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European Procurement Directives :EC directive 92/13
COUNCIL DIRECTIVE 92/13/EEC of 25 February 1992
coordinating the laws, regulations and administrative provisions relating
to the application of Community rules on the procurement procedures of
entities operating in the water, energy, transport and telecommunications
sectors
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
and in particular Article 100a thereof,
Having regard to the proposal from the Commission (1),
In cooperation with the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas Council Directive 90/531/EEC of 17 September 1990 on the procurement
procedures of entities operating in the water, energy, transport and telecommunications
sectors (4) lays down rules for procurement procedures to ensure that
potential suppliers and contractors have a fair opportunity to secure
the award of contracts, but does not contain any specific provisions ensuring
its effective application;
Whereas the existing arrangements at both national and Community levels
for ensuring its application are not always adequate;
Whereas the absence of effective remedies or the inadequacy of existing
remedies could deter Community undertakings from submitting tenders; whereas,
therefore, the Member States must remedy this situation;
Whereas Council Directive 89/665/EEC of 21 December 1989 on the coordination
of the laws, regulations and administrative provisions relating to the
application of review procedures to the award of public supply and public
works contracts (5) is limited to contract award procedures (1) OJ No
C 216, 31. 8. 1990, p. 8; and OJ No C 179, 10. 7. 1991, p. 18.
(2) OJ No C 106, 22. 4. 1991, p. 82 and OJ No C 39, 17. 2. 1992.
(3) OJ No C 60, 8. 3. 1991, p. 16.
(4) OJ No L 297, 29. 10. 1990, p. 1.
(5) OJ No L 395, 30. 12. 1989, p. 33.
within the scope of Council Directive 71/305/EEC of 26 July 1971 concerning
the coordination of procedures for the award of public works contracts
(6), as last amended by Directive 90/531/EEC, and Council Directive 77/62/EEC
of 21 December 1976 coordinating procedures for the award of public supply
contracts (7), as last amended by Directive 90/531/EEC;
Whereas the opening_?_up of procurement in the sectors concerned to Community
competition implies that provisions must be adopted to ensure that appropriate
review procedures are made available to suppliers or contractors in the
event of infringement of the relevant Community law or national rules
implementing that law;
Whereas it is necessary to provide for a substantial increase in the guarantees
of transparency and non_?_discrimination and whereas, for it to have tangible
effects, effective and rapid remedies must be available;
Whereas account must be taken of the specific nature of certain legal
orders by authorizing the Member States to choose between the introduction
of different powers for the review bodies which have equivalent effects;
Whereas one of these options includes the power to intervene directly
in the contracting entities' procurement procedures such as by suspending
them, or by setting aside decisions or discriminatory clauses in documents
or publications;
Whereas the other option provides for the power to exert effective indirect
pressure on the contracting entities in order to make them correct any
infringements or prevent them from committing infringements, and to prevent
injury from occurring;
Whereas claims for damages must always be possible;
Whereas, where a claim is made for damages representing the costs of preparing
a bid or of participating in an award procedure, the person making the
claim is not be required, in order to obtain the reimbursement of his
costs, to prove that the contract would have been awarded to him in the
absence of such infringement;
(6) OJ No L 185, 16. 8. 1971, p. 5.
(7) OJ No L 13, 15. 1. 1977, p. 1.
