COMMISSION STAFF WORKING PAPER Evaluation Report. Impact and Effectiveness of EU Public Procurement Legislation. Part 2 - Hoofdinhoud

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Documentdatum	30-06-2011
Publicatiedatum	02-07-2011
Kenmerk	12294/11 ADD 1
Van	Secretary-General of the European Commission, signed by Mr Jordi AYET PUIGARNAU, Director
Aan	Mr Uwe CORSEPIUS, Secretary-General of the Council of the European Union
Externe link	originele PDF
Originele document in PDF

2. Tekst

COUNCIL OF Brussels, 30 June 2011

THE EUROPEAN UNION

12294/11 ADD 1

MAP 4 MI 345

COVER NOTE

from: Secretary-General of the European Commission, signed by Mr Jordi AYET PUIGARNAU, Director

date of receipt: 28 June 2011

to: Mr Uwe CORSEPIUS, Secretary-General of the Council of the European Union

No Cion doc.: SEC(2011) 853 final

Subject: COMMISSION STAFF WORKING PAPER

Evaluation Report. Impact and Effectiveness of EU Public Procurement Legislation. Part 2

Delegations will find attached Commission document SEC(2011) 853 final.

________________________

Encl.: SEC(2011) 853 final

EUROPEAN COMMISSION

Brussels, 27.6.2011 SEC(2011) 853 final

COMMISSION STAFF WORKING PAPER

Evaluation Report Impact and Effectiveness of EU Public Procurement Legislation

Part 2

A NNEX 1: I NTERVENTION LOGIC DIAGRAM .................................................................................... 172

A NNEX 2: H ISTORY OF PUBLIC PROCUREMENT LEGISLATION ......................................................... 173

A NNEX 3: T HRESHOLDS ................................................................................................................. 184

A NNEX 4: O VERVIEW OF NATIONAL LEGISLATION IMPLEMENTING EU PROCUREMENT

D IRECTIVES ................................................................................................................... 186

A NNEX 5: B ELOW THRESHOLDS .................................................................................................... 192

A NNEX 6: I MPLEMENTATION INSTITUTIONS ................................................................................... 202

A NNEX 7: C ENTRAL P URCHASING B ODIES .................................................................................... 209

A NNEX 8: B IBLIOGRAPHY .............................................................................................................. 213

A NNEX 9: U TILITIES P ROCUREMENT ............................................................................................. 218

N OTES TO ANNEXES ........................................................................................................................ 234

1. A NNEX 1: I NTERVENTION LOGIC DIAGRAM

Classic and Utilities Directives

Context Advertising, Environmental protection Single market Harmonise rules and Procedures, and promotion of

Government procedures above Deadlines, sustainable development;

Procurement certain thresholds on: Selection and Social and employment

Agreement award criteria, obligations Reporting

Member Increased transparency, participation and non

State action discrimination, objective selection between

Gold plating

Privatisation, bidders on commercial/technical grounds

Different de minimis thresholds, Different systems of

penalties for Commitment to High level of

non compliance More cross More SME good procedural and border bidding involvement procurement compliance

outcomes requirements

Increase (decrease) competition

External

Factors Better price/quality

Enlargement, Industry restructuring, changes in

Developments ratio for public enterprise formation and

in procurement contracts employment

practice,

Developments Increased productivity

in ICT

Better public services/ lower taxes Meso/Macro-econcomic

impacts

172

2. A NNEX 2: H ISTORY OF PUBLIC PROCUREMENT LEGISLATION 1

2.1. The Treaty Principles

The Treaty on the Functioning of the European Union 2 (and its predecessors, in particular the

Treaty establishing the European Economic Community) does not contain any specific provisions on public procurement. It does, however, lay down fundamental principles which are generally applicable and which contracting authorities and contracting entities have to observe when awarding all contracts, including those whose value falls below the thresholds for application of the specific rules laid down in the Directives.

2.2. Free Movement of Goods

The Treaty principle governing public supply contracts is the free movement of goods and, more specifically, the ban, established in what is now Article 34 et seq., on quantitative restrictions on imports and exports3 and all measures having equivalent effect.4

The principle of the free movement of goods, and the consequent ban on quantitative restrictions and measures having equivalent effect, applies both to goods originating in the Community and to goods coming from non-member countries which are put into free circulation in the Member States.

A measure having an effect equivalent to a quantitative restriction means any measure, be it a law or regulation, an administrative practice or an act of, or attributable to, a public authority, that is capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.

Article 36 allows Member States to maintain in force or introduce prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security, the protection of health and life of humans, animals or plants, the protection of national treasures possessing artistic, historic or archaeological value, or the protection of industrial and commercial property, provided that the prohibitions or restrictions do not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

A frequently encountered type of measures, namely those that are equally applicable to domestic and to imported products, mainly comprises regulations prescribing technical requirements, quality standards or testing and type-approval conditions that have to be satisfied by any product of a certain kind that is put on sale on the domestic market. Most such regulations are introduced for consumer protection, environmental or health and safety reasons. However, they are contrary to the current Article 34 if their trade-restricting effect is excessive in relation to the mandatory requirements they are intended to satisfy. The basic principle applicable to technical regulations and

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ANNEX 2: HISTORY OF PUBLIC PROCUREMENT LEGISLATION

standards is that of mutual recognition by Member States of each others’ quality standards, composition rules, national testing and certification procedures, etc.

The Treaty principles governing public works contracts are, in particular: the right of establishment (Articles 49 et seq.TFEU), the freedom to provide services (Articles 56 et seq.TFEU) and the general ban on discrimination on grounds of nationality (Article 18 TFEU).

2.3. Right of establishment

Under this principle, the Treaty on the Functioning of the European Union5 requires Member States to allow individuals and companies from other Member States to establish and carry on a business or self-employed activities in their territory under the conditions laid down for their own nationals, subject to the provisions on capital movements.

The principle of equality of treatment with the Member States’ own nationals applies to all forms of business and self-employment carried on by natural or legal persons, including those involving the setting-up of agencies, branches or subsidiaries and the formation and management of companies or firms, including cooperatives and other legal persons governed by public or private law, except those which are non-profit-making.

The only business or self-employed activities which are not covered by the right of establishment are those connected, even occasionally, with the exercise of official authority.

On the “principle of national treatment”, the Court had this to say:6

“It follows […] from the Court’s case-law that national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it.”

2.4. Freedom to provide services

The freedom to provide services7 is, like the right of establishment, governed by the principle of national treatment. Under the third paragraph of Article 57 TFEU, “the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its own nationals”.

The basic difference between the right of establishment and the freedom to provide services is that the former involves a permanent business establishment in the host country, while the latter involves only temporary residence in the other Member State where the service is provided.

Freedom to provide services covers the performance of services, normally for consideration, in a Member State other than that of the service provider, where the services are not otherwise governed by the Treaty’s provisions on the free movement of goods, capital and persons (in which case those special provisions are applicable). Services include activities of an industrial and commercial character and activities of craftsmen and the professions.

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ANNEX 2: HISTORY OF PUBLIC PROCUREMENT LEGISLATION

Transport services are excluded from the provisions on freedom to provide services and are governed exclusively by Title VI of the Treaty (Transport). There is also a special rule for banking and insurance services. These are to be liberalized in step with the progressive liberalization of capital movements.

The exceptions made in the establishment rules for activities connected with the exercise of official authority and for restrictions on grounds of public policy, public security and public health also apply to the provision of services.

Under the principle of national treatment all laws, regulations and administrative provisions and practices capable of restricting or impeding access to or the practice of self-employed occupations in the services sector by other Member States’ nationals or subjecting other Member States’ nationals to different treatment from the Member State’s own nationals are prohibited. Differences of treatment may derive from rules that overtly discriminate between nationals and non-nationals or from rules that apply to both.

As the Court has stated,8 “Article [56] of the Treaty entails, in the first place, the abolition of any discrimination against a person providing services on account of his nationality or the fact that he is established in a Member State other than the one in which the service is provided. National rules which are not applicable to services without discrimination as regards their origin are compatible with Community law only if they can be brought within the scope of an express exemption, such as that contained in Article [52] of the Treaty.

In the absence of harmonization of the rules applicable to services, or even of a system of equivalence, restrictions on the freedom guaranteed by the Treaty in this field may arise in the second place as a result of the application of national rules which affect any person established in the national territory to persons providing services established in the territory of another Member State who already have to satisfy the requirements of that State’s legislation.

As the Court has consistently held, such restrictions come within the scope of Article [56] if the application of the national legislation to foreign persons providing services is not justified by overriding reasons relating to the public interest or if the requirements embodied in that legislation are already satisfied by the rules imposed on those persons in the Member State in which they are established.

Lastly, as the Court has consistently held, the application of national provisions to providers of services established in other Member States must be such as to guarantee the achievement of the intended aim and must not go beyond that which is necessary in order to achieve that objective. In other words, it must not be possible to obtain the same result by less restrictive rules”.

2.5. Secondary legislation

The abovementioned Treaty principles place a general ban on discriminatory measures and unfair treatment.

However, these prohibitions were not sufficient, on their own, to establish a single market in the specific area of public procurement. Differences between national rules together with the lack of any obligation to open up contracts to Community-wide competition often conspired to keep national markets walled off from foreign competitors. Legislation was therefore needed to make sure that public contracts throughout the Community were open to firms from all Member States on

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ANNEX 2: HISTORY OF PUBLIC PROCUREMENT LEGISLATION

equal terms and to make procurement procedures more transparent so that compliance with the principles laid down in the Treaty could be enforced more effectively.

To make it easier for firms to exercise their right of establishment and freedom to provide services in competing for public works contracts, on 26 July 1971 the Council adopted Directive 71/305 i/EEC9 concerning the coordination of procedures for the award of public works

contracts. 10

Its scope covered works contracts with an estimated value of at least 1 million Units of Account 11,

awarded by contracting authorities (defined as the State, regional or local authorities and the legal persons governed by public law specified in Annex I). The award of public works concessions

contracts 12 were not covered by the provisions of Directive 71/305/EEC i 13 , nor did it apply to works

contracts awarded by contracting authorities active in the transport, energy and water sectors. Concerning works contracts awarded by concessionaires not being themselves contracting authorities, the only obligation introduced by the Directive was for the conceding authorities to

impose an obligation to observe the principle of non-discrimination on the grounds of nationality .

To supplement the ban on restrictions on the free movement of goods, on 21 December 1976 the Council adopted Directive 77/62/EEC i coordinating procedures for the award of public supply

contracts. 15

The scope of Directive 77/62/EEC i covered supplies contracts with an estimated value of at least

200,000 European Units of Account, awarded by contracting authorities 16. The field of application

excluded the same three sectors (transport, energy and water) as did Directive 71/305/EEC i, and a further sector, namely telecommunications.

To bring Community law into line with the outcome of the Tokyo Round of trade negotiations, i. e. the 1979 GATT Agreement on public procurement, the Directive was subsequently adapted and

supplemented by Directive 80/767/EEC i 17 . The main change introduced by that Directive was a list

of the contracting authorities who were obliged to apply the provisions of Directive 77/62/EEC i

also for purchases with an estimated value between 140,000 European Units of Account 19 and the

previously fixed threshold of 200,000 European Units of Account.

Both the first works and supply Directives were based on three main principles:

Community-wide advertising of contracts to develop real competition between economic operators in all the Member States;

the banning of technical specifications liable to discriminate against potential foreign bidders;

application of objective criteria for the selection of tenderers and the award of contracts.

The initial works and supplies Directives did not open markets to the extent hoped for. Community

legislation did not provide sufficient guarantees and left several lacunae 20 . Its application at national

level reflected a long-standing protectionism typical of this sector.

In order to cure the deficiencies of the original rules, new directives were adopted: Council

Directive 88/295/EEC i 21 of 22 March 1988 amending Directives 77/62/EEC i and 80/767/EEC, and Council Directive 89/440/EEC i 22 of 18 July 1989 amending Directive 71/305/EEC i.

It had also become necessary to remove the disparities between the earlier directive on works (71/305/EEC) and the later directive on supplies (77/62/EEC). The innovations introduced in

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ANNEX 2: HISTORY OF PUBLIC PROCUREMENT LEGISLATION

Directive 71/305/EEC i were, therefore, more numerous and more detailed than those made to Directive 77/62/EEC i.

The principal innovations concerned in particular:

• the definition of the Directive’s scope;

• information and tendering conditions;

• transparency of procedures 23 ; and

• the definition of the technical specifications.

Concerning in particular changes to the respective scopes of the directives, those introduced in the supply directive were rather limited (essentially they consisted in setting the threshold for central contracting authorities to 130,000 ECU, and broadening the Directive's applicability in the field of defence).

The changes to the scope of the works directive were, on the other hand, more extensive. First of all, the definition of public works contracts was clarified and extended to cover new contract

forms 24 , in particular by adding the last part of the definition 25 . Similarly, the notion of "contracting

authority" was also clarified and extended through the inclusion of "associations" of contracting authorities and, not least, by replacing "legal persons governed by public law" with the new notion

of "bodies governed by public law", which was defined explicitly in Directive 89/440/EEC i 26 and

further clarified by listing such bodies as exhaustively as possible. At the same time, the previous obligations concerning concessions and works contracts awarded by concessionaires were given a legally binding statute, being explicitly provided for in the Directive instead of in a political

declaration. Furthermore, the scope of the Directive was extended also to certain works contracts 27 ,

awarded by entities other than contracting authorities but subsidised by at least 50% by the latter.

The extent of the sectoral exclusions was also clarified in particular as regards the transport sector 28 .

At the same time the threshold was raised from 1 million ECU to 5 million ECU. According to the 13th recital this change took place "in view of the rise in the cost of construction work and the interest of small and medium-sized firms in bidding for medium-sized contracts". It should be noted that, at the time and contrary to what is currently the case, the EU did not have any international obligations for public works contracts with given minimum values.

The next major development of the secondary legislation on public procurement came with the

adoption of the first Utilities Directive, Directive 90/531/EEC i 29 . This was in many ways a

substantial innovation, not least because of its scope. In fact, Directive 90/531/EEC i was rendered applicable not only to contracting authorities, defined in the same way as in the recently adopted

Directive 89/440/EEC i, but also to two further categories of entities, namely, public undertakings 30

and private undertakings, provided these latter exercise one of the relevant activities on the basis of

an exclusive or special right 31 (collectively these three groups are covered by the term "contracting

entity"). A further condition for the applicability of the Directive, was that the contracting entities

concerned themselves operated one of the activities covered, namely (most of 32 ) the four of the

sectors which were until then excluded from the scope of secondary public procurement legislation:

the water 33 , energy 34 , transport 35 and telecommunications sector 36 ).

Within the thus defined personal scope of the Directive, it covered works with an estimated value of at least 5 million ECU; in the case of supplies contracts the threshold was set at a minimum value of 400,000 ECU when the contracts were awarded by entities operating in the water, energy and

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ANNEX 2: HISTORY OF PUBLIC PROCUREMENT LEGISLATION

transport sectors. For contracting entities operating in the telecommunications sector, the

corresponding threshold for supplies contracts was set at ECU 600 000 37 . Unlike Directive

89/440/EEC, it did not introduce any obligations in respect of works concessions contracts awarded by contracting entities for the pursuit of a relevant activity, nor did it cover subsidised works contracts.

