as reference to the standards will still be an option. 5. Strengthening of provisions relating to award criteria 5.1. The current provisions of the Directive (Article 34(2)) concerning award criteria stipulate that these criteria must be listed in the notice used as a means of calling for competition or in the contract documents, 'where possible' in descending order of the importance attached to them by the contracting entity. As this provision is far from binding as regards the mention of a descending order of importance, it is necessary to clarify the scope of the obligation which flows from it. 5.2. What is more, the Commission has concluded from its investigations of complaints that, even though the awarding entities have to establish and set out a descending order of importance attached to the award criteria, they still enjoy a considerable margin of discretion when awarding contracts. In merely stating a descending order of importance, the contracting entity retains the possibility of attaching to the criteria, at the time of evaluation, a specific weighting, and hence a relative value, of which the tenderers are not aware. A possible consequence of this lack of transparency may be that some contracting entities attach an unexpected or unforeseeable importance to one or more criteria, even after the opening of the tenders, so as to favour one tenderer or another. Thus, if there are two criteria, the order of preference may equally result in 90% or 51% of the relative value being attached to the first criterion. Also, in the absence of a general rule making it compulsory to state the relative value of the criteria at the earliest possible stage in the course of the procedure, it is difficult to keep a check on the final choice of the awarding entity. Therefore, it has to be recognised that, at the crucial stage in the award of a contract, such an absence renders ineffective the rules governing the preceding stages of the award procedure. All these rules are aimed at the same objective of ensuring that the rights of the tenderers are respected, and in particular that the principles of equality of treatment and transparency are upheld. It is therefore appropriate to make it compulsory to state the relative weighting of each criteria at the earliest possible stage in the procedure, taking into account the particular characteristics of procedures linked to the various possible means of calling for competition. This weighting may take different forms (in particular, it may be expressed as a percentage or in terms of relative share compared with another criterion). Irrespective of the means employed to call for competition, it has to be ensured that the relative weighting is known to all tenderers when they draw up their tenders. 6. Simplification of thresholds 6.1. The Directive currently lays down numerous thresholds: a threshold of 5 million euro [44] for works contracts awarded by contracting entities operating in the sectors which are not covered by the GPA (the sectors gas and heat, extraction of oil and gas, extraction of solid fuels, transport by railway - other than urban railways - and the telecommunications sector). By contrast, the threshold for works contracts awarded by entities operating in the sectors covered by the GPA (water, electricity, urban transport, ports and airports) is currently set at the equivalent in euro of 5 million Special Drawing Rights (SDR) [45], which for the period 1 January 2000 to 31 December 2001 corresponds to EUR 5 358 153. [44] Expressed in ecus in the Directive, which predates the changeover to the euro. As a reminder, 1 ecu = 1 euro. [45] The SDR is a unit of measure defined in by the International Monetary Fund and used in the GPA. As regards supply contracts, the current situation is that the threshold stands at EUR 600 000 for entities operating in the telecommunications sector, EUR 400 000 for entities operating in the sectors not covered by the GPA, and the equivalent in euro of SDR 400 000 for the sectors covered by the GPA [46]. [46] SDR 400 000 corresponds to EUR 428 653 for the period 1 January 2000 to 31 December 2001. For service contracts, the current situation is even more complex. The threshold is EUR 600 000 for contracting entities operating in the telecommunications sector and EUR 400 000 for contracting entities operating in the sectors not covered by the GPA. In the case of service contracts awarded by contracting entities operating in the sectors covered by the GPA, the threshold stands at EUR 400 000 for service contracts listed in Annex XVI B and for research and development service contracts listed in category 8 of Annex XVI A and telecommunications service contracts listed in category 5 of Annex XVI A, whose CPV headings are equivalent to the CPC reference numbers 7524, 7525 and 7526. For the remaining services listed in Annex XVI A, the threshold is the equivalent in euro of SDR 400 000 [47] when these contracts are awarded by entities operating in the sectors covered by the GPA. [47] Corresponds to EUR 428 653 for the period 1 January 2000 to 31 December 2001. 6.2. It follows from the above that these thresholds are anything but straightforward to apply. A further element making the current provisions difficult to understand and apply is the fact that they refer to amounts expressed as 'the equivalent in euro to' SDR X and that these equivalent amounts are anything but 'round' sums. There is thus an urgent need to simplify these thresholds to a degree compatible with the Community's international obligations. 6.3. It is therefore proposed to simplify the thresholds, while also taking account of the proposal that entities operating in the telecommunications sector be completely excluded. Simplification operates at various levels. On the one hand, the thresholds will be the same for contracts which are not subject to the GPA as for those which are. On the other hand, all the thresholds are expressed directly in euro, and they are rounded down to the nearest one hundred thousand euro below the thresholds set by the GPA. This simplification makes it possible to arrive at two thresholds. -5 300 000 euro, applicable to works contracts irrespective of the sector in which the contracting entity operates, and -400 000 euro, applicable to supply and service contracts, as well as design contests, irrespective of the sector in which the contracting entity operates or of the service concerned. 6.4. For contracting entities operating in the sectors gas and heat, extraction of oil, gas and solid fuels, and transport by railways other than urban railways (i.e. in the sectors not covered by the GPA), the consequences of the proposal compared with the current situation will be -an increase in the threshold of EUR 300 000 in the case of works contracts. In the case of supply and service contracts as well as design contests awarded or organised by contracting entities operating in these same sectors, the thresholds remain unchanged. 6.5. As regards contracting entities operating in the water, electricity, urban transport and ports and airports sectors (the sectors covered by the GPA), the consequences will be: -a decrease in the threshold of 58 153 euro [48] in the case of works contracts awarded by these contracting entities; [48] On the basis of the exchange rate between the euro and SDR used to fix the thresholds for the period 1 January 2000 to 31 December 2001. -a decrease in the threshold of EUR 28 653 in the case of service contracts relating to the services cited in Annex XVI A, except for the research and development services listed in category 8 of Annex XVI A and the telecommunications service contracts listed in category 5 of Annex XVI A whose CPV headings are equivalent to the CPC reference numbers 7524, 7525 and 7526. The same consequences arise where these contracting entities organise design contests relating to these services; -As regards supplies, as well as service contracts relating to the services cited in Annex XVI B and to the research and development services listed in category 8 of Annex XVI A and the telecommunications services listed in category 5 of Annex XVI A, whose CPV headings are equivalent to the CPC reference numbers 7524, 7525 and 7526, the thresholds will remain unchanged. The same consequences arise where these contracting entities organise design contests relating to these services. 7. Common procurement vocabulary Use of the Common Procurement Vocabulary (CPV) was the subject of a Commission Recommendation in 1996 [49]. This nomenclature represents a further development of and an improvement to the CPA and NACE nomenclatures, in that it is better suited to the specific characteristics of the public procurement sector. Since 1996, the CPV has been used systematically in every notice published in the Supplement to the Official Journal of the European Communities pursuant to the Directives for identification of the subject matter of the contracts concerned, as well as for translation into the 11 official languages; it has also become an indispensable research criterion in the selection and identification of contract opportunities. The CPV underwent revision at the end of the 1998 in the light of operational practice and on the basis of comments received from users (contracting authorities and potential suppliers). In future it will be necessary to derive maximum benefit from the existence of a nomenclature that is specific to public contracts and to amend the provisions of the Directives concerning the use of the various nomenclatures (CPC, NACE and the Combined Nomenclature) by replacing them with the CPV. In the process, however, it will have to be ensured that the scope of the Directives (categories of services in Annexes XVI A and XVI B of Directive 93/38/EEC) is not affected. The use of the single CPV will make it easier to disseminate and access information, thus contributing towards greater transparency and a greater openness of public procurement in Europe. In parallel with this revision of the Directives, the CPV will be the subject of a proposal by the Council and the Parliament. The latter will then formally adopt it as the Community nomenclature applicable to public contracts and will organise its maintenance (arrangements for revision). [49] Commission Recommendation 96/527/EC of 30 July 1996 on the use of the Common Procurement Vocabulary (CPV) for describing the subject matter of public contracts (OJ L 222, 3.9.1996, p. 10). IV. Analysis Of The Recitals And The Articles Where the amendments made consist in renumbering or a renumbering of the Article to which reference is made, the provisions are regarded as remaining unchanged in terms of substance. The same applies to changes in wording which have no effect on the content and scope of a provision. Therefore, where the amendments made are of this type, it is pointed out that the provision is unchanged. As regards structure, this proposal also includes a table of contents providing an overview of the restructuring of the texts. 1. Article 1 - Definitions 1.1. Paragraphs 1 and 7 have been worded more specifically in order to clarify that one or more service providers, suppliers or contractors may be parties to one and the same contract or framework agreement. The intention is not to change the current situation, which enables one or more contracting entities to be party to a contract or framework agreement. These proposals correspond, moreover, to the current Article 1(4) and (5). 1.2. Paragraphs 3, 4 and 5 contain provisions making it possible to distinguish mixed contracts, i.e. comprising elements of supplies and works, supplies and services or services and works. The first subparagraph of paragraph 3 corresponds to the second subparagraph of the current Article 1(4), while the second subparagraph does not correspond to any part of the Directive. It does correspond, however, to Article 1(a) of Directive 93/36/EEC. Paragraph 4 is new. The first subparagraph, however, is merely a logical conclusion based on the same Article 1(a) of Directive 93/36/EEC. The second subparagraph reflects the 'residual' nature of the definition of service contracts in the Directive and takes into account the provision contained in the current Article 14(11) and (12). Paragraph 5 is new, but is based on the 12th recital of Directive 92/50/EEC and on the case-law of the Court of Justice, in particular the Court's judgment of 19 April 1994 on the 'Gestión Hotelera' case [50]. [50] Case C-331/92, [1994] ECR I-1329. Paragraph 6, first subparagraph, is based on the final part of the current Article 1(6), but has been extended to include contractors and suppliers in order to clarify that these concepts are to be interpreted in the same way. A new concept has been introduced, namely that of the economic operator. It does not introduce any substantive change but permits the textual simplification of several other provisions in this proposal by enabling a reference to 'economic operators' to be substituted for one to 'suppliers, contractors and service providers'. 1.3. The third subparagraph corresponds to the first part of the present Article 6 and is unchanged. 1.4. Paragraphs 8 and 9 are unchanged. 1.5. The new provision contained in paragraph 10 introduces a definition of 'electronic means'. The definition is an adaptation of the one from the Commission proposal concerning electronic commerce. In addition, the new paragraph 11 specifies that the term '(in) writing', which is used in various parts of the Directive, also covers electronic messages. The new paragraph 12 defines the CPV. 2. Article 2 - definition of entities covered 2.1. Paragraph 1, corresponding to Article 1i and (2) of the current Directive, and paragraph 2, corresponding to Article 2i, are unchanged. 2.2. Paragraph 3 is new. It contains the new definition of the concept of exclusive and special rights. The reasons for this amendment are set out under points III.2.4.1 to III.2.4.3. 3. Article 3 - Provisions relating to gas, heat and electricity. The Article is unchanged. Paragraph 1 corresponds to the current Article 2(2)(a)(iii), and paragraph 2 to Article 2(5)(b). Paragraph 3 corresponds to Article 2(2)(a)(ii), and paragraph 4 to Article 2(5)(a). 4. Article 4 - Provisions relating to water The Article remains unchanged. Paragraph 1 corresponds to Article 2(2)(a)(i); paragraph 2 to Article 6(2) and paragraph 3 of this proposal to the current Article 2(5)(a). See also point II.1.3. 5. Article 5 - Provisions relating to transport services 5.1. The first paragraph is unchanged and corresponds to Article 2(2)(c). 5.2. Paragraph 2 is new and is explained in point III.2.3.3. 6. Article 6 - Provisions relating to the exploration for or extraction of oil, gas, coal or other solid fuels, as well as ports and airports. This Article, which is unchanged, corresponds to the current Article 2(2)(b) . 7. Article 7 - Lists of contracting entities Apart from removal of the reference to the current Annex X concerning entities operating in the telecommunications sector (see point III.2.2), the provision is unchanged compared with the current Article 2(6). The non-exhaustive nature of the lists has been made clear. 8. Article 8 - Contracts regarding several activities 8.1. Article 8 deals with a case whereby one and the same contract is intended for the pursuit of several activities - for example, the purchase of several photocopiers for installation and use in a building accommodating the administrative offices of an entity engaged in the distribution of gas and electricity. If it is possible in such a case to split up the contract, i.e. to award a separate contract relating to photocopiers intended for the administration of gas distribution and another for the 'electricity' portion, then paragraph 1 has the effect of disapplying the Article, and the rules applicable to entities distributing gas and electricity, respectively, come into play for the contracts in question. 8.2. If the example is changed to the purchase by the same entity of a telephone switch system, and if it can be demonstrated that telephone communications are mostly related to the distribution of electricity rather than gas, then the contract will be subject to the rules applicable to entities distributing electricity. Let us now suppose that the conditions under which electricity distribution is carried out are such that this activity is excluded from the scope of the Directive under the new Article 29 (see point IV.29), whereas the distribution of gas remains subject to the Directive. Let us further suppose that it is objectively impossible to establish whether the switchborad is chiefly intended for use in the one activity or the other. In this case, the paragraph 2 has the effect that the contract will have to be awarded in accordance with the provisions of the Directive. This provision, and also paragraph 3, are based on an analogy with the Court's judgment of 5 December 1989 in the 'informatics' Case C-3/88, Commission v Italy [51]. [51] [1989] ECR I-4035. 8.3. The situation referred to in paragraph 3 could, for example, be that of a municipality which, apart from its 'normal' local government duties, itself manages, with its own personnel, the bus transport service on its territory. 9. Article 9 - Equality of treatment, prohibition of discrimination and transparency The prohibition of discrimination contained in the current Article 4(2) is unchanged. Compliance with the principles of equality of treatment and transparency has been added. In accordance with the established case-law of the Court of Justice, the general principle of equality of treatment, of which the prohibition of discrimination on grounds of nationality is no more than a specific expression, is one of the fundamental principles of Community law. Under this principle, analogous situations must not be treated in different ways unless the difference in treatment is justified by objective reasons. The fact that this provision is placed in Title I merely serves to make it explicit that this fundamental principle in legislation governing public procurement applies to both contracts and design contests. 10. Article 10 - Groups of economic operators The Article is unchanged compared with the current Article 33. 11. Article 11 - Conditions set out in Agreements concluded within the World Trade Organisation. The Article, which corresponds to Article 42a, is unchanged. 12. Article 12 - Confidentiality The provision is unchanged compared with Article 4(3) and (4). 13. Article 13 - Framework agreements The new Article, which corresponds to the current Article 5, is unchanged. 14. Article 14 - Scope As is explained under point II.1.2, 'introductory' Articles have been created for the sake of clarification, in this case in order to clarify the scope. The new Article does not alter the scope of legal obligations. 15. Article 15 - Amounts With the aim of simplifying the Directive, this Article sets out the new thresholds, which are explained under point III.6. It corresponds to the current Article 14i. 16. Article 16 - General rules for calculating the value of contracts and framework agreements 16.1. Paragraph 1 corresponds to the current Article 14(13). It has remained unchanged and its title makes it plain that it concerns a general principle applicable to all contracts, i.e. to works, supply and service contracts alike. 16.2. Paragraph 2, which corresponds to the current Article 14(9), is unchanged and is placed in this general Article because it applies equally to framework agreements concerning works, supplies or services. 16.3. With the aim of simplification and greater ease of application, the various rules governing the estimation of contract value have been grouped together in such a way that all the rules applicable specifically to works contracts are to be found in Article 17, those for supplies in Article 18 and services in Article 19. As stated in point IV.16.1, Article 15 also applies. 17. Article 17 - Calculating the value of works contracts Paragraph 1 corresponds to the current Article 14(11), paragraph 2 to the current provision of Article 14(12). Paragraph 3 corresponds to the first subparagraph of the current Article 14(10), while paragraph 4 corresponds to the second subparagraph of the same Article 14(10). Article 17 is unchanged. 18. Article 18 - Calculating the value of supply contracts Paragraph 1 corresponds to the current provisions of Article 14(10), first and second sentences of the second subparagraph and paragraph 2 to the current Article 14(6). The provisions of paragraph 3 correspond to the current provisions of Article 14(7), those of paragraph 4 to the current Article 14(4) and paragraph 5, finally, corresponds to the provisions of the current Article 14(8). These provisions are unchanged. 19. Article 19 - Calculating the value of service contracts Paragraph 1 corresponds to the current Article 14(2), The fact that reference is made only to the provisions of paragraphs 2 to 7 and not to the provisions of paragraphs 1 and 2 of Article 16 does not mean that existing law has been amended. An explicit reference to Article 16 only in the case of service contracts could give rise to the idea that the Article is not applicable for works or supply contracts, whereas, as stated in points IV.16.1 and 16.2, these are general provisions applicable to all types of contract and all framework agreements, whether relating to services, works or supplies. 19.2 Paragraph 2 corresponds to the current provisions of Article 14(10), first and second sentences of the second subparagraph, and paragraph 3 to the current Article 14(6). The provisions of paragraph 4 correspond to the current provisions of Article 14(7), while paragraph 5 corresponds to the current Article 14(8). The provisions in paragraph 6 correspond to those of the current Article 14(3), and paragraph 7, finally, corresponds to the current provisions of Article 14(5). Article 19 is unchanged. 20. Article 20 - Contracts awarded for purposes of resale or hire to third parties This Article, corresponding to the current Article 7, has remained unchanged. Its place in the new structure serves to clarify that it applies to all contracting entities, irrespective of their status and the activity carried out, and to all types of contract (for works, supplies or services). 21. Article 21 - Contracts awarded for purposes other than the pursuit of an activity covered or for the pursuit of such an activity in a third country This Article, corresponding to the current Article 6i and (3) has remained unchanged. Its place in the new structure serves to clarify that it applies to all contracting entities, irrespective of their status and the activity carried out, and to all types of contract (for works, supplies or services). 22. Article 22 - Contracts which are secret or require particular security measures This Article, corresponding to the current Article 10, has remained unchanged. Its place in the new structure serves to clarify that it applies to all contracting entities, irrespective of their status and the activity carried out, and to all types of contract (for works, supplies or services). 23. Article 23 - Contracts awarded pursuant to international rules In the provision set out in point (a), the reference to contracts awarded by entities operating in the telecommunications sector and to the Advisory Committee on Telecommunications Procurement has been deleted for the reasons explained in point III.2.2. The Article, which corresponds to the current Article 12, is otherwise unchanged. See also point IV.60. 24. Article 24 - Contracts relating to certain services excluded from the scope. Annex XVI A The provision set out in the current Article 1(4)(c)(ii), which excludes service contracts for voice telephony, telex, radiotelephony, paging and satellite telecommunications, has not been included. The effect of this change, coupled with the deletion of footnote 2 to Annex XVI A, is that contracting entities subject to Directive 93/38/EEC will henceforth apply the normal provisions on service contracts when purchasing, for example, (fixed) voice telephony services. Such services must therefore be acquired on the basis of competition, unless a procedure without competition is permitted in accordance with the exceptions listed exhaustively in Article 39(3) of this proposal. See also point II.2.2.4. The Article, which corresponds to the current Article 1(4)(c)(i) and (iii) to (vi), and the Annex are otherwise unchanged. 25. Article 25 - Service contracts awarded on the basis of an exclusive right The Article, which corresponds to the current Article 11, is unchanged. The reference in the current Article 11 to 'a contracting authority within the meaning of Article 1(b) of Council Directive 92/50/EEC...' has been changed, for greater ease of reading, into a reference to 'a public authority within the meaning of point (a) of Article 2(1)' of this proposal. This in no way changes the substance, as the definition of these two concepts is identical. 26. Article 26 - Service contracts awarded to an affiliated undertaking or to a contracting entity forming part of a joint venture. This Article has remained unchanged. Paragraphs 1 and 3 correspond to the current Article 13. The definition of an affiliated undertaking, which is contained in Article 1(3) of the current Directive, has been incorporated into this new Article for greater ease of reading, as this concept is meaningful only in the context of Article 26 of this proposal. The place of this exception in the new structure serves to clarify that it applies to all contracting entities, irrespective of their status and the activity carried out, but only to service contracts. 27. Article 27 - Contracts awarded by certain contracting entities for the purchase of water. 27.1. Paragraph 1, which corresponds to the current Article 9(1)(a) has been amended merely to specify that references to the Annexes are to be understood as references not to the entities named in those Annexes but to the activities referred to therein. Paragraph 2, corresponding to the current paragraph 2 of Article 9, is unchanged. The place of this provision in the new structure serves to clarify that it applies only to entities explicitly mentioned in the Article itself. 27.2. The new provision does not include the exemption contained in the present Article 9(1)(b), which currently leaves out of the scope of the Directive contracts for the purchase of energy (or fuels for the production of energy) when they are awarded by entities operating in the energy sector in the broad sense. As was mentioned in the seventeenth recital of Directive 93/38/EEC, this exemption was introduced to take account of the absence of liberalisation, in particular in the electricity sector. Since the energy market concerned has now been liberalised, this exemption is deleted. This change means that contracting entities operating in the energy production sector will have to abide by the provisions of the Directive (i.e. unless there is an exceptional situation, they will have to publish a notice of call for tenders) when they launch a contract for the supply of energy (or fuel for the production of energy) necessary for the production of energy. It must be stressed, however, that, if the 'product' to be supplied is quoted and purchased on a commodities market - a cash contract - the purchaser benefits from the derogation allowing such purchases without issuing a prior call for tenders. This change will also make it possible to avoid situations in which, in accordance with the new Article 25, it was established that there is sufficient free competition in a given sector to allow entities operating in that sector to be exempted from the rules of the Directive, while maintaining an exemption based on the absence of competition for the goods produced by those entities. 27.3. Paragraph 2, corresponding to the current paragraph 2 of Article 9, is unchanged. 28. Article 28 - Contracts subject to special arrangements Under certain conditions relating to the granting of licences to carry on the activity in question, the current Article 3 allows the Commission, at the request of the Member States, to decide that contracting entities operating in this sector shall be exempt from the obligations in the detailed rules of procedure in the Directive, but shall simply observe the principle of non-discrimination and fulfil certain obligations relating to competition for the award of the contracts and to statistics. For the reasons set out in point III.2.3.3, the new provision of Article 28 guarantees that contracting entities operating in the off-shore sectors [52] in the United Kingdom and the Netherlands can continue to benefit from the special arrangements granted by Decisions 93/676/EEC [53] and 97/367/EEC [54]. They must, therefore, continue to apply these special arrangements unless they are excluded from the scope of the Directive by a decision in accordance with the general mechanism proposed in Article 29 of this proposal, applicable to all the activities referred to. For further details on this general mechanism, see point IV.29. [52] More precisely, exploiting a geographical area for the purpose of exploring for or extracting oil or gas. [53] Commission Decision of 10 December 1993 establishing that the exploitation of geographical areas for the purpose of exploring for or extracting oil or gas does not constitute in the Netherlands an activity defined in Article 2(2)(b)(i) of Council Directive 90/531/EEC and that entities carrying on such an activity are not to be considered in the Netherlands as operating under special or exclusive rights within the meaning of Article 2(3)(b) of the Directive, OJ L 316, 17.12.1993, p. 41. [54] Commission Decision of 30 May 1997 establishing that the exploitation of geographical areas for the purpose of exploring for or extracting oil or gas does not constitute in the United Kingdom an activity defined in Article 2(2)(b)(i) of Council Directive 93/38/EEC and that entities carrying on such an activity are not to be considered in the United Kingdom as operating under special or exclusive rights within the meaning of Article 2(3)(b) of the Directive; OJ L 156, 13.6.1997, p. 55. 29. Article 29 - General mechanism for the exclusion of activities directly exposed to competition 29.1. It is proposed to limit the applicability of this new Article solely to contracting entities which are public undertakings within the meaning of Article 2(1)(b) and to private entities operating on the basis of exclusive or special rights. Public authorities within the meaning of Article 2(1)(a) would thus not be covered by this possibility of exclusion. This limitation is not unique either in the proposal [55] or in the current Directive, and its rationale is the fact that public authorities, by their very nature, may be led to act on the basis of considerations other than purely economic ones, even when they are acting in a market directly exposed to competition. [55] It is also to be found in Article 3(2) and (4) of this proposal (identical to the current Article 2(5)(b)) and in Article 4(3) (identical to the current Article 2(5)(a)). 29.2. The criterion for exempting contracts concluded for the exercise of liberalised activities is that, in the Member State in which the activity is exercised, it is "directly exposed to competitive forces in markets to which entry is unrestricted [56]". To assess whether these conditions are met, reference might be made to the findings of the Court of 26 March 1996 [57] in the 'BT' judgment - bearing in mind, however, the provisions of paragraphs 2 and 3. [56] Cf. the 13th recital to Directive 93/38/EEC. [57] The Queen v H. M. Treasury, ex parte British Telecommunications plc. Case C-92/93. [1996] ECR I-1631. 29.3. Paragraph 2 lays down that establishing whether an activity is directly exposed to competition must be based on objective criteria. The criteria mentioned in the provision [58] are not exhaustive and must take account of the specific characteristics of a given sector [59], since the specific criteria used to assess the competitive situation in, for instance, the airport sector are obviously rather different from those to be applied to, say, the distribution of heat. In particular, it should be noted that paragraph 2 lays down explicitly that potential competition may be taken into account. The fact that a given service or product is offered by only one entity in a given sector is not necessarily a sign that the activity is not exposed directly to competition. Such a situation may also be the result of a decision reached freely by potential competitors that it is not of commercial interest to be present on (part of) that particular market. [58] 'The characteristics of the goods or services concerned, the existence of alternative goods or services, prices and the actual or potential presence of more than one supplier of the goods or services in question.' [59] See also the 13th recital to this Directive. It should also be noted that the assessment of the conditions of entry to the activity in question may have a direct impact on the assessment of the competitive situation in the sector concerned. If, for instance, application of the legal conditions governing entry to a particular activity implies not only that entry is free, but also that this activity is carried on under conditions which promote effective competition, that must be taken into account for the assessment under paragraphs 2 and 3. 29.4. In the same way as the current Article 3(5) [60], paragraph 3 introduces the legal presumption that entry to a given market is free when the Member State in question has correctly implemented and applied the provisions of the Community legislation liberalising the sector concerned. The corresponding legislation is indicated in Annex X to this proposal [61]. To ensure that the Annex can be updated rapidly and easily, Article 67 lays down that this can be done by the 'advisory committee procedure' provided for by Article 65. See also points IV.65 and IV.67. [60] The current Article 3(5) introduces a legal presumption that the conditions of Article 3i for granting licences to operate are met if the Member State in question has implemented the provisions of Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons, OJ L 164, 30.6.1994, p. 3. [61] This new Annex replaces the current Annex X indicating the contracting entities in the telecommunications sector which, as set out in point II.2.2, is no longer required. It should be noted, however, that mere notification of the adoption of measures aimed at transposing the Community legislation liberalising the sector in question is not enough. It is also necessary to verify these measures and, in particular, whether the application of this Community legislation is correct. Moreover, it goes without saying that the exemption - even in cases where there is a legal presumption to the stated effect - can only be decided on after verification of the conditions set out in paragraph 2, i.e. the conditions relating to effective competition described in point IV.29.3. 29.5. Where free entry to a given market is not ensured by the Community legislation - because none has been adopted or because the Member State in question has not implemented or applied it - the Member State in question must show that entry to that market is free de jure and de facto, as explicitly laid down in paragraph 5. 29.6. In the same way as the current Article 3, and taking into account the numerous comments of the telecommunications sector, which has asked for a greater degree of legal certainty than that offered by the current system under Article 8(2), as interpreted by the Court of Justice in the aforementioned 'BT case' [62], it is proposed that an exemption under Article 29 be made by a formal Commission Decision reached by the 'advisory committee procedure' provided for by Article 65. The Member States must also play an active role in this context: not only can the procedure under Article 29 be initiated at the request of a Member State, but they must also inform the Commission of all the appropriate facts needed for assessing whether the conditions in paragraph 1 are met. In this context, the national regulatory agencies [63], set up to monitor developments in one or more sectors currently covered by the Directive, will be active in the process. It is proposed that, if such an authority or agency has pronounced on questions of relevance for the purposes of paragraphs 1 and 2 (i.e. relating to both entry to the market and direct exposure to competition), its opinion must be transmitted to the Commission. [62] See also point IV.29.2 and the 12th recital to this Directive. [63] Or 'independent authority that is competent in the activity concerned'. The term 'independent authority that is competent in the activity concerned' may, where appropriate, cover competition authorities. 29.7. Taking into account fears that the procedure for the possible granting of an exemption under the new Article 29 may take too long, it is proposed that a system be set up along the lines of the one known from the competition law sector in Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings [64] or, more recently, in Commission Regulation (EC) No 447/98 of 1 March 1998 on the notifications, time-limits and hearings provided for in Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings [65]. [64] OJ L 257, 21.9.1990 (amended), p. 13. [65] OJ L 61, 2.3.1998, p. 1. It is therefore proposed that the Commission be given a time-limit of six months to take its decision and that the exemption be deemed to be applicable if no decision has been taken within that period. This period shall commence on the working day following the date on which the Commission receives a complete request by the Member State concerned. Thus, paragraph 7 lays down that, in the event of information being incomplete or inexact in respect of an key point, the Commission shall inform the Member State concerned without delay and set a time-limit by which the information is to be completed. In this case, the period of six months commences only on the date on which the complete and exact information is received. Turning to paragraph 8, this lays down that if the facts as reported by the Member State undergo any substantive changes, these must be notified to the Commission without delay. If these substantive changes are liable to influence the Commission's assessment significantly, it may decide that the six-month period will commence only on the date on which it receives the (complete) information concerning these substantive changes. The Commission will inform the Member State concerned in writing without delay. 29.8. The time-limits contained in this Article - like all the time-limits set out in this Directive - are to be calculated in accordance with Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time-limits [66], which is the horizontal act that applies. See also the 37th recital of this proposal. [66] OJ L 124, 8.6.1971, p. 1 30. Article 30 - Service contracts listed in Annex XVI A This provision, which corresponds to the current Article 15, is unchanged. The elimination of the reference to works and supply contracts, aimed at specifying that these contracts are also subject to the 'full arrangements' of the Directive, is counterbalanced by the fact that the new structure [67] also clarifies that the provisions of Articles 30 to 32 apply only to service contracts. Thus, the substance does not change. [67] The fact that the provision is contained in a Chapter III, 'Arrangements applicable to service contracts', and the title of the Article is 'Service contracts listed in Annex XVI A'. 