Whereas the contracting entities which comply with the procurement rules
may make this known through appropriate means; whereas this requires an
examination, by independent persons, of procurement procedures and practices
applied by those entities;
Whereas for this purpose an attestation system, allowing for a declaration
on the correct application of the procurement rules, to be made in notices
published in the Official Journal of the European Communities, is appropriate;
Whereas the contracting entities should have the opportunity of having
recourse to the attestation system if they so wish; whereas the Member
States must offer them the possibility of doing so; whereas they can do
so either by setting up the system themselves or by allowing the contracting
entities to have recourse to the attestation system established by another
Member State; whereas they may confer the task of carrying out the examination
under the attestation system to persons, professions or staff of institutions;
Whereas the necessary flexibility in the introduction of such a system
is guaranteed by laying down the essential requirements for it in this
Directive; whereas operational details should be provided in European
Standards to which this Directive refers;
Whereas the Member States may need to determine operational details prior
to, or in addition to, the rules contained in European Standards;
Whereas, when undertakings do not seek review, certain infringements may
not be corrected unless a specific mechanism is put in place;
Whereas, accordingly, the Commission, when it considers that a clear and
manifest infringement has been committed during a contract award procedure,
should be able to bring it to the attention of the competent authorities
of the Member State and of the contracting entity concerned so that appropriate
steps are taken for the rapid correction of that infringement;
Whereas it is necessary to provide for the possibility of conciliation
at Community level to enable disputes to be settled amicably;
Whereas the application in practice of this Directive should be reviewed
at the same time as that of Directive 90/531/EEC on the basis of information
to be supplied by the Member States concerning the functioning of the
national review procedures;
Whereas this Directive must be brought into effect at the same time as
Directive 90/531/EEC;
Whereas it is appropriate that the Kingdom of Spain, the Hellenic Republic
and the Portuguese Republic are granted adequate additional periods to
transpose this Directive, taking account of the dates of application of
Directive 90/531/EEC in those countries,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
Remedies at national level
Article 1
1._ _ The Member States shall take the measures necessary to ensure that
decisions taken by contracting entities may be reviewed effectively and,
in particular, as rapidly as possible in accordance with the conditions
set out in the following Articles and, in particular, Article 2 (8), on
the grounds that such decisions have infringed Community law in the field
or procurement or national rules implementing that law as regards:
(a) contract award procedures falling within the scope of Council Directive
90/531/EEC; and
(b) compliance with Article 3 (2) (a) of that Directive in the case of
the contracting entities to which that provision applies.
2._ _ Member States shall ensure that there is no discrimination between
undertakings likely to make a claim for injury in the context of a procedure
for the award of a contract as a result of the distinction made by this
Directive between national rules implementing Community law and other
national rules.
3._ _ The Member States shall ensure that the review procedures are available,
under detailed rules which the Member States may establish, at least to
any person having or having had an interest in obtaining a particular
contract and who has been or risks being harmed by an alleged infringement.
In particular, the Member States may require that the person seeking the
review must have previously notified the contracting entity of the alleged
infringement and of his intention to seek review.
Article 2
1._ _ The Member States shall ensure that the measures taken concerning
the review procedures specified in Article 1 include provision for the
powers:
either
(a) to take, at the earliest opportunity and by way of interlocutory procedure,
interim measures with the aim of correcting the alleged infringement or
preventing further injury to the interests concerned, including measures
to suspend or to ensure the suspension of the procedure for the award
of a contract or the implementation of any decision taken by the contracting
entity; and
(b) to set aside or ensure the setting aside of decisions taken unlawfully,
including the removal of discriminatory technical, economic or financial
specifications in the notice of contract, the periodic indicative notice,
the notice on the existence of a system of qualification, the invitation
to tender, the contract documents or in any other document relating to
the contract award procedure in question;
or
(c) to take, at the earliest opportunity, if possible by way of interlocutory
procedures and if necessary by a final procedure on the substance, measures
other than those provided for in points (a) and (b) with the aim of correcting
any identified infringement and preventing injury to the interests concerned;
in particular, making an order for the payment of a particular sum, in
cases where the infringement has not been corrected or prevented.
Member States may take this choice either for all contracting entities
or for categories of entities defined on the basis of objective criteria,
in any event preserving the effectiveness of the measures laid down in
order to prevent injury being caused to the interests concerned;
(d) and, in both the above cases, to award damages to persons injured
by the infringement.
Where damages are claimed on the grounds that a decision has been taken
unlawfully, Member States may, where their system of internal law so requires
and provides bodies having the necessary powers for that purpose, provide
that the contested decision must first be set aside or declared illegal.