The Utilities Directive was based on the same three principles as the previous Directives 38 ,

however, their concrete implementation was frequently somewhat different. Bearing in mind the broad range of contracting entities, which include commercial/industrial private companies, the 33rd Recital in fact states that "…the rules to be applied by the entities concerned should establish a framework for sound commercial practice and should leave a maximum of flexibility". Apart from the higher thresholds for supplies contracts, this higher degree of flexibility than what was foreseen for the contracting authorities under the Works and Supplies Directives among others showed itself through:

• a free choice between open, restricted and negotiated procedures (with a call for competition);

• more and different exclusions and exemptions (e. g. the above-mentioned possibility for

exemption in the telecommunications sector; the exclusion for contracts awarded for the purpose of resale to third parties where the contracting entity has no special or exclusive right to sell or hire the subject of such contracts and other entities are free to sell or hire it under the same conditions as the contracting entity or the exclusion for contracts for, i. a., the purchase of fuel

for the production of energy by entities themselves operating in that sector); and

• the possibility to use notices on the existence of a qualifications system or periodic indicative

notices as a means of calling for competition in respect of (normally) more than one specific contract rather than through the traditional "ad hoc" contract notice to be published for each

prospective contract.

The next substantial change was brought about by the adoption of Council Directive 92/50/EEC i of

18 June 1992 relating to the coordination of procedures for the award of public service contracts 39 .

It was based on the same principles as the earlier Works and Supplies Directives and it shared their structure.

The scope of this first Service Directive covered, as of a threshold of at least ECU 200 000 , service contracts, which were defined as a residual category, i. e. as contracts between a contracting

authority 40 and a service provider for pecuniary interest other than works and supplies contracts. Certain services were excluded 41 , but more importantly the Directive introduced a “two-tier” system

according to which the full set of rules only applied to sixteen categories of priority services, specified exhaustively in an annex (I A). This listed services which, at the time, were deemed to

“enable the full potential for increased cross-frontier trade to be realized” 42 , among which one finds services such as accounting, auditing and bookkeeping services, land transport services 43 and

engineering and architectural services.

For all other services 44 , the Directive provided for a set of limited obligations 45 . The Service Directive also applied to certain service contracts 46 that were subsidised by more than 50% and

awarded by entities not being themselves contracting authorities. A set of limited obligations,

essentially transparency and non-discrimination, also applied to design contests 47 either leading to

the award of a service contract whose value was at least equal to the threshold value of ECU 200 000 or in which prizes or other payments to participants reached at least the same amount.

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ANNEX 2: HISTORY OF PUBLIC PROCUREMENT LEGISLATION

The Commission's original proposal 48 contained provisions on public service concessions analogous

to those existing in the Works Directive for public works concessions. However, the Member States in Council decided not to include this type of contract because of wide divergence of national practices in matters of public service concessions.

By now both the Works Directive and the Supplies Directive had been amended substantially a number of times and it was therefore found necessary to coordinate the disparate legislative provisions into two codified versions so that citizens of the European Union could consult texts which were clear and transparent and rely more easily on the specific rights conferred on them. The

directives on works were coordinated in Council Directive 93/37/EEC i of 14 June 1993 49 and the directives on supplies were consolidated in Council Directive 93/36/EEC i of 14 June 1993. 50 The

latter also aligned the text on Supplies with that on Works.

At the same time Council Directive 93/38/EEC i of 14 June 1993 was adopted. This new Utilities Directive was both an amending Directive as well as a consolidation, in the sense that it amended Directive 90/531 i/EEC by adding provisions governing the award of service contracts, while uniting all the provisions in one legal instrument so that its provisions covered works and supplies

contracts 52 as well. It applied the same “two tier” system as did Directive 92/50/EEC i to an almost identical list of services and exclusions 53 , but within the procedural system of provided for by

Directive 90/531/EEC. Mutatis mutandis, services contracts were in fact subject to essentially same set of procedural rules as works or supplies contracts under Directive 90/531/EEC i as of the

thresholds 54 applicable to supplies contracts (ECU 400 000 for contracting entities in the water,

energy and transport sectors and ECU 600 000 for contracting entities in the telecommunications sector). There was, however, one notable specificity for service contracts, namely an exclusion in respect of service contracts awarded to affiliated companies having so close relations with its parent

company as to be comparable to an internal division . Just as was the case for Directive 92/50/EEC i, service concessions contracts were not covered.

The last substantial modifications of the public procurement directives before the large reform in

2004 were introduced through Directives 97/52/EC 56 and Directive 98/4/EC i 57 , which adapted the

Directives in order to bring Community law into line with the outcome of the Uruguay Round of trade negotiations, i.e. the 1994 World Trade Organisation Agreement on public procurement (GPA). The main changes concerned a strengthening of transparency obligations, adjustments to certain deadlines and changes to the relevant thresholds, which now were different for contracts falling with the scope of the new GPA and the types of contracts that were not subject to the international obligations. This produced a fairly complex system with different thresholds for

services contracts 58 59 , supplies contracts ,,works contracts 60 and, not least, for utilities contracts 61 .

The main provisions of the current public procurement directives, Directive 2004/17/EC i 62 and

Directive 2004/18 i/EC63, are (summarily) described in chapter 3 of the main document. On the

other hand, Directive 2009/81/EC i 64 will not be dealt with in this document as the period set out for

its implementation in national law has not yet expired; its effects can thus not be assessed as part of this evaluation.

The final elements of secondary legislation in the field of public procurement are the Directives in

the area of remedies, namely, Directives 89/665/EEC i 65 and Directive 92/13/EC i 66 , as recently amended through Directive 2007/66/EC i 67 .

Experience with the first Public Procurement Directives showed that there was a need to ensure that economic operators everywhere in the EU would have access to clear and effective procedures for seeking redress in cases where they consider contracts have been unfairly awarded. This was and is

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ANNEX 2: HISTORY OF PUBLIC PROCUREMENT LEGISLATION

in fact crucial to making sure contracts ultimately go to the company which has made the best offer, and therefore to building confidence among businesses and the public that public procurement procedures are fair.

Directives 89/665/EEC i and 92/13/EEC aimed at doing precisely that and they did prove to constitute a valid first step in that direction. The level of legal protection was indeed raised in the EU, not least in countries which did not have a tradition for special administrative courts or tribunals dealing with public procurement. However, when reviewing this legislation, the Commission found that businesses and lawyers could still encounter legal and practical problems when using national review procedures to challenge decisions made by contracting authorities or contracting entities during award procedures. It therefore proposed modifications to the existing legislation on remedies. The new Directive 2007/66/EC i requires contracting authorities and contracting entities to wait a certain number of days, known as a 'standstill period', before concluding the contract concerned. This gives rejected bidders the opportunity to start an effective review procedure at a time when unfair decisions can still be corrected. If this standstill period has not been respected, the Directive requires national courts under certain conditions to set aside a signed contract, by rendering the contract "ineffective". The Directive also seeks to combat illegal direct awards of contracts, which is the most serious infringement of EU procurement law. National courts will also be able to render these contracts ineffective if they have been illegally awarded without any transparency and prior competitive tendering. In these cases the contract will need to be tendered again, this time according to the appropriate rules. The introduction of these new rights for rejected bidders will create stronger incentives for EU businesses to bid for contracts anywhere in the EU.

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ANNEX 2: HISTORY OF PUBLIC PROCUREMENT LEGISLATION

Overview of the main developments of secondary legislation Directive Who What, from which Comments

threshold 71/305/EEC Public sector Works contracts, EUR 1 Works concessions not

million covered, transport, water and energy sectors excluded

77/62/EEC Public sector Supplies contracts, EUR transport, water, energy 200 000 and telecommunications sectors excluded

80/767/EEC Public sector, Supplies contracts, EUR Amending Directive central state 140 000 77/62/EEC; mainly authorities because of the 1979 GATT Agreement on Government

procurement; transport, water, energy and telecommunications sectors excluded

88/295/EEC Public sector Supplies contracts, EUR Amending Directive 130,000 (for central state 77/62/EEC; i.a. because authorities), otherwise of the 1986 GATT EUR 200 000 Agreement on Government

procurement; transport, water, energy and telecommunications sectors excluded

89/440/EEC Public sector Works contracts, works Amending Directive concessions contracts, 71/305/EEC;

works contracts awarded Definition of contracting by concessionaires, authorities broadened subsidised works (bodies governed by contracts, EUR 5 000 000 public law), definition of works contracts broadened (execution and design, … or the execution by whatever

means …) transport, water and energy sectors excluded

90/531/EEC Utilities (water, Works and supplies Works concessions energy, transport contracts, EUR 5 000 000 contracts not covered, and for works, EUR 400 000 – very broad definition of telecommunications 600 000 for supplies special or exclusive sectors) rights

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ANNEX 2: HISTORY OF PUBLIC PROCUREMENT LEGISLATION

92/50/EEC Public sector Service contracts, subsidised Two tier system, service contracts, design contests concessions excluded; EUR 200 000 water, energy, transport and telecommunications sectors excluded.

93/36/EEC Public sector Supplies contracts, Codified Directive EUR 130 000 – 200 000 77/62/EEC and its (central state authorities, subsequent amendments others) and introduced substantial changes; Definition of contracting authority broadened (body governed by public law), water, energy, transport and telecommunications

sectors excluded. 93/37/EEC Public sector Works contracts, works Purely a codification of

concessions contracts, works Directive 71/305/EEC i and contracts awarded by its subsequent concessionaires, subsidised amendments; See remarks works contracts, to 89/440/EC. Water, EUR 5 000 000 energy, transport and

telecommunications sectors excluded.

93/38/EEC Utilities (water, Works contracts, supplies Codification of Directive energy, transport and contracts services contracts¸ 90/531/EEC with the new telecommunications design contests, provisions concerning sectors) EUR 5 000 000 for works, service contracts; Two tier EUR 400 000 - 600 000 for system for services, works supplies and services and service concessions contracts not covered, very broad definition of special or exclusive rights

97/52/EC & Public sector and Changes to previous Directive 97/52/EC i 98/4/EC Utilities thresholds. EUR 5 000 000 / amended Directives

SDR 5 000 000 for works, 92/50/EEC, 93/36/EEC SDR 130 000 - EUR 600 000 and 93/37/EEC, while for supplies and services Directive 98/4/EC i contracts amended Directive 93/38/EEC i; mainly because of the 1994 WTO Agreement on

Government procurement;

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ANNEX 2: HISTORY OF PUBLIC PROCUREMENT LEGISLATION

2004/17/EC Utilities Works, supplies and services Replaced Directive (Water, contracts, design contests, 93/38/EEC with its energy, currently: EUR 4 845 000 for subsequent modifications; transport and works contracts, EUR 387 000 for Two tier system for postal sectors) supplies and services. services, works and service concessions contracts not covered, narrower but refocused definition of special and exclusive rights. Postal sector added, telecommunications sector excluded. Provisions on eprocurement included.

2004/18/EC Public sector Works, supplies and services Replaced Directives contracts, works concessions 92/50/EEC, 93/36/EEC and contracts, works contracts 93/37/EEC with subsequent awarded by concessionaires, modifications; Two tier subsidised works and services system for services, service contracts, design contests, concessions contracts not currently EUR 4 845 000 for covered. Water, energy, works contracts and works transport,

concessions, EUR 125 000 - 193 telecommunications and 000 for supplies and services postal sectors excluded;

contracts Provisions on eprocurement included.

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3. A NNEX 3: T HRESHOLDS

Applies to/Amount EUR 125 000 EUR 193 000 EUR 387 000 EUR 4 845 000

All works contracts, all subsidised works contracts, all works X concessions, all works contracts awarded by concessionaires

Supplies and service contracts awarded by Utilities; design X contests organised by Utilities, supplies and services contracts falling within the scope of the Defence and Security

Procurement Directive

Supplies and services contracts awarded by "sub-central" X contracting authorities, subsidised service contracts, design contests organised by sub-central contracting authorities; all contracts and design contests concerning the services listed in

Annex II B of Directive 2004/18/EEC i; service contracts (and design contests) concerning certain telecommunications services and R&D services awarded by central Government contracting authorities; supplies not listed in Annex V of

Directive 2004/18/EC i and awarded by contracting authorities operating in the field of defence.

All service contracts and design contests organised by central X government authorities concerning services listed in Annex II

A (except certain telecommunications services and R&D services); all supplies contracts awarded by Central

Government authorities not operating in the field of defence; supplies contracts awarded by contracting authorities operating in the field of defence and concerning the products listed in Annex V of Directive 2004/18/EC i

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A NNEX 3: T HRESHOLDS

Works contracts EUR 4 845 000

Directive All contracting

2004/17 entities, all sectors All supplies and services EUR 387 000

contracts, all design contests

Works contracts, works EUR 4 845 000 Central concessions contracts,

Government subsidised works contracts authorities All contracts concerning EUR 193 000

services listed in Annex II B, certain telecommunications services and R&D services; all design contests concerning these services and all

Directive subsidised services,

2004/18/EC All contracts and design EUR 125 000

contests concerning services listed in Annex II A except contracts and design contests concerning certain telecommunications services and R&D services

All supplies contracts awarded EUR 125 000

by contracting authorities not operating in the field of defence Supplies contracts awarded by Concerning EUR 125

contracting authorities products 000

operating in the field of listed in defence Annex V

Concerning EUR 193 other 000

products

Sub-central Works contracts, works EUR 4 845 000

contracting concessions contracts, authorities subsidised works contracts

All service contracts, all EUR 193 000

design contests, subsidised service contracts, all supplies contracts

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A NNEX 3: T HRESHOLDS

4. A NNEX 4: O VERVIEW OF NATIONAL LEGISLATION IMPLEMENTING EU PROCUREMENT D IRECTIVES

Table 1. Overview of national legislation implementing EU procurement Directives

Member State Act implementing the Directive in national legislation ** Date of adoption Date of entry /publication into force ***

Belgium Arrêté royal modifiant certains arrêtés royaux exécutant la loi du 24 décembre 1993 relative aux marchés publics et à certains marchés de travaux, de fournitures et de services/Koninklijk besluit tot wijziging van bepaalde koninklijke besluiten tot uitvoering van de wet van 24

december 1993 betreffende de overheidsopdrachten en sommige opdrachten voor aanneming van werken, leveringen en diensten ( for Directive 2004/17/EC i) 10.02.2010 16.02.2010

Arrêté royal modifiant la loi du 24 décembre 1993 relative aux marchés publics et à certains marchés de travaux de fournitures et de services et certains arrêtés royaux pris en exécution de cette loi/ Koninklijk besluit tot wijziging van de wet van 24 december 1993 betreffende de overheidsopdrachten en sommige opdrachten voor aanneming van werken, leveringen en diensten en van sommige koninklijke besluiten tot uitvoering van deze wet ( for Directive 2004/18/EC i) 29.09.2009 29.09.2009

Loi relative aux Marches Publics et a certains marches de travaux de fournitures et de services /Wet overheidsopdrachten en bepaalde opdrachten voor werken, leveringen en diensten 15.06.2006

Loi relative aux marchés publics et à certains marchés de travaux,de fournitures et de services et certains arrêtés royaux pris en exécution de cette loi, 24.12.1993

Bulgaria ЗАКОН за обществените поръчки 30.06.2006 01.07.2006

Czeck Republic Vyhláška č. 330/2006 Sb., o uveřejňování vyhlášení pro účely zákona o veřejných zakázkách 28.06.2006 07.2006 Zákon č. 137/2006 Sb., o veřejných zakázkách 19.04.2006

Denmark Bekendtgørelse nr. 936 af 16. september 2004 om fremgangsmåderne ved indgåelse af kontrakter inden for vand- og energiforsyning, transport samt posttjenester ( for Directive 2004/17/EC i) 16.09.2004 01.2005 Bekendtgørelse nr. 937 af 16. september 2004 om fremgangsmåderne ved indgåelse af offentlige vareindkøbskontrakter, offentlige tjenesteydelseskontrakter og offentlige bygge- og anlægskontrakter ( for Directive 2004/18/EC i) 16.09.2004 01.2005

