Category Archives: Businesses in the internal market

Transnational development of businesses is a key component of the completion of a European single market. This involves improving the regulatory environment, enabling businesses both to assume a European dimension and to be competitive in the international and European arenas. Harmonisation of company law (to promote a simplified legal environment with minimum red tape), modernisation of public procurement (to increase the opportunities for businesses and to guarantee better quality services for citizens) and protection of intellectual property (to encourage innovation and creativeness) form the basis for the action of the European Union and its Member States in favour of European businesses.

Company law
Public procurement
Intellectual property

Internal Market

Internal Market

Internal Market Contents

  • Internal market: general framework
  • Living and working in the internal market: Free movement of people, asylum and immigration, free movement of workers
  • Single Market for Goods: Free movement of goods, technical harmonisation, product labelling and packaging, consumer safety, pharmaceutical and cosmetic products, chemical products, motor vehicles, construction, external dimension
  • Single market for services: Free movement of services, professional occupations, services of general interest, transport, Information Society, postal services, financial services, banks, insurance, securities markets
  • Single market for capital: Free movement of capital, economic and monetary union, economic and private stakeholders, fiscal aspects, combating fraud, external relations
  • Businesses in the internal market: Company law, public procurement, intellectual property

See also

Living and working in the internal market.
Overviews of European Union: Internal market.
Further information: the Internal Market and Services Directorate-General of the European Commission.

A strategy for e-procurement

A strategy for e-procurement

Outline of the Community (European Union) legislation about A strategy for e-procurement

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Public procurement

A strategy for e-procurement

Document or Iniciative

Communication from the Commission to the European Parliament, the Council, the European and Social Committee and the Committee of the Regions [COM(2012) 179 final – Not published in the Official Journal].

Summary

This Communication defines the guidelines for a strategy for e-procurement.

What are the advantages of e-procurement?

Electronic processes offer several economic advantages. They can simplify the way procurement is conducted, reduce waste (in goods, services and works), and deliver a better quality service at a lower price. They can also make life significantly simpler for small and medium-sized enterprises (SMEs) by increasing the transparency of invitations to tender, by facilitating access and by reducing the costs of bidding for contracts (postage and printing costs, etc.).

These processes make it possible to maximise the efficiency of public expenditure and to find new sources of economic growth. Organisations which have already adopted e-procurement have achieved savings between 5 and 20 %. The total procurement market in the EU is estimated at more than EUR 2,000 billion, which means that a saving of 5 % would correspond to savings of about EUR 100 billion per year.

E-procurement also contributes to protecting the environment, for example by reducing paper consumption and transport.

Electronic processes also offer easier access to public procurement contracts, particularly for small and medium-sized enterprises (SMEs), and can therefore stimulate competition, innovation and growth within the internal market.

How can e-procurement be implemented?

The European Commission plans to implement several actions for e-procurement, such as:

  • creating an effective legal framework: in December 2011, the European Commission adopted a proposal for a Directive on public procurement and a proposal for a Directive on procurement by entities operating in the water, energy, transport and postal services sectors. These proposals are intended to support the sharing of information and best practices, as well as a greater role for the e-Certis (DE) (EN) (FR) platform. To supplement this legislative framework, the Commission intends to improve the interoperability of electronic signature solutions and is currently revising the existing framework.
  • promoting practical solutions based on best-practices: the Commission advocates the implementation of non-legislative action, such as the installation of new generation IT technology, with the aim of simplifying and streamlining the purchase process. To this end, a group of experts is tasked with making recommendations aimed at promoting “best of breed” e-procurement solutions. The European Commission will also publish the results of a study aimed at identifying and disseminating best-practices in this field.
  • supporting the deployment of e-procurement infrastructure: the Commission has launched a pilot project called PEPPOL which aims to provide the interoperability bridges needed to connect the already existing e-procurement platforms. The Commission intends to support this project in the long term. It will also finance the development of e-procurement infrastructure through the Connecting Europe Facility, with assistance specifically from the structural funds.
  • developing a dissemination strategy: the Commission would like to inform contracting authorities and suppliers about the benefits of e-procurement. To this end, it intends to draw on the Europe Enterprise Network, as well as on the regions and cities of Europe through networking programmes such as INTERREG. The Commission will also organise an annual conference on developments in e-procurement in order to ensure the exchange of information between the stakeholders involved.
  • ensuring take-up is monitored: the development of a set of indicators is required in order to monitor the implementation of e-procurement. The Commission therefore proposes to create electronic systems to monitor procurement expenditure.
  • considering the international dimension of e-procurement: common international standards should be established in order to ensure better operability of public procurement contracts. To achieve this, the Commission intends to promote international regulatory dialogues on e-procurement. The first annual report on e-procurement will be published by mid-2013 and will detail the progress made in this area.

Context

In the Single Market Act, the Commission expressed its wish to modernise the EU legal framework relating to public procurement contracts. The economic value of this sector is considerable: the total value of contracts governed by the current directives amounts to about EUR 447 billion. The introduction of electronic processes is expected to improve the effectiveness of public procurement contracts.