2._ _ The powers referred to in paragraph 1 may be conferred on separate
bodies responsible for different aspects of the review procedure.
3._ _ Review procedures need not in themselves have an automatic suspensive
effect on the contract award procedures to which they relate.
4._ _ The Member States may provide that, when considering whether to
order interim measures, the body responsible may take into account the
probable consequences of the measures for all interests likely to be harmed,
as well as the public interest, and may decide not to grant such measures
where their negative consequences could exceed their benefits. A decision
no to grant interim measures shall not prejudice any other claim of the
person seeking these measures.
5._ _ The sum to be paid in accordance with paragraph 1 (c) must be set
at a level high enough to dissuade the contracting entity from committing
or persisting in an infringement. The payment of that sum may be made
to depend upon a final decision that the infringenemt has in fact taken
place.
6._ _ The effects of the exercise of the powers referred to in paragraph
1 on a contract concluded subsequent to its award shall be determined
by national law. Furthermore, except where a decision must be set aside
prior to the award of damages, a Member State may provide that, after
the conclusion of a contract following its award, the powers of the body
responsible for the review procedures shall be limited to awarding damages
to any person harmed by an infringement.
7._ _ Where a claim is made for damages representing the costs of preparing
a bid or of participating in an award procedure, the person making the
claim shall be required only to prove an infringement of Community law
in the field of procurement or national rules implementing that law and
that he would have had a real chance of winning the contract and that,
as a consequence of that infringement, that chance was adversely affected.
8._ _ The Member States shall ensure that decisions taken by bodies responsible
for review procedures can be effectively enforced.
9._ _ Whereas bodies responsible for review procedures are not judicial
in character, written reasons for their decisions shall always be given.
Furthermore, in such a case, provision must be made to guarantee procedures
whereby any allegedly illegal measures taken by the review body or any
alleged defect in the exercise of the powers conferred on it can be the
subject of judicial review or review by another body which is a court
or tribunal within the meaning of Article 177 of the Treaty and independent
of both the contracting entity and the review body.
The members of the independent body referred to in the first paragraph
shall be appointed and leave office under the same conditions as members
of the judiciary as regards the authority responsible for their appointment,
their period of office, and their removal. At least the President of this
independent body shall have the same legal and professional qualifications
as members of the judiciary. The independent body shall take its decisions
following a procedure in which both sides are heard, and these decisions
shall, by means determined by each Member State, be legally binding.
CHAPTER 2
Attestation
Article 3
The Member States shall give contracting entities the possibility of having
recourse to an attestation system in accordance with Articles 4 to 7.
Article 4
Contracting entities may have their contract award procedures and practices
which fall within the scope of Directive 90/531/EEC examined periodically
with a view to obtaining an attestation that, at that time, those procedures
and practices are in conformity with Community law concerning the award
of contracts and the national rules implementing the law.
Article 5
1._ _ Attestors shall report to the contracting entity, in writing, on
the results of their examination. They shall satisfy themselves, before
delivering to the contracting entity the attestation referred to in Article
4, that any irregularities identified in the contracting entity's award
procedures and practices have been corrected and measures have been taken
to ensure that those irregularities are not repeated.
2._ _ Contracting entities having obtained that attestation may include
the following statement in notice published in the Official Journal of
the European Communities pursuant to Articles 16 to 18 of Directive 90/531/EEC:
_<_The contracting entity has obtained an attestation in accordance
with Council Directive 92/13/EEC that, on ................., its contract
award procedures and practices were in conformity with Community law and
the national rules implementing that law._;_
Article 6
1._ _ Attestors shall be independent of the contracting entities and must
be completely objective in carrying out their duties. They shall offer
appropriate guarantees of relevant professional qualifications and experience.
2._ _ Member States may identify any persons, professions or institutions
whose staff, called upon the act as attestors, they regard as fulfilling
the requirements of paragraph 1. For these purposes, Member States may
require professional qualifications, at least at the level of a higher
education diploma within the meaning of Directive 89/48/EEC (1), which
they regard as relevant, or provide that particular examinations of professional
competence organized or recognized by the State offer such guarantees.