186

A NNEX 3: T HRESHOLDS

Member State Act implementing the Directive in national legislation ** Date of adoption Date of entry /publication into force ***

Germany Verdingungsordnung für freiberufliche Leistungen 11.2006

Bekanntmachung der Neufassung der Verdingungsordnung für freiberufliche Leistungen 16.03.2006 11.2006

Bekanntmachung der Neufassung der Verdingungsordnung für Leistungen – Teil A 06.04.2006 11.2006

Estonia Riigihangete Seadus 21.02.2007 01.05.2007

Ireland European Communities (Award of Contracts by Utility Undertakings) Regulations 2007 ( for

Directive 2004/17/EC i) 27.02.2006 28.02.2007

European Communities (Award of Public Authorities’ Contracts) Regulations SI No 329 of 2006 ( for directive 2004/18/EC i) 22.06.2006 22.06.2006

Greece Προσαρµογή της Ελληνικής Νοµοθεσίας στις διατάξεις της Οδηγίας 2004/17.....( for

Directive 2004/17/EC i) 16.03.2007 16.03.2007

Προσαρµογή της Ελληνικής Νοµοθεσίας στις διατάξεις της Οδηγίας 2004/18/ΕΚ.....( for Directive 2004/18/EC i) 16.03.2007 16.03.2007

Spain LEY 31/2007, de 30 de octubre, sobre procedimientos de contratación en los sectores del

agua, la energía, los transportes y los servicios postales (for Directive 2004/17/EC i) 31.10.2007 31.10.2007

LEY 30/2007, de 30 de octubre, de Contratos del Sector Público (for Directive 2004/18/EC i) 30.10.2007 30.10.2007

LEY FORAL 6/2006, de 9 de junio, de Contratos Públicos 09.06.2006

France Décret no 2010-406 du 26 avril 2010 relatif aux contrats de concession de travaux publicset

portant diverses dispositions en matière de commande publique 26.04.2010

Décret no 2006-975 du 1er août 2006 portant code des marchés publics 01.08.2006 05.08.2006

187

A NNEX 3: T HRESHOLDS

Member State Act implementing the Directive in national legislation ** Date of adoption Date of entry /publication into force ***

Italy Ulteriori disposizioni correttive e integrative del decreto legislativo 12 aprile 2006, n. 163, recante il Codice dei contratti pubblici relativi a lavori, servizi e forniture, a norma

dell'articolo 25, comma 3, della legge 18 aprile 2005, n. 62. 11.09.2008 Disposizioni correttive ed integrative del decreto legislativo 12 aprile 2006, n. 163, recante il codice dei contratti pubblici realtivi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE, a norma dell'articolo 25, comma 3, della legge 18 aprile 2005, n. 62 (Legge comunitaria). 26.01.2007

Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE. 07.2006

Cyprus Ο περί του Συντονισµού των ∆ιαδικασιών Σύναψης ∆ηµοσίων Συµβάσεων Προµηθειών,

Έργων και Υπηρεσιών στους Τοµείς του Ύδατος , της Ενέργειας, των Μεταφορών και των Ταχυδροµικών Υπηρεσιών Νόµος του 2006 -Νόµος, number: Ν. 11(Ι)/2006 ( for directive 2004/17/EC i) 17.02.2006 02.2006

Ο περί του Συντονισµού των ∆ιαδικασιών Σύναψης ∆ηµοσίων Συµβάσεων, Προµηθειών, Έργων και Υπηρεσιών και για Συναφή Θέµατα Νόµος του 2006 - Νόµος, number: Ν. 12(Ι)/2006; ( for Directive 2004/18/EC i) 17.02.2006 02.2006

Latvia Noteikumi par līgumcenu robežām 03.12.2004 04.12.2004 Noteikumi par iepirkumu sabiedrisko pakalpojumu sniedzēju vajadzībām 16.04.2004 01.05.2004 Publisko iepirkumu likums 05.2006

Lithuania Lietuvos Respublikos koncesijų įstatymo, Vietos savivaldos įstatymo pakeitimo ir papildymo

įstatymas Nr. X-749 27.07.2006 27.07.2007 Lietuvos Respublikos viešųjų pirkimų įstatymo pakeitimo įstatymas Nr. X-471 12.01.2006 31.01.2006

Luxembourg Règlement grand-ducal du 3 août 2009 portant exécution de la loi du 25 juin 2009 sur les

marchés publicset portant modification du seuil prévu à l’article 106 point 10° de la loi communale modifiée du 13 décembre 1988 03.08.2009 08.2009 Loi du 25 juin 2009 sur les marchés publics 25.06.2009

Hungary A Kormány196/2006. (IX. 27.) Korm.rendeletea központosított közbeszerzési

rendszerrõl,valamint a központi beszerzõ szervezetfeladat- és hatáskörérõl szóló168/2004. (V. 25.) Korm. rendelet módosításáról 27.09.2006 10.2006

188

A NNEX 3: T HRESHOLDS

Member State Act implementing the Directive in national legislation ** Date of adoption Date of entry /publication into force ***

A Kormány105/2006. (IV. 28.) Korm.rendeletea gyógyszerek és gyógyászati segédeszközökközbeszerzésének részletes és sajátos szabályairólszóló 130/2004. (IV. 29.) Korm. rendeletmódosításáról 28.04.2006 2003. évi CXXIX. törvény a közbeszerzésekről 28.12.2003

Malta L.N. 178 of 2005Public Procurement of Entities operating in the Water, Energy, Transport andPostal Services Sectors Regulations, 2005 (for Directive 2004/17/EC i) 03.06.2005 03.06.2005 L.N. 177 of 2005 Public Contracts Regulation ( for Directive 2004/18/EC i) 03.06.2005 03.06.2005

Netherlands Regeling gegevensverstrekking overheidsopdrachten en speciale sectoren (for Directive

2004/17/EC) 12.12.2005 01.2006 Besluit aanbestedingsregels voor overheidsopdrachten 06.09.2005 Raamwet EEG-voorschriften aanbestedingen 20.04.1993

Austria Bundesvergabegesetz 2006 – BVergG 2006 31.01.2006 01.02.2006

Poland Ustawa z dnia 7 kwietnia 2006 r. o zmianie ustawy - Prawo zamówień publicznych oraz ustawy o odpowiedzialności za naruszenie dyscypliny finansów publicznych 07.04.2006 25.05.2006

Portugal Ministério das Obras Públicas, Transportes e Comunicações-Estabelece os termos a que deve obedecer a apresentação e recepção de propostas, candidaturas e soluções no âmbito do

Código dos Contratos Públicos, aprovado pelo Decreto-Lei n.º 18/2008, de 29 de Janeiro - Decreto-Lei, number: 143-A/2008 25.07.2008 25.07.2008

Ministério das Obras Públicas, Transportes e Comunicações-Aprova o Código dos Contratos Públicos, que estabelece a disciplina aplicável à contratação pública e o regime substantivo dos contratos públicos que revistam a natureza de contrato administrativo - Decreto-Lei n.º 18/2008 29.01.2008

Romania Hotărâre pentru aprobarea Normelor de aplicare a prevederilor referitoare la atribuirea contractelor de concesiune de lucrări publice şi a contractelor de concesiune de servicii prevăzute în Ordonanţa de urgenţă a Guvernului nr.34/2006 privind atribuirea contractelor de achiziţie publică, a contractelor de concesiune de lucrări publice şi a contractelor de

concesiune de servicii - Hotărâre de Guvern, numar: 71 08.02.2007 08.02.2007

189

A NNEX 3: T HRESHOLDS

Member State Act implementing the Directive in national legislation ** Date of adoption Date of entry /publication into force ***

Hotărâre pentru aprobara normelor de aplicare a prevederilor referitoare la atribuirea contractelor de achiziţie publică prin mijloace electronice din Ordonanţa de urgenţă a Guvernului nr.34/2006 privind atribuirea contractelor de achiziţie publică, a contractelor de concesiune de lucrări publice şi a contractelor de concesiune de servicii -Hotărâre de Guvern, numar: 1660 07.12.2006 07.12.2006

Ordonanţă de urgenţă nr 34 privind atribuirea contractulelor de achiziţie publică, a contractelor de concesiune de lucrări publice şi a contractelor de concesiune de servicii 15.05.2006 30.06.2006

Slovenia Zakon o javno-zasebnem partnerstvu 07.12.2006 07.03.2007 Zakon o javnem naročanju na vodnem, energetskem, transportnem področju in področju

poštnih storitev ( for Directive 2004/17/EC i) 08.12.2006 23.12.2006

Uredba o seznamih naročnikov, seznamih gradenj, storitev, določenih vrst blaga, obveznih informacijah v objavah, opisih tehničnih specifikacij in zahtevah, ki jih mora izpolnjevati oprema za elektronsko naročanje 28.02.2007 01.03.2007 Zakon o javnem naročanju 08.12.2006 23.12.2006

Slovakia Zákon č. 25/2006 Z. z. o verejnom obstarávaní a o zmene a doplnení niektorých zákonov 25.01.2006 01.02.2006 Finland Laki vesi- ja energiahuollon, liikenteen ja postipalvelujen alalla toimivien yksiköiden

hankinnoista / Lag om upphandling inom sektorerna vatten, energi, transporter och posttjänster ( for directive 2004/18/EC i° 05.04.2007 01.06.2007 Laki julkisista hankinnoista / Lag om offentlig upphandling - Laki, number: 348/2007 (for Directive 2004/18/EC i) 05.04.2007 01.06.2007

Valtioneuvoston asetus julkisista hankinnoista / Statsrådets förordning om offentlig upphandling -Valtioneuvoston asetus, number: 614/2007 30.05.2007 01.06.2007

Sweden Tillkännagivande (2007:1108) av de försvarsprodukter som avses i lagen (2007:1091) om offentlig upphandling 07.12.2007 01.2008 Förordning (2007:1099) om offentlig upphandling och upphandling inom områdena vatten, energi, transporter och posttjänster ( for Directive 2004/17/EC i) 07.12.2007 01.2008 lag (2007:1091) om offentlig upphandling ( for Directive 2004/18/EC i) 07.12.2007 01.2008

United Kingdom The Utilities Contracts Regulations 2006 31.01.2006 Public Utilities ontracts (Scotland) Regulations 2006 31.01.2006 The Public Contracts Regulations 2006 31.01.2006

190

A NNEX 3: T HRESHOLDS

Member State Act implementing the Directive in national legislation ** Date of adoption Date of entry /publication into force ***

Public Contracts (Scotland) Regulations 2006 31.01.2006

*

The complete list of national measures transposing EU public procurement Directives can be found in the Official Journal of the European Union at the following adresss: http://eurlex.europa.eu/Notice.do?val=413819:cs&lang=fr&list=413819:cs,&pos=1&page=1&nbl=1&pgs=10&hwords=&checktexte=checkbox&visu=#texte ( for Directive 2004/17/EC i) and http://eurlex.europa.eu/Notice.do?val=413842:cs&lang=fr&list=413842:cs,&pos=1&page=1&nbl=1&pgs=10&hwords=&checktexte=checkbox&visu=#FIELD_BE ( for Directive 2004/18/EC i)

** In cases where the transposition was made through several national legal acts, only the basic act and the latest modificationas are generally listed .

*** The date of entry into force is considered the date of entry into force of the legal act considered to be completing the transposition of the directives.

191

5. A NNEX 5:B ELOW THRESHOLDS

How many levels of If there are more than one national threshold below Is direct procurement allowed for small national thresholds EU-thresholds, are there differences in the values contracts? How are these defined? are there below EU applicable rules according to the different thresholds? Which thresholds? If so, what are the main differences? are the national thresholds applicable below EU thresholds?

Austria two levels • for less than EUR 40 000, direct purchasing for • for less than EUR 40 000, direct purchasing classical sector for classical sector

• for less than EUR 60 000, direct purchasing for • for less than EUR 60 000, direct purchasing

utilities sector for utilities sector

• less EUR 120 000 for works and EUR 80 000 for

supplies and services , restricted procedure without

prior publication for the classical sector

• less than EUR 350 000 negotiated procedure with

prior publication

Belgium two levels Above EUR 67 000 a normal tender procedure should Yes, for contracts bellow EUR 5 500

be followed.

Between EUR 5 500 and EUR 67 000 at least 3 offers

have to be requested,

Below EUR 5 500 the contracting authority can do

directly purhase from one company.

192

A NNEX 5:B ELOW THRESHOLDS

Bulgaria four levels. for works over BGN 2 150 000, for supplies – over Yes, when the value of contract is below

Four diffferent sets of BGN 180 000 BGN and for services – over BGN 45 000 (aprox EUR 23 000) for works

values (levels) of the BGN 110 000 -EU procurement rules apply and below BGN 15 000 ( approx

national thresholds for works less than or equal to BGN 2 150 000, for EUR 7 500)for supply or services

are defined "in case public supplies less than or equal to BGN 180 000 and

the place of for public service contracts – less than or equal to BGN

fulfilment of the 110 000, open procedure or negotiated procedure with

contract is outside the invitation

country" for public works contracts from BGN 45 000 to BGN

200 000 and for public supply or service contracts –

from BGN 15 000 to BGN 50 000 Contracting

authorities shall request at least three offers

When the value of contract is below BGN 45 000 for

works and below BGN 15 000 for supply or services

contracting authorities may use direct award.

Cyprus two levels for more than EUR 85 000 the EU rules apply Yes, for contracts of less than EUR 1 700

between EUR 1 700 and EUR 85 000 simplified

procedure apply

for less than EUR 1 700 direct award is allowed

193

A NNEX 5:B ELOW THRESHOLDS

Czech one level for contracts between EUR 70 000 and EU threshold Yes, for contracts below EUR 70 000 (for

Republic (for supplies and services) and for contracts between supplies and services) and below

210 000 and EU threshold (for works), EU rules apply EUR 210 000 for works, however, EU Treaty or a simplified competitive procedure with prior principles apply. publication ( minimum 5 tenderers invited) below these values, EU Treaty principles apply

Denmark one level Above 67.00 EUR a tender notice must be published. Not explicitly. Below EUR 67 000 there are Negotiated procedure accepted. however no rules obliging to organise a

tendering procedure. Estonia one level. for contracts of less than EUR 40 000 for supplies and Yes for services and supplies contracts below

services and EUR 250 000 for Works EU Treaty EUR 20 000 and for Works below principles apply. Above these levels a public EUR 130 000. procurement procedure under national provisions needs to be organised.