31. Article 31 - Service contracts listed in Annex XVI B This Article, corresponding to the current Article 16, is also unchanged. 32. Article 32 - Mixed service contracts listed in Annex XVI A and service contracts in Annex XVI B This provision has remained unchanged. It corresponds to the current provision of Article 17. 33. Article 33 - General provisions This is another 'introductory' Article (see point II.1.2.), which describes the rules governing certain items of information to be included in notices used as a means of calling for competition and/or in the specifications, as well as reflecting the provisions of Articles 34, 36, 37 and 38. The third paragraph of the Article provides that contracting entities may require specific conditions concerning performance of the contract [68]. These conditions must be compatible with the applicable Community law. The new Article thus does not change the current legal status and has been included for the sake of clarity and ease of reading. [68] See judgment of 20 September 1988 in Case 31/87 Beentje" [1988] ECR I- 4635. 34. Article 34 - Technical specifications 34.1. The substantive amendment proposed in this new Article is based on an approach where purchasing specifications will be able to be defined in terms of the expected performance of the product or service, when descriptive or conceptual technical requirements (describing the product's method of production) cannot meet the needs of the contracting entity, or when the standard prescribes the technical solution and excludes further concepts. It will thus allow the greatest possible number of candidates to take part [69]. [69] This is in line with the approach of the current Article 18(4), which, for additional specifications, obliges contracting entities to 'prefer specifications which indicate performance requirements rather than design or description characteristics...'. However, to prevent this approach encouraging the use of 'specifications' which are so vague as to leave broad scope for arbitrary decisions or make it impossible for tenderers to give an adequate response, the performance requirements will have to be sufficiently precise to ensure offers are comparable and to allow the contract to be awarded. The relevant provisions are set out in paragraph 3, second indent, of the new Article. The use of detailed requirements nevertheless remains a possibility for the contracting entities. The buyer can also define his requirements by reference to detailed specifications; however, he cannot simply have recourse to a restrictive list of specifications. In the same way as in the current text [70], the new provision lists detailed specifications that can serve as a reference point (European, international or national standards, etc.). Mention is also made of the possibility of referring to documents drawn up by European standardisation bodies (CEN workshop agreements) which, while not having the status of standards, make it easier to take account of technical progress.These do provide an appropriate level of transparency and ensure agreement as to how they are adopted. The relevant provision is set out in paragraph 3, first indent, of the proposal. [70] Current Article 18. Paragraph 4 has been included in order to take account of some particular characteristics of works contracts. It corresponds, mutatis mutandis, to Article 10(3)(b) of Directive 93/37/EEC, but with the important addition that these references to national technical specifications must be accompanied by the words 'or equivalent'. 34.2. To make it explicitly clear that other solutions are always possible, it is stated that reference to such specifications does not authorise the contracting entity to reject offers of products or services which do not comply with these detailed specifications, so long as the supplier or service provider can show that his solution is equivalent to the reference specifications. This can be shown by whatever appropriate means (the manufacturer's statement of conformity, or certification by a third party). The purpose of this last provision is to ensure that any non-standardised solution can also be taken into consideration; it should allow contracting entities the benefit of a broad choice. The burden of proof will be on the tenderer. The relevant provisions are set out in paragraph 5 of the new Article. 34.3. It must also be ensured that this new flexibility (that is to say, specifying in terms of performance) is not abused so as to close markets to competition and question the acquis communautaire regarding standardisation. Therefore, paragraph 6 also states that a contracting entity may not disregard a tender which complies with European or international standards on the grounds that the standard would not satisfy the required performance, except where the specification is inappropriate (incompatibility of the equipment, for example) or if the specification does not deal with the same requirement. This would be the case if the standard covers safety requirements, whilst the buyer's requirements are of an environmental nature. It is for the tenderer to show - for example by means of a technical dossier or a third party's test report - that the solution in compliance with the standard will reach the performance requirement. The relevant provisions are set out in paragraph 6 of the new Article. 34.4. Finally, the provision set out in Article 18(5) of the current Directive forbidding reference to brands or a specific origin has not been substantially amended; only the wording has been changed to reinforce its exceptional nature. The relevant provision is in paragraph 7. 34.5. The definitions contained in the current Article 1(9) to (13), which list and define the technical specifications, have been transferred to a new Annex XX. They have been adapted to take account of developments in the definition of the concepts in Community law following changes to Directive "98/34/EEC on technical standards and regulations [71]", without this entailing significant changes to the current text. Only the concept of a technical reference framework is new. [71] Directive 98/34/EC of 22 June 1998 - repealing and replacing Directive 83/189 - OJ L 204, 21.7.1998, p. 37. 35. Article 35 - Communication of technical specifications This provision, corresponding to the current Article 19, is unchanged. 36. Article 36 - Variants Apart from the addition of the words 'performance levels or' - necessary in order to ensure consistency with the new Article 34 relating to technical specifications - the first paragraph, corresponding to Article 34(3), is unchanged. The second paragraph, which makes the provisions described in point IV.34 concerning technical specifications applicable to variants, is new. It replaces the current Article 34(4) and guarantees tenderers offering variants greater protection against arbitrary rejection on the grounds of their technical choice. Paragraph 3 is also new. The first subparagraph corresponds to Article 16(2) of Directive 93/36/EEC, the second to the provisions of Article 24(2) of Directive 92/50/EEC. This provision was inserted ex toto and serves merely to clarify the legal situation. A practical example of a situation covered by these provisions might be that of a contracting entity which puts a new service contract up for tender in the field of computing because it feels it is necessary to develop a new software system (and hence to execute a service contract) to meet its needs, whereas a tenderer proposes, as a variant, to solve the problem by offering an existing software system (i.e. a product). In this case, the contracting entity cannot reject the variant on the sole ground that its acceptance would convert the contract into a supply contract. 37. Article 37 - Subcontracting Apart from the possibility to ask for information concerning designated sub-contractors, this Article, which corresponds to the provision in the current Article 27, has remained unchanged. 38. Article 38 - Obligations relating to employment protection provisions and working conditions This provision, which corresponds to the current Article 29, is unchanged. 39. Article 39 - Use of open, restricted and negotiated procedures Paragraph 1, which corresponds to the current Article 4i, is unchanged. This is also the case for paragraphs 2 and 3, which correspond to the current provisions of Article 20. 40. Article 40 - Periodic indicative notices and notices on the existence of a system of qualification Paragraph 1(b) has been changed to bring it into line with the new provisions concerning thresholds. Thus, the obligation to publish a periodic indicative notice applies to all works contracts as from the same threshold, i.e. where the estimated amount is equal to or greater than 5 300 000 euro. Paragraph 1, which corresponds to the current Article 22i, is otherwise unchanged. This is also the case for paragraphs 3 and 4, which correspond respectively to the provisions set out in the current Articles 22(4) and 30(9). Apart from the removal of the reference to publication in the OJEC in paragraph 2, which corresponds to the current Article 22(2), this provision is likewise unchanged. This Article combines the provisions applicable to periodic indicative notices and to notices on the existence of a system of qualification where the latter are not used as a means of calling for competition. The rules applicable to notices used as a means of calling for competition are collectively set out in Article 37. 41. Article 41 - Notices used as a means of calling for competition This Article combines the specific provisions applicable to notices used as a means of calling for competition. Apart from the reference to publication in accordance with the new Annex XIX in paragraph 2(c), the Article is unchanged. Paragraph 1 corresponds to the current Article 21i, paragraph 2(a) and (b) to the current provisions of Article 21(2)(a) and (b). The provisions set out in point (c) of paragraph 2, and its last subparagraph, correspond to the current Article 22(3). 42. Article 42 - Contract award notices This Article combines the provisions applicable to contract award notices. A reference to publication in accordance with the new Annex XIX has been included in paragraphs 2 and 5, while paragraphs 3 and 4, corresponding to the provisions of the current Article 24(3), have been clarified without any change in content (see also point II.1.4). The Article is otherwise unchanged compared with the current Article 24. 43. Article 43 - Form and manner of publication of notices This Article is based on the current provisions of Article 25. It has been amended, in particular, as regards the specifications according to which notices have to be sent. References to standardised model notices have also been included. For reasons explained above (see point III.3.1.4), the provisions containing more detailed technical specifications on publication are combined in a new Annex XIX. (see also paragraph 1). The common rules on publishing are adapted accordingly, and in all the remaining relevant provisions in the Directive a reference to this new Annex is introduced. Article 43 also contains provisions which have been introduced in response to the widespread use of electronic means (2). These provisions stipulate that, in the case of electronic transmission, all notices - i.e. irrespective of type ("ad hoc", periodic or on the existence of a system of qualification) and regardless of any request from the entity - must be published within five days. In other cases, the current arrangements - publication time-limit of 12 days, or five days in certain cases - remain unchanged. The second sentence of paragraph 3 takes over the current Article 25i and is unchanged. Paragraph 4, corresponding to the current Article 25(4), is unchanged, whereas paragraph 5 is new, although it corresponds, mutatis mutandis, to the analogous provisions of the public sector Directives [72]. Paragraph 6 corresponds to the current Article 25i. [72] Articles 21, 13 and 17, respectively, of Directives 92/50/EEC, 93/36/EEC and 93/37/EEC. 44. Article 44 - Requests to participate and receipt of tenders 44.1. Paragraph 1 introduces the general principle applicable to all time-limits, i.e. they must be sufficiently long to enable interested parties to submit valid tenders, taking into account the various factors (complexity of the contract, etc.) mentioned in the provision. 44.2. Paragraph 2 has been simplified and is otherwise unchanged. It corresponds to the current Article 26i, first sentence. 44.3. Paragraph 3, which corresponds to the current Article 26(2), is unchanged. It has been clarified that the minimum time-limit (currently expressed as the period available to the Publications Office for the publication of notices, plus 10 days) is 15 days if the notice has been sent by electronic means or fax and 22 days if it has not been sent by such means. 44.4. Apart from the insertion of the reference to Annex XIX concerning technical specifications for publication, the provisions of paragraph 4 are unchanged. 44.5. The new provisions set out in paragraph 5 introduce the general rule that the time-limits for the receipt of requests to participate in restricted or negotiated procedures and for the receipt of tenders in open procedures may be shortened by seven days where notices are sent by electronic means in accordance with Annex XIX. It should be noted that the time-limits for the receipt of tenders in restricted and negotiated procedures cannot be shortened, as the advantage deriving from rapid publication in the case of electronic transmission has already been taken into account by allowing the shortening of the time-limit for the receipt of requests to participate. It should also be noted that a shortening of time-limits pursuant to this paragraph may be aggregated with any shortening under paragraphs 4 and 6. However, given that the cumulative effect of these possible reductions could, in certain cases, lead to excessively short deadlines, provisions have been introduced with the aim of ensuring that - in all cases - deadlines are not shortened beyond certain absolute limits. (see the comments in paragraphs 7 and 8 of this Article). It has to be emphasised, finally, that the possibility of shortening the time-limit for the receipt of tenders in open procedures by seven days, as provided for in this paragraph, may be used even if the contract documents are not made available on the Internet and no periodic indicative notice has been published under the conditions provided for in paragraph 4. 44.6. The new paragraph 6 introduces the general principle that the time-limits for the receipt of tenders (and thus not the time-limits for the receipt of requests to participate) may be shortened by five days in all types of procedures where the contracting entities offer direct access to the specifications (and to other contract documents) free of charge via the Internet. It has to be ensured, however, that this access is offered as from the date of dispatch of the notice used as a means of calling for competition, so that tenderers can derive an advantage from such access justifying a shortening of the time-limits. It should be noted that the possibility of shortening the time-limits under the conditions described here obtains independently of the existence of another possibility to shorten the deadlines for one and the same contract. In other words, it is perfectly possible to shorten the time-limit for the receipt of tenders by five days in an open procedure in which the notice has not been sent by electronic means and for which no periodic indicative notice has been published under the conditions provided for in paragraph 4. It should also be noted that a shortening of time-limits pursuant to this paragraph may be aggregated with any reductions under paragraphs 4 and 5. However, given that the cumulative effect of these possible reductions could, in certain cases, lead to excessively short deadlines, provisions have been introduced with the aim of ensuring that - in all cases - deadlines are not shortened beyond certain absolute limits. (See the comments in paragraphs 7 and 8 of this Article). This possibility of shortening the time-limits for the receipt of tenders clearly does not apply in a case where the time-limit has been set by mutual agreement between the contracting entity and the candidates selected in accordance with the provisions set out in paragraph 3(b) of this Article. 44.7. As mentioned in points IV.44.5 and IV.44.6, the cumulative effect of the various possibilities for shortening the deadlines, as provided for in paragraphs 4, 5 and 6, may in certain cases lead to excessively short deadlines. For open procedures, to which paragraph 7 is applicable, the 'absolute' minimum time-limit for the receipt of tenders is considered to be 10 (calendar) days from the date on which the contract notice was published. This time-limit corresponds - mutatis mutandis - to the shortest minimum time-limit laid down for the receipt of tenders in accelerated restricted procedures. The first subparagraph thus stipulates that the time-limit for the receipt of tenders in open procedures cannot be reduced to less than 15 days from the date of dispatch of the contract notice. In cases where the notice is sent by electronic means or - in the exceptional cases referred to in Article 43(2), third subparagraph [73] - by fax, this provision is sufficient in itself to guarantee that tenderers actually benefit from a period of 10 days as from publication of the notice, since in such cases this is published within five days. [73] i.e. when contracting entities send an 'ad hoc' notice referred to in Article 41(1)(c) by fax and request publication within five days. The situation is different where the notice is not transmitted by electronic means [74]. In these cases, publication takes place only after a period lasting up to 12 days. The second subparagraph thus stipulates that, in these cases, the time-limit may never be less than 22 days from the date on which the notice was sent, which leaves in fact a minimum period of 10 days after publication, even if publication requires the entire time-limit of 12 days. Were it not for the second subparagraph, a time-limit of five days from the date of publication of the notice could be arrived at [75]. [74] Or by fax in the cases described in footnote 71. [75] The precise case is that of an open procedure in connection with which a periodic notice has been published, where the contract documents have been made available on the Internet, while the notice has been sent for publication by means other than electronic ones. 44.8. In a restricted or negotiated procedure, a periodic indicative notice may be used as a means of calling for competition. In such a case, pursuant to Article 46(3), the contracting entities invite all candidates to confirm their interest, and the time-limit for the receipt of requests to participate thus starts from the date on which this letter of invitation is sent. Shortening the time-limits for the receipt of requests to participate is, therefore, not justified in these cases, even where the notice has been sent by electronic means. The effect of the 'safety-rail' clause in the first subparagraph of paragraph 8 is to guarantee that, in these cases, interested parties will have a minimum limit for the receipt of their requests to participate [76] which will remain set at 15 days. Without this clause, they could 'benefit' from a time-limit of just three (calendar) days if the periodic indicative notice, to which they have already responded, had been sent by electronic means. [76] Or, rather, for the receipt of their confirmation that they still wish to participate. 44.9. In pursuit of the same aim of safeguarding minimum 'irreducible' time-limits, the first subparagraph also ensures that the time-limit for the receipt of requests to participate in a restricted or negotiated procedure in response to an 'ad hoc' contract notice [77] will never be less than 15 days from the date on which the notice was sent (which guarantees that the time-limit is not less than 10 days from publication, since publication takes place within five days in such cases). Without this clause, the time-limit would be reduced to three (calendar) days from publication of the notice. [77] As provided for in Article 41(1)(c) of this proposal. 44.10. The second subparagraph addresses the time-limit for the receipt of tenders in restricted or negotiated procedures. It guarantees that this time-limit cannot be less than 10 days, which corresponds to the minimum time-limit in the accelerated restricted procedures of the public sector Directives. Without this clause, the minimum time-limit for the receipt of tenders could be reduced to five (calendar) days. This provision does not apply in a case where the time-limit has been set by mutual agreement between the contracting entity and the candidates selected in accordance with the provisions set out in paragraph 3(b) of this Article. (see also point IV.44.6). 44.11. Paragraph 9 is based on the current Article 28(3), with the addition that late transmission of the contract documents, supporting documents or additional information attributable to the contracting entity will make an appropriate extension of the time-limits compulsory. 44.12. To make the provisions of this Article (which is hard to read) easier to understand, a summary Annex (XXI) has been attached to the Directive for information. 45. Article 45 - Contract documents and additional information This Article groups together the provisions concerning the time-limits relating to the contract documents and additional information. Paragraph 1, which corresponds to the current Article 28i, has been amended in two respects: the reference to documents made available by electronic means has been added, and the words 'as a general rule' have been deleted. This is because it would be inappropriate for the obligation to send additional information within a time-limit of six days to be unconditional, provided that the request was made in good time, when the obligation to send the contract documents themselves within six days would apply only 'as a general rule', provided that requests were made in good time Paragraph 2 is unchanged compared with the current provision set out in Article 28(2). 46. Article 46 - Means of transmission of requests to participate and rules governing invitations to tender The Article is broadly unchanged compared with the provisions set out in the current Article 28. Three aspects have been amended, however. First, a reference to the new Annex XIX has been included, see point IV.43. The second aspect is that there is no longer any reference either to means of communication which are no longer in common use (telex and telegram) or to the telephone. This is because this means of transmission does not offer the same guarantees as the other modes of transmission. The third aspect to be changed relates to paragraph 2(e) and the inclusion of the new point (ix) in paragraph 3. These changes concerning the information to be provided in the invitation to tender and in the invitation to confirm interest, respectively, are the direct consequence of the new provisions of Article 54(2) and (5) aimed at enhancing transparency in relation to the award criteria. See also point IV.54.2. 47. Article 47 - Means of communication This is a new provision putting electronic means on an equal footing with other means of communication. In part, it has been modelled on the current Article 28(6). Moreover, obsolete technologies - such as the telex - are no longer mentioned (paragraph 1). Paragraph 2 provides the requisite guarantees concerning the integrity and confidentiality of tenders, including in the event of electronic means being used. Paragraph 3 takes account of the fact that, in the case of tenders being transmitted by electronic means, some documents, certificates and declarations that may be required for the selection of candidates cannot be transmitted by the same means. Provision is therefore made for their being transmitted by other means at the latest on the day before the tenders are opened. Paragraph 4, finally, contains a key provision for guaranteeing that electronic means are not used for the purpose of reserving contracts: it stipulates that, whatever means is chosen, it must not have the objective or effect of hindering the smooth running of the internal market. 48. Article 48 - Information to applicants for qualification, candidates and tenderers 48.1. This Article groups together the provisions of the current Directive relating to the information which contracting entities must provide to applicants for qualification, candidates and tenderers concerning the outcome of their (applications for) qualification, their requests to participate and their tenders. 48.2. As explained in point II.2.1, the obligations laid down in paragraphs 1 and 2 have been extended to cover all contracting entities, irrespective of the sector in which they operate. The change to the current situation in which these obligations apply only to contracting entities operating in the sectors covered by the GPA (water, electricity, urban transport, ports and airports) is proposed in order to take account of recent case-law [78] and to ensure that the appeal procedures provided for in Directive 92/13/EEC are not rendered ineffective by a lack of transparency on the part of contracting entities. These two provisions are otherwise unchanged compared with the current Article 41(3) and (4). [78] In particular, the judgment of the Court of First Instance dated 17 December 1998 in Case T-203/96, Embassy Limousines & Services v the European Parliament, [1998] ECR I-4239. 48.3. The provisions set out in paragraphs 3, 4 and 5, which correspond, respectively, to the current provisions of Article 30(4), (6) and (8), are unchanged. 49. Article 49 - Information to be stored concerning contracts awarded Apart from the removal of the current paragraph 1(b), which has become void following the amendments to the provisions relating to technical specifications, this Article, which incorporates the provisions of the current Article 41, is unchanged. 50. Article 50 - Conduct of the procedure This is another 'introductory' provision (see point II.1.2), which describes the course of the award procedures. It does not include any change to the existing rules and has been introduced merely for the sake of clarity and ease of reading. With the same aim in mind, the Article has been divided up into two parts, one for cases where the means of calling for competition is a notice on the existence of a system of qualification and one for other cases. 51. Article 51 - Mutual recognition as regards administrative, technical and financial conditions, and certificates, tests and justifications 51.1. Paragraph 1, corresponding to the present Article 30(5), has been extended beyond the case of qualification systems to embrace the selection of participants in a restricted and negotiated procedure, since it expresses general principles - mutual recognition and equality of treatment - whose application cannot be limited only to cases in which the contracting entities operate a qualification system. The provision is unchanged in substance. 51.2. Following the same logic, and given that quality assurance systems are equally suited to service, works and supply contracts, the obligation under paragraph 2 to refer to the European quality assurance or certification standards (the standards in the series EN 29000 and EN 45000), and to recognise other evidence, has been extended to apply also when such requirements are made of contractors or suppliers. Otherwise, the provision is unchanged compared to the present Article 32. 52. Article 52 - Qualification systems The Article groups together the provisions relating specifically to qualification systems [79], whether used as a means of calling for competition or not. The provisions set out in paragraphs 1, 3 and 4, which correspond, respectively, to the current provisions of Article 30i, (3) and (7), are unchanged. This is also the case for paragraph 5, which incorporates the current Article 21(3). Paragraph 2, which corresponds to the current Article 30(2) has been amended by the inclusion of the reference to the provisions of Article 34 relating to technical specifications, with the current obligation to refer to European standards being replaced. The provision is otherwise unchanged. [79] Certain other provisions, such as Article 51 of this proposal, must also be taken into account for the operation of a qualification system In particular, paragraph 1 has not been incorporated in Article 52 of the proposal precisely because the proposal makes it a provision that is equally applicable in restricted and negotiated procedures for which the means of calling for competition is not a notice on the existence of a system of competition. 53. Article 53 - Criteria for qualitative selection 53.1. The present Directive contains no explicit provision concerning selection criteria, i.e. concerning the economic, financial and technical capacity, as well as possibly the good repute, of economic operators who participate in an open procedure. A new provision has therefore been included in paragraph 1 in order to make it explicitly clear, on the one hand, that contracting entities can also establish such criteria in open procedures and, on the other, that these criteria must be established in accordance with the rules and objective criteria made available to the interested parties. It has been added by means of paragraph 4, which applies equally to restricted and negotiated procedures, that the selection criteria may include the exclusion criteria provided for in the proposed new public sector Directive. Paragraph 1 is closely modelled on the current provision of Article 31i (corresponding to paragraph 2 of this Article in the present proposal). It should be noted that, in open procedures, contracting entities do not have the possibility, provided for in paragraph 3 in relation to restricted and negotiated procedures, of including criteria based on the need to limit the number of participants This means that, in open procedures, contracting entities cannot reject any tender drawn up by a tenderer who meets the selection criteria established by the contracting entity in conformity with paragraph 1, whatever the number of tenderers thereby admitted. 53.2. Paragraphs 2 and 3, which correspond to the provisions of the current Article 31i and (3), are unchanged. Apart from the extension of applicability to include open procedures, as described in point IV.53.1, this is also the case for paragraph 4, which corresponds to the current Article 31(2). 54. Article 54 - Contract award criteria Paragraph 1 is unchanged and corresponds to the provisions of the current Article 34i. 54.1. Nonetheless, it has been made clear that the criteria used for identifying the tender most favourable, in economic terms, to contracting entities may include environmental factors, on condition that the criteria are directly related to the subject-matter of the contract. 54.2. A new paragraph 2 has been included. It lays down the obligation for contracting entities to specify at the earliest possible stage in the course of the procedure - also taking account of the various possible means of calling for competition - the relative weighting given to each of the award criteria chosen to determine the most economically advantageous tender. This weighting could be expressed as a percentage, but could in no case be limited to the indication of a simple descending order of importance attaching to these criteria. 54.3. Where the means of calling for competition is a contract notice (an 'ad hoc' notice for the contract in question), the relative weighting given to each of the criteria chosen to determine the most economically advantageous tender must, as a general rule, be stated in the notice or in the contract documents in the case of open procedures and in the notice in the case of restricted and negotiated procedures. However, in restricted or negotiated procedures, contracting entities may, in certain exceptional cases, namely where the nature of the contract does not allow the relative weighting of each criterion to be established from the start of the procedure, specify this relative weighting only in the contract documents or in the invitation to tender, i.e. at all events before the tenders are drawn up and submitted. The new paragraph 4 relates exclusively to situations where the means of calling for competition is a notice on the existence of a system of qualification, i.e. in the case of restricted and negotiated procedures. It is possible in such cases that the contracting entities do not know, on the date of sending the notice, the relative weighting of the criteria which will be used to determine the most economically advantageous tender when awarding specific contracts for which the notice is used as the means of calling for competition. It is therefore stipulated that, if contracting entities do not know the relative weighting as from the start of the procedure, they must specify it at a later stage, i.e. in the contract documents or in the invitation to tender. At all events, tenderers will thus have a guarantee that they will know this weighting before drawing up their tenders. 54.5. Paragraph 5 in turn relates exclusively to situations where the means of calling for competition is a periodic indicative notice, i.e. in the case of restricted and negotiated procedures. It is possible in such cases that the contracting entities do not know, on the date of sending the notice, the relative weighting of the criteria which will be used to determine the most economically advantageous tender when awarding specific contracts for which the notice is used as the means of calling for competition. It is even conceivable that contracting entities will not know this weighting when they invite candidates to confirm their interest in accordance with Article 46(3). It is therefore stipulated that the relative weighting must be stated in the notice if it is known at the time, otherwise in the invitation to confirm interest, or at all events not later than in the contract documents or in the invitation to tender. In this case, it is likewise guaranteed that tenderers will at all events know this weighting before they draw up their tenders. 54.6. The current Article 35, relating to the possibility of using award criteria other than those referred to in Article 34, has been deleted for the following reasons: 54.6.1. The provisions set out in the current Article 35(2) have not been taken over, as this paragraph is of historic interest only - its applicability having expired on 31 December 1992. 54.6.2. As regards the current paragraph 1, its deletion is justified by a whole set of factors. It should be noted firstly that the explanatory memorandum relating to the proposal [80] for what became Directive 93/36/EEC stated, in relation to the corresponding provision of Directive 88/295/EEC [81] that 'Reports from the Member States show that there are no schemes eligible to benefit from the provision of the old Article 25(4)' [82]. This provision was thus deleted from Directive 93/36/EEC. What is more, the explanatory memorandum relating to the amended proposal [83] for what became Directive 92/50/EEC stated that the proposal (like the Directive as adopted) no longer contained any provisions corresponding to that of Article 35 of Directive 93/38/EEC. It was added that this deletion was "in line with recent decisions of the European Court of Justice [84] and the Commission's views regarding the compatibility of preference systems with [Article 28 [85]] of the Treaty". This provision thus also no longer features in Directive 92/50/EEC. However, the current provisions of Article 35i were introduced into Community law by Directive 90/531/EEC [86], i.e. shortly after the judgment of the Court cited above and before the Commission had received confirmation that there were no longer any schemes eligible to benefit from this exception. It was thus not possible to draw any conclusions for that Directive. It is now appropriate [87], therefore, to draw the conclusions from these factors so as to delete this provision and bring the provisions of all the Directives into line [88]. [80] COM(92) 346 final of 7 September 1992. [81] Council Directive 88/295/EEC of 22 March 1988 amending Directive 77/62/EEC relating to the coordination of procedures on the award of public supply contracts and repealing certain provisions of Directive 80/767/EEC, OJ L 127, 20.5.1988, p. 1. [82] Corresponding to Article 35i of the current Directive. [83] COM(91) 322 final of 30 August 1991. [84] Judgment of the Court dated 20 March 1990, Du Pont de Nemours Italiana S.p.A. v Unità Sanitaria Locale No. 2 di Carrara Case C-21/88, [1990] ECR I-0889. [85] Ex Article 30. [86] Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, OJ L 297, 29.10.1990, p. 1. [87] Given that the substance of the acquis communautaire was not called into question during the adoption of either Directive 93/38/EEC or Directive 98/4/EC. [88] Similarly, the proposal for a Directive relating to works, supplies and services has deleted the corresponding Article of Directive 93/37/EEC. 55. Article 55 - Abnormally low tenders This Article, which corresponds to the provisions of the current Article 34(5), is largely unchanged. The second and third paragraphs have been modified, notably to reinforce the rights of tenderers. 56. Article 56 - Tenders comprising products originating in third countries These provisions, which correspond to the current Article 36, are unchanged. However, the structure has been simplified by merging the current Article 36(3) and (4) into a single paragraph (paragraph 3). 57. Article 57 - Relations with third countries as regards service contracts This Article incorporates the provisions of the current Article 37 and is unchanged. The drafting of paragraph 4 has been clarified. 58. Article 58 - General provisions Paragraph 1, which corresponds to the current Article 23(3), is unchanged. The same is true of paragraph 2, which repeats the provisions of the current Article 23(4). 59. Article 59 - Thresholds In line with the proposed changes to the thresholds applicable to service contracts [89], and in order to maintain system coherence, this Article, which corresponds to the current Article 23i and (2), has been amended such that the threshold for applicability of the Directive to design contests stands at 400 000 euro. For further details, see point III.6. [89] See also point IV.15 above. 60. Article 60 - Excluded design contests 60.1. Paragraphs 1 and 2, which - in respect of design contests only - correspond to the provisions of the current Article 6i and (2), are unchanged. See also under point IV.21 concerning the corresponding provision for contracts. 