Article 7
The provisions of Articles 4, 5 and 6 shall be considered as essential
requirements for the development of European standards on attestation.
CHAPTER 3
Corrective mechanism
Article 8
1._ _ The Commission may invoke the procedures for which this Article
provides when, prior to a contract being concluded, it considers that
a clear and manifest infringement of Community provisions in the field
of procurement has been committed during a contract award procedure fallig
within the scope of Directive 90/531/EEC or in relation to Article 3 (2)
(a) of that Directive in the case of the contracting entities to which
that provision applies.
2._ _ The Commission shall notify the Member States and the contracting
entity concerned of the reasons which have led it to conclude that a clear
and manifest infringement has been committed and request its correction
by appropriate means.
3._ _ Within 30 days of receipt of the notification referred to in paragraph
2, the Member States concerned shall communicate to the Commission:
(a) its confirmation that the infringement has been corrected; or
(b) a reasoned submission as to why no correction has been made; or
(c) a notice to the effect that the contract award procedure has been
suspended either by the contracting entity on its own initiative or on
the basis of the powers specified in Article 2 (1) (a).
4._ _ A reasoned submission in accordance with paragraph 3 (b) may rely
among other matters on the fact that the alleged infringement is already
the subject of judicial review proceedings or of a review as referred
to in Article 2 (9). In such a case, the Member State shall inform the
Commission of the result of those proceedings as soon as it becomes known.
(1) OJ No L 19, 24. 1. 1989, p. 16.
5._ _ Where notice has been given that a contract award procedure has
been suspended in accordance with paragraph 3 (c), the Member State concerned
shall notify the Commission when the suspension is lifted or another contract
procedure relating in whole or in part to the same subject matter is begun.
That new notification shall confirm that the alleged infringement has
been corrected or include an reasoned submission as to why no correction
has been made.
CHAPTER 4
Conciliation
Article 9
1._ _ Any person having or having had an interest in obtaining a particular
contract falling within the scope of Directive 90/531/EEC and who, in
relation to the procedure for the award of that contract, considers that
he has been or risks being harmed by an alleged infringement of Community
law in the field of procurement or national rules impelementing that law
may request the application of the conciliation procedure provided for
in Articles 10 and 11.
2._ _ The request referred to in paragraph 1 shall be addressed in writing
to the Commission or to the national authorities listed in the Annex.
These authorities shall forward requests to the Commission as quickly
as possible.
Article 10
1._ _ Where the Commission considers, on the basis of the request referred
to in Article 9, that the dispute concerns the correct application of
Community law, it shall ask the contracting entity to state whether it
is willing to take part in the conciliation procedure. If the contracting
entity declines to take part, the Commission shall inform the person who
made the request that the procedure cannot be initiated. If the contracting
entity agrees, paragraphs 2 to 7 shall apply.
2._ _ The Commission shall propose, as quickly as possible, a conciliator
drawn from a list of independent persons accredited for this purpose.
This list shall be drawn up by the Commission, following consultation
of the Advisory Committee for Public Contracts or, in the case of contracting
entities the activities of which are defined in Article 2 (2) (d) of Directive
90/531/EEC, following consultation of the Advisory Committee on Telecommunications
Procurement.
Each party to the conciliation procedure shall declare whether it accepts
the conciliator, and shall designate an additional conciliator. The conciliators
may invite not more than two other persons as experts to advices them
in their work. The parties to the conciliation procedure and the Commission
may reject any expert invited by the conciliators.
3._ _ The conciliators shall give the person requesting the application
of the conciliation procedure, the contracting entity and any other candidate
or tenderer participating in the relevant contract award procedure the
opportunity to make representations on the matter either orally or in
writing.
4._ _ The conciliators shall endeavour as quickly as possible to reach
an agreement between the parties which is in accordance with Community
law.