Finland two levels for contracts of less than EUR 30 000 for supplies and Yes, for contracts of less than EUR 30 000 for services and EUR 150 000 for works, direct award is supplies and services and EUR 150 000 for

allowed; works for contracts between EUR 30 000 and EUR 50 000 for supplies and services and EUR 150 000 and EUR 500 000 for works negotiated procedure with

194

A NNEX 5:B ELOW THRESHOLDS

France Three levels a) below EUR 4 000 - no requirement at all; Yes, bellow EUR 4 000 b) between EUR 4 000 and EUR 90 000 - rules for

publication; c) between EUR 90 000 and the Directives thresholds -compulsory publication on the Official Bulletin

Germany several levels Examples for federal level: Examples for federal level: according to sectors works: works: EUR 10 000

and regions restricted tendering supplies and services: 500 up to EUR 50 000: finishing/completion works without

engineering, landscaping due to financial crisis 2009-2010: up to EUR 150 000: civil engineering, road works: direct award: EUR 100 000 construction supplies and services: EUR 100 000 up to EUR 100 000: all other construction works over that open procedure due to financial crisis 2009-2010: works: restricted tendering: EUR 1 000 000 supplies and services: restricted tendering: EUR 100 000 (equal to direct award)

Greece Two levels Below EUR 15 000, direct award is allowed. Yes - below EUR 15 000

Between EUR 15 000-EUR 45 000 a simplified tendering procedure is prescribed (negotiation with selected operators)

195

A NNEX 5:B ELOW THRESHOLDS

Hungary One level: EUR 26 700 for supplies and services and EUR 50 000 Yes below the national thresholds the for works in the classical sector; EUR 166 700 for procurement is not regulated

supplies and services and EUR 333 300 for works in the utilities sector

Italy Three levels for contracts of less than EUR 20 000 for supplies and Yes, for contracts of less than EUR 20 000 for services and EUR 40 000 for works sector direct award supplies and services and EUR 40 000 for

is allowed; works for contracts between EUR 40 000 and EUR 500 000 for works negotiated procedure without publication for contracts between EUR 500 000 and EUR 750 000 for works negotiated procedure with publication

Ireland NA NA Yes, although according to the national guidelines contracts above EUR 50 000 must be published on national procurement website. Moreover, internal procedures of some contracting authorities require publication of contracts with values even lower than

EUR 50 000. Latvia two levels for contracts of less than EUR 4 200 for supplies and Yes for contracts of less than EUR 4 200 for

services and EUR 14 000 for works, direct award supplies and services and EUR 14 000 for for contracts between EUR 4 200 and EUR 30 000 for works supplies and services and EUR 14 000 and EUR 170 000 for works -simplified national procedure; above national threshold, simplified EU procedure

196

A NNEX 5:B ELOW THRESHOLDS

Lithuania two levels for contracts of less than EUR 3 000 direct award is for contracts of less than EUR 3 000 direct allowed award is allowed

for contracts between EUR 3 000 and EUR 30 000 for supplies and services and EUR 3 000 and EUR 145 000 for Works -simplified national procedure; for contracts above national threshold, simplified EU procedure

Luxembourg three levels for contracts of less than EUR 55 000 - negotiated Yes, for contracts of less than EUR 55 000 procedure without publication;

for contracts between EUR 55 000 and EUR 100 000 - negotiated procedure without publication, provided that at least three tenderers are invited; for contracts above EUR 100 000 (for supplies and services) and EUR 800 000 (for works)- open procedure mandatory except in cases where negotiated procedure with or without publication is allowed by the directives

197

A NNEX 5:B ELOW THRESHOLDS

Malta four levels for contracts of less than EUR 2 500 - direct award is Yes, for contracts of less than EUR 2 500 allowed;

for contracts between EUR 2 500 and EUR 6 000 - restricted procedure or negotiated procedure with or without publication procedure with or without publication, for contracts between EUR 6 000 and EUR 120 000 - restricted procedure or open procedure; for contracts above EUR 120 000 and the thresholds the EU rules apply

Netherlands NA NA Yes, for bellow EU threshold

Poland one level for contracts of less than EUR 14 000 the Public Yes, for contracts of less than EUR 14 000 Procurement Law of 2004 do not apply

Portugal One level for works contracts below EUR 150 000 and for Direct award is allowed for works contracts services and supply contracts below EUR 75 000, below EUR 150 000 and services and supply direct award is allowed. contracts below EUR 75 000. However, the number of exceptions to this general rule has multiplied over the last years permitting the direct award of an increasing number of

public contracts with a value immediately below the EU Directives thresholds.

198

A NNEX 5:B ELOW THRESHOLDS

Romania three levels for contracts of less than EUR 15 000 direct award for contracts of less than EUR15 000 for contracts between EUR 15 000 and EUR 100 000

for supplies and services and EUR 15 000 and EUR 750 000 for works -simplified procedure for contracts between EUR 100 000 and EU threshold for supplies and services and EUR 750 000 and EU threshold for works EU rules apply except for publication requirement and time limits

Slovak two levels "Low Value Contracts" of less than 30 000 EUR for Yes, for contracts of less than EUR 30 000 for Republic supplies and services and 120 000 EUR for works supplies and services and EUR 120 000 for

direct award works "Under-threshold contracts" between EUR 30 000 and 60 000 for supplies and services and EUR 120 000 and EUR 360 000 for works -simplified procedure "Under-limit contract" above EUR 60 000 for supplies and services and above EUR 360 000 for works, EU rules apply, with shorter deadlines

Slovenia two levels for contracts of less than EUR 10 000 for supplies and Yes, for contracts of less than EUR 10 000 for services and EUR 20 000 for works direct award supplies and services and EUR 20 000 for

for contracts between EUR 10 000 and EUR 40 000 for works supplies and services and EUR 20 000 and EUR 80 000 for works -simplified procedure

199

A NNEX 5:B ELOW THRESHOLDS

Spain At least 3 levels. Contracts can be awarded by negotiated procedure Yes, for the so-called "minor contracts". when their value is: -below EUR 1 000 000 for works Minor contracts are works contracts below contracts; - below EUR 500 000 of the value of the first EUR 50 000, and services/supply contracts establishment for the case of service concessions with a below EUR 18 000.

lower duration than 5 years; - below EUR 100 000 for supply/service contracts. For negotiated procedures publication of a contract notice in the national official journal or, the case being, the regional one, is compulsory when their value is: - above EUR 60 000 for service/supply contracts; - above EUR 200 000 for works contracts. Otherwise publication is only requested in the buyer's profile, unless the contract is a minor contract, in which case direct award is possible. There are different thresholds for publication of award notice: the award of the contract will always be published in the buyer's profile except for minor contracts. Contract awards above EUR 100 000 (in the case of service concessions if the value of the first establishment is EUR 100 000 or its duration higher than 5 years) will be published in the national official journal or, the case being, the relevant regional one. A contract can be awarded directly if their value is: - below EUR 18 000 for supply/services contracts; below EUR 50 000 for works contracts.

200

A NNEX 5:B ELOW THRESHOLDS

Sweeden NA No Yes, for below EU thresholds when the value is really low. (no real definition but case-law).

UK NA NA Yes, for below EU thresholds.

Table 2.

201

6. A NNEX 6: I MPLEMENTATION INSTITUTIONS

Table 3.

Table 4. Implementation institutions

Member Institution

State Responsible for

Status/Legal Functions

Public Procurement standing

Staffing

Belgium 1. Commission for - Advisory body in Public Procurement relation to drafting legislation

- Monitoring and control

2.

Procurement Prime Minister - Drafting legislation Section of the Federal - International Public Service relations Chancellery of the - Monitoring and Prime Minister control - Information functions - Adivisory functions 3. Purchasing Advice Federal Public - Guidance and and Policy Unit; Service support 4. Inspectorate Federal Public - Monitoring and General of Finances Service control of budgetary operations

Bulgaria The Bulgarian Public Executive 38 - Drafting legislation Procurement Agency, Agency - - International

Independent relations body under the - Monitoring and Ministry of control Economy and - Publication and Energy information - Guidance and support - Training

Czeck 1. Ministry for NA 17 - Drafting legislation Republic Regional - International Development relations (Legislative section) - Monitoring and control - Guidance and support 2. Office for Independent - Review Body, Protection of authority handling complaints Competition in sense 98/665/ES and 2007/66/EC

202

A NNEX 6:I MPLEMENTATION INSTITUTIONS

Member Institution Status/Legal

State Responsible for Functions Public Procurement standing Staffing

Denmark 1.Danish Competition Agency under 10 - Monitoring and and Consumer the Ministry of control

Authority Economic and - Guidance and Business support

Affaires - International relations

2.Ministry of Finance NA ? - Monitoring and control

Germany Federal level: Government 10 - Drafting legislation 1.Federal Ministry of authority at the relevant level

Economics and - Guidance and Technology (BMWi) support - Monitoring and control - International relations 2.Ministry of Government ? Transport, Buildings authority and Urban Affairs State level: State Ministries competent for public procurement matters

Estonia 1. Ministry of NA 19 - Drafting legislation Finance; - International

relations - Publication and information

2.Public Procurement Ministry of - Monitoring and Office Finance control

Ireland 1.National Public Department of 6 - Drafting legislation Procurement Policy Finance - Guidance and

Unit support - Publication and information

2.National Office for 26 - Co-ordination of Procurement Service Public Works national strategy for public procurement - Publication

Greece 1. Ministry of NA - Drafting legislation Economy, - International

Competitiveness and relations - Monitoring

Shipping (supplies) - Information

functions - Guidance

and support for

supplies

203

A NNEX 6:I MPLEMENTATION INSTITUTIONS

Member Institution Status/Legal

State Responsible for Public Procurement standing Staffing Functions

2.

Ministry of Finance NA - Drafting legislation (services) - International relations - Monitoring - Information functions - Guidance and support for services 3. Ministry of NA - Drafting Legislation Infrastructures, - International Transport and relations Networks (works) - Monitoring - Information functions - Guidance and support for works

Spain 1. Ministry of Trade, - Drafting legislation Industry and Tourism - International

relations 2. Directorate General - Monitoring and of State Patrimony control

3.

State Consultative - Guidance and Board of support Administrative Procurement 4. General - Control ( internal) Intervention of the Central Public Administration

France 1. Public Procurement Ministry of - Drafting legislation sub Directorate of the Economy, - International

Directorate for Legal Finance and relations Affaires (DAJ) Industry - Publication and information - Guidance and support - E-procurement 2. Advisory - Guidance and Commission on support Public Procurement 3. Supporting Mission - Guidance and for the achievement of support Public-Private Partnership Contracts

204

A NNEX 6:I MPLEMENTATION INSTITUTIONS

Member Institution Status/Legal

State Responsible for Public Procurement standing Staffing Functions

Italy 1. Department for the Prime Minister - Drafting Legislation co-ordination of EU Office - Monitoring and

policies control - International relations - Guidance and support

2.

Ministry of NA - Drafting legislation Infrastructure - Guidance and support 3.Authority for - Guidance and Supervision of Public support Contracts of works, - Monitoring and services and supplies control

Cyprus The Cypriot Public Treasury 14 - Drafting legislation Procurement - International

Directorate relations - Monitoring and control

- Information functions - Guidance and support - Training

Latvia 1. Procurement - Drafting legislation Monitoring Bureau - International

relations - Guidance and support - Monitoring and control - Publication and information - Review and remedies

Lithuania 1. Public Procurement Ministry of - Drafting secondary Office Economy legislation -

Monitoring and control - Publication and information

2.

Ministry of NA - Drafting primary Economy legislation - International relations
205

A NNEX 6:I MPLEMENTATION INSTITUTIONS

Member Institution Status/Legal

State Responsible for Functions Public Procurement standing Staffing

Luxembourg 1. Department of Ministry of - Drafting legislation Public Works Public Works - Guidance and

support - Monitoring - Publication

2.

Ministry for NA - Guidance and Sustainable support Development and Infrastructure

Hungary 1. Ministry of NA - Drafting Legislation National - Monitoring and

Development; control - International relations

2.

Public Procurement National - Monitoring and Council Parliament advisory activities - Management of publications and official registers - Preparation of guidance documents

Malta 1. Department of Ministry of ? - Monitoring and

Contracts; Finance control - Guidance and support - International relations

2.

Ministry of NA 37 - Drafting legislation Finance, - International relations

Netherlands 1. Department for Ministry of - Drafting legislation Competition and Economic

Consumer Policy Affairs 2. PIANOo (Public Government - Advisory function Network for Agency within - Training function Professionals in the Ministry of Contracting and Economic Procurement) Affairs

Austria 1.Federal Chancellery Prime minister 4 - Drafting Legislation (Bundeskanzleramt - International

Österreich) relations - Monitoring and control

- Information functions

2.

Federal Ministry of 58 - Guidance and Procurement Finance Support
206

A NNEX 6:I MPLEMENTATION INSTITUTIONS

Member Institution

State Responsible for

Status/Legal

Public Procurement standing

Staffing Functions

Company Poland Public Procurement Office of the 120 - Drafting legislation

Office Prime Minister - Guidance and support

- Publication and information - Monitoring and control - International relations

Portugal 1. Ministry of Finance - Drafting legislation and Public - International

Administration relations 2. Ministry of Public - Drafting legislation Works, Transport and - International Communication relations 3. National Agency - Monitoring and for Public control Procurement - Guidance and support 4. "Imprensa Nacional - Publication -Casa de Moeda"

Romania 1.National Authority Government - Drafting legislation for Regulating and - Advisory function Monitoring Public - Monitoring and

Procurement control - Information function - International relations

Slovenia 1. Ministry of Finance NA 10 - Drafting legislation - Advisory function - Monitoring and

control - International relations - Publication and information

2.

Public Procurement ? - Monitoring and Agency control - Guidance and support

Slovakia Office for Public Independent - Drafting legislation Procurement - Guidance and

support - Monitoring and control - Publication and

207

A NNEX 6:I MPLEMENTATION INSTITUTIONS

Member Institution Status/Legal

State Responsible for Public Procurement standing Staffing Functions

information - Training

Finland 1. Ministry of NA - Drafting legislation Employment and - International

Economy relations - Guidance and support - Monitoring and control

2.

Public Procurement Ministry of - Guidance and advisory Unit Employment support and Economy 3.The Strategic Group Ministry of - Guidance and on Government Finance support Procurement

Sweden 1.Competition 15* - Monitoring and Authority control

- Guidance and support - International relations - Publication

2.

National Financial - Guidance and Management support Authority - Monitoring

United 1.Office for HM Treasury - Drafting legislation Kingdom Government - International Commerce (OGC) for relations GB - Guidance and support - Monitoring and control - Information 2. Scottish Executive for Scotland

Table 5. *Public Procurement Department

Table 6.

208

7. A NNEX 7: C ENTRAL P URCHASING B ODIES

There is one main central purchasing body in Austria, the Federal Procurement Agency

Bundesbeschaffung GmbH (BBG). 68 The BBG was established in 2001 at first as a central

purchasing organisation for central, federal government administration. Now however any authority or entity subject to the provisions of the Federal Procurement Act may now take advantage the service. The BBG has framework contracts for some 250 000 products and services. By pooling authorities' purchasing it estimates that around 18% of the costs can be saved. In 2009, around EUR 870 million was procured through BBG contracts.

In Belgium the CMS (Centrale de Marchés pour Services fédéraux) acts as the central purchasing body for all federal bodies organisations and institutions and established framework contracts which can be accessed via an electronic catalogues. There are also a number of other central purchasing bodies set up, for example, by the federal police for local police authorities or by certain institutions in the hospital and health care sector.

In Bulgaria a central purchasing body was established during 2010 as a specialised unit within the ministry of Finance, but this Central Financing and Contracting Unit Directorate is not yet fully operational.

In Cyprus the main central purchasing bodies are departments of central government: the Department for IT products, the Purchasing and Supply Department and the Electromechanical services Department for electromechanical products and the Printing Office.

The Czech Republic has established no central purchasing body, but its legal framework allows any contracting authority to act as a central purchasing body on behalf of other contracting authorities.

In Denmark there are established two central purchasing organisations.

Firstly, SKI – Staten og Kommunernes Indkøbscentral, which is owned jointly by the Ministry of Finance and the organisation Local Government Denmark. Both local and national authorities can use the framework agreements offered by SKI. SKI was established in 1994 and in 2009 had a turn over of 13 billion DKK, which is roughly 1,7 billion EUR. SKI has 32 500 public customers from almost 300 different public authorities in Denmark.