60.2. The text of current Article 12i [90] is ambiguous, as it provides that the Directive shall not apply to 'contracts' - a concept which does not cover design contests - but nevertheless explicitly states that the international agreements in question may relate to '...design contests intended for the... implementation...' It has thus been clarified that this exclusion may also apply to design contests. [90] 'This Directive shall not apply to contracts governed by different procedural rules and awarded: ... pursuant to an international agreement concluded in conformity with the Treaty between a Member State and one or more third countries and covering supplies, works, services or design contests intended for the joint implementation or exploitation of a project by the signatory States...'. Compared with the current Article 12, point 1, paragraph 3 has also been changed by the deletion of the reference to the Advisory Committee on Telecommunications Procurement, which is no longer necessary for the reasons stated in point II.2.2. 60.3. At the same time, it appeared that the reasons justifying the exclusion from the Directive's scope of contracts, where they are governed by different procedural rules under an agreement relating to the stationing of troops or under the specific procedure of an international organisation, were also valid in the case of design contests organised under such circumstances. Applicable by analogy to design contests, these proposals correspond to those of the current Article 12(2) and (3). 60.4. Finally, the new paragraph 4 stipulates that the Directive shall not apply to design contracts organised for the pursuit of an activity which has been exempted by a decision under Article 29, i.e. if the activity is fully exposed to competition on markets to which access is free. It is further stated that the Directive shall also be inapplicable in cases where the Commission has not taken a decision under Article 29 within the time-limit of six months set for this purpose. For further details, see point IV.29. 61. Article 61 - Rules on publication and transparency 61.1. This Article corresponds, mutatis mutandis, to Article 43 of this proposal. 61.2. Paragraph 1 incorporates the provisions of the current Articles 21(4) and, concerning the authentic language version, Article 25(2). 61.3. Paragraph 2, which corresponds to the provisions of the current Article 24i, has remained unchanged, except in that it has now been specified that the two-month time-limit for sending the notice runs as from the closure of the design contest. Apart from the removal of the reference to publication in the Official Journal, this is also the case for paragraph 3, which corresponds to the current Article 24(2). 62. Article 62 - Means of communication This Article corresponds, mutatis mutandis, to Article 47 of this proposal. 63. Article 63 - Rules governing the organisation of design contests, selection of participants and the composition and decision of the jury This Article is unchanged. Paragraph 1 corresponds to the current Article 4i, while paragraphs 2 and 3 incorporate the provisions of the current Article 23(5) and (6). 64. Article 64 - Statistical obligations For the reasons explained in point II.2.2, paragraph 1 has been changed by the deletion of the reference to Annex X of the current Directive (list of contracting entities operating in the telecommunications sector). The provision is otherwise unchanged compared with the current provisions set out in Article 42i. Paragraphs 2 and 3 have also been taken over without change from the current paragraphs 1a and 2 of the same Article 42. 65. Article 65 - Advisory Committee Apart from the deletion of the reference to the current Annex X and to the Advisory Committee on Telecommunications Procurement, which - for the reasons set out in point II.2.2 - are no longer necessary, paragraph 1 has remained unchanged. It corresponds to the current Article 40(5)). Paragraph 2 takes account of the new rules on committee procedure. 66. Article 66 - Revision of thresholds The provisions of paragraphs 14 to 16 of the current Article 14 have been moved to this Article, on the grounds that they enable revision to be performed in accordance with the Advisory Committee procedure. The core of the revision machinery remains unchanged, although it is proposed that the Commission be allowed to round down the result of the calculation to the nearest ten thousand euro, if this is necessary for keeping 'round-figure' thresholds whilst ensuring compliance with international commitments. 67. Article 67 - Amendment 67.1. For reasons of simplification and ease of use, the provisions regarding possibilities for the amendment of some parts of the Directive with the aid of the Advisory Committee in accordance with the procedure set out in Article 65 have been combined in a single Article. 67.1.1. Apart from removal of the reference to the current Annex X, which is no longer necessary as entities operating in the telecommunications sector are no longer covered, the provision set out in paragraph 1(a) is unchanged compared with the current Article 40i. 67.1.2. Point (b), which corresponds to the first part of the current Article 40(2), is unchanged. 67.1.3. Point (c), corresponding to paragraph 3 of the current Article 40, has been amended only by the statement that the scope of the Directive is not affected. If there is any amendment to the nomenclature, therefore, it will of course have to be ensured that such amendment in no way affects the scope. 67.1.4. The provision contained in point (d), providing the possibility of changing the nomenclature used in Annex XI (i.e. the definition of the works covered), is new but corresponds to the provision set out in Article 35(2) of Directive 93/37/EEC, the only difference being that of Annex II which referred to the nomenclature (NACE), and not to the CPV nomenclature used in Annex XI of this proposal. The condition that the scope must not be amended in the event of the nomenclature being changed also applies here, of course. 67.1.5. Point (e) is new and provides scope for revising the new Annexes X and XIX - i.e. the list of Community liberalisation legislation, the technical specifications for publication - by the procedure described in Article 65. See point IV.65. 67.2. Paragraph 2 is unchanged and corresponds to the current Article 40(4). 68. Article 68 - Implementation of the Directive The paragraphs of this Article are standard wordings. 69. Article 69 - Repeals The paragraphs of this Article are standard wordings. The deadlines by which Member States must conform with Directive 93/38/EEC and its subsequent amendments are given in Annex XXII and the correlation table for the provisions of this proposal as compared with the current Directive in Annex XXIII.Annexes I to IX, XII to XV, XVII and XVIII. 70. Annexes I to IX, XII to XV, XVII and XVIII These Annexes (lists of contracting entities and model notices) are unchanged. 71. Annex XI This Annex concerns activities listed according to the CPV nomenclature, and no longer the NACE nomenclature. This does not alter the scope of the Directive. 72. Annexes X, XVI A and XVI B, XIX, XX, XI, XXII and XXIII For comments on these Annexes see, respectively, points IV.29, IV.24, III.3.4 and IV.43, IV.34.5, IV.44.12 and, for Annexes XXII and XXIII, point IV.69. Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL coordinating the procurement procedures of entities operating in the water, energy and transport sectors THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Articles 47(2), 55 and 95 thereof, Having regard to the proposal from the Commission [91], [91] OJ C Having regard to the opinion of the Economic and Social Committee [92], [92] OJ C Having regard to the opinion of the Committee of the Regions [93], [93] OJ C Acting in accordance with the procedure set out in Article 251 of the Treaty [94], [94] OJ C Whereas: i Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors [95] was last amended by Directive 98/4/EC of the European Parliament and of the Council [96]. On the occasion of new amendments, which are necessary to respond to requests for simplification and modernisation made by contracting authorities and economic operators alike in their responses to the Green Paper adopted by the Commission on 27 November, 1996 [97]. In the interests of clarity, the Directive should therefore be recast. [95] OJ L 199, 9.8.1993, p. 84. [96] OJ L 101, 1.4.1998, p. 1. [97] COM(96) 583 final. (2) The procedures for the award of contracts which are applied by entities operating in the water, energy and trasport sectors call for a coordination based on the requirements inferrable from Articles 14 [delete f.n.] 28 and 49 of the EC Treaty and from Article 97 of the Euratom Treaty, namely the principles of equality of treatment, of which the principle of non-discrimination is no more than a specific expression, mutual recognition, transparency and the opening-up of public procurement to competition. Whilst ensuring the application of those principles, this coordination should establish a framework for sound commercial practice and should allow a maximum of flexibility. (3) Community legislation, and in particular Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector [98] and Regulation (EEC) No 3976/87 of 14 December 1987 on the application of Article 85(3) of the Treaty to certain categories of agreements and concerted practices in the air transport sector [99] are designed to introduce more competition between entities offering air transport services to the public. It is therefore not appropriate to include such entities in the scope of this Directive. In view of the competitive position of Community shipping, it would also be inappropriate to make the contracts awarded in this sector subject to the rules of this Directive. [98] OJ L 374, 31.12.1987, p. 1; Regulation as last amended by Regulation (EEC) No 2410/92 (OJ L 240, 28.4.1992, p. 18). [99] OJ L 374, 31.12.1987, p. 9; Regulation as last amended by the Act of Accession of Austria, Finland and Sweden. (4) 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 [100], has been adopted to liberalise the telecommunications 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 [101] which may already be excluded from the scope of that Directive by virtue of Article 8 thereof. Further progress has been confirmed in the fifth report on the implementation of telecommunications regulation of 10 November 1999 [102]. It is therefore no longer necessary to regulate purchases by entities operating in this sector. [100] COM (1998) 594 final. [101] OJ L 156, 3.6.1999, p. 3. [102] COM(1999) 537 final. (5) It is therefore no longer appropriate to maintain the Advisory committee on telecommunications procurement, set up by Council Directive 90/531/EEC [103]. [103] OJ L 297, 29.10.1990, p. 1. (6) Nevertheless, it is appropriate to continue to monitor developments on the telecommunications market and that it should reconsider the situation if it is established that there is no longer effective competition in that sector. (7) Directive 93/38/EEC excludes from its scope purchases of voice telephony, telex, mobile telephone, paging and satellite services. Those exclusions were introduced to take account of the fact that the services in question could frequently be provided only by one service provider in a given geographical area because of the absence of effective competition and the existence of special or exclusive rights. The introduction of effective competition in the telecommunications sector removes the justification for these exclusions. It is therefore necessary to include the procurement of such telecommunications services in the scope of this Directive. (8) The need to ensure a real opening-up of the market and a fair balance in the application of procurement rules in the water, energy and transport sectors requires that the entities to be covered must be identified on a basis other than by reference to their legal status. It has to be ensured, therefore, that the equal treatment of contracting entities operating in the public sector and those operating in the private sector is not prejudiced. It is also necessary to ensure, in keeping with Article 295 of the Treaty, that the rules governing the system of property ownership in Member States are not prejudiced. (9) One major reason for the introduction of rules coordinating procedures for the award of contracts in these areas is the variety of ways in which national authorities can influence the behaviour of these entities, including participation in their capital and representation in the entities' administrative, managerial or supervisory bodies. (10) Another main reason why it is necessary to coordinate procurement procedures applied by the entities operating in these sectors is the closed nature of the markets in which they operate, due to the existence of special or exclusive rights granted by the national authorities concerning the supply to, provision or operation of networks for providing the service concerned. (11) There has to be an appropriate definition of the concept of special and exclusive rights. The consequence of the definition is that the fact that, for the purpose of constructing the networks or the port or airport facilities, an entity may take advantage of a procedure for the expropriation of property, or for its bearing a right of way, or may place network equipment on, under or over the public highway shall not in itself constitute exclusive or special rights within the meaning of this Directive. Nor does the fact that an entity supplies with drinking water, electricity, gas or heat a network which is itself operated by an entity enjoying special or exclusive rights granted by a competent authority of the Member State concerned constitute in itself an exclusive or special right within the meaning of this Directive. (12) This Directive should apply neither to contracts intended to permit the provision of a service referred to by Articles 3 to 6 of this Directive nor to design contests organised for the pursuit of such an activity if, in the Member State in which this activity is to be carried out, it is directly exposed to competition on markets to which access is not limited. It is therefore appropriate to introduce a mechanism, applicable to all sectors covered by this Directive, that will enable the effects of current or future liberalisation to be taken into account. Such a mechanism must provide legal certainty for the entities concerned, as well as an appropriate decision-making process, particularly as regards the timeframe available to the Commission for reaching its decision concerning the possible exemption of a specific sector. (13) Direct exposure to competition must be assessed on the basis of objective criteria, aking account of the specific characteristics of the sector concerned. The implementation and application of appropriate Community legislation liberalising a given sector, or a part of it, will be considered to provide sufficient grounds for assuming there is free access to the market in question. Such appropriate legislation should be identified in an annex which can be updated by the Commission. Where access to a given market is not liberalised by Community legislation, the Member States must demonstrate that, de jure and de facto, such access is free. (14) Where an activity is carried out by a public authority within the meaning of this Directive, the competitive pressure resulting from the fact that the activity in question is directly exposed to competition on markets to which access is not limited might not be sufficient to ensure that decisions taken under contract award procedures are based exclusively on economic considerations. It is therefore appropriate that contracts awarded by public authorities in such situations should continue to be governed by this Directive. The general mechanism for exemption should therefore not apply to activities carried out by public authorities. (15) To forestall the existence of a multitude of specific arrangements applicable to certain sectors only, the current special arrangements created by Article 3 of Directive 93/38/EEC and Article 12 of European Parliament and Council Directive 94/22/EC [104] governing entities exploiting a geographical area for the purpose of exploring for or extracting oil, gas, coal or other solid fuels should be replaced by the general mechanism allowing for exemption of sectors directly exposed to competition. It has to be ensured, however, that this will be without prejudice to Commission Decisions 93/676/EEC of 10 December 1993 establishing that the exploitation of geographical areas for the purpose of exploring for or extracting oil or gas does not constitute in the Netherlands an activity defined by Article 2(2)(b)(i) of Council Directive 90/531/EEC and that entities carrying on such an activity are not to be considered in the Netherlands as operating under special or exclusive rights within the meaning of Article 2(3)(b) of the Directive [105] and 97/367/EC of 30 May 1997 establishing that the exploitation of geographical areas for the purpose of exploring for or extracting oil or gas does not constitute in the United Kingdom an activity defined by Article 2(2)(b)(i) of Council Directive 93/38/EEC and that entities carrying on such an activity are not to be considered in the United Kingdom as operating under special or exclusive rights within the meaning of Article 2(3)(b) of the Directive [106]. [104] OJ L 164, 30.6.1994, p. 3. [105] OJ L 316, 17.12.1993, p. 41. [106] OJ L 156, 13.6.1997, p. 55. (16) Certain entities providing bus transport services to the public, already excluded from the scope of Directive 93/38/EEC, should also be excluded from the scope of this Directive. Furthermore, in order to forestall the existence of a multitude of specific arrangements applying to certain sectors only, the general mechanism must, if it is to take the effects of liberalisation into account, also apply to bus transport services if these services are provided by entities which, at the time of entry into force of this Directive, are still subject to Directive 93/38/EEC. (17) It is appropriate that the contracting entities apply common procurement procedures in respect of their activities relating to water and that these rules also apply where public authorities within the meaning of this Directive award contracts in respect of their projects in the field of hydraulic engineering, irrigation, land drainage or the disposal and treatment of sewage. However, procurement rules of the type proposed for supplies of goods are inappropriate for purchases of water, given the need to procure water from sources near the area in which it will be used. (18) Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the Agreements reached in the Uruguay Round multilateral negotiations (1986 to 1994) [107], approved in particular the Agreement on Government Procurement, referred to hereinafter as the 'Agreement', the aim of which is to establish a multilateral framework of balanced rights and obligations relating to public contracts with the aim of achieving the liberalisation and expansion of world trade. In view of the international rights and commitments devolving on the Community as a result of the acceptance of the Agreement, the arrangements to be applied to tenderers and products from signatory third countries are those defined by the Agreement. This Agreement does not have direct effect. The contracting authorities covered by the Agreement which comply with this Directive and which apply the same provisions as regards economic operators of third countries which are signatories to the Agreement must therefore be in conformity with the Agreement. It is also appropriate that this Directive should guarantee for Community economic operators conditions for participation in public procurement which are just as favourable as those reserved for economic operators of third countries which are signatories to the Agreement. [107] OJ L 336, 23.12.1994, p. 1. (19) Without prejudice to the international commitments of the Community, it is necessary to simplify the implementation of this Directive, particularly simplifying the thresholds and by rendering applicable to all contracting entities, regardless of the sector in which they operate, the provisions regarding the information to be given to participants concerning decisions taken in relation to contract award procedures and the results thereof. Furthermore, in view of Monetary Union, it is appropriate to set thresholds expressed in euro. Consequently, thresholds should be set, in euro, in such a way as to simplify the application of these provisions while at the same time ensuring compliance with the thresholds laid down in the Agreement, which are expressed in Special Drawing Rights. To this end, the thresholds expressed in euro should be periodically revised in order to adjust them, where necessary, in line with possible negative variations in the value of the euro in relation to the Special Drawing Right. In addition, the thresholds applicable to design contests should be identical to those applicable to service contracts. (20) This Directive should not apply to procurement contracts which are declared secret or may affect basic State security interests or are concluded according to other rules set up by existing international agreements or international organisations. Nor should this Directive apply to design contests governed by different procedural rules laid down by existing international agreements or by international organisations. (21) Obstacles to the free provision of services need to be avoided. Therefore, service providers may be either natural or legal persons. This Directive should not, however, prejudice the application, at national level, of rules concerning the conditions for the pursuit of an activity or a profession, provided that they are compatible with Community law. (22) This Directive should cover the provision of services only where based on contracts: provision of services on other bases, such as law or regulations, or employment contracts, is therefore not covered. (23) Pursuant to Article 163 of the Treaty, the encouragement of research and development is a means of strengthening the scientific and technological basis of European industry, and the opening-up of public procurement contributes to this end. This Directive should not cover the cofinancing of research and development programmes: research and development contracts other than those where the benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs, on condition that the service provided is wholly remunerated by the contracting authority, are not therefore covered by this Directive. (24) Contracts for the acquisition or rental of land, existing buildings or other immovable property have particular characteristics, which make the application of procurement rules inappropriate. (25) Arbitration and conciliation services are usually provided by bodies or individuals designated or selected in a manner which cannot be governed by procurement rules. (26) The service contracts referred to in this Directive should not include contracts for the issue, purchase, sale or transfer of securities or other financial instruments. (27) Service contracts having a single designated source of supply may, under certain conditions, be fully or partly exempted from this Directive. (28) It is appropriate to exclude certain service contracts awarded to an affiliated undertaking having as its principal activity, with respect to services, the provision of such services to the group of which it is part, rather than the offering of its services on the market. (29) Measures to remove obstacles to cross-frontier trade in electricity have been or are in the course of being introduced, and this is also the case in other parts of the energy sector. Procurement rules of the type applied to supplies of goods make it possible to overcome existing obstacles to the purchases of energy and fuels in the energy sector. As a result, it is no longer appropriate to exclude these purchases from the scope of this Directive. (30) The field of services is best described, for the purpose of application of the rules of this Directive and for monitoring purposes, by subdividing it into categories corresponding to particular headings of a common nomenclature and to group them in two Annexes, XVIA and XVIB, according to the regime which applies to them. For services covered by Annex XVIB, the applicable provisions of this Directive should not prejudice the application of Community rules specific to such services. (31) As regards service contracts, full application of this Directive must be limited, for a transitional period, to contracts where its provisions will permit the full potential for increased cross-frontier trade to be realised. Contracts for other services need to be monitored during this transitional period before a decision is taken on the full application of this Directive. In this respect, the mechanism for such monitoring needs to be defined. This mechanism must, at the same time, enable interested parties to have access to the relevant information. (32) A contract performance condition is compatible with the Directive provided that it does not directly or indirectly discriminate against tenderers from other Member States and provided that it is indicated in the contract notice. Such a condition may, among other things, have as its purpose the favouring of employment for excluded or disadvantaged persons or the reduction of unemployment. (33) Contracting entities may seek or accept advice which may be used in the preparation of specifications for a specific procurement, provided that such advice does not have the effect of precluding competition. (34) The technical specifications drawn up by public procurers must allow public procurement to be opened up to competition. To this end, it must be possible to submit bids which reflect the diversity of possible technical solutions. In order to do this, it has to be possible, on the one hand, to draw up technical specifications in terms of functional performance and requirements; on the other hand, where reference is made to a European standard - or, where no such standard exists, to a national standard - other, equivalent solutions must be accepted. To demonstrate equivalence, tenderers should be permitted to use any form of evidence. Reference to specifications specifying a particular origin must remain the exception. (35) Taking account of new information and telecommunications technologies and the simplifications they can bring about with regard to the advertising of contracts and in terms of the efficiency and transparency of award procedures, it is appropriate to put the use of electronic means on an equal footing with conventional means of communicating and exchanging information. Where at all possible, the means and the technology chosen must be compatible with the technologies used in the other Member States. (36) The use of electronic means leads to savings in time. As a result, provision should be made for reducing the minimum periods where electronic means are used, subject however to the condition that they are compatible with the specific mode of transmission envisaged at Community level. An additional reduction could be considered if the contracting entity simultaneously makes the entire specifications available on the Internet, thereby offering free and direct access to this information. However, it has to be ensured that the cumulative effect of reductions of time-limits does not lead to excessively short deadlines, which could jeopardise the objective of opening up public procurement in the internal market. (37) Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures [108] and Directive 2000/.../EC of ... [data] on certain legal aspects of information society services, in particular electronic commerce, in the internal market [109] will apply to electronic information transmission in the context of this Directive. [108] OJ L 13, 19.1.2000, p. 12. [109] OJ L (38) Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time-limits [110] will apply to the calculation of the time-limits contained in this Directive. [110] OJ L 124, 8.6.1971, p. 1. (39) It needs to be clarified that contracting entities which establish selection criteria must do so in accordance with objective rules and criteria, just as the selection criteria in restricted and negotiated procedures have to be objective. (40) The contract must also be awarded on the basis of objective criteria which ensure compliance with the principles of non-discrimination and equality of treatment and which guarantee that tenders are assessed in conditions of effective competition. As a result, it is appropriate to allow the application of two award criteria only: 'the lowest price' and 'the most economically advantageous tender'. (41) In order to ensure compliance with the principle of equality of treatment in awarding contracts, it is appropriate to ensure and reinforce the necessary transparency as regards the criteria chosen to identify the most economically advantageous tender. At the earliest possible stage in the contract award procedure, therefore, contracting entities should be obliged to indicate the relative weighting given to each of these criteria. The contracting entity should be allowed to confine itself to setting out a simple descending order of importance attaching to the criteria. (42) The award criteria should not affect the application of national provisions on the remuneration of certain services, such as, for example, the services performed by architects or lawyers. (43) The relevant Community rules on mutual recognition of diplomas, certificates or other evidence of formal qualifications apply when evidence of a particular qualification is required for participation in a procurement procedure or a design contest. (44) Certain technical conditions, and in particular those concerning notices and statistical reports, as well as the nomenclature used and the conditions of reference to that nomenclature will need to be adopted and amended in the light of changing technical requirements. It is, therefore, appropriate to put in place a flexible and rapid adoption procedure for this purpose. In accordance with Article 2 of Council Decision 1999/468/EC of 28 June, 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [111], the measures necessary for implementation of this Directive should be taken in accordance with the advisory procedure in Article 3 of the Decision. [111] OJ L 184, 17.1.1999, p. 23. (45) In order to favour the access of small and medium-sized undertakings to the public procurement market, it is advisable to include provisions on sub-contracting. (46) This Directive should be without prejudice to the existing international obligations of the Community or of the Member States and should not prejudice the application of the provisions of the Treaty, in particular Articles 81 and 86 thereof. (47) This Directive should not prejudice the time-limits set out in Annex XXII, within which Member States are required to comply with Directive 93/38/EEC
and its successive amending acts, HAVE ADOPTED THIS DIRECTIVE: Contents TITLE I: General provisions applicable to contracts and design contests Chapter I: Definitions Article 1
Definitions Chapter II: Scope: Definition of the activities and entities covered Section 1: Entities covered Article 2
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Contracting entities Section 2: Activities referred to
Article 3
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Provisions relating to gas, heat and electricity Article 4
Provisions relating to water Article 5
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Provisions relating to transport services Article 6
Provisions relating to the exploration for, or extraction of oil, gas, coal or other solid fuels, as well as ports and airports Article 7
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Lists of contracting entities Article 8
Contracts covering several activities Chapter III: General principles Article 9
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Equality of treatment, prohibition of discrimination; transparency TITLE II: Rules applicable to contracts
Chapter I: General provisions
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Article 10
Groupings of economic operators Article 11
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Conditions set out in Agreements concluded within the World Trade Organisation Article 12
Contracts Subsection 2: Methods of calculating the value of contracts and framework agreements Article 16
General rules Article 17
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Calculating the value of works contracts Article 18
Calculating the value of supply contracts Article 19
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Calculating the value of service contracts Section 2: Contracts which are excluded or are subject to special arrangements Subsection 1: Exclusions applicable to all contracting entities and to all types of contract Article 20
Contracts awarded for purposes of resale or lease to third parties Article 21
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Contracts awarded for purposes other than the pursuit of an activity covered or for the pursuit of such and activity in a third country Article 22
Contracts which are secret or require particular security measures Article 23
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Contracts awarded pursuant to internatuonal rules Subsection 2: Exclusions applicable to all contracting entities, but to service contracts only Article 24
Contracts relating to certain services excluded from the scope Article 25
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Service contracts awarded on the basis of an exclusive right Article 26
Service contracts awarded to an affiliated undertaking or to a contracting entity forming part of a joint venture Subsection 3: Exclusion applicable to certain contracting entities only Article 27
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Contracts awarded by certain contracting entities for the purchase of water Article 28
Contracts subject to special arrangements Article 29
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General mechanism for the exclusion of activities directly exposed to competition Chapter III: Arrangements applicable to service contracts Article 30
Service contracts listed in Annex XVI A Article 31
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Service contracts listed in Annex XVI B Article 32
Mixed service contracts listed in Annex XVI A and in Annex XVI B Chapter IV: Specific rules governing specifications and contract documents Article 33
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General provisions Article 34
Technical specifications Article 35
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Communication of technical specifications Article 36
Variants Article 37
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Subcontracting Article 38
Obligations relating to employment protection provisions and working conditions Chapter V: Procedures Article 39
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Use of open, restricted and negotiated procedures Chapter VI: Rules on publication and transparency Section 1: Publication of notices
Article 40
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Periodic indicative notices and notices on the existence of a system of qualification Article 41
Notices used as a means of calling for competition Article 42
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Contract award notices Article 43
Form and manner of publication of notices Section 2: Time-limits Article 44
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Requests to participate and receipt of tenders Article 45
Set of specifications and additional information Article 46
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Mode of transmission of requests to participate and rules governing invitations to tender Section 3: Communication and information Article 47
Means of communication Article 48
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Information to applicants for qualification, candidates and tenderers Article 49
Information to be stored concerning awards Chapter VII: Conduct of the procedure Article 50
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General Section 1: Qualification and qualitative selection Article 51
Mutual recognition concerning administrative, technical or financial conditions, and certificates, tests and evidence Article 52
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Qualification systems Article 53
Criteria for qualitative selection Section 2: Awards Article 54
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Contract award criteria Article 55
Abnormally low tenders Section 3: Tenders comprising products originating in third countries and relations with those countries Article 56
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Tenders comprising products originating in third countries Article 57
Relations with third countries as regards service contracts TITLE III: Specific rules applicable to design contests Article 58
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General Article 59
Thresholds Article 60
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Excluded design contests Article 61
Rules on advertising and transparency Article 62
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Means of communication Article 63
Organisation of design contests, selection of participants and the jury TITLE IV: Statistical obligations, implementing powers and final provisions Article 64
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Statistical obligations Article 65
Advisory Committee Article 66
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Revision of thresholds Article 67
Rules on revision and adaptation Article 68
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Implementation of the Directive Article 69
Repeal Article 70
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Entry into force Article 71
Addressees Annex I
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Contracting entities in the sectors of production, transport or distribution of drinking water Annex II
Contracting entities in the sectors of production, transport or distribution of electricity Annex III
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Contracting entities in the sectors of transport or distribution of gas or heat Annex IV
Contracting entities in the sectors of exploration for and extraction of oil or gas Annex V
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Contracting entities in the sectors of exploration for and extraction of coal and other solid fuels Annex VI
Contracting entities in the field of rail services Annex VII
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Contracting entities in the field of urban railway, tramway, trolleybus or bus services Annex VIII
Contracting entities in the field of airport installations Annex IX
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Contracting entities in the field of maritime or inland port or other terminal facilities Annex X
List of legislation referred to in Article 29(3) Annex XI
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List of activities as set out in Article 1(b), point B Annex XII
Information to be included in contract notices:
// A. Open procedures // B. Restricted procedures // C.