EGovernment

eGovernment

Outline of the Community (European Union) legislation about eGovernment

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Information society > Digital Strategy i2010 Strategy eEurope Action Plan Digital Strategy Programmes

eGovernment

eEurope 2005 To harness the full potential of eGovernment, it is necessary to identify the obstacles which are slowing down the rate at which on-line public services are being made available in the Member States and to propose action to speed up the deployment of eGovernment. This is the objective of the Commission Communication described below.

Communication of 26 September 2003 from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions “The Role of eGovernment for Europe’s future” [COM(2003) 567 final – Not published in the Official Journal].

Summary

“eGovernment” * means the use of information and communication technologies * (ICT) in public administrations combined with organisational changes and new skills. The objective is to improve public services, democratic processes and public policies.

STATE OF PLAY

Progress has been made in every Member State in bringing public services online, with average online availability growing from 45% to 65% between October 2001 and October 2002.

In terms of services to citizens, eGovernment has already shown the advantages which it can bring in citizens’ everyday lives. It not only makes it easier to obtain information from public administrations but also greatly facilitates formalities for members of the public and cuts waiting times. Beyond that, eGovernment fosters direct communication between citizens and policy-makers. Through online forums, virtual discussion rooms and electronic voting, citizens can directly question decision-makers and express their views on public policy. Today public internet access points * are gradually becoming the norm for services to citizens.

As regards services to businesses, provision of higher quality electronic services by public administrations leads to increased productivity and competitiveness, by reducing the cost of the public service itself as well as transaction costs to businesses (time and effort). For example, electronic customs and VAT handling and electronic tax declarations offer the advantage of speeding up procedures at the same time as improving quality of service. The sophistication of online services, in terms of supporting interactivity and transactions, has advanced more in the business sector than in services to citizens.

In the case of services between administrations, eGovernment can provide ways to strengthen cooperation between national, regional and local government and Community institutions. Regional and local administrations are often at the forefront of the delivery of on-line public services. Development of eGovernment at regional and local level has also become a priority of the Structural Funds, representing about 30% of Information Society expenditure in Objective 1 regions and 20% in Objective 2 regions.

OBSTACLES TO GENERAL AVAILABILITY OF eGOVERNMENT: PRIORITY ISSUES

The Commission has identified a number of priority issues which have to be addressed in order to remove the obstacles to general availability of eGovernment.

Inclusive access

Access for all to online public services is a sine qua non for wide use of eGovernment. This point is all the more important considering the very real risk of a “digital divide” – due to unequal access to information and computer technologies. In this context, education and training are essential to acquire the digital literacy necessary in order to reap the full benefit of the services offered by eGovernment. Digital literacy is one of the priorities of the eLearning programme. Greater access to services also implies stepping up the multi-platform approach (allowing access to services through a range of devices, from PCs and digital TV to mobile terminals or public internet access points).

User confidence

Public services can be offered on line only in an environment guaranteeing fully secure access for citizens. With this in view, maximum protection of personal data and security of digital transactions and communications are primary issues. To this end, the use of privacy enhancing technologies in eGovernment should be promoted, inter alia through the relevant Community programmes. More generally, network and information security, the fight against cybercrime and dependability are prerequisites for a properly-functioning Information Society and, consequently, are core policy issues within the European Union.

Public procurement

Public procurement is one area where use of ICT can be particularly advantageous. Traditional public procurement operations are complex, time-consuming and resource-intensive. Use of ICT in public procurement can therefore improve efficiency, quality and value for money in public purchases. Until now the absence of clear Community rules has been an obstacle to the take-up of electronic public procurement in Europe. The adoption of the new package of legislation on public procurement, which includes specific rules on electronic public procurement, should be a turning point for the spread of electronic public procurement in Europe.

Pan-European services

Pan-European services are important means of supporting mobility in the internal market and European citizenship. Various types of pan-European service are already in place. Examples include EURES, the European employment services portal, and PLOTEUS the portal on learning opportunities in Europe. However, the provision of common pan-European services can be a sensitive issue. For example, when services have been developed from the Member State’s national perspective and tradition (e.g. language) alone, access to them for citizens and enterprises from other Member States may be difficult. It is therefore important to make sure that pan-European services take account of the needs of citizens from other Member States and also to establish true cooperation between Member States’ administrations and interoperable infrastructure.

Interoperability

Interoperability means the capacity to inter-link systems, information and ways of working. This kind of interoperability of information systems allows integrated provision of services in a one-stop portal *, no matter how many different administrative systems or bodies are involved. But interoperability is not just a question of linking up computer networks: it also concerns organisational issues, such as interworking with partner organisations which may well have different internal organisation and operating methods. Introduction of pan-European eGovernment services will also inevitably require agreements on common standards and specifications. Most Member States are already addressing this challenge by adopting national “eGovernment interoperability frameworks”, which are being complemented at European level by the development of the European interoperability framework.

Roadmap

The Commission regards the priorities set out above as the roadmap for eGovernment. However, these measures must be backed up by more horizontal action.