Secondly, Statens Indkøb was established in 2006 and is owned 100% by the state. Statens Indkøb offers obligatory framework agreement for state level purchasing authorities. In addition regional and local authorities can use the Statens Indkøb framework agreements in

certain cases. 69

The Center for Public Procurement (Riigihangete Keskus) acts as a central procurement body

in Estonia establishing framework contracts for its clients. 70

Hansel Ltd. is a non-profit company that operates as the central procurement unit of the Finnish government under the auspices of the Ministry of Finance. Certain types of central government procurement must be carried out through Hansel. Hansel has some 70 framework agreements and the number of purchases made them has grown sharply in recent years, with a

209 value of approximately EUR 534 million in 2009. KL-Kuntahankinnat Oy is the central

purchasing body for local government administrations. 71

The French State Procurement Service (Service des achats de l’État (SAE)) is responsible for defining and ensuring the implementation of strategies for all the regular purchases of state administration (central and devolved), such as: furniture and office equipment; computer hardware, software and related services; telecommunication equipment and services; passenger travel and freight transport; development and maintenance of estate and technical installations; non-specialized vehicles, fuels and lubricants; printing equipment and services, postage and shipping; energy; financial services, insurance and banking. Where the SAE has a framework agreement or other contract central government ministries cannot award their own contracts for the same goods or services. Any appropriate procuring authority may establish or use a central procurement body. Many authorities appear to make use of common group buying for particular goods or services, in particular within the health sector (hospitals) or between local authorities. There are few very large bodies with the exception of l'Union des groupements d'achats publics (UGAP).

The largest central purchasing body in Germany is the Bundesamt für Wehrtechnik und Beschaffung (BWB) for the defence sector. The second main central purchasing body is the Procurement Agency of the Federal Ministry of the interior, the Beschaffungsamt des Bundesministeriums des Innern, which was originally setup in 1951 as the procurement agency of the Federal Border Guard and is now responsible for procurement by 26 federal authorities and public law foundations and international organisations financed and supported

by the federal awarded about 1220 contracts worth EUR 956.8 million in 2009. 72

In Greece the General Secretariat of Commerce in the Ministry of Economy, Competitiveness & Shipping (formerly Greek Ministry of Development), organizes procurements for ministries and central government authorities except for health-related material, defence materiel and supplies for local authorities.

In Hungary, centralized public procurement on the central governmental level has been regulated and available since 1995. There is one central purchasing body in Hungary operated by the Central Service Directorate General. All entities under central government control (ministries, central budgetary organs etc.) are obliged to use the centralized public procurement system for the goods and services listed in the relevant Government Decree such as stationery, cars, IT equipment etc. Local governments are similarly entitled to mandate the use of central purchasing within their territory.

In Ireland the National Procurement Service provides a central procurement service for Government Departments, Offices and Agencies for a variety of products and services such as office supplies, energy, uniforms and clothing, printing, advertising services etc. While there is no legal obligation on authorities to use the agency contracts, they are required to use them under an administrative circular issued by the Minister for Finance.

In Italy Consip S.p.A, a public company owned by the Ministry of Economy and Finance, was created in 1997 in order to manage changes in the use of information technology in what was

then the Ministry of the Treasury, the Budget and Economic Planning. 73 Since 2000 Consip

has been procuring goods and services on behalf of public administrations and now operates as a central purchasing body on behalf of the State. State administrations (central and local except for schools and universities) are obliged to use its framework contracts for a list of product categories which are identified each year by a Decree of the Minister of Economy and

210 Finance. In 2009, Consip had contracts or agreements for 56 different categories of merchandise including computers, printers, heating oil, meal vouchers, mobile and fixed telephony and more than 11,000 users made purchases worth EUR 1 713 million through them.

According to Consip authorities can achieve significant savings in the process as well as prices for goods. In fact, by aggregating demand for the government, Consip estimate that they have been able to reduce the unit costs of purchase by on average 15-20%, while

maintaining high quality standards in the supplies. 74

Other public entities are not bound to use these framework agreements, but they must respect the price-quality benchmarks of framework agreements for the same category of goods and services. Italian regions can also set up their own purchasing bodies which act of behalf of regional or local authorities.

In Latvia the State Regional Development Agency is responsible for framework agreements

(for computers, furniture and medicines for example). 75 Central government institutions are

obliged, since 2010 to use of e-Catalogues based on these framework agreements. The Providing State Agency for Internal Affairs and the State Agency for Defence Properties of the Ministry of Defence also act as permanent or ad hoc central purchasing bodies.

The Central Project Management Agency (CPMA) in Lithuania, set up in 2007 and fully operational since 2008, has established framework agreements which are managed through an

e-Catalogue and are obligatory for central government bodies since 2009. 76

In Luxembourg there is no main central purchasing body, but a number of central purchasing bodies are responsible for purchasing computers and IT material and also for office equipment.

The Department of Contracts acts as the main central purchasing body for Malta

The Netherlands does not have a main central purchasing body. However there is an expertise centre for procurement and an electronic procurement network and encourage common services among local authorities. The Nederlands Inkoop Centrum (NIC) was privatised in the in 1990, but still handles many public sector tenders but not as a central procurement body using framework agreements.

There is no centralized purchasing body in Norway. Each contracting authority is responsible for its own procurement. However the Norwegian Agency for Public Management and e Government (Difi) does provide a central e-commerce platform (Ehandel.no) which, in 2010, had 99 public sector subscribers who made 355 345 on-line transactions with some 300 suppliers through on line catalogues amounting to a turnover of about NOK 4 127 million

(EUR 516 million). 77

There is no main central purchasing body in Poland although under the procurement legislation the Prime Minister may appoint a government administration to be a central purchasing body to establish framework contracts and determine which bodies must or could use them.

In Portugal the agência nacional de compras públicas (ANCP) together with the instituto da construção e do imobiliário (InCI) is responsible for the public procurement portal and central framework contracts, which central administration contracting authorities and public institutes

211 are obliged to use and autonomous administrations and public undertaking may use on a global or specific basis.

In Romania some the Ministry of Health buys drugs or equipment for public hospitals. There is a proposal to establish a central purchasing body.

In the Slovak Republic it is not mandatory for contracting authorities to purchase goods/services from or through a central purchasing body and no such body has been established.

In Slovenia the Ministry for Public Administration carries out joint procurement for energy, cars, computers and screens, paper, mobile phones and air travel. A public procurement agency will be established in 2011. The Ministry of Health also carries out some centralised procurement and some local communities carry out joint procurement

In Spain there is no one main central purchasing body. However, Spain had established, before 2004, a unit within the Ministerio de Economía y Hacienda responsible for the management and operation of a Centralised State Acquisitions System for the procurement of

common goods, works and services used generally by all departments. 78 The Centralised

Acquisition System is aimed at all government administrations, autonomous bodies, the Social Security agency and other public state entities that buy through the Centralised Acquisition’s Catalogue of Goods and Services, The Ministerio de Economía y Hacienda also

provides a national portal for procurement (Plataforma de Contratación del Estado). 79

From the first of January 2011 central purchasing for central government bodies was centralised into one body the Legal, financial and administrative services agency (Kammarkollegiet) which will form a central purchasing body. Two other authorities are still responsible for central purchasing in certain areas: the Swedish National Financial Management Authority (Ekonomistyrningsverket) for administrative systems and the Swedish National Debt Office (Riksgäldskontoret) for payment systems.

In the United Kingdom the main central purchasing body, Buying Solutions, became operational in 2001, one year after the Office of Government Commerce, through a merger of the procurement functions of two earlier purchasing bodies, the Buying Agency and CCTA. It is part of the Efficiency and Reform Group within the Cabinet Office and has procurement arrangements which cover a wide range of areas such as ICT, energy, travel, motor vehicles, office equipment and supplies, property and professional services Buying Solutions operates as a Trading Fund which generates income to cover its costs. Any contracting authority or entity covered by Directives 2004/17/EC i or 2004/18/EC, can make use of its contracts and framework agreements for over 500 000 products and services with more than 1 500 suppliers. There are over 40 other buying organisations in the wider UK public sector, but none has as wide a remit.

In addition to the savings from lower prices due to economies of scale Buying Solutions estimates that it can save contracting authorities 77 days, on average, by enabling contracting authorities or entities to bypass the full procurement process.

212

8. A NNEX 8: B IBLIOGRAPHY

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Albano, G.L. and Sparro, M., Flexible Strategies for Centralized Public Procurement, Review of Economics and Institutions, 1 (2), Article 4. Perugia, 2010

Bauer B., Christensen J., Christensen K., Dyekjoer-Hansen T. and Bode I. Benefits of green public procurement, ordic Council of Ministers, Copenhagen 2009. Available at:

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Bianchi, T. and Guidi, V., The Comparative survey on the ational public procurement systems across the PP , Rome, 2010. Available at

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BIRD & BIRD Rechtsanwälte. Verhältnis zwischen Binnenmarktwirkung der EU-

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Bohan, N. and Redonnet D. EU procurement legislation; does the emperor have clothes? An examination of the new empirical evidence From Public Procurement Law Review,

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Brännlund R., Lundberg S. and Marklund P-O. Assessment of green public procurement as policy tool: cost-efficiency and competition considerations. 2010? Availabe at:

http://www.nek.lu.se/ryde/NatMeeting10/Papers/Lundberg,%20S.%20(v2).pdf

Capgemini, Sogeti, IDC, RAND Europe and the Danish Technological Institute for the

Directorate General Information Society of the European Commission, Digitizing Public

Services in Europe: Putting ambition into action, 9th Benchmark Measurement, 2010.

CEN/ISSS Workshop, eCAT, Classification and catalogue systems for public and private procurement. Available at

http://www.cen.eu/cen/Sectors/Sectors/ISSS/Activity/Documents/CC3PEnglishLR%20( 2).pdf

Dimitri, N., Piga G.,and Spagnolo G., Handbook of procurement, Cambridge, 2006.

Eurobarometer, The awareness, Perception and Impacts of the Internal Market, 2011 forthcoming.

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Europe Economics (2004), Evaluation of Public Procurement Directives. Availabe at: http://ec.europa.eu/internal_market/publicprocurement/docs/final_report_en.pdf

Europe Economics (2006), Evaluation of Public Procurement Directives, London, 2006

Europe Dynamics (2007.07), Electronic transmission of procurement notices for publication. 2007. Available at:

http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/en ot-vol-1_en.pdf

Europe Economics (2011), Taking Stock of Utilities Procurement, 2011.

Europe Economics(2011), Estimating Benefits and Savings from the Procurement Directives, 2011.

European Commission (2001), Commission Interpretative communication on the Community law applicable to public procurement and the possibilities for integrating environmental considerations into public procurement, COM(2001) 274 final i, Brussels, 4.7.2001.

European Commission (2003), Commission Communication on Integrated Product Policy - Building on Environmental Life-Cycle Thinking, COM(2003) 302 final i, 18.7.2003

European Commission (2004a), A report on the functioning of public procurement markets in the EU: benefits from the application of EU directives and challenges for the future,

Brussels, 2004. Available from: http://ec.europa.eu/internal_market/publicprocurement/docs/public-proc-market-finalreport_en.pdf.

European Commission (2004b), Buying Green - Handbook on environmental public procurement, Luxemburg, 2004. Available at:

http://ec.europa.eu/environment/gpp/pdf/buying_green_handbook_en.pdf

European Commission (2008a), Communication on the Sustainable Consumption and

Production and Sustainable Industrial Policy Action Plan, COM(2008) 397 final i, Brussels, 16.7.2008

European Commission (2008b), Communication on Public procurement for a better environment, COM(2008) 400 final i, Brussels, 16.7.2008

European Commission (2008c) Study on the collection of statistical information on GPP.

Available at: http://ec.europa.eu/environment/gpp/study_en.htm

European Commission (2008c), Internal Market Scoreboard, o 19, Brussels, July 2009

European Commission (2009a) Public procurement supplement, Internal Market Scoreboard o 19, July 2009. Available at: http://ec.europa.eu/internal_market/score/index_en.htm

better: http://ec.europa.eu/internal_market/score/docs/score19_en.pdf

European Commission (2009b), Public procurement indicators, Brussels, 2009. Available from:

http://ec.europa.eu/internal_market/publicprocurement/docs/indicators2009_en.pdf

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European Commission (2010a), Buying Social - A Guide to Taking Account of Social

Considerations in Public Procurement, Luxemburg, 2010.

European Commission (2010b), DG Enterprise and Industry, Evaluation of SMEs’ Access to Public Procurement Markets in the EU, Brussels 2010. Available at:

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European Commission (2011), Commission Communication on the Energy Efficiency Plan

2011, COM(2011) 109 final i, Brussels, 2011.

Evaluatie (SBIR). Available at: http://www.rijksoverheid.nl/onderwerpen/aanbesteden/documenten-enpublicaties/kamerstukken/2010/10/01/evaluatie-sbir.html

Fraunhofer Institute Systems and Innovation Research, Innovation and Public Procurement. Review of Issues at Stake, 2005. Available at: http://cordis.europa.eu/innovationpolicy/studies/full_study.pdf

Idzenga, K.W.J., Blom MAM, van Dieten, S., van Nistelrooij, L.P.J., Stinenbosch Msc, R. and Karssen B. alevingsmeting Europees aanbesteden 2008 - De naleving van de

Europese aanbestedingsrichtlijnen is in de meeste sectoren gestegen. 2009. Available at

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Instituut voor Onderzoek van Overheidsuitgaven. Het totale inkoopvolume van ederlandse overheden. Available at:

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http://ec.europa.eu/social/main.jsp?catId=331&langId=fr&newsId=417&furtherNews=y es

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Karjalainen, K., Challenges of purchasing centralization, Helsinki, 2009. Available at http://hsepubl.lib.hse.fi/pdf/diss/a344.pdf

KPMG Advsory N.V. and Inhoudelijke nalevingslasten Programma Duurzaam Inkopen

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Miljö Styrnings Rådet, Miljöstyrningsrådet Report 2009:E3, Environmental and social criteria in Swedish public procurement of wood based products - Draft definitions and recommendations for implementation. Available at:

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47, 2011. Available at: http://www.oecd-ilibrary.org/governance/centralised-purchasingsystems-in-the-european-union_5kgkgqv703xw-en

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217

9. A NNEX 9: U TILITIES P ROCUREMENT

This annex focuses on the utilities sectors covered by Directive 2004/17/EC i 80 (hereafter

referred to as the utilities directive). It considers:

• the value of public procurement in each utility sector, in each Member State, above and

below the EU threshold;

• the extent to which these markets are characterised by regulatory liberalisation (removal

of regulatory or legal barriers to freedom of access to markets) and effective competition.

This annex draws heavily on a study 81 which was conducted for the European Commission in

the context of the evaluation.

9.1. Volume of utilities procurement

Utilities procurement accounts for around 1/5 of total public procurement reported by MS and a similar share of procurement advertised in the OJ TED. The ratio of expenditure covered by 'classical' Directive to that covered by Utilities Directive is therefore 4:1.

Data sources employed to calculate the value of procurement in utility sectors in each Member State were: the Member State Statistical Reports (MSSRs), submitted by each Member State in accordance with their statistical obligations under Art 67of the utilities Directive, the GPA reports and the Eurostat data on turnover in each sector.

The methodology applied used those countries and sectors for which MSSR or GPA data on above and below threshold procurement are available, (comparator Member States), as the basis for estimating procurement in those countries and sectors where such data are not available. The working assumption is that procurement is proportional to the turnover in each sector.

In each sector, the estimates of the levels of procurement in comparator Member States are calculated as follows:

• for those Member States in which there is data on above threshold procurement from

either the GPA reports or the MSSRs, a ratio of above threshold procurement to turnover is calculated by dividing the above threshold procurement figure by the turnover for that

sector in that Member State;

• the ratios for all these comparator Member States were then weighted by the turnover in

each Member State so that undue importance is not given to a Member State which has a high level of above threshold procurement (relative to turnover) in a relatively small sector. This weighting process is repeated for all the sectors to which the Directive

applies;

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• a weighted average was calculated for each sector in 2006, 2007 and 2008. For each

sector, these three weighted averages are then averaged to produce a single ratio of above threshold procurement to turnover in each sector, in order to “smooth out” the impact of

unusually high value of procurement in any particular year;

• this ratio was then multiplied by the relevant utility turnover in Member States (taken

from Eurostat) for which there is no estimate of above threshold procurement from GPA reports or the MSSRs, in order to derive an estimate of above threshold procurement; and

• the same process was applied to estimate below threshold procurement.