Negotiated procedures Annex XIII
Information to be included in the notice on the existence of a system of qualification Annex XIV
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Information to be included in the periodic notice Annex XV
Information to be included in the contract award notice ANNEX XVI A
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Services within the meaning of Article 30 ANNEX XVI B
Services within the meaning of Article 31 Annex XVII
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Information to be included in the design contest notice Annex XVIII
Information to be included in the results of design contest notices Annex XIX
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Technical specifications for publication Annex XX
Definition of certain technical specifications Annex XXI
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Summary table of the deadlines laid down in Article 44 Annex XXII
Time-limits for transposition and implementation Annex XXIII
// Correlation table TITLE I General provisions applicable to contracts and design contests Chapter I Definitions Article 1 Definitions 1. For the purposes of this Directive, the definitions set out in paragraphs 2 to 12 shall apply. 2. 'Supply, works and service contracts' means contracts for pecuniary interest concluded in writing between one of the contracting entities referred to in Article 2(2), and one or more suppliers, contractors or service providers, having as their object: (a) in the case of supply contracts, the purchase, lease, rental or hire-purchase of products, with or without the option to buy; (b) in the case of works contracts, either the execution, or both the design and execution, or the realisation, by whatever means, of building or civil engineering activities referred to in Annex XI: these contracts may, in addition, cover supplies and services necessary for their execution; (c) in the case of service contracts, contracts concerning services mentioned in Annex XVI. 3. A contract intended to cover both products and services within the meaning of Annex XVI shall be considered to be a 'supply contract' if the value of the products in question exceeds that of the services covered by the contract. A contract intended to cover the delivery of the products and, in addition, siting and installation operations within the meaning of this Directive, shall be considered to be a 'supply contract'. 4. A contract relating to one or more activities referred to in point (b) of paragraph 2 and to the supply of products shall be considered to be a 'works contract' if these activities do not comprise siting and installation work only. A contract whose object expressly comprises the performance of one or more activities referred to in point (b) of paragraph 2 shall be considered to be a 'works contract' even if this object also includes the provision of services within the meaning of Annex XVI, provided that these services are necessary for the performance of the contract in question. 5. A contract intended to cover only services within the meaning of Annex XVI and including, by way of addition to the principal object of the contract, one or more activities referred to in point (b) of paragraph 2, shall be considered to be a 'service contract'. 6. A 'contractor', 'supplier' or 'service provider' means either a natural or legal person, or a contracting entity within the meaning of Article 2(2)(a) or (b), or a group of such persons and/or entities. An 'economic operator' means either a supplier, or a service provider or a contractor. A 'tenderer' means an economic operator who submits a tender, and a 'candidate' means one who has sought an invitation to take part in a restricted or negotiated procedure. 7. A 'framework agreement' means an agreement between one of the contracting entities referred to in Article 2(2) and one or more economic operators, the purpose of which is to establish the terms, in particular with regard to the prices and, where appropriate, the quantity envisaged, governing the contracts to be awarded during a given period. 8. 'Open, restricted and negotiated procedures' means the procurement procedures applied by contracting entities, whereby: (a) in the case of open procedures, any economic operator may submit tenders; (b) in the case of restricted procedures, only candidates invited by the contracting entity may submit tenders; (c) in the case of negotiated procedures, the contracting entity consults economic operators of its choice and negotiates the terms of the contract with one or more of them. 9. 'Design contests' means the national procedures which enable the contracting entity to acquire, mainly in the fields of architecture, engineering or data processing, a plan or design selected by a jury after having been put out to competition, with or without the award of prizes. 10. 'Electronic means' means the use of electronic equipment for the processing (including digital compression) and storage of data transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means. 11. '(In) writing' means any combination of words or figures that can be read, reproduced and subsequently communicated. Such combination may include information transmitted and stored by electronic means. 12. The Common Procurement Vocabulary (hereinafter 'CPV'), adopted by Council and Parliament Regulation 2000/.../EC [112] means the reference nomenclature applying to public procurement contracts. [112] OJ L Chapter II Scope: Definition of the activities and entities covered Section 1 Entities covered Article 2 Contracting entities 1. For the purposes of this Directive, (a) 'Public authorities' means the State, regional or local authorities, bodies governed by public law, or associations formed by one or more of such authorities or bodies governed by public law. 'A body governed by public law' shall be understood to mean any body which: -is established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, -has legal personality, and -is financed for the most part by the State, or regional or local authorities, or other bodies governed by public law, or is subject to management supervision by those bodies, or has an administrative, managerial or supervisory board more than half of whose members are appointed by the State, regional or local authorities, or other bodies governed by public law. (b) 'public undertaking' means any undertaking over which the public authorities may exercise directly or indirectly a dominant influence by virtue of their ownership of it, their financial participation therein, or the rules which govern it. A dominant influence on the part of the public authorities shall be presumed when these authorities, directly or indirectly, in relation to an undertaking: -hold the majority of the undertaking's subscribed capital, or -control the majority of the votes attaching to shares issued by the undertaking, or -can appoint more than half of the undertaking's administrative, management or supervisory body. 2. This Directive shall apply to contracting entities: (a) which are public authorities or public undertakings and which pursue one of the activities referred to in Articles 3 to 6; (b) which, when they are not public authorities or public undertakings, have as one of their activities any of the activities referred to in Articles 3 to 6, or any combination thereof and operate on the basis of special or exclusive rights granted by a competent authority of a Member State. 3. For the purposes of this Directive, special or exclusive rights mean rights which arise from a grant made by the competent authorities of a Member State by way of any legislative, regulatory or administrative provision the effect of which is to limit the exercise of activities defined in Articles 3 to 6 to one or more entities, and which substantially affects the ability of other undertakings to carry out such activity on the same territory under substantially equivalent conditions. Section 2 Activities referred to Article 3 Provisions relating to gas, heat and electricity 1. As far as gas and heat are concerned, this Directive shall apply to the following activities: (a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of gas or heat; or (b) the supply of gas or heat to such networks. 2. The supply of gas or heat to networks which provide a service to the public by a contracting entity other than a public authority shall not be considered a relevant activity within the meaning of paragraph 1 where: (a) the production of gas or heat by the entity concerned is the unavoidable consequence of carrying on an activity other than those referred to in paragraphs 1 or 3 of this Article or in Articles 4, 5 and 6; and (b) supply to the public network is aimed only at the economic exploitation of such production and amounts to not more than 20% of the entity's turnover having regard to the average for the preceding three years, including the current year. 3. As far as electricity is concerned, this Directive shall apply to the following activities: (a) the provision or operation of fixed networks serving to provide a service to the public in connection with the production, transport or distribution of electricity; or (b) the supply of electricity to such networks. 4. The supply of electricity to networks which provide a service to the public by a contracting entity other than a public authority shall not be considered a relevant activity within the meaning of paragraph 3 where: (a) the production of electricity by the entity concerned takes place because its consumption is necessary for carrying out an activity other than those referred to in paragraphs 1 or 3 of this Article or in Articles 4, 5 and 6; and (b) supply to the public network depends only on the entity's own consumption and has not exceeded 30% of the entity's total production of energy, having regard to the average for the preceding three years, including the current year. Article 4 Provisions relating to water 1. This Directive shall apply to the following activities: (a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water; or (b) the supply of drinking water to such networks. 2. This Directive shall also apply to contracts or design contests awarded or organised by entities which pursue an activity referred to in paragraph 1 and which: (a) are connected with hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than 20% of the total volume of water made available by such projects or irrigation or drainage installations, or (b) are connected with the disposal or treatment of sewage. 3. The supply of drinking water to networks which provide a service to the public by a contracting entity other than a public authority shall not be considered a relevant activity within the meaning of paragraph 1 where: (a) the production of drinking water by the entity concerned takes place because its consumption is necessary for carrying out an activity other than those referred to in Articles 3, 4, 5 and 6; and (b) supply to the public network depends only on the entity's own consumption and has not exceeded 30% of the entity's total production of drinking water, having regard to the average for the last three years, including the current year. Article 5 Provisions relating to transport services 1. This Directive shall apply to activities relating to the operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable. As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service. 2. The provision of bus transport services to the public shall not be considered an activity for the purposes of paragraph 1 where, within 12 months after the entry into force of this Directive at the latest, other entities are free to provide those services, either in general or in a particular geographical area, under the same conditions as the contracting entities. Article 6 Provisions relating to the exploration for, or extraction of, oil, gas, coal or other solid fuels, as well as ports and airports This Directive shall apply to activities seeking to exploit a geographical area for the purpose of: (a) exploring for or extracting oil, gas, coal or other solid fuels, or (b) the provision of airports and maritime or inland ports or other terminal facilities to carriers by air, sea or inland waterway. Article 7 List of contracting entities The non-exhaustive lists of contracting entities within the meaning of this Directive are contained in Annexes I to IX. Article 8 Contracts covering several activities 1. A contract which is intended to cover several activities and which cannot be split up shall be subject to the rules applicable to the activity for which it is principally intended. 2. If one of the activities for which the contract is intended is subject to this Directive and the other is not subject to this Directive nor to Directive 2000/.../EC [on the coordination of the procedures for the award of public supply contracts, public service contracts and public works contracts], and if it is objectively impossible to determine which activity the contract is principally intended for, the contract shall be awarded in accordance with this Directive. 3. If one of the activities for which the contract is intended is subject to this Directive and the other to Directive 2000/.../EC [on the coordination of the procedures for the award of public supply contracts, public service contracts and public works contracts], and if it is objectively impossible to determine which activity the contract is principally intended for, the contract shall be awarded in accordance with Directive 2000/.../EC [on the coordination of the procedures for the award of public supply contracts, public service contracts and public works contracts]. Chapter III General principles Article 9 Equality of treatment, prohibition of discrimination; transparency Contracting entities shall take all necessary steps to ensure compliance with the principles of equality of treatment, non-discrimination and transparency. TITLE II Rules applicable to contracts Chapter I General provisions Article 10 Groupings of economic operators 1. Tenders may be submitted and negotiations conducted by groupings of economic operators. The conversion of such groupings into a specific legal form shall not be required for the purpose of their submitting a tender or negotiating, but the grouping selected may be required so to convert itself once it has been awarded the contract, where such conversion is necessary for the proper performance of the contract. 2. Candidates or tenderers who, under the law of the Member State in which they are established, are entitled to provide the relevant service shall not be rejected on the sole ground that under the law of the Member State in which the contract is awarded they would have been required to be either a natural or a legal person. However, legal persons may be required to indicate, in the tender or the request for participation, the names and relevant professional qualifications of the staff to be responsible for the performance of the relevant service. Article 11 Conditions set out in Agreements concluded within the World Trade Organisation For the purposes of the award of contracts by contracting authorities, Member States shall apply in their relations conditions as favourable as those which they grant to third countries in implementation of the Agreement on government procurement, concluded in the framework of the Uruguay Round multilateral negotiations, hereinafter referred to as 'the Agreement'. The Member States shall to this end consult each other within the Advisory Committee for Public Contracts on the measures to be taken pursuant to the Agreement. Article 12 Confidentiality 1. During the phase for the provision of technical specifications to interested economic operators, and during the phase for the qualification and selection of economic operators and for the award of contracts, contracting entities may impose requirements with a view to protecting the confidential nature of information which they make available. 2. This Directive shall not limit the right of economic operators to require a contracting entity, in conformity with national law, to respect the confidential nature of information which they make available. Article 13 Framework agreements 1. Contracting entities may regard a framework agreement as a contract within the meaning of Article 1(2) and award it in accordance with this Directive. 2. Where contracting entities have awarded a framework agreement in accordance with this Directive, they may avail themselves of point (i) of Article 36(3) when awarding contracts based on that framework agreement. 3. Where a framework agreement has not been awarded in accordance with this Directive, contracting entities may not avail themselves of point (i) of Article 36(3). 4. Contracting entities may not misuse framework agreements in order to hinder, limit or distort competition. Chapter II Scope: Thresholds and exclusion provisions Article 14 Scope This Directive shall apply where contracting entities as referred to in Article 2(2) award works, supply or service contracts whose estimated values, net of value-added tax (VAT), are equal to or greater than the thresholds set out in Article 15, unless the exclusions under Articles 20 to 27 are applicable or a decision has been taken under Article 29 regarding the exercise of the particular activity in the Member State concerned. Section 1: Thresholds Subsection 1 Amounts Article 15 Contracts This Directive shall apply to contracts where their estimated value, net of VAT, is equal to or greater than: (a) EUR 400 000 in the case of supply and service contracts; (b) EUR 5 300 000 in the case of works contracts. Subsection 2 Methods of calculating the value of contracts and framework agreements Article 16 General rules 1. Contracting entities may not circumvent this Directive by splitting works or contracts or by using special methods of calculating the value of contracts. 2. The basis for calculating the value of a framework agreement shall be the estimated maximum value of all the contracts envisaged for the period in question. Article 17 Calculating the value of works contracts 1. For the purposes of Article 15, contracting entities shall include in the estimated value of a works contract the value of any supplies or services necessary for the execution of the works which they make available to the contractor. 2. The value of supplies or services which are not necessary for the execution of a particular works contract may not be added to that of the works contract when doing so would result in removing the procurement of those supplies or services from the scope of this Directive. 3. The basis for calculating the value of a works contract for the purposes of Article 15 shall be the total value of the work. 'Work' shall mean the result of building and civil engineering activities, taken as a whole, which are intended to fulfil an economic and technical function by themselves. 4. Where a scheme of work is divided into several lots, the value of each lot shall be taken into account when assessing the value referred to in Article 15. Where the aggregate value of the lots equals or exceeds the value laid down in Article 15, that paragraph shall apply to all the lots. However, in the case of works contracts, contracting entities may derogate from Article 15 in respect of lots whose estimated value net of VAT is less than 1 million euro, provided that the aggregate value of those lots does not exceed 20% of the overall value of the lots. Article 18 Calculating the value of supply contracts 1. Where a supply is divided into several lots, the value of each lot shall be taken into account when assessing the value referred to in Article 15. Where the aggregate value of the lots equals or exceeds the value laid down in Article 15, that Article shall apply to all the lots. 2. Where a proposed supply contract expressly provides for options, the basis for calculating the estimated contract value shall be the highest possible total of the purchase, lease, rental, or hire-purchase permissible, inclusive of the options. 3. In the case of a procurement of supplies over a given period by means of a series of contracts to be awarded to one or more suppliers, or of contracts which are to be renewed, the contract value shall be calculated on the basis of: (a) the total value of contracts with similar characteristics which were awarded over the previous financial year or 12 months, adjusted where possible to reflect anticipated changes in quantity or value over the subsequent 12 months; or (b) the aggregate value of contracts to be awarded during the 12 months following the first award or during the whole term of the contract, where this is longer than 12 months. 4. In the case of supply contracts for lease, rental or hire-purchase, the value to be used as the basis for calculating the contract value shall be: (a) in the case of fixed-term contracts, where their term is 12 months or less, the estimated total value for the contract's duration, or, where their term exceeds 12 months, the contract's total value including the estimated residual value; (b) in the case of contracts for an indefinite period or in cases where there is doubt as to the duration of the contracts, the anticipated total instalments to be paid in the first four years. 5. The basis for calculating the estimated value of a contract including both supplies and services shall be the total value of the supplies and services, regardless of their respective shares. The calculation shall include the value of the siting and installation operations. Article 19 Calculating the value of service contracts 1. For the purposes of calculating the estimated amount of a service contract, the contracting entity shall include the total remuneration of the service provider, taking account of the provisions set out in paragraphs 2 to 7. 2. Where a service is divided into several lots, the value of each lot shall be taken into account when assessing the value referred to in Article 15. Where the aggregate value of the lots equals or exceeds the value laid down in Article 15, that Article shall apply to all the lots. 3. Where a proposed service contract specifically provides for options, the basis for calculating the estimated contract value shall be the highest possible total of the purchase, lease, rental, or hire-purchase permissible, inclusive of the options. 4. In the case of a procurement of services over a given period by means of a series of contracts to be awarded to one or more service providers, or of contracts which are to be renewed, the contract value shall be calculated on the basis of: (a) the total value of contracts with similar characteristics which were awarded over the previous financial year or 12 months, adjusted where possible for anticipated changes in quantity or value over the subsequent 12 months; or (a) the aggregate value of contracts to be awarded during the 12 months following the first award or during the whole term of the contract, where this is longer than 12 months. 5. The basis for calculating the estimated value of a contract including both supplies and services shall be the total value of the supplies and services, regardless of their respective shares. The calculation shall include the value of the siting and installation operations. 6. For the purposes of calculating the estimated contract amount of financial services, the following amounts shall be taken into account: (a) the premium payable, in the case of insurance services; (b) fees, commissions, interest and other modes of remuneration, in the case of banking and other financial services; (c) fees or commissions, in the case of contracts involving design tasks. 7. In the case of service contracts which do not indicate a total cost, the value to be used as the basis for calculating the estimated contract value shall be: (a) in the case of fixed-term contracts, where their term is 48 months or less, the total contract value for its duration; (b) in the case of contracts of indefinite duration or with a term of more than 48 months, the monthly value multiplied by 48. Section 2 Contracts which are excluded or are subject to special arrangements Subsection 1 Exclusions applicable to all contracting entities and to all types of contract Article 20 Contracts awarded for purposes of resale or lease to third parties 1. This Directive shall not apply to contracts awarded for purposes of resale or lease to third parties, provided that the contracting entity enjoys no special or exclusive right to sell or lease the subject of such contracts, and other entities are free to sell or lease it under the same conditions as the contracting entity. 2. The contracting entities shall notify the Commission at its request of all the categories of products or activities which they regard as excluded under paragraph 1. The Commission may periodically publish, for information purposes, lists of the categories of products and activities which it considers to be covered by this exclusion in the Official Journal of the European Communities. In so doing, the Commission shall respect any sensitive commercial aspects that the contracting entities may point out when forwarding information. Article 21 Contracts awarded for purposes other than the pursuit of an activity covered or for the pursuit of such an activity in a third country 1. This Directive shall not apply to contracts which the contracting entities award for purposes other than the pursuit of their activities as described in Articles 3 to 6 or for the pursuit of such activities in a third country, in conditions not involving the physical use of a network or geographical area within the Community. 2. The contracting entities shall notify the Commission at its request of any activities which they regard as excluded under paragraph 1. The Commission may periodically publish, for information purposes, lists of the categories of activities which it considers to be covered by this exclusion in the Official Journal of the European Communities. In so doing, the Commission shall respect any sensitive commercial aspects that the contracting entities may point out when forwarding this information. Article 22 Contracts which are secret or require particular security measures This Directive shall not apply to contracts when they are declared to be secret by a Member State, when their execution must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned, or when the protection of the basic security interests of that State so requires. Article 23 Contracts awarded pursuant to international rules This Directive shall not apply to contracts governed by different procedural rules and awarded: (a) pursuant to an international agreement concluded in accordance with the Treaty between a Member State and one or more third countries and relating to supplies, works, services or design contests intended for the joint implementation or exploitation of a project by the signatory States; every agreement shall be communicated to the Commission, which may consult the Advisory Committee for Public Contracts; (b) to undertakings in a Member State or a third country pursuant to an international agreement relating to the stationing of troops; (c) pursuant to the particular procedure of an international organisation. Subsection 2 Exclusions applicable to all contracting entities, but to service contracts only Article 24 Contracts relating to certain services excluded from the scope This Directive shall not apply to: (a) contracts for the acquisition or rental, by whatever financial means, of land, existing buildings or of other immovable property or concerning rights therein; nevertheless, financial service contracts concluded at the same time as, before, or after the contract of acquisition or rental, in whatever form, shall be subject to this Directive; (b) contracts for arbitration and conciliation services; (c) contracts for the issue, sale, purchase or transfer of securities or other financial instruments; (d) employment contracts; (e) research and development service contracts other than those where the benefits accrue exclusively to the contracting entity for its use in the conduct of its own affairs, on condition that the service provided is wholly remunerated by the contracting entity. Article 25 Service contracts awarded on the basis of an exclusive right This Directive shall not apply to service contracts awarded to an entity which is itself a public authority within the meaning of point (a) of Article 2i on the basis of an exclusive right which it enjoys pursuant to a published law, regulation or administrative provision which is compatible with the Treaty. Article 26 Service contracts awarded to an affiliated undertaking or to a contracting entity forming part of a joint venture 1. This Directive shall not apply to service contracts which: (a) a contracting entity awards to an affiliated undertaking; (b) are awarded by a joint venture formed by a number of contracting entities for the purpose of carrying on activities within the meaning of Articles 3, 4, 5 or 6 to one of those contracting entities or to an undertaking which is affiliated with one of these contracting entities, provided that at least 80% of the average turnover of that undertaking with respect to services arising within the Community for the preceding three years derives from the provision of such services to undertakings with which it is affiliated. Where more than one undertaking affiliated with the contracting entity provides the same service or similar services, the total turnover in the Community deriving from the provision of services by those undertakings shall be taken into account. 2. For the purposes of this Article, 'affiliated undertaking' means any undertaking the annual accounts of which are consolidated with those of the contracting entity in accordance with the requirements of the Seventh Council Directive 83/349/EEC [113], or, in the case of entities not subject to that Directive, any undertaking over which the contracting entity may exercise, directly or indirectly, a dominant influence within the meaning of point (b) of Article 2i or which may exercise a dominant influence over the contracting entity or which, in common with the contracting entity, is subject to the dominant influence of another undertaking by virtue of ownership, financial participation, or the rules which govern it. [113] OJ L 193, 18.7.1983, p. 1. Directive as last amended by Directive 90/605/EEC (OJ L 317, 16.11.1990, p. 60). 3. The contracting entities shall notify to the Commission, at its request, the following information regarding the application of the provisions of paragraph 1: (a) the names of the undertakings concerned, (b) the nature and value of the service contracts involved, (c) such proof as may be deemed necessary by the Commission that the relationship between the undertaking to which the contracts are awarded and the contracting entity complies with the requirements of this Article. Subsection 3 Exclusions applicable to certain contracting entities only Article 27 Contracts awarded by certain contracting entities for the purchase of water 1. This Directive shall not apply to contracts which contracting entities engaged in the activity referred to in Annex I award for the purchase of water. 2. The Council shall reexamine the provisions of paragraph 1 when it has before it a report from the Commission together with appropriate proposals. Article 28 Contracts subject to special arrangements The Netherlands and the United Kingdom shall ensure, by way of the conditions of authorisation or other appropriate measures, that any entity operating in the sectors mentioned in Decisions 93/676/EEC and 97/367/EEC: (a) observes the principles of non-discrimination and competitive procurement in respect of the award of supplies, works and service contracts, in particular as regards the information which the entity makes available to economic operators concerning its procurement intentions; (b) communicates to the Commission, under the conditions defined in Commission Decision 93/327/EEC [114], information relating to the award of contracts. [114] OJ L 129, 27.5.1993, p. 25. Article 29 General mechanism for the exclusion of activities directly exposed to competition 1. Where they are awarded by contracting entities other than public authorities within the meaning of point (a) of Article 2i contracts intended to permit the performance of a service mentioned in Articles 3 to 6 shall not be subject to this Directive if, in the Member State in which the activity is to be performed, it is directly exposed to competition on markets to which access is not restricted. 2. For the purposes of paragraph 1, the question of whether an activity is directly exposed to competition shall be decided on the basis of criteria such as the characteristics of the goods or services concerned, the existence of alternative goods or services, prices and the actual or potential presence of more than one supplier of the goods or services in question. 3. For the purposes of paragraph 1, access to a market shall be deemed not to be restricted if the Member State has implemented and applied the provisions of Community legislation mentioned in Annex X. 4. In order to benefit from an exemption under paragraph 1, a Member State shall ask the Commission to grant an exemption. That Member State shall, taking account of paragraphs 2 and 3, inform the Commission of all relevant facts, and in particular of any law, regulation, administrative provision or agreement concerning compliance with the conditions set out in paragraph 1. If an independent authority that is competent in the activity concerned has adopted a position regarding questions relevant to paragraphs 1 and 2, its opinion shall be sent to the Commission. Where the Commission intends to grant an exemption, it shall adopt its decision in accordance with the procedure under Article 65(2). It shall publish its decision in the Official Journal of the European Communities. 5. For the adoption of a decision under paragraph 4, the Commission shall be allowed a period of six months commencing from a date determined in accordance with the provisions set out in paragraphs 6, 7 and 8. If free access to a given market cannot be presumed on the basis of paragraph 3, a Member State seeking exemption must demonstrate that access to the market in question is free de facto and de jure. If, at the end of this period, the Commission has not adopted a decision as to exemption, paragraph 1 shall be deemed to be applicable. 6. Without prejudice to paragraphs 7 or 8 , the period laid down in paragraph 5 shall commence on the first working day following the date on which the request in accordance with paragraph 4 is received by the Commission. 7. If, during the procedure, the Commission finds that the information contained in the request or in the documents annexed thereto is incomplete or inexact, it shall inform the Member State concerned in writing without delay and fix an appropriate time-limit by which the information is to be completed. In that event, the six-month period shall run from the date on which the Commission receives the complete information. 8. If the facts as reported in the request undergo any substantive changes those changes shall be communicated to the Commission without delay. In that event, if the substantive changes are liable to influence significantly its assessment under paragraph 1, the Commission may deem notification to have taken effect on the date on which the changes in question were received. It shall inform the Member State concerned of this without delay in writing. 9. The Commission may also begin the procedure for adoption of an exempting decision at its own initiative. Chapter III Arrangements applicable to service contracts Article 30 Service contracts listed in Annex XVI A Contracts which have as their subject-matter services listed in Annex XVI A shall be awarded in accordance with the provisions of Chapters IV to VII. Article 31 Service contracts listed in Annex XVI B Contracts which have as their subject-matter services listed in Annex XVI B shall be governed only by Articles 34 and 42. Article 32 Mixed service contracts listed in Annex XVI A and in Annex XVI B Contracts which have as their subject-matter services listed both in Annex XVI A and in Annex XVI B shall be awarded in accordance with the provisions of Chapters IV to VII where the value of the services listed in Annex XVI A is greater than the value of the services listed in Annex XVI B. In other cases, contracts shall be awarded in accordance with Articles 34 and 42. Chapter IV Specific rules governing specifications and contract documents Article 33 General provisions For each contract, contracting entities shall draw up a set of specifications, clarifying and supplementing the information contained in the notices used as a means of calling for competition in accordance with Article 41. In this context, they shall introduce only technical specifications in accordance with Article 34; if they accept variants, the provisions set out in Article 36 shall be applicable. Contracting entities may require information on the subject of sub-contracting in accordance with Article 37 or may stipulate conditions concerning obligations relating to employment protection provisions and working conditions in accordance with Article 38. They may also require particular conditions concerning performance of the contract, provided that the conditions are compatible with applicable Community law. Article 34 Technical specifications 1. The technical specifications as defined in point 1 of Annex XX shall be set out in the contract documents, such as the contract notices, the set of specifications or the supplementary documents. 2. The technical specifications shall afford equal access to tenderers and shall not have the effect of creating unjustified obstacles to the opening of public procurement to competition. 3. Technical specifications shall be formulated by reference to European standards, European technical approvals, common technical specifications, international standards or, when these do not exist, national standards or national technical approvals, as defined in Annex XX, provided that the reference is accompanied by the words 'or equivalent' or to any other technical reference produced by European standardisation bodies. They may also be formulated in terms of performance or functional requirements. They shall, however, be sufficiently precise to allow tenderers to determine the subject matter of the contract and to allow contracting entities to award the contract. 4. Where, in the case of works contracts, there are no European standards, European technical approvals or common technical specifications, and where it is impossible to formulate the specifications in terms of performance or functional requirements, the technical specifications may be defined by reference to national technical specifications relating to the design, method of calculation and execution of works, and use of products. Such reference shall be accompanied by the words 'or equivalent'. 