5._ _ The conciliators shall report to the Commission on their findings
and on any result achieved.
6._ _ The person requesting the application of the concilation procedure
and the contracting entity shall have the right to terminate the procedure
at any time.
7._ _ Unless the parties decide otherwise, the person requesting the application
of the conciliation procedure and the contracting entity shall be responsible
for their own costs. In addition, they shall each bear half of the costs
of the procedure, excluding the costs of intervening parties.
Article 11
1._ _ Where, in relation to a particular contract award procedure, an
interested person within the meaning of Article 9, other than the person
requesting the conciliation procedure, is pursuing judicial review proceedings
or other proceedings for review within the meaning of this Directive,
the contracting entity shall inform the conciliators. These shall inform
that person that a request has been made to apply the conciliation procedure
and shall invite that person to indicate within a given time limit whether
he agrees to participate in that procedure. If that person refuses to
participate, the conciliators may decide, acting if necessary by a majority,
to terminate the conciliation procedure if they consider that the participation
of this person is necessary to resolve the dispute. They shall notify
their decision to the Committee and give the reasons for it.
2._ _ Action taken pursuant to this Chapter shall be without prejudice
to:
(a) any action that the Commission or any Member State might take pursuant
ot Articles 169 or 170 of the Treaty or pursuant to Chapter 3 of this
Directive;
(b) the rights of the persons requesting the conciliation procedure, of
the contracting entity or of any other person.
CHAPTER 5
Final provisions
Article 12
1._ _ Not later than four years after the application of this Directive,
the Commission, in consultation with the Advisory Committee for Public
Contracts, shall review the manner in which the provisions of this Directive
have been implemented and, in particular, the use of the European Standards
and, if necessary, make proposals for amendments.
2._ _ Before 1 March each year the Member States shall communicate to
the Commission information on the operation of their national review procedures
during the preceding calendar year. The nature of the information shall
be determined by the Commission in consultation with the Advisory Committee
for Public Contracts.
3._ _ In the case of matters relating to contracting entities the activities
of which are defined in Article 2 (2) (d) of Directive 90/531/EEC, the
Commission shall also consult the Advisory Committee on Telecommunications
Procurement.
Article 13
1._ _ Member States shall take, before 1 January 1993, the measures necessary
to comply with this Directive. The Kingdom of Spain shall take these measures
not later than 30 June 1995. The Hellenic Republic and the Portuguese
Republic shall take these measures not later than 30 June 1997. They shall
forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain an reference
to this Directive or shall be accompanied by such reference on the occasion
of their official publication. The methods of making such a reference
shall be laid down by the Member States.
2._ _ Member States shall bring into force the measures referred to in
paragraph 1 on the same dates as those (laid down in Directive 90/531/EEC).
3._ _ Member States shall communicate to the Commission the texts of the
main provisions of domestic law which they adopt in the field governed
by this Directive.
Article 14
This Directive is addressed to the Member States.
Done at Brussels, 25 February 1992.
For the Council The President Vitor MARTINS
FXAL92076ENCFXAL92076ENC/0002/00CL2592/13/EECDIR020COM199203231992032320ANNEX
National authorities to which requests for application of the conciliation
procedure referred to in Article 9 may be addressed
Belgium
Services du Premier Ministre
Diensten Van de Eerste Minister
Ministère des Affaires économiques
Ministerie van Economische Zaken
Denmark
Industri_?_ og Handelsstyrelsen (supply contracts)
Boligsministeriet (works contracts)
Germany
Bundesministerium für Wirtschaft
Greece
Spain
Ministerio de Economía y Hacienda
France
Commission centrale des marchés
Ireland
Department of Finance
Italy
Presidenza del Consiglio dei Ministri Politiche Comunitarie
Luxembourg
Ministère des travaux publics
Netherlands
Ministerie van Economische Zaken
Portugal
Conselho de mercados de obras publicas e particulares
United Kingdom
HM Treasury
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