After adjusting for the missing data, the estimate for total utility procurement covered by the

Directive was around €135 billion in 2008. 82 A significant increase was recorded over the

course of the period 2006-2008 – almost of all of the increase was accounted for by abovethreshold utilities procurement.

Four sectors - electricity, gas, water and railways - accounted for over two thirds of all utility procurement. About 75 per cent of total utilities procurement was above thresholds. The EU total estimated by Europe Economics approximates the figure which the Commission estimates for what is published in the Official Journal.

Utilities procurement accounts for 30-40% of total intermediate consumption for the four sectors for which comparable data is available from the input/output tables. Thus, procurement related outlays covered by the Directive represent as significant fraction of the total expenditure in these sectors.

Table 7. Summary of above and below threshold procurement by sector in EU27

2006 2007 2008 Above Below Above Below Above Below (€m) (€m) (€m) (€m) (€m) (€m) Water 17 112 2 450 19 668 2 427 19 338 2 894 Electricity 9 093 8 467 15 425 8 950 25 265 9 890 Gas 12 239 1 845 8 284 2 170 9 161 2 509 Railways 8 291 8 295 14 930 8 853 22 864 7 223 Other transport 4 117 2 372 10 187 2 394 7 093 3 002 Post 2 719 3 034 3 307 3 248 2 471 3 383 Exploration - Oil or gas 3 653 1 010 3 117 960 3 714 1 161 - Coal 3 076 1 037 2 869 848 3 966 1 437 Airports 2 957 2 365 9 145 2 312 6 087 2 510 Ports 593 884 798 951 1 433 1 018 Total 63 850 31 759 87 730 33 113 101 392 35 027

Source: GPA reports, MS Statistical Reports and Europe Economics calculations . 83

Heat is absent from the above table as the available data does not allow for separate info on this sector.

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The study also noted that the patterns of procurement varied considerably from country to country and between sectors but it could not find correlations between the volumes of procurement and the specific exemptions or structural features of the sectors. The analysis suggests that 'lumpy' utilities investment projects in different Member States may explain this volatility.

9.2. Liberalisation and competition in sectors covered by the utilities directive

The Utilities Directive seeks to ensure the opening up to competition of public procurement contracts in the relevant sectors. It was considered that entities active in these sectors could not be presumed to procure in an open and competitive manner because of:

• Links to national or other public authorities which might leave the utility operator

vulnerable to suasion to purchase from locally preferred suppliers;

• The absence of competition arising from the generally closed nature of the markets in

which they operate (either because of de facto or de jure monopoly rights, special/exclusive rights to provide certain services or undertake certain activities).

The evaluation investigated whether circumstances have changed since the introduction of the Utilities directive. It assessed whether the utilities operators are more exposed to competition than was the case then, or originally, back in the early 1990's, when the first directive regulating their procurement was adopted. Utilities such as telecommunications, transport and energy were the subject of specific policy initiatives under the Single European Act. This sectoral liberalisation has helped to unleash technological or commercial dynamics which have driven a deep transformation of these markets. The Commission implicitly acknowledged this by excluding certain telecommunications services from the Utilities Directive in 1999 and, all of them, in 2004, recognising that effective competition existed in

these markets. 84

The Utilities Directive also provides a mechanism under Article 30 which allows the waiver of the Directive for relevant 'markets' where there has been both a regulatory liberalisation and the emergence of meaningful competition. Applications under Article 30 can be initiated by the Commission, or requested by a Member State or, if their national legislation allows, by contracting entities.

To date 24 applications have been received for ten Member States concerning either the postal or energy sectors. Two applications are still under examination, three have been withdrawn and sixteen Decisions have been adopted (one of which takes a position on four requests).

The factors which, separately or in conjunction, should encourage self-disciplines to procure efficiently are: the liberalisation of the sectors, their openness up to competition, privatisation of the incumbents and sector regulation which may impose price caps and limit the margin for feather-bedding inefficient procurement.

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• Liberalisation: Many utilities have traditionally been considered natural monopolies and

only one operator has been legally entitled to service these markets. Liberalisation entails the removal of legal, regulatory barriers or provision of access to critical networks so that other suppliers can enter markets and compete for market share. Liberalisation challenges

legally held monopolies and allows other suppliers to enter these markets.

• Competition: The removal of legal barriers does not equate to effective competition,

which requires that new entrants actually take up the legal opportunity created by liberalisation to compete successfully with incumbents. Where markets are liberalized new entrants (or the real possibility of new entrants in the not too remote future) encourages incumbents to behave competitively for fear of losing market share to these entrants. Where such encouragement results in actual competitive behaviour this will

extend to procuring efficiently.

The assessment of whether there is a sufficient level of competition on a given market is carried out on the basis of competition-related criteria such as the characteristics of the goods or services concerned, the existence of substitute goods or services, the prices and the actual or potential presence of more than one supplier of the goods or services in question. In this context, the relevant geographic market may be found to consist of the entire territory of the Member State concerned or may be more localized. In some sectors, such as electricity and gas, interconnections may lead to the relevant market definition being wider than Member States level. Within each utility it may also be necessary to consider the operation of competition in sub-sectors (e. g. wholesale of electricity as

opposed to retail sale or the operation of transmission grids).

In assessing competition, account must be taken not only of the existence of competition from other actors in the provision of the same service but upstream/downstream activities may also be relevant. If, for instance, there are restrictions on alternative sources of supply (as may arise in cases where such supply must necessarily imply the use of physical infrastructures), utility operators may be shielded from pressure on price and

margins even if there are 3 or more significant suppliers.

• Privatisation: Where incumbents are privatized, the responsibility to shareholders may

discipline them to procure competitively. Seeking profit to pay dividends to shareholders creates incentives for firms to contain costs and consequently, procure efficiently. A need to remain within the good graces of public authorities granting special or exclusive rights that may form the very basis for their operation may, on the other hand, counter-balance

such incentives for the firms concerned.

• Regulation: Sectoral (including tariff) regulation may also create incentives for utility

operators that simulate competitive market conditions for these operators. For example, sector regulation in the form of price-cap regulation could potentially create incentives for utility operators to procure as competitively and efficiently as possible. This is because this form of sector regulation limits the prices which suppliers can charge. Therefore, the profit of these suppliers will depend upon their ability to contain their costs, which incentivizes them to contain these costs through efficient procurement and other innovations. Any assessment of the impact of regulation will need to judge the extent to

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which the simulated effects of competition can ‘compensate’ for the incentives deriving

from the operation of a natural monopoly.

9.2.1. Electricity Sector

Liberalisation was first introduced in the electricity sector in the nineties, and the latest package of liberalisation measures requires extensive opening of the electricity market to competition, and measures to facilitate the development of competition in parts of the supply chain in which competition can occur. In general, this appears to have led to an increase in the number of operators in the electricity sector, suggesting that the opening of the market has fostered new entry. The magnitude of the increase in the number of operators is larger in electricity generation than it is in electricity supply, which may suggest that although the liberalising measures have allowed and encouraged entry into the retail end of the supply chain, the introduction of competition in this sector has not been as effective; therefore, procurement practices may not be subject to the same competitive forces that can be seen upstream.

In general, market opening, if successful, should result in a decrease in the market share of incumbent generators and suppliers. In 2008, the market share of the largest generator had not fallen by much relative to 2000, suggesting that the entry in generation may have been on a small scale. As such, the rationale for the procurement directives, with respect to electricity generation, still holds. The limited number of Article 30 exemptions that have been granted for in respect of electricity generation and wholesale provides further support for this argument.

The market reforms have led to the creation of wholesale markets for electricity. Ensuring competitive wholesale markets is essential to the development of competition in the electricity market as a whole; however, evidence suggests that wholesale markets tend to be highly concentrated. Therefore, procurement practices in wholesale markets may not be subject to sufficient competitive pressure to ensure efficient procurement.

Despite the levels of concentration in generation and wholesale markets, it is still possible for retail markets to be competitive; however, on the whole, the retail markets in most Member States are dominated by a small number of firms. On the other hand, more mature markets appear to have experienced greater levels of customer switching. Therefore, although the level of competition in retail markets does not appear to have developed sufficiently to negate the need for the procurement directives, over time there may be less of a need for the directives as competition develops further. The limited number of Article 30 exemptions that have been granted for the retail sector provides further support for this argument.

Prior to liberalisation, electricity companies in many Member States were vertically integrated state-owned monopolies. Following liberalisation and privatisation in the sector, the extent to which different stages of the value chain are still publicly owned has changed. The liberalisation of the generation and retail markets has generally fostered new entry; however, the proportion of public ownership has not diminished to the same extent in the network sectors. A presentation in June 2010 to the European Parliament on the state of play

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in the EU energy markets reported that public ownership of TSO (transmission system

operator) and DSO (distribution system operator) activities remained strong. 85 The technical

annex to the Commission report on progress in creating the internal gas and electricity

market 86 presents information on the extent of privatisation which has occurred.

Network industries, i.e. the transmission and distribution of electricity will, in general, continue to have their prices regulated despite developments of competition in the sector, given the natural monopoly nature of these activities. The majority of national regulatory authorities have implemented some form of price cap for the electricity networks, providing them with incentives to reduce their costs. End user price regulation is still widely applied across Europe for both, household customers and for non-household customers.

The creation of wholesale markets and competitive retail markets should in theory allow both generators and suppliers to respond to market signals provided by competitive market prices. If there are barriers to free price formation, e.g. the regulation of retail prices for electricity, this will impact the market for electricity (particularly if retail price caps are set below the wholesale price for electricity) and may deter entry in both the retail and generation stages of the value chain as the price signals to which companies would respond is distorted.

However, from a national regulator’s point of view, if competition has not developed sufficiently, it may be important to continue regulating retail electricity prices.

9.2.2. Gas Sector

Liberalisation measures were first introduced in the gas sector more than ten years ago. Both non-domestic and domestic consumers now have the opportunity to choose their supplier. In addition, the latest package of legislative measures requires the unbundling of transmission systems from transmission system operators. On the whole, the liberalisation measures have fostered entry in the gas sector; however, in most Member States the increase has been small. Looking at the number of operators carrying out activities related to the distribution and trade in gas, the number of operators has actually decreased in many Member States between 2003 and 2008 which may suggest that the liberalisation measures have not been successful in generating new entry and developing competition; in this case, there may not be sufficient competitive pressure in this market to ensure efficient procurement practices at this stage.

If successful, market opening should reduce the market share of incumbent firms in the sector as new entrants enter the market and capture some of the market. The data available show that the market for gas production is still dominated by very few firms in most Member States, suggesting that any new entry that has occurred has been on a small scale and has not managed to capture much market share. As such, the rationale for the procurement directives would still hold with respect to the production of gas.

The third package of gas liberalisation measures aim to facilitate the emergence of a wellfunctioning and transparent wholesale market which is essential to the development of competition in the gas market. Evidence suggests that there is currently a high degree of concentration in wholesale markets which may make it difficult for new entrants to get access

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to gas. In turn, this may mean that there is insufficient competitive pressure in the gas supply market to ensure efficient procurement processes.

Looking at market shares in the retail market, the picture is quite varied across Member States; the retail markets in some Member States are dominated by very few firms, while competition appears to have developed more in other Member States. However, data on the levels of consumer switching show that there has been very little switching between suppliers, particularly for small businesses and households. This would suggest that competition has not developed sufficiently across Europe to negate the need for the procurement directives.

Prior to liberalisation, gas companies in many Member States were vertically integrated stateowned monopolies. However, the opening of the market to competition and the separation of gas supply from the transport and delivery of gas removes the natural monopoly element from gas supply activities. Although network activities remain as natural monopolies, and there may therefore be a rationale for continued public ownership, there has in fact been some degree of privatisation of gas transmission in most Member States: in 9 Member States the gas transmission is almost 100% private, while in other 8 Member States the gas transmission systems are more than 50% privately owned.

At present there are different stages of development with regards to the effectiveness of market opening in Member States. While the gas Directive introduces common rules for the transmission, distribution and supply of gas, it does not prescribe the forms of regulation that national regulators must employ. The majority of national regulatory authorities have implemented some form of price cap for the gas networks, providing them with incentives to reduce their costs, therefore, providing, in theory at least, with incentives to procure efficiently.

9.2.3. Heat Sector

There is a considerable difference between Member States in the use of district heating. In part this is a reflection of climate with district heating being more developed in Northern European countries, particularly, Denmark, Latvia, Finland, Poland and Sweden. Heat is generated either in dedicated boilers or, increasingly and more efficiently, in combined heat and power (CHP also known as cogeneration) plants which generate electricity and capture the heat for distribution in buildings or for industrial processes.

The main development in recent years in the supply of heat has been the encouragement given to the development of CHP as an energy efficient technology. Preference given to CHP plant may have enhanced the competitive position of heat supply relative to use of other fuels but there has only been limited development of new heat supply networks.

There has been no general liberalisation in this part of the market and district heating networks remain local monopolies which are not subject to independent regulation. The existence of some private sector participants may provide some incentive to efficiency in operation and procurement but overall the position of the sector cannot be said to have

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changed significantly since 2004. It is likely that the procurement requirements of many local district heating schemes are below the thresholds at which the Directive applies. Where procurement is above the threshold the rationale for applying the Directive continues to apply.

9.2.4. Water sector

The economics of the EU water sector continue to conform very much to what would traditionally be expected within a natural monopoly industry, which water more closely approximates across all stages of the vertical supply chain than any other network industry.

These natural monopoly characteristics may explain the lack of an EU attempt to liberalise the sector. Certainly, attempts to encourage competition in the sector have been less extensive than in other utility sectors and have had much less success. These attempts have been largely confined to competition for markets, as oppose to competition within markets.

The European Parliament has tended to be resistant to attempts that have been made by the Commission to extend competition in the water sector since the introduction of the Directive. Even the UK, the Member State, which has been most ambitious in terms of extending competition, has been largely limited to establishing competition for markets; a form of competition that Ofwat - the sector regulator in the UK - concedes is much more limited in the benefits that it generates than competition in the market.

While 20 years have passed since liberalisation (largely in the form of competition for markets) and privatisation were applied to the UK water industry, the UK remains an outlier both in respect of the scale and vigour of its attempts to inject competition and in the exposure which water operators in the UK have to shareholder discipline (although the considerable incidence of private ownership in France makes the UK less of an outlier in this respect than in attempts to inject competition). No Member State has significantly advanced in either of these directions since the introduction of the Directive, which means that incumbents retain dominant market positions, often bequeathed to them through grandfathering, to a large extent across the EU. There have been no exemptions under Article 30 granted in the water sector (nor have any been applied for in this sector).

As the widely varying number of operators in each Member State illustrates, the structure of water sectors within Member States does differ between Member States and largely remain products of particular historical circumstance within each Member State. Therefore, while the Water Framework Directive (2000) has introduced the principle of full cost recovery to water regulation across the EU, which should tend to increase incentives towards efficiency, the rationale for the Directive appears as sound today as it was when it was introduced.

9.2.5. Railways and other transport

Given the current state of play within the EU rail sector, the rationale for the Directive appears to continue to hold for this sector. Liberalisation efforts at an EU level have so far

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been limited to international routes only and have not been applied to domestic routes; either in respect of freight or passenger services.

While some Member States have made efforts towards opening up their domestic markets through the use of competitive tendering and franchising, i.e. competition for markets, this has not been the case generally across the EU. Moreover, no Article 30 applications have been made in this sector, which seems to suggest a perceived lack of exposure to competition.