5. Where a contracting entity makes use of the possibility of referring to the specifications mentioned in the first subparagraph of paragraph 3, it cannot, however, reject a tender on the grounds that the products and services tendered for do not comply with a national standard transposing a European standard, with a European technical approval, a common technical specification, an international standard, or a national standard, a national technical specification or a national technical approval, where the tenderer can show in his offer, by any appropriate means, that the solutions he proposes satisfy in an equivalent manner the requirements defined by the technical specifications. A technical dossier of the manufacturer or a test report from a third-party body shall constitute an 'appropriate means'. 6. Where a contracting entity uses the possibility laid down in the second subparagraph of paragraph 3 to prescribe in terms of performance, it may not reject a tender for products and services which comply with a national standard transposing a European standard, with a European technical approval, a common technical specification or an international standard, if these standards and approvals address the same functional and performance requirements and are appropriate. The tenderer must demonstrate in his tender, by any appropriate means, such as a technical dossier or a third party's test report, that the product or service fulfilling the standard meets the functional and performance requirements of the contracting entity. 7. Technical specifications shall not refer to a specific make or source, or to a particular process, or to a trade mark, patent, type or a specific origin or production. Such reference shall be permitted on an exceptional basis, where a sufficiently precise and intelligible description of the subject matter of the contract is not possible in terms of paragraphs 3 and 4; such reference shall be accompanied by the words 'or equivalent'. Article 35 Communication of technical specifications 1. Contracting entities shall make available on request to economic operators interested in obtaining a contract, and who so request, the technical specifications regularly referred to in their supply, works or service contracts, or the technical specifications which they intend to apply to contracts covered by periodic information notices within the meaning of Article 40i. 2. Where the technical specifications are based on documents available to interested economic operators, the inclusion of a reference to those documents shall be sufficient. Article 36 Variants 1. Where the criterion for the award of the contract is that of the most economically advantageous tender, contracting entities may take account of variants which are submitted by a tenderer and meet the minimum performance levels or requirements specified by the contracting entities. Contracting entities shall state in the specifications the minimum conditions to be met by the variants and the specific requirements for their presentation. Where variants are not permitted, they shall so indicate in the specifications. 2. Article 34 shall apply to variants. 3. In the procedures for awarding supply contracts, contracting entities which have admitted variants pursuant to paragraph 1 may not reject a variant on the sole ground that it would, if successful, lead to a service contract rather than a supply contract within the meaning of this Directive. In procurement procedures for service contracts, contracting entities which have admitted variants pursuant to paragraph 1 may not reject a variant on the sole ground that it would, if successful, lead to a supply contract rather than a service contract within the meaning of this Directive. Article 37 Subcontracting In the specifications, the contracting entity may ask the tenderer to indicate in his tender any share of the contract which he may intend to subcontract to third parties and any designated sub-contractors. This indication shall be without prejudice to the question of the principal economic operator's liability. Article 38 Obligations relating to employment protection provisions and working conditions 1. The contracting entity may state in the specifications, or may be obliged by a Member State so to do, the authority or authorities from which a tenderer may obtain the relevant information on the obligations relating to the employment protection provisions and working conditions which are in force in the Member State, region or locality in which the works or services are to be executed or provided and which are to be applicable to the works carried out or the services provided on site during performance of the contract. 2. A contracting entity which supplies the information referred to in paragraph 1 shall request the tenderers or those participating in the contract procedure to indicate that they have taken account, when drawing up their tender, of the obligations relating to safety at work and working conditions which are in force in the place where the work or the service is to be carried out or provided. The first subparagraph shall be without prejudice to the application of Article 55 concerning the examination of abnormally low tenders. Chapter V Procedures Article 39 Use of open, restricted and negotiated procedures 1. When awarding supply, works or service contracts, contracting entities shall apply procedures which accord with the provisions of this Directive. 2. Contracting entities may choose any of the procedures described in Article 1(8), provided that, subject to paragraph 3, a call for competition has been made in accordance with Article 41. 3. Contracting entities may use a procedure without prior call for competition in the following cases: (a) in the absence of tenders, or of suitable tenders, in response to a procedure with a prior call for competition, provided that the original contract conditions have not been substantially changed; (b) where a contract is purely for the purpose of research, experiment, study or development, and not for the purpose of securing a profit or of recovering research and development costs, and in so far as the award of such contract does not prejudice the competitive award of subsequent contracts which do seek, in particular, those ends; (c) when, for special technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the performance of the contract can be entrusted only to a particular economic operator; (d) when in so far as is strictly necessary, for reasons of extreme urgency brought about by events unforeseeable by the contracting entities, the time-limits laid down for open and restricted procedures cannot be adhered to; (e) in the case of supply contracts for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations, where a change of supplier would oblige the contracting entity to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; (f) for additional works or services not included in the project initially awarded or in the contract first concluded but which have, through unforeseen circumstances, become necessary to the performance of the contract, on condition that the award is made to the contractor or service provider executing the original contract: - when such additional works or services cannot be technically or economically separated from the main contract without great inconvenience to the contracting entities; or - when such additional works or services, although separable from the performance of the original contract, are strictly necessary to its later stages; (g) in the case of works contracts, for new works consisting in the repetition of similar works assigned to the contractor to which the same contracting entities awarded an earlier contract, provided that such works conform to a basic project for which a first contract was awarded after a call for competition: as soon as the first project is put up for tender, notice must be given that this procedure may be adopted and the total estimated cost of subsequent works shall be taken into consideration by the contracting entities when they apply the provisions of Articles 15 and 16 to 19; (h) for supplies quoted and purchased on a commodity market; (i) for contracts to be awarded on the basis of a framework agreement, provided that the condition referred to in Article 13(2) is fulfilled; (j) for bargain purchases, where it is possible to procure supplies by taking advantage of a particularly advantageous opportunity available for a very short time at a price considerably lower than normal market prices; (k) for purchases of supplies under particularly advantageous conditions from either a supplier definitively winding up his business or the receivers or liquidators of a bankruptcy, an arrangement with creditors or a similar procedure under national laws or regulations; (l) when the service contract concerned is part of the follow-up to a design contest organised in accordance with the provisions of this Directive and must, in accordance with the relevant rules, be awarded to the winner or to one of the winners of that contest: in this latter case, all the winners shall be invited to participate in the negotiations. Chapter VI Rules on publication and transparency Section 1 Publication of notices Article 40 Periodic indicative notices and notices on the existence of a system of qualification 1. Contracting entities shall make known, at least once a year, by means of a periodic indicative notice: (a) in the case of supply contracts, the total of the contracts, for each product area, whose estimated value, taking into account the provisions of Article 18, is equal to or greater than EUR 750 000, and which they intend to award over the following 12 months; (b) in the case of works contracts, the essential characteristics of the works contracts which the contracting entities intend to award over the 12 coming months, whose estimated value is equal to or greater than EUR 5 300 000; (c) in the case of service contracts, the estimated total value of the service contracts in each of the categories of services listed in Annex XVI A which they intend to award over the following 12 months, where such estimated total value, taking into account the provisions of Article 19, is equal to or greater than EUR 750 000. 2. The notice shall be drawn up in accordance with Annex XIV. 3. Contracting entities may, in particular, publish periodic indicative notices relating to major projects without repeating information previously included in a periodic indicative notice, provided that it is clearly pointed out that these notices are additional ones. 4. Where contracting entities choose to set up a qualification system in accordance with Article 52, the system shall be the subject of a notice drawn up in accordance with the standardised model in Annex XIII, indicating the purpose of the qualification system and how to have access to the rules concerning its operation. Where the system is of a duration greater than three years, the notice shall be published annually. Where the system is of a shorter duration, an initial notice shall suffice. Article 41 Notices used as a means of calling for competition 1. In the case of supply, works or service contracts, the call for competition may be made: (a) by means of a periodic indicative notice drawn up in accordance with Annex XIV; or (b) by means of a notice on the existence of a qualification system drawn up in accordance with Annex XIII; or (c) by means of a notice drawn up in accordance with Annex XII, A, B or C. 2. When a call for competition is made by means of a periodic indicative notice, the notice shall: (a) refer specifically to the supplies, works or services which will be the subject of the contract to be awarded; (b) indicate that the contract will be awarded by restricted or negotiated procedure without further publication of a notice of a call for competition and invite interested economic operators to express their interest in writing; and (c) have been published in accordance with Annex XIX not more than 12 months prior to the date on which the invitation referred to in Article 46(3) is sent. Moreover, the contracting entity shall meet the deadlines laid down in Article 44. Article 42 Contract award notices 1. Contracting entities which have awarded a contract shall communicate to the Commission, within two months of the award of the contract and under conditions to be laid down by the Commission in accordance with the procedure referred to in Article 65(2), the results of the award procedure by means of a notice drawn up in accordance with Annex XV. 2. The information supplied in accordance with Annex XV and intended for publication shall be published in accordance with Annex XIX. In this connection, the Commission shall respect any sensitive commercial aspects which the contracting entities may point out when forwarding this information, concerning the number of tenders received, the identity of economic operators, or prices. 3. Where contracting entities award a research-and-development ("R&D") service contract by way of a procedure without a call for competition in accordance with point (b) of Article 39(3), they may limit the information to be provided in accordance with Annex XV concerning the nature and quantity of the services provided, to the reference 'research and development services'. Where contracting entities award an R&D contract which cannot be awarded by way of a procedure without a call for competition in accordance with point (b) of Article 39(3), they may, on grounds of commercial confidentiality, limit the information to be provided in accordance with Annex XV concerning the nature and quantity of the services supplied . In such cases, contracting entities shall ensure that any information published under this point is no less detailed than that contained in the notice of the call for competition published in accordance with Article 41i. If they use a qualification system, contracting entities shall ensure in such cases that such information is no less detailed than the category referred to in the list of qualified service providers drawn up in accordance with Article 52(4). 4. In the case of contracts awarded for services listed in Annex XVI B, the contracting entities shall indicate in the notice whether they agree to publication. 5. Information provided in accordance with Annex XV and marked as not being intended for publication shall be published only in simplified form and in accordance with Annex XIX for statistical purposes. Article 43 Form and manner of publication of notices 1. The notices referred to in Articles 40, 41 and 42 shall be published in accordance with Annex XIX. They shall be drawn up in accordance with the standardised model notices adopted by the Commission in accordance with the procedure set out in Article 65(2) and shall contain at least the information specified in Annexes XII, XIII, XIV and XV. The text in the original language alone shall be authentic. 2. Notices drawn up and transmitted by electronic means in accordance with Annex XIX shall be published not later than five days after they are sent, in accordance with the technical specifications for publication given in Annex XIX. Notices which are not transmitted by electronic means in accordance with the technical specifications for publication given in Annex XIX shall be published not later than 12 days after they are sent. In exceptional cases, the notices referred to in Article 41(1)(c) shall be published within five days in response to a request by the contracting entity, provided that the notice has been sent by fax or electronic means. 3. Notices and their contents shall not be made public before the date on which they are sent for publication in accordance with Annex XIX. Such publication shall not contain information other than information contained in the notices sent in accordance with Annex XIX. 4. The costs of publishing notices in accordance with Annex XIX shall be borne by Community. 5. Contracting entities may publish in accordance with Annex XIX contract notices which are not subject to the publication requirement laid down in this Section. 6. Contracting entities shall be able to prove the date of dispatch of notices. Section 2 Time-limits Article 44 Requests to participate and receipt of tenders 1. All time-limits for the receipt of tenders and requests to participate fixed by the contracting entities shall be sufficiently long to give the candidates reasonable time to draw up and submit their tenders. When fixing these time-limits, entities shall take particular account of the complexity of the contract and the time required for drawing-up tenders. 2. In the case of open procedures, the minimum time-limit for receipt of tenders shall be 52 days from the date on which the contract notice was sent. 3. In restricted procedures and in negotiated procedures with a prior call for competition, the following arrangements shall apply: (a) the time-limit for the receipt of requests to participate, in response to a notice published under point (c) Article 41i, or in response to an invitation by the contracting entities under Article 46(3), shall, as a general rule, be fixed at no less than 37 days from the date on which the notice or invitation was sent and may in no case be less than 22 days if the notice is sent for publication by means other than electronic means or fax, and at 15 days if the notice is sent by such means; (b) the time-limit for receipt of tenders may be set by mutual agreement between the contracting entity and the selected candidates, provided that all candidates have the same time to prepare and submit their tenders; (c) where it is not possible to reach agreement on the time-limit for receipt of tenders, the contracting entity shall fix a time-limit which shall, as a general rule, be at least 24 days and which shall in no case be less than ten days from the date of the invitation to tender. 4. If the contracting entities have published a periodic indicative notice as referred to in Article 40i in accordance with Annex XIX, the minimum time-limit for receipt of tenders in open procedures shall, as a general rule, not be less than 36 days, but shall in no case be less than 22 days from the date on which the notice was sent. These shortened time-limits are permitted, provided that the periodic indicative notice has included all the information required by Annex XIV, where the notice was used as a means of calling for competition; and that it has been sent for publication between no less than 52 days and no more than 12 months before the date on which the contract notice referred to in point (c) of Article 41i was sent in accordance with Annex XIX. 5. Where notices are drawn up and transmitted by electronic means in accordance with Annex XIX, the time-limits for receipt of requests to participate in restricted and negotiated procedures, and for receipt of tenders in open procedures, may be shortened by seven days. 6. Except in the case of a time-limit set by mutual agreement in accordance with point (b) of paragraph 3, time-limits for receipt of tenders in open, restricted and negotiated procedures may be further reduced by five days where the contracting entity offers free direct access to the entire contract documents and any supporting documents by electronic means as from the date on which the notice used as a means of calling for competition is sent, in accordance with Annex XIX. 7. In open procedures, the cumulative effect of the reductions provided for in paragraphs 4, 5 and 6 may in no case result in a time-limit for receipt of tenders of less than 15 days from the date on which the contract notice was sent. However, if the contract notice is not sent by fax or electronic means, the cumulative effect of the reductions provided for in paragraphs 4, 5 and 6 may in no case result in a time-limit for receipt of tenders in an open procedure of less than 22 days from the date on which the contract notice was sent. 8. The cumulative effect of the reductions provided for in paragraphs 4, 5 and 6 may in no case result in a time-limit for receipt of requests to participate, in response to a notice published under point (c) of Article 41i, or in response to an invitation by the contracting entities under Article 46(3), of less than 15 days from the date on which the contract notice or invitation was sent. In restricted and negotiated procedures, the cumulative effect of the reductions provided for in paragraphs 4, 5 and 6 may in no case, except that of a time-limit set by mutual agreement in accordance with point (b) of paragraph 3, result in a time-limit for the receipt of tenders of less than 10 days from the date of the invitation to tender. 9. If, for whatever reason, the contract documents and the supporting documents or additional information, although requested in good time, have not been supplied within the time-limits set in Article 45, or where tenders can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the contract documents, the time-limits for receipt of tenders shall be extended accordingly, except in the case of a time-limit set by mutual agreement in accordance with point (b) of paragraph 3, in such a way that the time-limits shall not apply until all the economic operators concerned have taken note of all the information needed for the preparation of a tender. 10. A summary table of the time-limits laid down in this Article is given in Annex XXI. Article 45 Set of specifications and additional information 1. Where contracting entities do not give free and direct access to the specifications, in their entirety, and to any supporting documents, by electronic means in accordance with Annex XIX, and where, in restricted or negotiated procedures involving a call for competition, the invitation to tender is not accompanied by such documents, the specifications and supporting documents shall be sent to economic operators within six days of receipt of the request, provided that the request was made in good time before the deadline for submission of bids. 2. Provided that it has been requested in good time, additional information relating to the specifications shall be supplied by the contracting entities not later than six days before the final date fixed for receipt of tenders. Article 46 Mode of transmission of requests to participate and rules governing invitations to tender 1. Requests to participate in procurement procedures may be made by electronic means, by letter or by fax. If they are made by fax, the contracting entities may require that they be confirmed by letter or by electronic means before the end of the period laid down in Article 44. 2. Contracting authorities shall simultaneously and in writing invite the selected candidates to submit their tenders. The invitation to these candidates shall indicate how they may access the set of specifications and supporting documents made directly available by electronic means in accordance with Annex XIX. If such access is not provided, the invitation shall be accompanied by one copy of the specifications and supporting documents. In addition, the invitation shall include at least the following: (a) where appropriate, the time-limit for requesting additional documents, as well as the amount and terms of payment of any sum to be paid for such documents; (b) the final date for receipt of tenders, the address to which they shall be sent, and the language or languages in which they shall be drawn up; (c) a reference to any published contract notice; (d) an indication of any documents to be attached; (e) the criteria for the award of the contract, and their relative weighting where this is not indicated in the contract notice; (f) any other specific condition for taking part in the tendering procedure. 3. When a call for competition is made by means of a periodic indicative notice, contracting entities shall subsequently invite all candidates to confirm their interest on the basis of detailed information on the contract concerned before beginning the selection of tenderers or participants in negotiations. This invitation shall include at least the following information: (a) nature and quantity, including all options concerning complementary contracts and, if possible, the estimated time available for exercising these options; for renewable contracts, the nature and quantity and, if possible, the estimated publication dates of future notices of competition for works, supplies or services to be put out to tender; (b) type of procedure: restricted or negotiated; (c) where appropriate, the date on which the delivery of supplies or the execution of works or services is to commence or terminate; (d) the address and closing date for the submission of requests for tender documents and the language or languages in which they are to be drawn up; (e) the address of the entity which is to award the contract and supply the information necessary for obtaining the specifications and other documents; (f) economic and technical conditions, financial guarantees and information required from economic operators; (g) the amount and payment procedures for any sum payable for obtaining the documentation on the procurement procedure; (h) form of the contract which is the subject of the invitation to tender: purchase, lease, hire or hire-purchase, or any combination of these; and (i) the award criteria and their weighting where this is not indicated in the indicative notice. Section 3 Communication and information Article 47 Means of communication 1. All communication and information exchange mentioned in this Part may be performed by letter, fax or electronic means, at the option of the contracting entity. European Parliament and Council Directives 99/93/EC and ../../EC of .. [on certain legal aspects of information society serices, and in particular electronic commerce in the internal market] shall apply to the transmission of information by electronic means. 2. Communication and information exchange shall be carried out in such a way as to ensure: (a) that the integrity of data and the confidentiality of tenders and of all information supplied by economic operators are preserved; (b) that the contracting entities only examine the content of tenders after the time-limit set for submitting these has expired. 3. In the case of tenders transmitted by electronic means, tenderers shall undertake that all documents, certificates and declarations that may be required under Articles 51(2), 52 and 53 will be submitted at the latest on the day before tenders are opened. 4. Whatever means is chosen for the transmission of tenders, it shall not have the effect of hampering the proper functioning of the internal market. Article 48 Information to applicants for qualification, candidates and tenderers 1. Contracting entities shall, as soon as possible, inform the economic operators involved of decisions reached concerning the award of the contract, and shall do so in writing if requested. 2. Contracting entities shall, as soon as possible after receipt of a written request, inform any unsuccessful candidate or tenderer of the reasons for the rejection of his application or his tender, and shall inform any tenderer who has made an admissible tender, of the characteristics and relative advantages of the tender selected, as well as the name of the successful tenderer. However, contracting entities may decide that certain information on the contract award, referred to in the first subparagraph, is to be withheld where release of such information would impede the application of the law or would otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of public or private economic operators, including those of the economic operator to whom the contract has been awarded, or might prejudice fair competition between economic operators. 3. Contracting entities who establish and operate a system of qualification shall inform applicants of their decision as to qualification within a reasonable period. If the decision will take longer than six months from the presentation of an application, the contracting entity shall inform the applicant, within two months of the application, of the reasons justifying the longer period and of the date by which his application will be accepted or refused. 4. Applicants whose qualification is refused shall be informed of this decision and the reasons for refusal. The reasons must be based on the criteria for qualification referred to in Article 52(2). 5. Contracting entities who establish and operate a system of qualification may bring the qualification of an economic operator to an end only for reasons based on the criteria referred to in Article 52(2). The intention to bring qualification to an end must be notified in writing to the economic operator beforehand, together with the reason or reasons justifying the proposed action. Article 49 Information to be stored concerning awards 1. Contracting entities shall keep appropriate information on each contract which shall be sufficient to permit them at a later date to justify decisions taken in connection with: (a) the qualification and selection of economic operators and award of contracts; (b) the use of procedures without a prior call for competition by virtue of Article 39(3); (c) the non-application of Chapters III to VI of this Title by virtue of the derogations provided for in Chapter II of Title I and in Chapter II of this Title. 2. The information shall be kept for at least four years from the date of award of the contract so that the contracting entity will be able, during that period, to provide the necessary information to the Commission if the latter so requests. Chapter VII Conduct of the procedure Article 50 General 1. Contracts shall be awarded on the basis of the award criteria laid down in Section 2, taking into account Article 36 concerning variants, after the suitability of the economic operators has been verified on the basis of the rules and criteria established in accordance with Article 53, taking into account Article 51 concerning mutual recognition. 2. When a call for competition is made by means of a notice on the existence of a qualification system provided for in Section 1, the specific contracts which are the subject of the call for competition shall be awarded on the basis of the award criteria laid down in Section 2, taking into account Article 36 concerning variants, after verification, on the basis of the rules and criteria established in accordance with Article 53, of the suitability of qualified economic operators in accordance with the provisions set out in Article 52 on qualification systems, taking into account Article 51 concerning mutual recognition. Section 1 Qualification and qualitative selection Article 51 Mutual recognition concerning administrative, technical or financial conditions, and certificates, tests and evidence 1. When choosing participants for a restricted or negotiated procedure, contracting entities shall not, when taking their decision on qualification or when updating the criteria and rules for qualification: (a) impose administrative, technical or financial conditions on certain economic operators which would not have been imposed on others; (b) require tests or evidence, which would duplicate objective evidence already available. 2. Where contacting entities request production of certificates produced by independent bodies, certifying that the economic operator satisfies certain quality guarantee standards they shall refer to quality assurance systems based on the series of European standards on the subject and certified by bodies meeting European standards of certification. Contracting entities shall recognise certificates of bodies established in other Member States. They shall also accept other evidence of equivalent quality guarantees produced by economic operators, where the latter do not have access to these certificates or have no opportunity of producing them within the prescribed pêriod. Article 52 Qualification systems 1. Contracting entities which so wish may establish and operate a system of qualification of economic operators. Entities which establish or operate a system of qualification shall ensure that economic operators are at all times able to request qualification. 2. The system under paragraph 1 may involve different qualification stages. It shall be operated on the basis of objective criteria and rules to be established by the contracting entity. Where those criteria and rules include technical specifications, the provisions of Article 34 shall apply. The criteria and rules may be updated as required. 3. The criteria and rules for qualification referred to in paragraph 2 shall be made available to economic operators on request. The updating of these criteria and rules shall be communicated to the interested economic operators. Where a contracting entity considers that the qualification system of certain other entities or bodies meets its requirements, it shall communicate to interested economic operators the names of such other entities or bodies. 4. A written record of qualified economic operators shall be kept; it may be divided into categories according to the type of contract for which the qualification is valid. 5. When a call for competition is made by means of a notice on the existence of a qualification system, tenderers in a restricted procedure or participants in a negotiated procedure shall be selected from the qualified candidates in accordance with such a system. Article 53 Criteria for qualitative selection 1. Contracting entities which establish selection criteria in an open procedure shall do so in accordance with objective rules and criteria which are available to economic operators. 2. Contracting entities which select candidates for restricted or negotiated procedures shall do so according to objective criteria and rules which they have laid down and which are available to interested economic operators. 3. In restricted or negotiated procedures, the criteria may be based on the objective need of the contracting entity to reduce the number of candidates to a level which is justified by the need to balance the particular characteristics of the procurement procedure with the resources required to conduct it. The number of candidates selected shall, however, take account of the need to ensure adequate competition. 4. The criteria set out in paragraphs 1 and 2 may include the exclusion criteria listed in Article 46 of Directive 2000/../EC [on the coordination of procedures for the award of public supply contracts, public service contracts and public works contracts]. Section 2 Awards Article 54 Contract award criteria 1. Without prejudice to national laws, regulations or administrative provisions on the remuneration of certain services, the criteria on which the contracting entities shall base the award of contracts shall be: (a) where the contract is awarded on the basis of the most economically advantageous tender for the contracting entities, involving various criteria directly linked to the subject-matter of the contract in question, such as delivery or completion date, running costs, cost-effectiveness, quality, aesthetic and functional characteristics, environmental characteristics, technical merit, after-sales service and technical assistance, commitments with regard to spare parts, security of supply, and price; or (b) the lowest price only. 2. In the case referred to in point (a) of paragraph 1, the contracting entity shall specify the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender. This weighting may be expressed as a range within which the value of each criterion is stated. 3. Where the means of calling for competition is a notice as referred to in point (a) of Article 41i, the relative weighting shall be specified as follows: (a) in the contract notice or in the contract documents in the case of open procedures; (b) in the notice in the case of restricted and negotiated procedures. In the case of point (b), the weighting may, exceptionally and in duly justified cases, be stated in the contract documents or in the invitation to tender. 4. Where, in restricted or negotiated procedures, the means of calling for competition is a notice on the existence of a system of qualification, the relative weighting shall be specified as follows: (a) in the notice used as a means of calling for competition, if the weighting is known at the time of sending the notice for publication; (b) otherwise, in the contract documents or the invitation to tender. 5. Where, in restricted or negotiated procedures, the means of calling for competition is a periodic indicative notice, the relative weighting shall be specified as follows: (a) in the notice used as a means of calling for competition, if the weighting is known at the time of sending the notice for publication; (b) otherwise, in the invitation to confirm the interest referred to in Article 46(3) or, at the latest, in the contract documents or in the invitation to tender. Article 55 Abnormally low tenders If, for a given contract, tenders appear abnormally low in relation to the service to be provided, the contracting entity shall, before it may reject those tenders, request in writing an explanation of the constituent elements of the tender which it considers relevant and, after hearing the interested party, shall verify those constituent elements, taking account of the explanations received. It may set a reasonable period within which to reply. The contracting entity shall take into consideration explanations which are justified on objective grounds relating to the economics of the construction or production method, or the technical solutions chosen, or the exceptionally favourable conditions available to the tenderer for the execution of the contract, or the originality of the product or the work proposed by the tenderer. Contracting entities may reject tenders which are abnormally low owing to the receipt of State aid only if they have consulted the tenderer and if the tenderer has been unable to show, within a reasonable period set by the contracting entity, that the aid in question has been notified to the Commission pursuant to Article 88(3) of the Treaty and has received the Commission's approval. Contracting entities which reject a tender in those circumstances shall inform the Commission that they have done so. Section 3 Tenders comprising products originating in third countries and relations with those countries Article 56 Tenders comprising products originating in third countries 1. This Article shall apply to tenders covering products originating in third countries with which the Community has not concluded, whether multilaterally or bilaterally, an agreement ensuring comparable and effective access for Community undertakings to the markets of those third countries. It shall be without prejudice to the obligations of the Community or its Member States in respect of third countries. 2. Any tender made for the award of a supply contract may be rejected where the proportion of the products originating in third countries, as determined in accordance with Council Regulation (EEC) No 2913/92 [115], exceeds 50% of the total value of the products constituting the tender. For the purposes of this Article, software used in telecommunications network equipment shall be regarded as products. [115] OJ L 302, 19.10.1992, p. 1; Regulation as last amended by European Parliament and Council Regulation (EC) No 955/1999 (OJ L 119, 7.5.1999, p.
1). 3. Subject to the second subparagraph, where two or more tenders are equivalent in the light of the award criteria defined in Article 54, preference shall be given to those tenders which may not be rejected pursuant to paragraph 2. The prices of those tenders shall be considered equivalent for the purposes of this Article, if the price difference does not exceed 3%. However, a tender shall not be preferred to another pursuant to the first subparagraph where its acceptance would oblige the contracting entity to acquire equipment having technical characteristics different from those of existing equipment, resulting in incompatibility, technical difficulties in operation and maintenance, or disproportionate costs. 4. For the purposes of this Article, those third countries to which the benefit of the provisions of this Directive has been extended by a Council decision in accordance with paragraph 1 shall not be taken into account for determining the proportion, referred to in paragraph 2, of products originating in third countries. 5. The Commission shall submit an annual report to the Council, commencing in the second half of the first year following the entry into force of this Directive, on progress made in multilateral or bilateral negotiations regarding access for Community undertakings to the markets of third countries in the fields covered by this Directive, on any result which such negotiations may have achieved, and on the implementation in practice of all the agreements which have been concluded. The Council, acting by a qualified majority on a proposal from the Commission, may amend the provisions of this Article in the light of such developments. Article 57 Relations with third countries as regards service contracts 1. Member States shall inform the Commission of any general difficulties encountered, in law or in fact, by their undertakings in securing the award of service contracts in third countries. 2. The Commission shall report to the Council before 31 December 1994, and periodically thereafter, on the opening-up of service contracts in third countries and on progress in negotiations with these countries on this subject, particularly within the framework of the WTO. 3. The Commission shall endeavour, by approaching the third country concerned, to remedy any situation whereby it finds, on the basis either of the reports referred to in paragraph 2 or of other information, that, in the context of the award of service contracts, a third country: (a) does not grant Community undertakings effective access comparable to that granted by the Community to undertakings from that country; or (b) does not grant Community undertakings national treatment or the same competitive opportunities as are available to national undertakings; or (c) grants undertakings from other third countries more favourable treatment than Community undertakings. 4. In the circimstances referred to in paragraph 3, the Commission may at any time propose that the Council decide to suspend or restrict, over a period to be laid down in the decision, the award of service contracts to: (a) undertakings governed by the law of the third country in question; (b) undertakings affiliated to the undertakings specified in point (a) and having their registered office in the Community but having no direct and effective link with the economy of a Member State; (c) undertakings submitting tenders which have as their subject-matter services originating in the third country in question. The Council shall act, by qualified majority, as soon as possible. The Commission may propose these measures on its own initiative or at the request of a Member State. 5. This Article shall be without prejudice to the obligations of the Community in relation to third countries. TITLE III Specific rules applicable to design contests Article 58 General 1. The rules for the organisation of a design contest shall be in conformity with paragraph 2 of this Article and with Articles 59, 61, 62 and 63 and shall be made available to those interested in participating in the contest. 2. The admission of participants to design contests shall not be limited: (b) reference to the territory or part of the territory of a Member State; (b) on the grounds that, under the law of the Member State in which the contest is organised, they would have been required to be either natural or legal persons. Article 59 Thresholds 1. This Title shall apply to design contests organised as part of a procuremenet procedure for services whose estimated value, net of VAT, is equal to or greater than EUR 400 000. 2. This Title shall apply to all design contests where the total amount of contest prizes and payments to participants is equal to or greater than EUR 400 000. Article 60 Excluded design contests 1. This Directive shall not apply to design contests which the contracting entities organise for purposes other than the pursuit of their activities as described in Articles 3 to 6 or for the pursuit of such activities in a third country, in conditions not involving the physical use of a network or geographical area within the Community. 2. Contracting entities shall notify the Commission at its request of any activities which they regard as excluded under paragraph 1. The Commission may, for information purposes, periodically publish lists of the categories of activities which it considers to be covered by this exclusion, in the Official Journal of the European Communities. In so doing, the Commission shall respect any sensitive commercial aspects the contracting entities may point out when forwarding this information. 3. This Directive shall not apply to contests governed by different procedural rules and organised: (a) pursuant to an international agreement concluded in accordance with the Treaty between a Member State and one or more third countries and covering supplies, works, services or design contests intended for the joint implementation or exploitation of a project by the signatory States; every agreement shall be communicated to the Commission, which may consult the Advisory Committee for Public Contracts; (b) pursuant to an international agreement relating to the stationing of troops and involving undertakings in a Member State or a third country; (c) pursuant to the particular procedure of an international organisation. 4. This Directive shall not apply to design contests organised for the pursuit, in the Member State concerned, of an activity in respect of which a decision establishing the applicability of Article 29i has been taken or concerning which that Article is deemed to be applicable in accordance with paragraph 5 thereof. Article 61 Rules on advertising and transparency 1. The call for competition shall be made by means of a notice drawn up in accordance with the standard form adopted by the Commission in accordance with the procedure in Article 65(2). This notice shall contain at least the information indicated in Annex XVII and shall be published in accordance with Annex XIX. Only the text in the original language shall be authentic. 2. Contracting entities which have organised a design contest shall communicate the results to the Commission, within two months of the closure of the design contest and under conditions to be laid down by the Commission in accordance with the procedure referred to in Article 65(2), by means of a notice. This notice shall be drawn up in accordance with the standard form adopted by the Commission in accordance with the procedure in Article 65(2) and shall contain at least the information indicated in Annex XVIII. 3. The information supplied in accordance with Annex XVIII shall be published in accordance with Annex XIX. Contracting entities shall not, however, be obliged to publish sensitive commercial information. 4. Notices drawn up and transmitted by electronic means in accordance with Annex XIX shall be published not later than five days after they are sent, in accordance with the technical specifications for publication given in Annex XIX. Notices which are not transmitted by electronic means in accordance with the technical specifications for publication given in Annex XIX shall be published not later than 12 days after they are sent. 5. The notices and their contents shall not be made public before the date on which they are sent for publication in accordance with Annex XIX. Such publication shall not contain information other than that contained in the notices sent in accordance with Annex XIX. 6. The costs of publishing notices in accordance with Annex XIX shall be borne by the Community. Article 62 Means of communication 1. All communications and exchanges of information mentioned in this Directive may be effected by letter, by fax or by electronic means, at the option of the contracting entity. Directives 1999/93/EC and 2000/.../EC [on certain legal aspects of electronic commerce in the information society, etc.] shall apply to the transmission of information by electronic means. 2. This communication and information exchange must be carried out in such a way as to ensure: (a) that the integrity and confidentiality of all information supplied by service providers are preserved; (b) that the contracting authorities may only examine the content of plans and projects after the time-limit set for submitting these has expired. 3. If plans and projects are submitted by electronic means, participants in design contests shall undertake to submit any documents, certificates, attestations and declarations required by the contracting entities by any appropriate means not later than the day before the plans and projects are examined by the jury. 4. Whichever means is chosen for the submission of plans and projects, it shall not have the effect of giving rise to discrimination against economic operators. Article 63 Organisation of design contests, selection of participants and the jury 1. When organising design contests, contracting entities shall apply procedures which are adapted to the provisions of this Directive. 2. Where design contests are restricted to a limited number of participants, contracting authorities shall lay down clear and non-discriminatory selection criteria. In any event, the number of candidates invited to participate shall be sufficient to ensure genuine competition. 3. The jury shall be composed exclusively of natural persons who are independent of participants in the contest. Where a particular professional qualification is required from participants in a contest, at least a third of its members shall have the same qualification or its equivalent. The jury shall be autonomous in its decisions or opinions. These shall be reached on the basis of projects submitted anonymously, and solely on the basis of the criteria set out in the notice provided for in Annex XVII. TITLE IV Statistical obligations, implementing powers and final provisions Article 64 Statistical obligations 1. Member States shall ensure, in accordance with the arrangements to be laid down under the procedure provided for in Article 65(2), that the Commission receives every year a statistical report concerning the total value, broken down by Member State and by category of activity to which Annexes I to IX refer, of the contracts awarded below the thresholds set out in Article 15 but which would be covered by this Directive were it not for those thresholds. 2. As regards the categories of activity to which Annexes I, II, VII, VIII and IX refer, Member States shall ensure that the Commission receives a statistical report on contracts awarded no later than 31 October [.....] for the previous year, and before 31 October of each year, in accordance with arrangements to be laid down under the procedure referred to in Article 65(2). The statistical report shall contain the information required to verify the proper application of the Agreement. The information required under the first subparagraph shall not include information concerning contracts for the services listed in category 8 of Annex XVI A, for telecommunications services listed in category 5 whose CPV positions are equivalent to the CPC reference numbers of which are 7524, 7525 and 7526, or for the services listed in Annex XVI B. 3. The arrangements under paragraphs 1 and 2 shall be fixed in such a way as to ensure that: (a) in the interests of administrative simplification, contracts of lesser value may be excluded, provided that the usefulness of the statistics is not jeopardised; (b) the confidential nature of the information provided is respected. Article 65 Advisory Committee 1. The Commission shall be assisted by the Advisory Committee for Public Contracts instituted by Article 1 of Council Decision 71/306/EEC [116]. [116] OJ L 185, 16.8.1971, p. 15; Decision as amended by Decision 77/63/EEC (OJ L 13, 15.1.1977, p. 15). 2. Where reference is made to this paragraph, the advisory procedure in Article 3 of Decision 1999/468/EC shall apply, in compliance with Article 7 and Article 8 thereof. Article 66 Revision of thresholds 1. The Commission shall revise, in accordance with the procedure laid down in Article 62(2), the thresholds established in Article 15, every two years from 1 January 2000, where such revision is necessary in order to ensure compliance with the thresholds in force as laid down by the Agreement on Government Procurement concluded within the World Trade Organisation, which are expressed as Special Drawing Rights (SDR). The calculation of the value of these thresholds shall be based on the average daily value of the euro, expressed in SDR, over the 24 months terminating on the last day of August preceding the revision with effect from 1 January. The value of the thresholds thus revised shall, where necessary, be rounded down to the nearest ten thousand euro. 2. At the same time as performing the revision under paragraph 1, the Commission shall, in accordance with the procedure under Article 65(2), align the thresholds laid down in Article 59 (design contests) on the revised threshold applicable to service contracts. The values of the thresholds laid down in accordance with paragraph 1 in the national currencies of Member States not participating in Monetary Union shall, in principle, be revised every two years from 1 January 2002. The calculation of such values shall be based on the average daily values of those currencies, expressed in euro, over the 24 months terminating on the last day of August preceding the revision with effect from 1 January. Where appropriate, the Commission shall also revise the calculation methods set out in paragraph 1 and the first subparagraph of paragraph 2. 3. The revised thresholds referred to in paragraph 1, their values in national currencies and the aligned thresholds shall be published by the Commission in the Official Journal of the European Communities at the beginning of the month of November following their revision. Article 67 Rules on revision and adaptation 1. The Commission may amend, in accordance with the procedure referred to in Article 65(2): (a) the list of contracting entities in Annexes I to IX so that they fulfil the criteria set out in Articles 2 to 6; (b) the conditions for the presentation, dispatch, receipt, translation, safekeeping and distribution of the notices referred to in Articles 36, 37, 38 and 58; (c) the nomenclature set out in Annexes XVI A and XVI B, in so far as this does not change the scope of the Directive, and the reference in the notices to particular headings in the nomenclature; (d) the nomenclature set out in Annex XI, in so far as this does not change the scope of the Directive; (e) Annexes X and XIX. 2. Decisions taken under paragraph 1 shall be published in the Official Journal of the European Communities. Article 68 Implementation of the Directive Member States shall bring into force the laws, regulations and administrative provisions to comply with this Directive by 30 June 2002 at the latest. They shall immediately inform the Commission thereof. When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. Article 69 Repeal Directive 93/38/EEC is hereby repealed, without prejudice to the obligations of the Member States concerning the time-limits for transposition into national law set out in Annex XXII. References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex XXIII. Article 70 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities. Article 71 Addressees This Directive is addressed to the Member States. Done at Brussels, For the European Parliament For the Council The President The President ANNEX I CONTRACTING ENTITIES IN THE SECTORS OF PRODUCTION, TRANSPORT OR DISTRIBUTION OF DRINKING WATER BELGIUM Entity set up pursuant to the Décret de la région wallonne érigeant en entreprise régionale de production et d'adduction d'eau le service du ministère de la région chargé de la production et du grand transport d'eau of 2 July 1987. Entity set up pursuant to the Arrêté portant constitution d'une société wallonne de distribution d'eau of 23 April 1986. Entity set up pursuant to the Arrêté de l'exécutif flamand portant fixation des statuts de la société flamande de distribution d'eau of 17 July 1985. Entities producing or distributing water and set up pursuant to the Loi relative aux intercommunales of 22 December 1986. Entities producing or distributing water and set up pursuant to the Code communal, article 147 bis, ter et quater sur les régies communales. DENMARK Entities producing or distributing water referred to in Article 3(3) of the lovbekendtgørelse om vandforsyning m.v. of 4 July 1985. GERMANY Entities producing or distributing water pursuant to the Eigenbetriebsverordnungen or Eigenbetriebsgesetze of the Länder (Kommunale Eigenbetriebe). Entities producing or distributing water pursuant to the Gesetze über die Kommunale Gemeinschaftsarbeit oder Zusammenarbeit of the Länder. Entities producing water pursuant to the Gesetz ueber Wasser- und Bodenverbaende of 10 February 1937 and the erste Verordnung ueber Wasser - und Bodenverbaende of 3 September 1937. (Regiebetriebe) producing or distributing water pursuant to the Kommunalgesetze, and in particular the Gemeindeordnungen der Länder. Entities set up pursuant to the Aktiengesetz of 6 September 1965, as last amended on 19 December 1985, or the GmbH-Gesetz of 20 May 1898, as last amended on 15 May 1986, or having the legal status of a Kommanditgesellschaft, producing or distributing water on the basis of a special contract with regional or local authorities. GREECE The Water Company of Athens (Etaireia Ydrefseos - Apochetefseos Protenoysis) set up pursuant to Law 1068/80 of 23 August 1980. The Water Company of Thessaloniki (Organismos Ydrefseos Thessalonikis) operating pursuant to Presidential Decree 61/1988. The Water Company of Volos (Etaireia Ydrefseos Voloy) operating pursuant to Law 890/1979. Municipal companies (Dimotikes Epicheiriseis ydrefsis-apochetefsis) producing or distributing water and set up pursuant to Law 1069/80 of 23 August 1980. Associations of local authorities (Syndesmoi ydrefsis) operating pursuant to the Code of local authorities (Kodikas Dimon kai Koinotiton) implemented by Presidential Decree 76/1985. SPAIN Entities producing or distributing water pursuant to Ley no 7/1985 de 2 de abril de 1985. Reguladora de las Bases del Régimen local and to Decreto Real no 781/1986 Texto Refundido Régimen local. Canal de Isabel II. Ley de la Comunidad Autónoma de Madrid de 20 de diciembre de 1984. - Mancomunidad de los Canales de Taibilla, Ley de 27 de abril de 1946. FRANCE Entities producing or distributing water pursuant to the: dispositions générales sur les régies, code des communes L 323-1 à L 328-8, R 323-1 à R 323-6 (dispositions générales sur les régies), or code des communes L 323-8, R 323-4 [régies directes (ou de fait)], or décret-loi du 28 décembre 1926, règlement d'administration publique du 17 février 1930, code des communes L 323 -10 à L 323 -13, R 323 -75 à 323 -132 (régies à simple autonomie financière), or code des communes L 323 -9, R 323 -7 à R 323 -74, décret du 19 octobre 1959 (régies à personnalité morale et à autonomie financière), or code des communes L 324 -1 à L 324 -6, R 324 -1 à R 324 -13 (gestion déléguée, concession et affermage), or jurisprudence administrative, circulaire intérieure(gérance), or code des communes R 324-6, circulaire intérieure (régie intéressée), or circulaire intérieure du 13 décembre 1975 (exploitation aux risques et périls), or décret du 20 mai 1955, loi du 7 juillet 1983 sur les sociétés d'économie mixte (participation à une société d'économie mixte), or code des communes L 322-1 à L 322-6, R 322-1 à R 322-4 (dispositions communes aux régies, concessions et affermages). IRELAND Entities producing or distributing water pursuant to the Local Government (Sanitary Services) Act 1878 to 1964. ITALY Entities producing or distributing water pursuant to the Consolidated Text of the Leggi sull'assunzione diretta dei pubblici servizi da parte dei comuni e delle province approvato con Regio Decreto n. 2578 of 15 October 1925 and Decreto del P.R. n. 902 of 4 October 1986. Ente Autonomo Acquedotto Pugliese, set up pursuant to RDL n. 2060 of 19 October 1919. Ente Acquedotti Siciliani, set up pursuant to Leggi regionali n. 2/2 of 4 September 1979 and n. 81 of 9 August 1980. Ente Sardo Acquedotti e Fognature, set up pursuant to Legge n. 9 of 5 June 1963. LUXEMBOURG Local authorities distributing water. Associations of local authorities producing or distributing water, set up pursuant to the loi du 14 février 1900 concernant la création des syndicats de communes telle qu'elle a été modifiée et complétée par la loi du 23 décembre 1958 et par la loi du 29 juillet 1981, and pursuant to the loi du 31 juillet 1962 ayant pour objet le renforcement de l'alimentation en eau potable du Grand-Duché de Luxembourg à partir du réservoir d'Esch-sur-Sûre. NETHERLANDS Entities producing or distributing water pursuant to the Waterleidingwet of 6 April 1957, as amended by the Laws of 30 June 1967, 10 September 1975, 23 June 1976, 30 September 1981, 25 January 1984 and 29 January 1986. AUSTRIA Entities of local authorities (Gemeinden) and associations of local authorities (Gemeindeverbände) producing, transporting or distributing drinking water pursuant to the Wasserversorgungsgesetze of the nine Länder. PORTUGAL Empresa Pública das Águas Livres producing or distributing water pursuant to the Decreto-Lei no 190/81 of 4 July 1981. Local authorities producing or distributing water. FINLAND Entities producing, transporting or distributing drinking water pursuant to Article 1 of Laki yleisistä vesi- ja viemärilaitoksista (982/77) of 23 December 1977. SWEDEN Local authorities and municipal companies producing, transporting or distributing drinking water pursuant to lagen (1970:244) om allmänna vatten- och avloppsanläggningar. UNITED KINGDOM Water companies producing or distributing water pursuant to the Water Acts 1945 and 1989. The Central Scotland Water Development Board, producing or distributing water, and the Water Authorities, producing or distributing water pursuant to the Water (Scotland) Act 1980. The Department of the Environment for Northern Ireland responsible for producing and distributing water pursuant to the Water and Sewerage (Northern Ireland) Order 1973. ANNEX II CONTRACTING ENTITIES IN THE SECTORS OF PRODUCTION, TRANSPORT OR DISTRIBUTION OF ELECTRICITY BELGIUM Entities producing, transporting or distributing electricity pursuant to Article 5: Des régies communales et intercommunales of the Loi sur les distributions d'énergie électrique of 10 March 1925. Entities transporting or distributing electricity pursuant to the loi relative aux intercommunales of 22 December 1986. EBES, Intercom, Unerg and other entities producing, transporting or distributing electricity and granted a concession for distribution pursuant to Article 8 - les concessions communales et intercommunales of the loi du 10 mars 1952 sur les distributions d'énergie électrique. The Société publique de production d'électricité (SPÉ). DENMARK Entities producing or transporting electricity on the basis of a licence pursuant to 3, stk 1, of lov. nr. 54 af 25 February 1976 om elforsyning, jf. bekendtgørelse nr. 607 af 17 december 1976 om elforsyningslovens anvendelsesområde. Entities distributing electricity as defined in 3, stk. 2, of lov nr. 54 af 25. februar 1976 om elforsyning, jf. bekendtgørelse nr. 607 af 17. december 1976 om elforsyningslovens anvendelsesområde and on the basis of authorisations for expropriation pursuant to Articles 10 to 15 of the lov om elektriske stærkstrømsanlæg, jf lovbekendtgørelse nr. 669 af 28. december 1977. GERMANY Entities producing, transporting or distributing electricity as defined in 2 Absatz 2 of the Gesetz zur Förderung der Energiewirtschaft (Energiewirtschaftsgesetz) vom 13 December 1935, as last amended by the Gesetz vom 19 December 1977, and auto-production of electricity in so far as this is covered by the scope of the Directive pursuant to Article 2(5). GREECE Dimosia Epicheirisi Ilektrismoy (Public Power Corporation) set up pursuant to Law 1468 of 2 August 1950: Peri Idryseos Dimosias Epicheiriseos Ilektrismoy, and operating pursuant to Law 57/85: Domi, rolos kai tropos dioikisis kai leitoyrgias tis koinonikopoiimenis Dimosias Epicheirisis Ilektrismoy. SPAIN Entities producing, transporting or distributing electricity pursuant to Article 1 of the Decreto de 12 de marzo de 1954, approving the Reglamento de verificaciones eléctricas y regularidad en el suministro de energía, and pursuant to Decreto 2617/1966, de 20 de octubre, sobre autorización administrativa en materia de instalaciones eléctricas. Red Eléctrica de España SA, set up pursuant to Real Decreto 91/1985 de 23 de enero. FRANCE Électricité de France, set up and operating pursuant to Loi 46/6288 sur la nationalisation de l'électricité et du gaz of 8 April 1946. Entities (sociétés d'économie mixte or régies) distributing electricity and referred to in Article 23 of Loi 48/1260 portant modification des lois 46/6288 du 8 avril 1946 et 46/2298 du 21 octobre 1946 sur la nationalisation de l'électricité et du gaz of 12 August 1948. Compagnie nationale du Rhône. IRELAND The Electricity Supply Board (ESB), set up and operating pursuant to the Electricity Supply Act 1927. ITALY ITALY Ente nazionale per l'energia elettrica, set up pursuant to legge n. 1643, 6 dicembre 1962, approvato con Decreto n. 1720, 21 dicembre 1965. Entities operating on the basis of a licence pursuant to Article 4, n. 5 or 8 of Legge n. 1643 - Istituzione dell'Ente nazionale per la energia elettrica e trasferimento ad esso delle imprese esercenti le industrie elettriche of 6 December 1962. Entities operating on the basis of a concession pursuant to Article 20 of Decreto del Presidente della Repubblica n. 342 - Norme integrative della legge del 6 dicembre 1962, n. 1643 e norme relative al coordinamento e all'esercizio delle attività elettriche esercitate da enti ed imprese diverse dell'Ente nazionale per l'energia Elettrica of 18 March 1965. LUXEMBOURG Compagnie grand-ducale d'électricité de Luxembourg, producing or distributing electricity pursuant to the Convention of 11 November 1927 concernant l'établissement et l'exploitation des réseaux de distribution d'énergie électrique dans le grand-duché de Luxembourg, approved by the Law of 4 January 1928. Société électrique de l'Our (SEO). Syndicat de communes SIDOR. NETHERLANDS Elektriciteitsproduktie Oost-Nederland. Elektriciteitsbedrijf Utrecht-Noord-Holland-Amsterdam (UNA). Elektriciteitsbedrijf Zuid-Holland (EZH). Elektriciteitsproduktiemaatschappij Zuid-Nederland (EPZ). Provinciale Zeeuwse Energie Maatschappij (PZEM). Samenwerkende Elektriciteitsbedrijven (SEP). Entities distributing electricity on the basis of a licence (vergunning) granted by the provincial authorities pursuant to the Provinciewet. AUSTRIA Entities producing, transporting or distributing electricity pursuant to the second Verstaatlichungsgesetz (BGBl.Nr. 81/1947) and the Elektrizitätswirtschaftsgesetz (BGBl. Nr. 260/1975), including the Elektrizitätswirtschaftsgesetze of the nine Länder. PORTUGAL Electricidade de Portugal (EDP), set up pursuant to Decreto-Lei no 502/76 de 30 de Junho de 1976 Local authorities distributing electricity pursuant to Artigo 1o - Decreto-Lei no 344-B/82 de 1 de Setembro de 1982, as amended by Decreto-Lei no 297/86 de 19 de Setembro de 1986. Entities producing electricity pursuant to Decreto Lei no 189/88 de 27 de Maio de 1988. Entities producing electricity pursuant to Decreto-Lei no 189/88 de 27 de Maio de 1988. Independent producers of electricity pursuant to Decreto-Lei no 189/88 de 27 de Maio de 1988 . Empresa de Electricidade dos Açores - EDA, EP, set up pursuant to Decreto Regional no 16/80 de 21 de Agosto de 1980. Empresa de Electricidade da Madeira, EP, set up pursuant to Decreto-Lei no 12/74 de 17 de Janheiro de 1974, and regionalised pursuant to Decreto-Lei no 31/79 de 24 de Fevreiro de 1979 and Decreto-Lei no 91/79 de 19 de Abril de 1979. FINLAND Entities producing, transporting or distributing electricity on the basis of a concession pursuant to Article 27 of Sähkölaki (319/79) of 16 March 1979. SWEDEN Entities transporting or distributing electricity on the basis of a concession pursuant to lagen (1902:71 s.