This suggestion is reinforced by, for example, the existence of monopolies in the rail freight markets of numerous Member States (Greece, Finland, Ireland, Latvia, Lithuania and Slovenia). In the majority of Member States, the largest freight company has over 70 per cent of the market share, and, therefore, has considerable market power.

The experience of the UK - the Member State which has most aggressively sought to liberalise and privatise its rail sector - indicates that these processes are not without challenges and complications. Nonetheless, the near completion of liberalisation of international routes within the EU- though some Member States remain subject to infringement proceedings- is a noticeable achievement since the introduction of the Directive, which means that there is the potential for operators to be more exposed to competition than was the case when the Directive was introduced.

However, the market power of incumbent operators, who remain largely in public ownership, remains so considerable that the rationale for the Directive remains strong. The fact that the rail network is a natural monopoly implies the need for regulation of the network to ensure fair and non-discriminatory access, which may in turn help to develop competition between operators. Directive 2001/12/EC i and Directive 2001/14/EC i lay the groundwork for this. However, in order for regulation to be effective, the regulator must have sufficient powers to allow for effective monitoring and enforcement, and more could be done in this respect.

It is also the case that the extent of public ownership and relative lack of competition throughout much of the sector continues to mean that the rationale for the Directive continues to hold in transport sectors other than rail.

9.2.6. Post

The EU Commission has worked towards a full liberalisation of the postal sector. During 2010, full market opening will have been achieved in 95% of EU letter post market (in terms of volumes). Substantial or intense competition has followed from this liberalisation within parts of the sector. For instance, competition in unaddressed advertising is considered substantial or intense across much of the EU. However, competition within other postal sectors is much less intense.

The intensity of competition also varies considerably by Member State, as well as by postal sector. Some Member States are thought to have intense or substantial competition in crossborder outbound letter post, while competition in this postal sector is considered completely absent in other Member States. It tends to be the case that Member States which liberalised their postal sectors earliest now have the most competitive postal markets.

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There is also substantial variation in exposure to private ownership and shareholder discipline between Member State postal sectors. The clear majority of Member States fall into the category of those where the postal incumbent remains wholly in public ownership. However, there are other Member States were the incumbent has been completely privatised (Malta, Netherlands) and in others the incumbents have been partly privatised (Belgium, Denmark, Germany, Greece, Italy). Where partial privatisation has taken place, with the exception of Germany, more than 50 per cent of the shares remain in public ownership.

Having led a liberalisation of the sector, the Commission is now seeking to ensure that sector regulation leads to efficient outcomes. The latest Postal Directive requires that Member State postal regulators set prices such that they give incentives for an efficient universal service provision. However, the evidence that Member State regulators are actually behaving so as to create such incentives is limited. This is strikingly illustrated by the fact that six Member State regulators (Belgium, Denmark, Finland, Hungary, Luxembourg, Netherlands), who in total cover 14 per cent of the EU letter post market, do not use cost data to inform the pricing of universal services.

Since the introduction of the Directive the EU postal sector has been successfully liberalised, with competition increasingly emerging. This emergence of competition creates incentives towards efficient procurement, as do the extension of private ownership within the sector and the setting of prices for universal services by regulators such that these prices encourage efficiency. However, many incumbents remain wholly publicly owned and it is not clear that sector regulators are consistently behaving in ways that would properly enable them to set prices for universal services that induce incentives towards efficiency for incumbents.

Given the lack of competition in parts of the sector and the lack of consistent application of regulatory techniques that would incentivise efficiency, while the sector has evolved in various ways since 2004 such that the rationale of the Directive is less relevant than it was then, it remains the case the rationale retains sufficient relevance that the sector as a whole should not be exempted from the Directive. Parts of the sector may have a stronger case for exemptions than others but such exemptions could be taken forward under the Article 30 provision on a case by case basis.

9.2.7. Exploration for and extraction of oil, gas, coal or other solid fuels

Directive 94/22/EC i of the European Parliament and of the Council of 1994 laid down the conditions for granting and using authorisations for the prospection, exploration and

production of hydrocarbons and it has been fully transposed by all Member States 87 . The aim

of this Directive is in part to encourage greater competition within the internal market by preventing a single entity from having exclusive rights for an area whose prospection, exploration and production could be carried out more effectively by several entities.

The statistics show that the overall number of enterprises in the mining and quarrying of energy producing materials sector in the majority of Member States has increased since 2000. Since conditions vary for the different activities concerned and not all activities are applicable to all Member States, the number of operators by different activity type (mining of

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hard coal, mining of lignite, oil and natural gas exploration and production, etc) was considered, and again it appears that the picture is rather varied across EU.

Information on the extent of public and private ownership across the whole of the EU’s exploration/extraction of oil, gas, coal or other solid fuels is very limited. The “majors” in oil and gas in the EU are private companies. Generally, there has been an increase of public sector companies in the coal mining sector and many previously public entities have been privatised. Moreover, there is no sector regulation pertinent to this sector.

It is to be noted that two Article 30 exemptions have been granted to UK and the Netherlands for exploration for and exploitation of oil and gas and to Italy for exploration for oil and gas and exploitation of gas. Furthermore, two applications have been withdrawn and one is currently (June 2011) under examination.

9.2.8. Ports

There is limited evidence to the effect that changes have occurred in the EU ports sector since the introduction of the Directive such that its rationale is significantly less relevant now than it was when it was introduced.

While the Commission is taking forward an action plan to “establish a European maritime space without borders”, its attempts to liberalise the sector did not materialized yet. This does not mean that competition both within and between ports is non-existent, although there is limited evidence that these forms of competition have grown considerably more intense since 2004.

The market power of large hub ports remains considerable and the sector remains largely in public ownership. Neither intense competition between ports nor the shareholder discipline of private ownership can, therefore, be said to provide strong incentives towards efficient procurement.

Equally, such incentives cannot be said to have been created by regulation of the sector. Unlike in other sectors, such as gas and electricity, there has been no concerted effort either at the EU level or at Member State level to use regulation as a tool to drive efficiency within the ports sector.

There have been changes within the sector since 2004. Not least the increasing complexity of international logistics systems and the integration of ports within these systems. However, insufficient change appears to have occurred in relation to competition, ownership and regulation to sustain an argument in favour of the rationale for the Directive no longer holding.

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9.2.9. Airports

Although airports themselves have not been subject to an EU wide drive towards liberalisation, the liberalisation in other parts of the air transport sector, such as ground handling and the EU wide liberalisation of airlines, has impacted upon airports.

Competition between airlines and ground-handlers has continued to intensify since the introduction of the Directive. This intensification may in turn have increased the competitive pressures on airports and sharpened the incentives facing airports to behave efficiently.

This sharpening is also complemented in some parts of the EU by incentives towards efficiency through exposure of airports to the shareholder discipline of private ownership and various kinds of sector regulation. However, only the UK government has made a strong push towards privatising airports and this push preceded the introduction of the Directive.

Moreover, as regards sector regulation, like liberalisation, no policy or legislation from the Commission has been consistently applied with the intension of seeking to reform airports in ways that would sharpen their incentives towards efficiency.

While airports have not been the subject of direct liberalisation through EU legislation that could result in exposure to competition, EU legislation of airlines and ground-handling could to some extent have had the indirect consequence of increasing competitive pressures upon airports. The most important pieces of EU legislation in respect of both airlines and groundhandling were, however, in place prior to the introduction of the Directive.

That these important pieces of legislation were in place when the Directive was introduced are reasons to conclude that the rationale for the Directive continues to hold. This is reinforced by the lack of direct legislative liberalisation upon airports by the Commission in respect of either liberalisation or regulation. Furthermore, the lack of Article 30 applications from airports tends to suggest airports either find the Directive beneficial (or at least sufficiently undemanding as to not wish to escape from it) or that it is acknowledged that competition within the sector does not compare with that achieved in sectors where exemptions have been granted.

9.3. Conclusions

The evaluation observes considerable progress in adopting the legal steps to liberalise access in three sectors -electricity, gas and postal services. The markets were -to varying degreesopen (or at least opening) to competition. However, progress in adopting the regulatory conditions for freedom of access to rail, 'other land transport' or port sectors and little or none for water or airports has been less comprehensive. It should be noted that liberalising the air transport sector could to some extent have increased competitive pressure on airports.

Despite progress in creating the legal/regulatory conditions for competition in some sectors, this has not been followed by the emergence of real competitive challenge to the previous incumbents. In many markets, competition in utilities sectors covered by the Directives remains limited.

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It is hard to draw general conclusions about the existence of effective competition and regulatory liberalisation across sectors as a whole. Where these conditions have both been demonstrably realised within identifiable relevant markets, Member States or utility operators have been able to apply successfully for exemption under Article 30. Exploration for oil and gas is perhaps the only sector which can be viewed as largely open to international competition.

Member States continue to vary widely in terms of the extent of public or private ownership with no general pattern to be discerned across the EU as a whole. Tariff regulation has been potentially effective in the electricity and gas markets where regulation of the networks could encourage competition in generation or supply, but in other sectors the study found much more variation between Member States in the extent and strength of regulation.

A summary of the main regulatory and competition conditions applying in each utility sector is set out below:

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Table 8. Analysis of regulatory and competition developments in utilities sectors

Liberalisation Competition Public/private sector Regulation

Electricity Major development of EU Increased number of Varying degrees of public Networks remain subject to wide liberalisation operators in generation and ownership. Opportunities regulation. Most MS have framework. Retail markets supply. Development of for new entrants have adopted incentive based fully open to competition. wholesale markets. encouraged private sector regulation to encourage companies. efficiency.

But incumbent companies continue to dominate Some price controls in retail market in many MS. markets may deter competition.

Gas Major development of EU Limited number of gas High level of private sector Networks remain subject to wide liberalisation production companies and ownership in most MS. regulation. Most MS have framework. Retail markets wholesale markets highly adopted incentive based fully open to competition. concentrated. Increase in regulation to encourage retail suppliers but some efficiency.

MS markets dominated by

incumbents with low levels Some price controls in retail

of switching of suppliers. markets may deter competition.

Heat No specific EU Heat mainly provided by Some increase in private No independent regulatory liberalisation initiative local monopolies sector provision but no structure

major change since 2004

Water No development of EU Strong natural monopoly Largely in public sector Cost recovery principle wide liberalisation features. Some periodic ownership. UK and introduced by Water Framework framework. competition for franchises. France main exceptions. Directive, mainly directed at Wide variation in number efficient use of water.

of operators in each MS.

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Liberalisation Competition Public/private sector Regulation

Railways Liberalisation at EU level Some competition for Incumbents largely remain EU Requirement for regulation largely confined to franchises but not general. in public sector. in each MS but effectiveness international routes. More competition on varies considerably. Further international routes but development required to relevant Directives not fully incentivise efficiency and transposed. High market establish non-discriminatory shares of incumbents in access regime.

both passenger and freight.

Other land EU level liberalisation for Some competition in Many operators Little systematic regulation. transport international bus travel. international bus travel but municipally owned. Some

Other liberalisation varies still dominated by major private sector ownership, from country to country. suppliers. Varying levels of particularly for competition for local international and inter city services. services

Posts EU wide liberalisation Intense competition has In majority of MS EU requirement that regulation process now established. developed in some parts of incumbent remains in incentivise efficient provision of 95% market opening in the market and in some MS. public sector but in some universal service. But a number 2010. But in some MS MS there has been full or of MS regulators do not monitor competition has yet to partial privatisation. costs.

develop.

Exploration Directive 94/22/EC i No dominant market players Oil and gas largely private Sector not subject to economic requires open competition on oil and gas sector. sector. Some public sector regulation.

for exploration licences. ownership.

Ports Earlier EU liberalisation Competition between ports Ports largely remain in No EU level initiative to develop plans not successful. and other integrated public ownership. UK is regulation to drive efficiency.

Further measures being logistics suppliers.

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Liberalisation Competition Public/private sector Regulation

implemented. Competition to provide exception. services within ports.

Market power of hub ports remains strong.

Airports No liberalisation Competitive pressure from Some move towards No EU level requirement for requirements for airports airlines provides efficiency private or mixed regulation. Independent but liberalisation of incentive for airports. ownership. Public sector regulation only operates in a airlines and ground airports increasingly use minority of MS.

handling has had impact corporate structure. on airports.

Source: Europe Economics (2011)

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10. N OTES TO ANNEXES

1 As far as Treaty principles and the Directives other than the Utilities Directive are concerned, this annex is

to a large extent an adaptation of the guides to the Community Rules on Public Supplies, Works and Services Contracts that were issued by Commission Services in relation to Directives 92/50/EEC i, 93/36/EEC i and 93/37/EEC. For further details, these can therefore be consulted, bearing in mind that the

numbering of Treaty provisions may often have changed.

2 In the following, all references are to the Treaty on the Functioning of the European Union (TFEU)

unless otherwise stated.

3 Quantitative restrictions are measures that limit the quantities of products that may be imported or exported

(e. g. by imposing a system of quotas). Such measures are prohibited.

4 Article 30 et seq. of the EC-Treaty, currently Articles 34 et seq. TFEU. In the Euratom Treaty, quantitative

restrictions are prohibited by Article 93. Equivalent provisions existed in the now abolished European Coal

and Steel Community (ECSC) Treaty.

5 Article 97 of the Euratom Treaty provides that no restrictions based on nationality may be applied to natural

or legal persons, whether public or private, under the jurisdiction of a Member State, where they desire to participate in the construction of nuclear installations of a scientific or industrial nature in the Community. This provision guarantees inter alia the right of establishment in connection with the construction of such installations and is directly applicable. In so far as Articles 49 et seq. TFEU do not conflict with provisions of the Euratom Treaty, they too are applicable in the nuclear field. Such was also the case for the now

abolished ECSC Treaty.

6 Paragraph 37 of the judgment of 30 September 1995 in Case C-55/94 Gebhard v Consiglio dell’Ordine degli

Avvocati e Procuratori di Milano [1995] ECR I-4165.

7 In the Euratom Treaty, the principle of the freedom to provide services is established by Article 97. In so far

as Articles 56 et seq. TFEU do not conflict with provisions of the Euratom Treaty, they reinforce the ban on discrimination enshrined in Article 97. The now abolished ECSC Treaty did not regulate neither the right of establishment, nor the freedom to provide services. Consequently, Articles 59 et seq. of the EC Treaty were

also applicable to the coal and steel industries, as they did not conflict with provisions of the ECSC Treaty.

8 Judgment of 25 July 1991 in Case C-288/89 Stichting Collectieve Antennevoorziening Gouda and Others v

Commissariaat voor de Media [1991] ECR I-4007.

9 Three other measures could also be mentioned among the distant ancestors of the current public

procurement Directives, namely Commission Directive 66/683/EEC i of 7 November 1966 eliminating all differences between the treatment of national products and that of products which, under Articles 9 and 10 of the Treaty, must be admitted for free movement, as regards laws, regulations or administrative provisions prohibiting the use of the said products and prescribing the use of national products or making such use subject to profitability (unofficial English translation), OJ 220, 30.11.1966, p. 3748; Commission Directive 70/32/EEC i of 17 December 1969 on provision of goods to the State, to local authorities and other official bodies, OJ L 13, 19.1.1970, p. 1, and, finally, Council Directive 71/304/EEC i of 26 July 1971 concerning the abolition of restrictions on freedom to provide services in respect of public works contracts and on the award of public works contracts to contractors acting through agencies or branches, OJ L 185, 16.8.1971, p. 1. These Directives did not, however, contain any detailed provisions concerning the award procedures to be

applied for the award of public contracts. They will not be further dealt with.

10 OJ No L 185, 16.8.1971, p. 5.

11 The first public procurement legislation fixed its thresholds in European Units of Account, a "paper

currency" used for accounting purposes but not minted. These were replaced, at parity, by the ECU, the

European Currency Unit, as of 13.3.1979. In turn, the ECU was replaced, also at parity, by the EUR as of 1 st

of January 1999. In other words, 1 EUA=1 ECU=1 Euro.

12 That is, works contracts for which the remuneration consists, wholly or in part, in the right to exploit the

works. Typical examples are toll-roads.

13 There was, however, a "Declaration by the Representatives of the Governments of the Member States,

meeting in the Council, concerning procedures to be followed in the field of public works concessions",

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Official Journal C 082 , 16/08/1971 p. 13, which introduced a series of limited obligations for works concessions contracts, not least an obligation to ensure transparency through a publication in the Official

Journal, as of the 1 million European Units of Account threshold applicable to works contracts.

14 The just mentioned Declaration did, however, foresee an obligation to sub-contract certain percentages of

the works (either at least 30% of the total value or a percentage to be specified by the bidders) to third parties (i.e. companies that are neither part of a winning consortium nor an affiliated company related to the winner(s). The political agreement (i.e. the Declaration) foresaw a system which was substantially similar to

the legally binding provisions that were introduced in Directive 89/440/EEC i, cf. below.

15 OJ No L 13, 15.1.1977, p. 1.

16 The scope of this notion was as to substance the same as in the first works Directive. Due to the accession of

Denmark, Ireland and the United Kingdom as of 1.1.1973, its wording was, however, changed to "the State, regional or local authorities and the legal persons governed by public law or, in member states where the

latter are unknown, bodies corresponding thereto as specified in Annex I".

17 Council Directive 80/767/EEC i of 22 July 1980 adapting and supplementing in respect of certain contracting

authorities Directive 77/62/EEC i coordinating procedures for the award of public supply contracts,

OJ No L 215, 18.8.1980, p. 1.

18 This list can be compared to the list of "central government authorities" in Annex IV of Directive

2004/18/EC.

19 However, for central Government authorities in the field of defence only in respect of contracts for certain

products listed in an annex to Directive 80/767/EEC i. To the extent that procurement in the defence sector was not excluded pursuant to what is now Art. 346 TFEU, the situation in this sector was as follows: Central Government authorities in the field of defence would apply the Directive as of 140 000 in respect of the listed products and as of the general threshold of 200 000 for all other products. Other contracting authorities had to apply the provisions of the Directive to procurements in the field of defence as of 200 000

EUA.

20 For instance, the absence of binding provisions on works concessions contracts or the relatively narrow

definition of "contracting authorities". Also, the first Directives only foresaw three award procedures: open or restricted procedures, among which the choice was free, and cases in which only the provisions on

technical specifications were applicable (these exceptional cases were known as "direct awards" or "gré-à- gré").

21 OJ L 127, 20.5.1988, p. 1.

22 OJ L210, 21.7.1989, p. 1.

23 Both of the amending Directives introduced provisions on negotiated procedures with prior publication and

replaced the previous "direct award" with provisions allowing use of a negotiated procedure without prior publication. As a curiosity, it might be noted that Directive 88/295/EEC i limited use of the restricted procedure to "justified cases", adding that such "justification may inter alia be constituted by: - a need to maintain a balance between contract value and procedural costs, - the specific nature of the products to be procured." This limitation was again abolished through Directive

93/36/EEC.

24 E. g. general contractor arrangements, in which the general contractor would undertake to ensure the

specified works to be carried out without (necessarily) executing any works himself.

25 "… or the execution by whatever means of a work corresponding to the requirements specified by the

contracting authority". Further, the definition was changed to cover contracts having as "their object either the execution, or both the execution and design" of works, as opposed to the previous definition which did

not include "mixed" contracts also including design.

26 This definition has remained substantially unchanged to this day.

27 Civil engineering contracts and contracts relating to building work for hospitals, facilities intended for

sports, recreation and leisure, school and university buildings and buildings used for administrative

purposes.

28 By changing from an exclusion for works contracts awarded by "bodies which are governed by public law

and which administer transport services" to one applicable to works contracts awarded by "carriers by land,

air, sea or inland waterway".

29 Council Directive 90/531/EEC i 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

30 These were (and are) defined as "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". This was completed by a list of circumstances under which there was a legal presumption of a direct or indirect dominant influence. In some ways, the definition of public undertakings can be likened to that of "body governed by public law" except for the distinguishing fact that public

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undertakings are meeting needs in the general interest, which do have an industrial or commercial

character.

31 These rights were given an quite inclusive definition, according to which i. a. the simple right to place

network equipment (such as an electricity pylon or a water pipe) on, over or under the public highway was deemed to constitute such a right. Similarly, supply of water, electricity, gas or heat to a network that was

operated on the basis of exclusive or special rights was in itself also deemed to constitute such a right.

32 The main difference being that the previous directives had excluded contracts awarded by "carriers by land,

air, sea or inland waterway", whereas Directive 90/531/EEC i was not rendered applicable to sectors such as road transport (other than bus transport services to the public through a scheduled network), transport by sea and inland waterways as well as air transport. The main reason was that these sectors were generally

considered to be sufficiently liberalized and subject to competitive pressure.

33 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 the supply thereof to such networks.

34 This covered provision or operation of fixed networks intended to provide a service to the public in

connection with the production, transport or distribution of electricity, gas or heat or the supply thereof to such networks. In this context, the "energy" sector also comprised "exploitation of a geographical area for

the purpose of exploring for or extracting oil, gas, coal or other solid fuels".

35 Defined as covering 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; a further part of the transport sector in a broad sense was described as covering the exploitation of a geographical area for the purpose of the provision of airport, maritime or inland port or other terminal facilities to carriers by air, sea or inland

waterway.

36 Covering the provision or operation of public telecommunications networks or the provision of one or more

public telecommunications services.

37 The Commission originally envisaged two separate directives covering award procedures in the water,

energy and transport sectors and, the second one, in the telecommunications sector, cf. respectively COM(88) 377 final i of 11 October 1988 and COM(88) 378 i of the same date. During the legislative procedure, the two proposals were merged but a certain number of provisions remained that were specific for the telecommunications sector, for instance the specific threshold for supplies contracts, a specific legal basis (art. 8) allowing an exemption in case of effective competition in the sector, a specific advisory

committee …

38 As mentioned above, these were Community-wide advertising of contracts to develop real competition

between economic operators in all the Member States; the banning of technical specifications liable to discriminate against potential foreign bidders; and application of objective criteria for the selection of

tenderers and the award of contracts.

39 OJ L 209, 24.7.1992, p. 1

40 unless the contracting authority was itself a contracting entity, i. e. carried out one of the activities covered

under the Utilities Directive and the contract in question was awarded for the purpose of pursuing that activity. The notion of “contracting authority” was defined in the same way in this Directive as in the

previous Directives.

41 E. g. contracts for the acquisition or rental of existing buildings, certain telecommunications services or

contracts for arbitration and mediation services. The reasons for these exclusions were either that the award procedures were not suitable, given the specificity of the service concerned. It is e. g. difficult to organise a EU-wide call for tenders for the location of a specific, existing building; conciliators are often designed jointly by the parties to the arbitration service, frequently directly after the beginning of the dispute; again, the Directive's procedures would not be suitable. The telecommunications services concerned were excluded given that, at the time, the liberalisation of the sector had not yet spread to voice telephony services and related services. There was thus almost always only one possible service provider because of the existence of exclusive rights. To be noted that, with the progress in liberalisation, this exclusion was abolished by the

2004 Directives.

42 See the 20 th Recital of Directive 92/50/EEC i.

43 Except railway transport services

44 I. e., the services falling with Annex IB, either in one of the specific categories or under the non-exhaustive

category 27 "other services".

45 Observance of the provisions on technical specifications and an obligation to inform the Commission of contract awards. In the words of the 20 th Recital, the reason for the latter obligation was that “contracts for

other services need to be monitored for a certain period before a decision is taken on the full application of

this Directive”.

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46 Service contracts (typically for engineering or architectural services) relating the same categories of works

as those covered by the corresponding provision in Directive 89/440/EEC i, cf. footnote 22 above.

47 Defined as national procedures “which enable the contracting authority to acquire, mainly in the fields of

area planning, town planning, architecture and civil engineering, or data processing, a plan or design

selected by a jury after being put out to competition with or without the award of prizes”.

48 COM(90)72 i; OJ C23, 31.1.1993, p.1.

49 OJ L199, 9.8.1993, p. 54.

50 OJ L199, 9.8.1993, p. 1.

51 OJ L 199 , 9.8.1993, p. 84

52 The provisions governing works and supplies contracts were left substantially unchanged compared to the

provisions of Directive 90/531/EEC i.

53 There were small differences such as the absence of an exclusion for central bank services from the scope of

Directive 93/38/EEC i.

54 These thresholds were also applicable to design contests, for which the provisions were substantially the

same as under Directive 92/50/EEC i.

55 The so-called “intra-group” exclusion, cf. Article 13 of Directive 93/38/EEC i.

56 European Parliament and Council Directive 97/52/EC i of 13 October 1997 amending Directives 92/50/EEC i,

93/36/EEC and 93/37/EEC concerning the coordination of procedures for the award of public service

contracts, public supply contracts and public works contracts respectively, OJ L 328, 28.11.1997, p. 1.

57 Directive 98/4/EC i 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

58 Directive 92/50/EEC i thus counted three different thresholds, 200,000 ECU for the non-priority services

listed in its Annex IB and the few priority services not covered by the GPA (R&D services and certain telecommunications services); the equivalent amount in ECU of 200,000 Special Drawing Rights (SDR) for all other priority services when awarded by a contracting authority which was not a central State authority and a third threshold of the equivalent amount in ECU of 130,000 SDR for the same priority services when awarded by a central state authority. Design contests followed the same thresholds. SDR is a reserve asset, introduced by the International Monetary Fund, fixed as a basket of currencies, and used to establish the

internationally applicable thresholds in the framework of the GPA.

59 Directive 93/36/EC i now contained two different thresholds, namely, first, the equivalent amount in ECU of

130,000 SDR for contracts awarded by central state authorities and for contracts in the field of defence concerning certain products listed exhaustively in a specific annex and, secondly, a general threshold of the equivalent amount in ECU of 200,000 SDR for other contracts in the field of defence and supply contracts

awarded by other contracting authorities than central state authorities.

60 Directive 93/37/EEC i now counted two different thresholds, namely 5 million ECU for works concessions

contracts, subsidised works contracts and work contracts awarded by concessionaires who are not themselves contracting authorities; for all other works contracts the applicable threshold was now set at the

equivalent amount in ECU of 5 million SDR.

61 The situation was particular complex in the context of the Utilities Directive, 93/38/EEC, given that the

GPA applied to certain of the sectors covered by the Directive – this was the case for drinking water, electricity, urban transport, ports and airports – but not to other sectors, equally within the Directive’s scope (telecommunications, gas, heat, oil and natural gas, other solid fuels and railway transports). The resulting system meant having an impressive list of different thresholds: 5 million ECU and 600,000 ECU for, respectively, works contracts and supplies and services contracts in the telecommunications sector; 5 million ECU and 400,000 ECU for, respectively, works contracts and supplies and services contracts awarded in the other sectors not covered by the GPA and, finally, for the sectors covered by the GPA, the equivalent amount in ECU of 5 million SDRs for works contracts; the equivalent amount in ECU of 400,000 SDRs for supplies contracts and for the priority services covered by the GPA as well as a threshold of 400,000 ECU in respect of all other services contracts awarded by contracting entities in the GPA-covered sectors. The

thresholds for design contest followed those applicable to services contracts.

62 Directive 2004/17/EC i of the European Parliament and of the Council of 31 March 2004 coordinating the

procurement procedures of entities operating in the water, energy, transport and postal services sectors, OJ L 134, 30.4.2004, p. 1. Directive as last amended by Commission Regulation (EC) N°1177/2009 of 30 November 2009 amending Directives 2004/17/EC i, 2004/18/EC i and 2009/81/EC of the European Parliament and of the Council in respect of their application thresholds for the procedures for the award of contracts, OJ

L 314 , 1.12.2009, p. 64.

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63 Directive 2004/18/EC i of the European Parliament and of the Council of 31 March 2004 on the coordination

of procedures for the award of public works contracts, public supply contracts and public service contracts, OJ L 134, 30.4.2004, p. 114. Directive as last amended by Commission Regulation (EC) N°1177/2009.

64 Directive 2009/81/EC i of the European Parliament and of the Council of 13 July 2009 on the coordination of

procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC i and 2004/18/EC, OJ L 216, 20.8.2009, p. 76. Directive as last amended by Commission Regulation (EC)

N°1177/2009.

65 Council Directive 89/665/EEC i 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, OJ L 395, 30.12.1989, p. 33.

66 Council Directive 92/13/EEC i 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, OJ L 76, 23.3.1992, p. 14.

67 Directive 2007/66/EC i of the European Parliament and of the Council of 11 December 2007 amending

Council Directives 89/665/EEC i and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts, OJ L 335, 20.12.2007, p. 31.

68 See website at www.bbg.gv.at

69 See website at www.ski.dk .

70 See website at www.riigihangetekeskus.ee

71 See website at www.kuntahankinnat.fi

72 See www.bescha.bund.de .

73 See website at www.consip.it . The company name was originally an acronym for "Concessionaria Servizi

Informativi Pubblici".

74 Ministero dell'economia e delle finanze, Programma di razionalizzazione degli acquisti di beni e servizi per

le Pubbliche Amministrazioni Relazione al Parlamento per l’anno 2009, Rome 2010, page 31. http://www.dag.mef.gov.it/programma_di_razionalizzazione_degli_acquisti_nella_p.a/documenti/Relazione _2009.pdf . and for more detail see the Rilevazione dei prezzi relativi a beni e servizi per le pubbliche amministrazioni -Edizione 2009, at the same site.

75 See website at http://www.vraa.gov.lv

76 See website at http://www.cpva.lt

77 See http://www.anskaffelser.no/e-handel/ehandelsplatform/ehandelsplattformen-i-tall

78 See website at http://catalogopatrimonio.meh.es

79 See website at http://contrataciondelestado.es

80 Directive 2004/17/EC i of the European Parliament and of the Council of 31 March 2004 coordinating the

L 314 , 1.12.2009, p. 64

81 "Taking Stack of the Utilities Procurement" – Feb 2011 - a study by Europe Economics

82 Europe Economics, Taking stock of utilities procurement: a report for DG Internal Market, February 2011. 83 Ibid, table 2.1 page 7

84 It can be noted that while telecoms liberalisation has changed market structures within national markets, it

has not yet resulted in an integrated single market, where competition works across borders. Many telecoms services continue to be characterised by very pronounced tariff differences between EU MS.

85 EU Energy Market in Gas and Electricity – State of Play and Implementation; Matthias Altmann, Ludwig

Bölkow-Systemtechnik and Antton Rönnholm, Centre for European Policy Studies CEPS, European Parliament, ITRE Committee, Brussels, 24 June 2010. Available at: http://www.europarl.europa.eu/document/activities/cont/201006/20100625ATT76971/20100625ATT76971 EN.pdf

86 Commission Staff Working Document: Technical Annex to the Communication from the Commission to the

Council and the European Parliament Report on progress in creating the internal gas and electricity market, SEC(2010)251 final of 11.3.2010.

87 Note that Luxembourg and Finland are exempt from transposition as they do not have any potential

hydrocarbon resources. Denmark is considered to be in a special situation due to the fact that it is obliged to enter into negotiations on a possible continuation of the activities after the expiry of the concession, issued in 1962. Due to this, Denmark is covered by a derogation in respect of activities in certain areas for which

the concession expires on 8 July 2012.

238

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