1) innefattande vissa bestämmelser om elektriska anläggningar. UNITED KINGDOM Central Electricity Generating Board (CEGB) and the Area Electricity Boards, producing, transporting or distributing electricity pursuant to the Electricity Act 1947 and the Electricity Act 1957. The North of Scotland Hydro-Electricity Board (NSHB), producing, transporting and distributing electricity pursuant to the Electricity (Scotland) Act 1979. The South of Scotland Electricity Board (SSEB), producing, transporting and distributing electricity pursuant to the Electricity (Scotland) Act 1979. The Northern Ireland Electricity Service (NIES), set up pursuant to the Electricity Supply (Northern Ireland) Order 1972. ANNEX III CONTRACTING ENTITIES IN THE SECTORS OF TRANSPORT OR DISTRIBUTION OF GAS OR HEAT BELGIUM Distrigaz SA, operating pursuant to the Law of 29 July 1983. Entities transporting gas on the basis of an authoriSation or concession pursuant to the loi du 12 avril. 1985 as amended by the loi du 28 juillet 1987. Entities distributing gas and operating pursuant to the loi relative aux Intercommunales du 22 décembre 1986. Local authorities, or associations of local authorities, distributing heat. DENMARK Dansk Olie og Naturgas, A/S operating on the basis of an exclusive right granted pursuant to bekendtgørelse nr. 869 af 18 juni 1979 om eneretsbevilling til indførsel, forhandling, transport og oplagring af naturgas. Entities operating pursuant to lov nr. 294 af 7. juni 1972 om naturgasforsyning. Entities distributing gas or heat on the basis of an authorisation pursuant to Chapter IV of lov om varmeforsyning, jf. lovbekendtgørelse nr. 330 af 29. juni 1983. Entities transporting gas on the basis of an authorisation pursuant to bekendtgørelse nr. 141 af 13. marts 1974 om rørledningsanlæg på dansk kontinentalsokkelområde til transport af kulbrinter (installation of pipelines on the continental shelf for the transport of hydrocarbons). GERMANY Entities transporting or distributing gas as defined in paragraph 2 Abs. 2 of the Gesetz zur Förderung der Energiewirtschaft vom 13 Dezember 1935 (Energiewirtschaftsgesetz), as last amended by the law of 19 December 1977. Local authorities, or associations of local authorities, distributing heat. GREECE DEP, transporting or distributing gas pursuant to Ministerial Decision 2583/1987 (Anathesi sti Dimosia Epicheirisi Petrelaioy armodiotiton schetikon me to fysiko serio) Systasi tis DEPA AE (Dimosia Epicheirisi Aerioy, Anonymos Etaireia). Athens Municipal Gasworks S.A., DEFA transporting or distributing gas. SPAIN Entities operating pursuant to Ley no 10 de 15 de junio de 1987. FRANCE Société nationale des gaz du Sud-Ouest, transporting gas. Gaz de France, set up and operating pursuant to the loi 46/6288 du 8 avril 1946 sur la nationalisation de l'électricité et du gaz. Entities (sociétés d'économie mixte or régies) distributing electricity and referred to in Article 23 of the loi 48/1260 du 12 août 1948 portant modification des lois 46/6288 du 8 avril 1946 et 46/2298 du 21 octobre 1946 sur la nationalisation de l'électricité et du gaz. Compagnie française du méthane, transporting gas. Local authorities, or associations of local authorities, distributing heat. IRELAND Irish Gas Board, operating pursuant to the Gas Act 1976 to 1987, and other entities governed by Statute. Dublin Corporation, distributing heat. ITALY SNAM and SGM e Montedison, transporting gas. Entities distributing gas pursuant to the Testo unico delle leggi sull'assunzione diretta del pubblici servizi da parte del comuni e delle province approvato con Regio Decreto 15 ottobre 1925, n. 2578, and to the Decreto del P.R. n. 902 del 4 ottobre 1986. Entities distributing heat to the public referred to in Article 10 of the Legge 29 maggio 1982, n. 308 (Norme sul contenimento dei consumi energetici, lo sviluppo delle fonti rinnovabili di energia, l'esercizio di centrali elettriche alimentate con combustibili diversi dagli idrocarburi). Local authorities, or associations of local authorities, distributing heat. LUXEMBOURG Société de transport de gaz SOTEG SA. Gaswierk Esch-Uelzecht SA. Service industriel de la commune de Dudelange. Service industriel de la commune de Luxembourg. Local authorities, or associations of local authorities, distributing heat. NETHERLANDS NV Nederlandse Gasunie. Entities transporting or distributing gas on the basis of a licence (vergunning) granted by the local authorities pursuant to the Gemeentewet. Local and provincial entities transporting or distributing gas pursuant to the Gemeentewet and the Provinciewet. Local authorities, or associations of local authorities, distributing heat. AUSTRIA Gas: contracting entities transporting or distributing gas pursuant to the Energiewirtschaftsgesetz 1935, dRGBl. I S 1451/1935, as amended by dRGBl. I S 4671/1941. Heat: contracting entities transporting or distributing heat licensed pursuant to the Austrian Trade and Industry Regulation Act (Gewerbeordnung BGBl.Nr. 50/974). PORTUGAL Petroquímica e Gás de Portugal (EP), pursuant to Decreto-Lei no 346-A/88 de 29 de Setembro de 1988. FINLAND Municipal energy services, or associations thereof, or other entities transporting or distributing gas or heat on the basis of a concession granted by the municipal authorities. SWEDEN Entities transporting or distributing gas or heat on the basis of a concession pursuant to lagen (1978:160) om vissa rörledningar. UNITED KINGDOM British Gas PLC and other entities operating pursuant to the Gas Act 1986. Local authorities, or associations of local authorities, distributing heat pursuant to the Local Government (Miscellaneous Provisions) Act 1976. Electricity Boards distributing heat pursuant to the Electricity Act 1947. ANNEX IV CONTRACTING ENTITIES IN THE SECTORS OF EXPLORATION FOR AND EXTRACTION OF OIL OR GAS The entities granted an authorization, permit, licence or concession to explore for or extract oil and gas pursuant to the following legislative provisions: BELGIUM Loi du 1 mai 1939 complétée par l'arrêté royal no 83 du 28 novembre 1939 sur l'exploration et l'exploitation du pétrole et du gaz. Arrêté royal du 15 novembre 1919. Arrêté royal du 7 avril 1953. Arrêté royal du 15 mars 1960 loi au sujet de la plate-forme continentale du 15 juin 1969. Arrêté de l'exécutif régional wallon du 29 septembre 1982. Arrêté de l'exécutif flamand du 30 mai 1984. DENMARK Lov nr. 293 af 10. juni 1981 om anvendelse af Danmarks undergrund. Lov om kontinentalsoklen, jf. lovbekendtgørelse nr. 182 af 1. maj 1979. GERMANY Bundesberggesetz vom 13. August 1980, as last amended on 12 February 1990. GREECE Law 87/1975 setting up DEP EKY (Peri idryseos Dimosias Epicheiriseos Petrelaioy). SPAIN Ley sobre Investigación y Explotación de Hidrocarburos de 27 de Junio de 1974 and its implementing decrees. FRANCE Code minier (décret 56-838 du 16 août 1956), as amended by the loi 56-1186 du 10 décembre 1958, décret 60-800 du 2 août 1960, décret 61-359 du 7 avril 1961, loi 70-1 du 2 janvier 1970, loi 77-620 du 16 juin 1977, décret 80-204 du 11 mars 1980. IRELAND Continental Shelf Act 1960. Petroleum and Other Minerals Development Act 1960. Ireland Exclusive licensing terms 1975. Revised Licensing Terms 1987. Petroleum (Production) Act (NI) 1964. ITALY Legge 10 febbraio 1953, n. 136. Legge 11 gennaio 1957, n. 6, modificata dalla legge 21 luglio 1967, n. 613. LUXEMBOURG - NETHERLANDS Mijnwet nr. 285 van 21 april 1810. Wet opsporing delfstoffen nr. 258 van 3 mei 1967. Mijnwet continentaal plat 1965, nr. 428 van 23 september 1965. AUSTRIA Entities created pursuant to the Berggesetz 1975 (BGBl.Nr. 259/1975), as last amended by (BGBl. Nr. 193/1993) PORTUGAL Area above water: Decreto-Lei no 543/74 de 16 de Outubro de 1974, no 168/77 de 23 de Abril de 1977, no 266/80 de 7 de Agosto de 1980, no 174/85 de 21 de Maio de 1985 and Despacho no 22 de 15 de Março de 1979. Area under water: Decreto-Lei no 47973 de 30 de Setembro de 1967, no 49369 de 11 de Novembro de 1969, no 97/71 de 24 de Março de 1971, no 96/74 de 13 de Março de 1974, no 266/80 de 7 de Agosto de 1980, no 2/81 de 7 de Janeiro de 1981 and no 245/82 de 22 de Junho de 1982. FINLAND - SWEDEN Entities holding a concession for exploring for or exploiting oil or gas pursuant to minerallagen (1991:45) or which have been granted an authorisation pursuant to lagen (1966:314) om kontinentalsockeln. UNITED KINGDOM Petroleum (Production) Act 1934, as extended by the Continental Shelf Act 1964. Petroleum (Production) Act (Northern Ireland) 1964. ANNEX V CONTRACTING ENTITIES IN THE SECTORS OF EXPLORATION FOR AND EXTRACTION OF COAL AND OTHER SOLID FUELS BELGIUM Entities exploring or extracting coal or other solid fuels pursuant to the arrêté du Régent du 22 août 1948 and the loi du 22 avril 1980. DENMARK Entities exploring or extracting coal or other solid fuels pursuant to the lovbekendtgørelse nr. 531 af 10. oktober 1984. GERMANY Entities exploring or extracting coal or other solid fuels pursuant to the Bundesberggesetz vom 13. August 1980, as last amended on 12 February 1990. GREECE Public Power Corporation Dimosia Epicheirisi Ilektrismoy, exploring for or extracting coal or other solid fuels pursuant to the Mining Code of 1973, as amended by the law of 27 April 1976. SPAIN Entities exploring for or extracting coal or other solid fuels pursuant to Ley 22/1973, de 21 de julio, de Minas, as amended by Ley 54/1980 de 5 de noviembre and by Real Decreto Legislativo 1303/1986 de 28 de junio. FRANCE Entities exploring for or extracting coal or other solid fuels pursuant to code minier (décret 58-863 du 16 août 1956), as amended by the loi 77 -620 du 16 juin 1977, décret 80 -204 and arrêté du 11 mars 1980. IRELAND Bord na Mona. Entities exploring for or extracting coal pursuant to the Minerals Development Acts, 1940 to 1970. ITALY Carbo Sulcis SpA LUXEMBOURG - NETHERLANDS - AUSTRIA Entities exploring for or extracting coal or other solid fuels set up pursuant to the Berggesetz 1975 (BGBl. Nr. 259/1975, as last amended by BGBl. Nr. 193/1993). PORTUGAL Empresa Carbonífera do Douro. Empresa Nacional de Urânio. FINLAND Entities benefitting from a concession for the exploration for or extractio, of coal or other solid fuels and operating on the basis of an exclusive right pursuant to Articles 1 and 2 of Laki oikeudesta luovuttaa valtion maaomaisuutta ja tuloatuottavia oikeuksia (687/78). SWEDEN Entities benefitting from a concession for the exploration for or extraction, of coal or other solid fuels on the basis of a concession pursuant to minerallagen (1991:45) or lagen (1985:620) om vissa torvfyndigheter, or which have been granted an authorisation pursuant to lagen (1966:314) om kontinentalsockeln. UNITED KINGDOM British Coal Board (BCC) set up pursuant to the Coal Industry Nationalisation Act 1946. Entities benefiting from a licence granted by the BCC pursuant to the Coal Industry Nationalisation Act 1946. Entities exploring for or extracting solid fuels pursuant to the Mineral Development Act (Northern Ireland) 1969. ANNEX VI CONTRACTING ENTITIES IN THE FIELD OF RAIL SERVICES BELGIUM Société nationale des chemins de fer belges/Nationale Maatschappij der Belgische Spoorwegen. DENMARK Danske Statsbaner (DSB) Entities operating/set up pursuant to lov nr. 295 af 6. juni 1984 om privatbanerne, jf. lov nr. 245 af 6. august 1977. GERMANY Deutsche Bundesbahn Other entities providing railway services to the public pursuant to 2 Abs. 1 of Allgemeines Eisenbahngesetz vom 29 März 1951. GREECE Organismos Sidirodromon Ellados (OSE). SPAIN Red Nacional de Los Ferrocarriles Españoles Ferrocarriles de Vía Estrecha (FEVE) Ferrocarrils de la Generalitat de Catalunya (FGC). Eusko Trenbideak (Bilbao). Ferrocarriles de la Generalitat Valenciana (FGV). FRANCE Société nationale des chemins de fer français and other rail networks open to the public referred to in the loi d'orientation des transports intérieurs du 30 décembre 1982, titre II, chapitre 1er du transport ferroviaire. IRELAND Iarnrod Éireann (Irish Rail). ITALY Ferrovie dello Stato Entities providing railway services on the basis of a concession pursuant to Article 10 of Regio Decreto n. 1447 of 9 May 1912 che approva il Testo unico delle disposizioni di legge per le ferrovie concesse dall'industria privata, le tramvie a trazione meccanica e gli automobili. Entities operating on the basis of a concession granted, pursuant to special laws, as referred to in Titolo XI, Capo II, Sezione Ia del Regio Decreto 9 maggio 1912, n. 1447, che approva il Testo unico delle disposizioni di legge per le ferrovie concesse all'industria privata, le tramvie a trazione meccanica e gli automobili. Entities providing railway services to the public on the basis of a concession pursuant to Article 4 of Legge n. 410 - Concorso dello Stato per la riattivazione dei pubblici servizi di trasporto in concessione of 14 June 1949. Entities or local authorities providing railway services on the basis of a concession pursuant to Article 14 Legge n. 1221 - Provvedimenti per l'esercizio ed il potenziamento di ferrovie e di altre linee di trasporto in regime di concessione of 2 August 1952. LUXEMBOURG Chemins de fer luxembourgeois (CFL). NETHERLANDS Nederlandse Spoorwegen NV. AUSTRIA Entities providing railway services set up pursuant to the Eisenbahngesetz 1957 (BGBl Nr. 60/1957). PORTUGAL Caminhos de Ferro Portugueses. FINLAND Valtionrautatiet/Statsjärnvägarna (national railways) SWEDEN Public entities operating railway services in accordance with förordningen (1988:1379) om statens spåranläggningar and lagen (1990:1157) om järnvägssäkerhet. Regional and local public entities operating regional or local railway communications pursuant to lagen (1978:438) om huvudmannaskap för viss kollektiv persontrafik. Private entities operating railway services pursuant to an authorisation granted under förordningen (1988:1379) om statens spåranläggningar, where such permission complies with Article 2(3) of the Directive. UNITED KINGDOM British Railways Board. Northern Ireland Railways. ANNEX VII CONTRACTING ENTITIES IN THE FIELD OF URBAN RAILWAY, TRAMWAY, TROLLEYBUS OR BUS SERVICES BELGIUM Société nationale des chemins de fer vicinaux (SNCV)/Nationale Maatschappij van Buurtspoorwegen (NMB) Entities providing transport services to the public on the basis of a contract granted by SNCV pursuant to Articles 16 and 21 of the arrêté du 30 décembre 1946 relatif aux transports rémunérés de voyageurs par route effectués par autobus et par autocars. Société des transports intercommunaux de Bruxelles (STIB). Maatschappij van het Intercommunaal Vervoer te Antwerpen (MIVA). Maatschappij van het Intercommunaal Vervoer te Gent (MIVG). Société des transports intercommunaux de Charleroi (STIC). Société des transports intercommunaux de la région liégeoise (STIL). Société des transports intercommunaux de l'agglomération verviétoise (STIAV) and other entities set up pursuant to the Loi relative à la création de sociétés de transports en commun urbains/Wet betreffende de oprichting van maatschappijen voor stedelijk gemeenschappelijk vervoer of 22 February 1962. Entities providing transport services to the public on the basis of a contract with STIB pursuant to Article 10 or with other transport entities pursuant to Article 11 of the arrêté royal 140 du 30 décembre 1982 relatif aux mesures d'assainissement applicables à certains organismes d'intérêt public dépendant du ministère des communications. DENMARK Danske Statsbaner (DSB) Entities providing bus services to the public (almindelig rutekørsel) on the basis of an authorisation pursuant to Lov nr. 115 af 29. marts om buskørsel. GERMANY Entities providing, on the basis of an authorisation, short-distance transport services to the public (Öffentlicher Personennahverkehr) pursuant to the Personenbeförderungsgesetz vom 21. März 1961, as last amended on 25 July 1989. GREECE Ilektrokinita Leoforeia Periochis Athinon-Peiraios (Electric buses of the Athens - Piraeus area) operating pursuant to Decree 768/1970 and Law 588/1977. Ilektrikoi Sidirodromoi Athinon-Peiraios (Athens - Piraeus electric railways) operating pursuant to Laws 352/1976 and 588/1977. Epicheirisi Astikon Sygkoinonion (urban transport undertaking) operating pursuant to Law 588/1977. Koino Tameio Eispraxeos Leoforeion. (Joint bus receipts fund) operating pursuant to Decree 102/1973. RODA (Dimotiki Epicheirisi Leoforeion Rodoy) Roda: Municipal bus undertaking in Rhodes. Organismos Astikon Sygkoinonion Thessalonikis (Urban transport organisation of Thessaloniki) operating pursuant to Decree 3721/1957 and Law 716/1980. SPAIN Entities providing transport services to the public pursuant to Article 71 of the Ley de Régimen local Corporación metropolitana de Madrid. Corporación metropolitana de Barcelona. Entities providing bus services to the public, pursuant to Article 71 of the Ley de Ordinación de Transportes Terrestres de 31 de julio de 1987. Entities providing urban or inter-urban bus services to the public pursuant to Articles 113 to 118 of the Ley de Ordenación de Transportes Terrestres de 31 de julio de 1987. FEVE, RENFE (or Empresa Nacional de Transportes de Viajeros por Carretera) providing bus services to the public pursuant to the Disposiciones adicionales, Primera, de la Ley de Ordenación de Transportes Terrestres of 31 July 1957. Entities providing bus services to the public pursuant to Disposiciones Transitorias, Tercera, de la Ley de Ordenación de Transportes Terrestres of 31 July 1957. FRANCE Entities providing transport services to the public pursuant to Article 7-II of the loi no 82-1153 du 30 décembre 1982, transports intérieurs, orientation). Régie autonome des transports parisiens, Société nationale des chemins de fer français, APTR, and other entities providing transport services to the public on the basis of an authorisation granted by the Syndicat des transports parisiens, pursuant to the Ordonnance de 1959 et ses décrets d'application relatifs à l'organisation des transports de voyageurs dans la région parisienne. IRELAND Iarnrod Éireann (Irish Rail). Bus Éireann (Irish Bus). Bus Átha Cliath (Dublin Bus). Entities providing transport services to the public pursuant to the amended Road Transport Act 1932. ITALY Entities providing transport services on the basis of a concession pursuant to Article 1 of Legge n. 1822 - Disciplina degli autoservizi di linea (autolinee per viaggiatori, bagagli e pacchi agricoli in regime di concessione all'industria privata) of 28 September 1939, as amended by Article 45 of Decreto del Presidente della Repubblica n. 771 of 28 June 1955. Entities providing transport services to the public pursuant to Article 1(15) of Regio Decreto n. 2578 - Approvazione del Testo unico della legge sull'assunzione diretta dei pubblici servizi da parte dei comuni e delle province of 15 October 1925. Entities operating on the basis of a concession pursuant to Article 242 or 255 of Regio Decreto 9 maggio 1912, n. 1447, che approva il Testo unico delle disposizioni di legge per le ferrovie concesse all'industria privata, le tramvie a trazione meccanica e gli automobili. Entities or local authorities operating on the basis of a concession pursuant to Article 4 of Legge 14 giugno 1949, n. 410, concorso dello Stato per la riattivazione dei pubblici servizi di trasporto in concessione. Entities operating on the basis of a concession pursuant to Article 14 of Legge n. 1221 - Provvedimenti per l'esercizio ed il potenziamento di ferrovie e di altre linee di trasporto in regime di concessione of 2 August 1952. LUXEMBOURG Chemins de fer du luxembourgeois (CFL). Service communal des autobus municipaux de la ville de Luxembourg. Transports intercommunaux du canton d'Esch-sur-Alzette (TICE). Bus service undertakings operating pursuant to the règlement grand-ducal du 3 février 1978 concernant les conditions d'octroi des autorisations d'établissement et d'exploitation des services de transports routiers réguliers de personnes rémunérées. NETHERLANDS Entities providing transport services to the public pursuant to Chapter II (Openbaar vervoer) of the Wet Personenvervoer van 12 maart 1987. AUSTRIA Entities providing transport services pursuant to the Eisenbahngesetz 1957 (BGBl.Nr. 60/1957) and the Kraftfahrliniengesetz 1952 (BGBl. Nr. 84/1952). PORTUGAL Rodoviaria Nacional, EP. Companhia Carris de ferro de Lisboa. Metropolitano de Lisboa, EP. Serviços de Transportes Colectivos do Porto. Serviços Municipalizados de Transporte do Barreiro. Serviços Municipalizados de Transporte de Aveiro. Serviços Municipalizados de Transporte de Braga. Serviços Municipalizados de Transporte de Coimbra. Serviços Municipalizados de Transporte de Portalegre. FINLAND Public or private entities operating bus services pursuant to Laki (343/91) luvanvaraisesta henkilöliikenteestä tiellä and Helsingin kaupungin liikennelaitos/Helsingfors stads trafikverk (Helsinki Transport Board), which provides underground railway and tramway services to the public. SWEDEN Entities operating urban railway or tramway services pursuant to lagen (1978:438) om huvudmannaskap för viss kollektiv persontrafik and lagen (1990:1157) om järnvägssäkerhet. Public or private entities operating a trolley bus or bus service pursuant with lagen (1978:438) om huvudmannaskap för viss kollektiv persontrafik and lagen (1983:293) om yrkestrafik. UNITED KINGDOM Entities providing bus services to the public pursuant to the London Regional Transport Act 1984. Glasgow Underground. Greater Manchester Rapid Transit Company. Docklands Light Railway. London Underground Ltd. British Railways Board. Tyne and Wear Metro. ANNEX VIII CONTRACTING ENTITIES IN THE FIELD OF AIRPORT INSTALLATIONS BELGIUM Régie des voies aériennes, set up pursuant to the Arrêté-loi portant création de la régie des voies aériennes of 20 November 1946, as amended by Arrêté royal portant refonte du statut de la régie des voies aériennes of 5 October 1970. DENMARK Airports operating on the basis of an authorisation pursuant to 55, stk. 1, lov om luftfart, jf. lovbekendtgoerelse nr. 408 af 11. september 1985. GERMANY Airports as defined in Article 38 Absatz 2 Nr. 1 of the Luftverkehrszulassungsordnung vom 19. März 1979, as last amended by the Verordnung vom 21. Juli 1986. GREECE Airports operating pursuant to Law 517/1931 setting up the civil aviation service (Ypiresia Politikis Aeroporias (YPA)). International airports operating pursuant to Presidential Decree 647/981. SPAIN Airports managed by Aeropuertos Nacionales operating pursuant to the Real Decreto 278/1982 de 15 de octubre de 1982. FRANCE Aéroports de Paris operating pursuant to titre V, articles L 251-1 à 252-1 du code de l'aviation civile. Aéroport de Bâle-Mulhouse, set up pursuant to the convention franco -suisse du 4 juillet 1949. Airports as defined in Article L 270-1 of the code de l'aviation civile. Airports operating pursuant to the cahier de charges type d'une concession d'aéroport, décret du 6 mai 1955. Airports operating on the basis of a convention d'exploitation pursuant to Article L/221 of the code de l'aviation civile. IRELAND Airports of Dublin, Cork and Shannon managed by Aer Rianta-Irish Airports. Airports operating on the basis of a public-use licence granted pursuant to the Air Navigation and Transport Act No 40/1936, the Transport Fuel and Power (Transfer of Departmental Administration Functions) Order 1959 (SI No 125 of 1959) and the Air Navigation (Aerodromes and Visual Ground Aids) Order 1970 (SI No 291 of 1970). ITALY Civilian national airports (aerodromi civili istituiti dallo Stato) operating pursuant to Article 692 of the Codice della navigazione, Regio Decreto n. 327 of 30 March 1942. Entities operating airport facilities on the basis of a concession granted pursuant to Article 694 of the Codice della navigazione, Regio Decreto 30 marzo 1942, n. 327. LUXEMBOURG Aéroport de Findel. NETHERLANDS Airports operating pursuant to Articles 18 et seq. of the Luchtvaartwet of 15 January 1958 (stbld. 47), as amended on 7 June 1978. AUSTRIA Austro Control GmbH. Entities as defined in Articles 60 to 80 of the Luftfahrtgesetz 1957 (BGBl.Nr. 253/1957). PORTUGAL Airports managed by Aeroportos e Navegação Aérea (ANA) EP pursuant to Decreto-Lei no 246/79. Aeroporto do Funchal and Aeroporto de Porto Santo, regionalised pursuant to Decreto -Lei no 284/81. FINLAND Airports managed by 'Ilmailulaitos/Luftfartsverket' pursuant to Ilmailulaki (595/64). SWEDEN Publicly-owned and operated airports in accordance with lagen (1957:297) om luftfart. Privately-owned and operated airports with an operating licence under the act, where this licence corresponds to the criteria of Article 2(3) of the Directive. UNITED KINGDOM Airports managed by British Airports Authority plc. Airports which are public limited companies and operating pursuant to the Airports Act 1986. ANNEX IX CONTRACTING ENTITIES IN THE FIELD OF MARITIME OR INLAND PORT OR OTHER TERMINAL FACILITIES BELGIUM Société anonyme du canal et des installations maritimes de Bruxelles. Port autonome de Liège. Port autonome de Namur. Port autonome de Charleroi. Port de la ville de Gand. Compagnie des installations maritimes de Bruges - Maatschappij der Brugse haveninrichtingen. Société intercommunale de la rive gauche de l'Escaut - Intercommunale maatschappij van de linker Scheldeoever (Port d'Anvers). Port de Nieuwport. Port d'Ostende. DENMARK Ports as defined in Article 1, I to III of the bekendtgørelse nr. 604 af 16. december 1985 om hvilke havne der er omfattet af lov om trafikhavne, jf. lov nr. 239 af 12. maj 1976 om trafikhavne. GERMANY Seaports owned totally or partially by territorial authorities (Länder, Kreise, Gemeinden). Inland ports subject to the Hafenordnung pursuant to the Wassergesetze der Länder. GREECE Piraeus port (Organismos Limenos Peiraios), set up pursuant to Emergency Law 1559/1950 and Law 1630/1951. Thessaloniki port (Organismos Limenos Thessalonikis), set up pursuant to decree N.A. 2251/1953. Other ports governed by Presidential Decree 649/1977 Epopteia, organosi leitoyrgias kai dioikitikos elenchos limenon (supervision, organisation of functioning and administrative control of ports). SPAIN Puerto de Huelva, set up pursuant to the Decreto de 2 de octubre de 1969, no 2380/69. Puertos y Faros. Otorga Régimen de Estatuto de Autonomía al Puerto de Huelva. Puerto de Barcelona, set up pursuant to the Decreto de 25 de agosto de 1978, no 2407/78, Puertos y Faros. Otorga al de Barcelona Régimen de Estatuto de Autonomía. Puerto de Bilbao, set up pursuant to the Decreto de 25 de agosto de 1978, no 2048/78. Puertos y Faros. Otorga al de Bilbao Régimen de Estatuto de Autonomía. Puerto de Valencia, set up pursuant to the Decreto de 25 de agosto de 1978, no 2409/78. Puertos y Faros. Otorga al de Valencia Régimen de Estatuto de Autonomía. Juntas de Puertos, operating pursuant to the Lei 27/68 de 20 de junio de 1968. Puertos y Faros. Juntas de Puertos y Estatutos de Autonomía en Decreto de 9 de abril de 1970, no 1350/70. Juntas de Puertos. Ports managed by the Comisión Administrativa de Grupos de Puertos, operating pursuant to the Ley 27/68 de 20 de junio de 1968, Decreto 1958/78 de 23 de junio de 1978 and Decreto 571/81 de 6 de mayo de 1981. Ports listed in the Real Decreto 989/82 de 14 de mayo de 1982. Puertos. Clasificación de los de interés general. FRANCE Port autonome de Paris, set up pursuant to loi 68/917 du 24 octobre 1968 relative au port autonome de Paris. Port autonome de Strasbourg, set up pursuant to the convention du 20 mai 1923 entre l'État et la ville de Strasbourg relative à la constitution du port rhénan de Strasbourg et à l'exécution de travaux d'extension de ce port, approved by the loi du 26 avril 1924. Other inland waterway ports set up or managed pursuant to Article 6 (navigation intérieure) of Décret 69-140 relatif aux concessions d'outillage public dans les ports maritimes of 6 February 1969. Ports autonomes operating pursuant to articles L 111-1 et seq. of the code des ports maritimes. Ports non autonomes operating pursuant to articles R 121-1 et seq. of the code des ports maritimes. Ports managed by regional authorities (départements) or operating pursuant to a concession granted by the regional authorities (départements) pursuant to Article 6 of the loi 86 -663 du 22 juillet 1983 complétant la loi 83 -8 du 7 janvier 1983 relative à la répartition de compétences entre les communes, départements et l'État. IRELAND Ports operating pursuant to the Harbour Acts 1946 to 1976. Port of Dun Laoghaire operating pursuant to the State Harbours Act 1924. Port of Rosslare Harbour operating pursuant to the Finguard and Rosslare Railways and Harbours Act 1899. ITALY National ports and other ports managed by the Capitaneria di Porto pursuant to the Codice della navigazione, Regio Decreto 30 marzo 1942, n. 32. Autonomous ports (enti portuali) set up by special laws pursuant to Article 19 of the Codice della navigazione, Regio Decreto 30 marzo 1942, n. 327. LUXEMBOURG Port de Mertert, set up and operating pursuant to the loi du 22 juillet 1963 relative à l'aménagement et à l'exploitation d'un port fluvial sur la Moselle. NETHERLANDS Havenbedrijven, set up and operating pursuant to the Gemeentewet van 29 juni 1851. Havenschap Vlissingen, set up by the wet van 10 september 1970 houdende een gemeenschappelijke regeling tot oprichting van het Havenschap Vlissingen. Havenschap Terneuzen, set up by the wet van 8 april 1970 houdende een gemeenschappelijke regeling tot oprichting van het Havenschap Terneuzen. Havenschap Delfzijl, set up by the wet van 31 juli 1957 houdende een gemeenschappelijke regeling tot oprichting van het Havenschap Delfzijl. Industrie- en havenschap Moerdijk, set up by the gemeenschappelijke regeling tot oprichting van het Industrie- en havenschap Moerdijk van 23 oktober 1970, approved by Koninklijke Besluit nr. 23 van 4 maart 1972. AUSTRIA Inland ports owned totally or partially by the Länder and/or Gemeinden. PORTUGAL Porto de Lisboa, set up pursuant to the Decreto Real of 18 February 1907 and operating pursuant to Decreto-Lei n° 36976 de 20 de Julho de 1948. Porto do Douro e Leixões, set up pursuant to Decreto-Lei n° 36977 de 20 de Julho de 1948. Porto de Sines, set up pursuant to Decreto-Lei no 508/77 de 14 de Dezembro de 1977. Portos de Setúbal, Aveiro, Figueira de Foz, Viana do Castelo, Portimao e Faro, operating pursuant to the Decreto-Lei no 37754 de 18 de Fevereiro de 1950. FINLAND Ports operating pursuant to the Laki kunnallisista satamajärjestyksistä ja liikennemaksuista (955/76). Saimaa Canal (Saimaan kanavan hoitokunta). SWEDEN Ports and terminal facilities according to lagen (1983:293) om inrättande, utvidgning och avlysning av allmän farled och allmän hamn and the förordningen (1983:744) om trafiken på Göta kanal. UNITED KINGDOM Harbour Authorities within the meaning of Section 57 of the Harbours Act 1964 providing port facilities to carriers by sea or inland waterway. ANNEX X List of legislation referred to in Article 29(3) A PRODUCTION, TRANSPORT OR DISTRIBUTION OF DRINKING WATER - B PRODUCTION, TRANSMISSION OR DISTRIBUTION OF ELECTRICITY Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity [117] [117] OJ L 27, 30.1.1997, p. 20. C TRANSPORT OR DISTRIBUTION OF GAS OR HEAT Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas [118] [118] OJ L 204 , 21.7.1998, p. 1. D EXPLORATION FOR AND EXTRACTION OF OIL OR GAS Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons [119] [119] OJ L 164, 30.6.1994, p. 3. E EXPLORATION FOR AND EXTRACTION OF COAL OR OTHER SOLID FUELS - F CONTRACTING ENTITIES IN THE FIELD OF RAIL SERVICES - G CONTRACTING ENTITIES IN THE FIELD OF URBAN RAILWAY, TRAMWAY, TROLLEYBUS OR MOTOR BUS SERVICES - H CONTRACTING ENTITIES IN THE FIELD OF AIRPORT INSTALLATIONS - I CONTRACTING ENTITIES IN THE FIELD OF SEAPORT OR INLAND PORT OR OTHER TERMINAL EQUIPMENT - ANNEX XI LIST OF PROFESSIONAL ACTIVITIES AS SET OUT IN ARTICLE 1(2), POINT B
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ANNEX XII INFORMATION TO BE INCLUDED IN CONTRACT NOTICES A. OPEN PROCEDURES 1. Name, address, telegraphic address, electronic address, telephone number, telex and fax number of the contracting entity. 2. Nature of the contract (supply, works or service, where appropriate, state if it is a framework agreement). Category of service within the meaning of Annex XVI A or XVI B and description (CPC classification). Where appropriate, state whether tenders are requested for purchase, lease, rental or hire purchase or any combination of these. 3. Place of delivery, site or place of performance of service. 4. For supplies and works: (a) Nature and quantity of the goods to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the goods to be procured or the nature and extent of the services to be provided and general nature of the work. (b) indication of whether the suppliers can tender for some and/or all the goods required. If, for works contracts, the work or the contract is subdivided into several lots, the order of size of the different lots and the possibility of tendering for one, for several or for all the lots; (c) For works contracts: information concerning the purpose of the work or the contract where the latter also involves the drawing-up of projects. 5. For services: (a) The nature and quantity of the goods to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the services to be procured. (b) Indication of whether the execution of the service is reserved by law, regulation or administrative provision to a particular profession. (c) Reference of the law, regulation or administrative provision; (d) Indication of whether legal persons should indicate the names and professional qualifications of the staff to be responsible for the execution of the service. (e) Indication of whether service providers can tender for a part of the services concerned. 6. Authorisation to submit variants. 7. Time limits for delivery or completion or duration of service contract and, as far as possible, the starting date. 8. (a) Address from which the contract documents and additional documents may be requested. (b) Where appropriate, the amount and terms of payment of the sum to be paid to obtain such documents. 9. (a) Final date for receipt of tenders; (b) Address to which they must be sent. (c) Language or languages in which they must be drawn up. 10. (a) Where applicable, the persons authorised to be present at the opening of tenders. (b) Date, time and place of such opening. 11. Where applicable, any deposits and guarantees required. 12. Main terms concerning financing and payment and/or references to the provisions in which these are contained. 13. Where appropriate, the legal form to be taken by the grouping of economic operators to whom the contract is awarded. 14. Minimum economic and technical conditions required of the economic operator to whom the contract is awarded. 15. Period during which the tenderer is bound to keep open his tender. 16. Where appropriate, particular conditions to which performance of the contract is subject 17. Criteria for award of the contract. Criteria other than that of the lowest price shall be mentioned, together with their relative weighting, where they do not appear in the contract documents. 18. Other information. 19. Where appropriate, the reference to publication of the periodic information notice in the Official Journal of the European Communities to which the contract refers. 20. Date of dispatch of the notice by the contracting entity. 21. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by that Office). B. RESTRICTED PROCEDURES 1. Name, address, telegraphic address, electronic address, telephone number, telex and fax number of the contracting entity. 2. Nature of the contract (supplies, works or services; where appropriate, state if it is a framework agreement). Category of service within the meaning of Annex XVI A or XVI B and description (CPC classification). Where appropriate, state whether tenders are requested for purchase, lease, rental or hire purchase or any combination of these. 3. Place of delivery, site or place of performance of service. 4. For supplies and works: (a) The nature and quantity of the goods to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the goods to be procured or the nature and extent of the services to be provided and general nature of the work. (b) Indication of whether the suppliers can tender for some and/or all the goods required. If, for works contracts, the work or the contract is subdivided into several lots, the order of size of the different lots and the possibility of tendering for one, for several or for all the lots; (c) Information concerning the purpose of the work or the contract where the latter also involves the drawing-up of projects. 5. For services: (a) The nature and quantity of the goods to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the services to be procured. (b) Indication of whether the execution of the service is reserved by law, regulation or administrative provision to a particular profession. (c) Reference of the law, regulation or administrative provision; (d) Indication of whether legal persons should indicate the names and professional qualifications of the staff to be responsible for the execution of the service. (e) Indication of whether service providers can tender for a part of the services concerned. 6. Authorisation to submit variants. 7. Time limits for delivery or completion or duration of service contract and, as far as possible, for starting. 8. Where appropriate, the legal form to be taken by the grouping of economic operators to whom the contract is awarded. 9. (a) Final date for receipt of requests to participate; (b) Address to which they must be sent. (c) Language or languages in which they must be drawn up. 10. Final date for dispatch of invitations to tender. 11. Where applicable, any deposits and guarantees required. 12. Main terms concerning financing and payment and/or references to the provisions in which these are contained. 13. Information concerning the economic operator's position and the minimum economic and technical conditions required of him. 14. Criteria for the award of the contract. Subject to Article 54(3), second indent, criteria other than the lowest price shall be mentioned as well as their relative weighting. 15. Other information. 16. Where appropriate, particular conditions to which performance of the contract is subject 17. Where appropriate, the reference to publication of the periodic information notice in the Official Journal of the European Communities to which the contract refers. 18. Date of dispatch of the notice by the contracting entities. 19. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by that Office). C. NEGOTIATED PROCEDURES 1. Name, address, telegraphic address, , electronic address, telephone number, telex and fax number of the contracting entity. 2. Nature of the contract (supplies, works or services; where appropriate, state if it is a framework agreement). Category of service within the meaning of Annex XVI A or XVI B and description (CPV classification). Where appropriate, state whether tenders are requested for purchase, lease, rental or hire purchase or any combination of these. 3. Place of delivery, site or place of performance of service. 4. For supplies and works: (a) The nature and quantity of the goods to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the goods to be procured or the nature and extent of the services to be provided and general nature of the work. (b) Indication of whether the suppliers can tender for some and/or all the goods required. If, for works contracts, the work or the contract is subdivided into several lots, the order of size of the different lots and the possibility of tendering for one, for several or for all the lots; (c) For works contracts: information concerning the purpose of the work or the contract where the latter also involves the drawing-up of projects. 5. For services: (a) The nature and quantity of the goods to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the services to be procured. (b) Indication of whether the execution of the service is reserved by law, regulation or administrative provision to a particular profession. (c) Reference of the law, regulation or administrative provision; (d) Indication of whether legal persons should indicate the names and professional qualifications of the staff to be responsible for the execution of the service. (e) Indication of whether service providers can tender for a part of the services concerned. 6. Authorisation to submit variants. 7. Time limits for delivery or completion or duration of service contract and, as far as possible, for starting. 8. Where appropriate, the legal form to be taken by the grouping of economic operators to whom the contract is awarded. 9. (a) Final date for receipt of requests to participate; (b) Address to which they must be sent. (c) Language or languages in which they must be drawn up. 10. Where appropriate, any deposits and guarantees required. 11. Main terms concerning financing and payment and/or references to the provisions in which these are contained. 12. Information concerning the economic operator's position and the minimum economic and technical conditions required of him. 13. Criteria for the award of the contract. Subject to Article 54(3), second indent, criteria other than the lowest price shall be mentioned as well as their relative weighting. 14. Where appropriate, the names and addresses of the economic operators already selected by the contracting entity. 15. Where applicable, date(s) of previous publications in the Official Journal of the European Communities. 16. Where appropriate, particular conditions to which performance of the contract is subject. 17. Other information. 18. Where appropriate, the reference to publication of the periodic information notice in the Official Journal of the European Communities to which the contract refers. 19. Date of dispatch of the notice by the contracting entity. 20. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by that Office). ANNEX XIII INFORMATION TO BE INCLUDED IN THE NOTICE ON THE EXISTENCE OF A SYSTEM OF QUALIFICATION 1. Name, address, telegraphic address, , electronic address, telephone number, telex and fax number of the contracting entity. 2. Purpose of the qualification system (description of the goods, services or works or categories thereof to be procured through the system). 3. Conditions to be fulfilled by the economic operators in view of their qualification pursuant to the system and the methods according to which each of those conditions will be verified. Where the description of such conditions and verification methods is voluminous and based on documents available to interested economic operators, a summary of the main conditions and methods and a reference to those documents shall be sufficient. 4. Period of validity of the qualification system and the formalities for its renewal. 5. Reference to the fact that the notice acts as the call for competition. 6. Address where further information and documentation concerning the qualification system can be obtained (if different from the address mentioned under 1). 7. Any other relevant information. ANNEX XIV INFORMATION TO BE INCLUDED IN THE PERIODIC NOTICE I. HEADINGS TO BE COMPLETED IN ANY CASE 1. Name, address, telegraphic address, , electronic address, telephone number, telex and fax number of the contracting entity or the service from which additional information may be obtained. 2. (a) For supply contracts: nature and quantity or value of the services or products to be supplied. (b) For works contracts: nature and extent of the services to be provided, the general characteristics of the work or of the lots by reference to the work. (c) For service contracts: intended total procurement in each of the service categories listed in Annex XVI A. 3. Date of dispatch of the notice by the contracting entity. 4. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by that Office). 5. Any other relevant information. II. INFORMATION WHICH MUST BE SUPPLIED WHERE THE NOTICE IS USED AS A MEANS OF CALLING FOR COMPETITION OR PERMITS SHORTENING OF THE DEADLINES FOR THE RECEIPT OF CANDIDATURES OR TENDERS 6. A reference to the fact that interested suppliers must advise the entity of their interest in the contract or contracts. 7. Deadline for the receipt of applications for an invitation to tender. 8. Nature and quantity of the goods to be supplied or general nature of the work or category of service within the meaning of Annex XVI A and description (CPV nomenclature), stating if framework agreement(s) are envisaged, including any options for further procurement and an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, an estimate of the timing of the subsequent calls for competition. 9. State whether tenders are requested for purchase, lease, rental or hire-purchase or any combination of these. 10. Time limits for delivery or completion or duration of service contract and, as far as possible, for starting. 11. Address to which interested undertakings should send their expressions of interest in writing. Final date for receipt of expressions of interest. Language or languages authorised for the presentation of candidatures or tenders. 12. Economic and technical conditions, and financial and technical guarantees required of suppliers. 13. (a) Estimated date for initiating the award procedures in respect of the contract or contracts (if known). (b) Type of award procedure (restricted or negotiated). (c) The amount of and payment details for any sum to be paid to obtain documents concerning the consultation. 14. Where appropriate, particular conditions to which performance of the contract is subject. ANNEX XV INFORMATION TO BE INCLUDED IN THE CONTRACT AWARD NOTICE I. Information for publication in the Official Journal of the European Communities [120] [120] Information in headings 6, 9 and 11 is deemed information not intended for publication where the awarding entity considers that publication thereof might be detrimental to a sensitive commercial interest. 1. Name and address of the contracting entity. 2. Nature of the contract (supplies, works or services; where appropriate state if it is a framework agreement). 3. At least a summary indication of the nature and quantity of the products, works or services provided. 4. (a) Form of the call for competition (notice on the existence of a system of qualification; periodic notice; call for tenders). (b) Reference of publication of the notice in the Official Journal of the European Communities. (c) In the case of contracts awarded without a prior call for competition, indication of the relevant provision of Article 39(3) or Article 31. 5. Award procedure (open, restricted or negotiated). 6. Number of tenders received. 7. Date of award of the contract. 8. Price paid for bargain purchases pursuant to Article 39(3)(j). 9. Name and address of the economic operator(s). 10. State, where appropriate, whether the contract has been, or may be, subcontracted. 11. Price paid or the prices of the highest and lowest bids taken into account in the award of the contract. 12. Optional information: -value and share of the contract which has been or may be subcontracted to third parties, -award criteria. II. Information not intended for publication 13. Number of contracts awarded (where an award has been split between several suppliers). 14. Value of each contract awarded. 15. Country of origin of the product or service (Community origin or non-Community origin; if the latter, broken down by third country). 16. Which award criteria were used (most economically advantageous; lowest price). 17. Was the contract awarded to a bidder who submitted a variant, in accordance with Article 36(1)- 18. Were any tenders excluded on the grounds that they were abnormally low, in accordance with Article 55- 19. Date of transmission of the notice by the contracting entity. 20. In the case of contracts for services listed in Annex XVI B, agreement by the contracting entity to publication of the notice (Article 42(4)). ANNEX XVI A SERVICES WITHIN THE MEANING OF ARTICLE 30
ANNEX XVI B SERVICES WITHIN THE MEANING OF ARTICLE 31
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ANNEX XVII INFORMATION TO BE INCLUDED IN THE DESIGN CONTEST NOTICE 1. Name, address, electronic address telephone, telex and fax numbers of the contracting authority and of the service from which additional documents may be obtained. 2. Project description. 3. Nature of the contest: open or restricted. 4. In the case of open contests: final date for receipt of projects. 5. In the case of restricted contests: (a) the number of participants envisaged, or range; (b) where applicable, names of participants already selected; (c) criteria for the selection of participants; (d) final date for receipt of requests to participate. 6. Where applicable, indication of whether participation is reserved to a particular profession. 7. Criteria to be applied in the evaluation of projects. 8. Where applicable, names of the selected members of the jury. 9. Indication of whether the decision of the jury is binding on the authority. 10. Where applicable, number and value of prizes. 11. Where applicable, details of payments to all participants. 12. Indication of whether the prize-winners are permitted any follow-up contracts. 13. Other information. 14. Date of dispatch of the notice. 15. Date of receipt of the notice by the Office for Official Publications of the European Communities: ANNEXE XVIII INFORMATION TO BE INCLUDED IN THE RESULTS OF DESIGN CONTEST NOTICES 1. Name, address, telegraphic address and telephone, telex and fax numbers of the contracting authority. 2. Project description. 3. Total number of participants. 4. Number of foreign participants. 5. Winner(s) of the contest. 6. Where applicable, the prize(s). 7. Other information. 8. Reference of the design contest notice. 9. Date of dispatch of the notice: 10. Date of receipt of the notice by the Office for Official Publications of the European Communities: ANNEX XIX Technical specifications for publication Where this Directive lays down publicity requirements, these must comply with the following provisions: 1. Publication of notices 1.1 Where this Directive requires contracting authorities to publish certain items of information, they are to send this information in the required format to the Office for Official Publications of the European Communities either in electronic form, in accordance with this Annex, or by other means. 1.2 Notices referred to in Articles 40, 41 and 42 and Article 61 are published through the Office for Official Publications of the European Communities. They are published in extenso in their original language. A summary of the main points of each notice is published in the other official languages. 1.3 The Office for Official Publications of the European Communities will confirm to the contracting authority that the information submitted has been published, indicating the date of publication. This confirmation constitutes proof of actual publication. 2. Publication of complementary or additional information 2.1 Contracting entities are encouraged in particular to publish the specifications in their entirety on the Internet. In such cases, the authorities must, wherever possible, specify in the text of the notice required by this Directive the Internet address at which this documentation may be accessed. 2.2 Contracting entities are encouraged to publish their 'buyer profile' on the Internet. The profile may include information on ongoing invitations to tender, scheduled purchases, contracts concluded, procedures cancelled and any useful general information, such as a contact point, a telephone and a fax number, a postal address and an e-mail address. 3. Electronic transmission The Arrangements for electronic transmission must comply with those available at the Internet address: 'simap.eu.int'. ANNEX XX DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS For the purposes of this Directive, 1. 'Technical specification' means a specification contained, in particular, in the contract documents setting out the required characteristics of a product or service, such as the level of quality or performance, safety or dimensions, including the requirements applicable to the product or service concerning the trade name, terminology, symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures. It includes, where applicable, the rules relating to design and costing, the test, inspection and acceptance conditions for works, and methods or techniques of construction and all other technical conditions which the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the constituent materials or parts. 2. 'Standard' means a technical specification approved by a recognised standardisation body for repeated or continuous application, compliance with which is not compulsory and which falls into one of the following categories: -international standard: a standard adopted by an international standards organisation and made available to the general public; -European standard: a standard adopted by a European standards organisation and made available to the general public; -national standard: a standard adopted by a national standards organisation and made available to the general public; 3. 'European technical approval' means a favourable technical assessment of the fitness for use of a product, based on fulfilment of the essential requirements for building works, by means of the inherent characteristics of the product and the defined conditions of application and use. European approval shall be issued by an approval body designated for this purpose by the Member State; 4. 'Common technical specifications' means technical specifications drawn up in accordance with a procedure recognised by the Member States and published in the Official Journal of the European Communities." 5. 'Technical reference': any product produced by European standardisation bodies, other than official standards, according to procedures adopted for market development. ANNEXE XXI Summary table of the deadlines laid down in Article 44 Open procedures
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2.
Restricted and negotiated procedures
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3.
ANNEX XXII Time-limits for transposition and implementation
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ANNEX XXIII Correlation Table [121] [121] 'Adapted' indicates that the wording has been reformulated without changing the scope of the text of the repealed Directive. Changes to the scope of the provisions of the repealed Directive are denoted by the word 'Amended'.
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FINANCIAL STATEMENT 1. TITLE OF OPERATION Proposal for a Directive of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy and transport sectors 2. BUDGET HEADING(S) INVOLVED B5-304 (OJ, S series) 3. LEGAL BASIS Articles 47(2), 55 and 95 of the EC Treaty 4. DESCRIPTION OF OPERATION 4.1 General objective of operation Amendment of Directive 93/38/EEC relating to public contracts in the water, energy and transport sectors with a view to - simplification and; - modernisation. 4.2 Period covered by the action and renewal procedures To take effect upon entry into force of the texts (18 months after adoption). 5. CLASSIFICATION OF EXPENDITURE 5.1 NON-COMPULSORY EXPENDITURE 5.2 DIFFERENTIATED APPROPRIATIONS 5.3 Type of revenue involved 6. TYPE OF EXPENDITURE/REVENUE Other: To promote the transparency and opening-up of public contracts, while encouraging the publication, by electronic means in particular, of non-compulsory contract notices. 7. FINANCIAL IMPACT 7.1 Method of calculating total cost of operation (relation between individual and total cost) Not applicable 7.2 Itemised cost breakdown Not applicable 7.3 Operational expenditure for studies, experts etc. included in Part B of the budget Commitment appropriations EUR million (current prices)
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7.4 Schedule of commitment and payment appropriations Not applicable 8. PLANNED FRAUD PREVENTION MEASURES Budget managed by the Secretariat General of the Commission. 9. COST-BENEFIT ANALYSIS 9.1 Specific quantifiable objectives, target population -Specific objectives: links with the general objective Increase in the number of notices published in the OJ, Series S, using electronic means in particular. -Target population: Non-compulsory publication: potentially all contracting entities 9.2 Grounds for operation -Need for Community financial aid in the light of the principle of subsidiarity The transparency and opening-up of public contracts in the European Union can be assured only by way of publication at Community level. -Choice of ways and means Use of the centralised publication system set up at the Publications Office under the public contracts Directives. The Publications Office will use mainly electronic means for the additional publication of voluntary notices. -Main factors of uncertainty which could affect the specific results of the operation. Use by contracting entities of the Publications Office's means of publication. Publications Office's assessment: number of notices published expected to grow by 10% annually. 9.3 Monitoring and evaluation of the operation -Performance indicators The number of notices published voluntarily and the number of contracting entities issuing such notices. -Details and frequency of planned evaluations Annual evaluation by the Publications Office -Assessment of the results obtained (where an existing operation is being continued or renewed). Not applicable. 10. ADMINISTRATIVE EXPENDITURE (PART A OF SECTION III OF THE GENERAL BUDGET) No effect on Part A of Section III of the General Budget. IMPACT EVALUATION IMPACT OF THE PROPOSAL ON BUSINESSES AND PARTICULARLY SMEs Title of the proposal Proposal for a Directive of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy and transport sectors Document reference number ----- The proposal 1. In view of the principle of subsidiarity, why is Community legislation necessary in this field and what are the main objectives - This proposal for a Directive is aimed at recasting Community legislation on public procurement in the water, energy and transport sectors, the objective being to create a genuine internal European market in this area. This legislation is not intended to replace national law but to ensure compliance with the principles of equality of treatment, non-discrimination, transparency and competition in the award of public contracts in all Member States. It is consequently based on an exclusive competence of the Community and complies with the principle of proportionality. The proposal in question, which follows on from the debate launched by the Green Paper on Public Procurement, pursues a three-fold objective of modernising, simplifying and rendering more flexible the existing legal framework in this field. Modernisation is required in order to take account of new technologies and changes in the economic environment, including the ongoing or future liberalisation of some of the activities referred to. The purpose of simplification is to make the current texts more easily comprehensible for users, so that contracts are awarded in complete conformity with the standards and principles governing this area and the entities involved (whether purchasers or suppliers) are in a better position to know their rights. Procedures need to be rendered more flexible in order to meet the needs of purchasers and economic operators. Impact on businesses 2. Who will be affected by the proposal- All companies, irrespective of size, which are able to respond to invitations to tender issued by contracting entities operating in these sectors for the purchase of services, supplies and works. All companies, irrespective of size, which are engaged in an activity covered by the proposal and award supply, works or service contracts. -Which business sectors- On the suppliers' side, all sectors of activity, given that the proposal in question covers virtually all economic sectors, particularly supply contracts (without exception), the provision of most services which are of major significance in the context of cross-border trade (e.g. intellectual services, management consulting services, architectural and engineering services, etc.), works contracts (with no major exception). On the contracting entities' side, public enterprises engaged in an activity that is covered and private enterprises where they carry on the activity covered on the basis of a special or exclusive right.. -Which sizes of business (what is the concentration of small and medium sized firms)- The proposal in question is liable to affect any company that shows an interest in these contracts. -Are there particular geographical areas of the Community where these businesses are found- No, these businesses are to be found throughout the Community. 3. What will businesses have to do to comply with the proposal- This initiative indirectly encourages the award of contracts by electronic means, as it allows public purchasers to place their invitations to tender by these means only. As a result, companies wishing to tender for these contracts will have to equip themselves with suitable electronic facilities. It is clear, however, that the financial impact of such a measure on a company, even a small one, will be minimal compared with the benefits which it will be able to reap. Moreover, this measure may promote the competitiveness and modernisation of the European SMEs through the spreading of new technologies. Companies carrying on an activity covered will have to take some measures - with no major financial impact - to bring their internal contract award procedures up to date, so as to ensure compliance with the amended rules. 4. What are the likely economic effects of the proposal: -on employment- -on investment and the creation of new businesses- -on competitiveness- The proposal is aimed at improving the opening-up of public procurement to cross-border competition. Although public contracts account for 14% of GDP, they generate a level of cross-frontier purchasing well below the growing volume of intra-EU trade in goods and services. A genuine opening-up could play a key role in helping businesses - contracting entities and suppliers alike - to make the most of the internal market and thus to become more competitive and create new jobs. 5. Does the proposal contain measures to take account of the specific situation of small and medium sized enterprises (reduced or different requirements, etc.)- As far as suppliers are concerned, the proposal does not contain any particular measures allowing account to be taken of the specific situations of SMEs. These firms should benefit, however, from the changed thresholds, which for some contracts will be lower they are at present. As regards contracting entities, which may be SMEs, e.g. in the bus transport sector, the production of electricity or the distribution of water, the proposed amendment to the definition of special or exclusive rights may have the effect of exempting them from obligations imposed by the current Directive. The possible application of the exemption envisaged in the case of activities directly exposed to competition on markets to which access is free would have the same effect. Consultation 6. List the organisations which have been consulted about the proposal and outline their main views. The proposal in question follows on from the 1996 Green Paper on 'Public Procurement in the European Union: Exploring the Way Forward' which drew almost 300 responses emanating from all economic sectors, including a large number of SMEs, Member States and institutions. What is more, some organisations representing companies (UNICE) and SMEs in particular were consulted directly by the Commission (including DIHT, Yes for Europe, Europmi, Ueapme). All of them support the objective of simplifying the texts of Community Directives and see the need to modernise procedures (by employing electronic means) and revise the scope in line with the liberalisation of certain activities. Some, however, would prefer a gradual introduction of electronic purchasing procedures, so as to give SMEs the opportunity to phase in the requisite electronic equipment.