HORIZONTAL ACTION

Reinforcing exchanges of good practice

Best practices encompass technological, organisational and training components. They require a long-term commitment on the part of all key players involved. Exchanges of experience and replication of best practices can bring significant cost-savings in moving to broad take-up. They also prepare the ground for future interoperability and interworking between administrations.

Leveraging investment

A range of Community initiatives and programmes are addressing eGovernment. In particular, these include parts of the Sixth Framework RTD Programme, the eTEN and IDA programmes and investment in regional priorities through the Structural Funds. The Commission reports that investment is low compared to the total investment that should be made at European Union level.

Annual spending on ICT in public administration is about EUR 30 billion, of which a growing proportion, currently some EUR 5 billion, is related to eGovernment. The Commission adds that this spending should be accompanied by much larger investment in organisation and human resources. As a result, the total investment needed is likely to run into tens of billions of euros each year. Community support should therefore aim at achieving maximum leverage for the much larger investment at Member State level.

Key terms used in the Act
  • eGovernment: eGovernment seeks to use information and communications technologies to improve the quality and accessibility of public services. It can reduce costs for businesses and administrations alike, and facilitate transactions between administrators and citizens. It also helps to make the public sector more open and transparent and governments more understandable and accountable to citizens.
  • Information and communication technologies (ICT): the term ITC covers a wide range of services, applications, technologies, devices and software, i.e. tools such as telephony and the Internet, distance learning, television, computers, and the networks and software needed to use these technologies, which are revolutionising social, cultural and economic structures by creating new attitudes towards information, knowledge, working life, etc.
  • One-stop portal: a single entry point to the Internet for a specific topic which can be used without any knowledge of how the administrative departments involved in providing the public service are organised.

Related Acts

Communication from the Commission, of 25 April 2006, “i2010 eGovernment Action Plan: Accelerating eGovernment in Europe for the Benefit of All” [COM(2006) 173 final – Not published in the Official Journal].
This Action Plan, adopted in 2006, is designed to make public services more modern and efficient and to target the needs of the population more precisely. It proposes a series of priorities and a roadmap to speed up the deployment of eGovernment in Europe. Five priority areas are identified:

  • Access for all;
  • Increased efficiency;
  • High-impact eGovernment services;
  • Putting key enablers in place;
  • Increased participation in democratic decision-making.

Independent Report of 27 June 2005: “eGovernment in the Member States of the European Union” (GOPA-Cartermill).

The report is a compilation of the factsheets produced by the eGovernment Observatory. These factsheets provide a picture of the situation and progress of eGovernment in each Member State.

Fifth annual study of e-Government

According to a 2005 survey carried out for the Commission, more than 90% of public service providers now have a website, and 40% of basic public services are totally interactive. The survey highlights the considerable progress made in developing and providing on-line public services throughout the EU. The gap between the new Member States and the EU-15 States in terms of service provision has narrowed significantly, and could close very quickly. The challenge now is to ensure that on-line public services are used as widely and as often as possible so as to simplify the administrative procedures for businesses and citizens alike.

Fourth annual study of e-Government

According to the results of an extensive survey published in January 2004 [PDF ], public administrations which combine the use of ICT to deliver new services with reorganisation of the way they work obtain higher approval ratings from businesses and citizens.
This large-scale survey, funded as part of the evaluation of the eEurope action plan, was conducted in every EU Member State, looking at a common list of 20 basic public services which should be available on line under the action plan. The survey included 29 in-depth case studies of “best practice”, for example substantial savings in enrolment in higher education in Finland and the United Kingdom.

The Commission concluded that the better results are due to the fact that reorganisation plus use of ICT in public administrations reduces costs, increases productivity and provides flexibility and simpler organisational structures. The practical results for the public and for businesses are fewer visits to administrations, together with faster, cheaper, more accessible and more efficient services, but also fewer errors, easier to use systems and greater user control.


Another Normative about eGovernment

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic

Internal market > Businesses in the internal market > Public procurement

eGovernment

eEurope 2005 To harness the full potential of eGovernment, it is necessary to identify the obstacles which are slowing down the rate at which on-line public services are being made available in the Member States and to propose action to speed up the deployment of eGovernment. This is the objective of the Commission Communication described below.

Communication of 26 September 2003 from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions “The Role of eGovernment for Europe’s future” [COM(2003) 567 final – Not published in the Official Journal].

Summary

“eGovernment” * means the use of information and communication technologies * (ICT) in public administrations combined with organisational changes and new skills. The objective is to improve public services, democratic processes and public policies.

STATE OF PLAY

Progress has been made in every Member State in bringing public services online, with average online availability growing from 45% to 65% between October 2001 and October 2002.

In terms of services to citizens, eGovernment has already shown the advantages which it can bring in citizens’ everyday lives. It not only makes it easier to obtain information from public administrations but also greatly facilitates formalities for members of the public and cuts waiting times. Beyond that, eGovernment fosters direct communication between citizens and policy-makers. Through online forums, virtual discussion rooms and electronic voting, citizens can directly question decision-makers and express their views on public policy. Today public internet access points * are gradually becoming the norm for services to citizens.

As regards services to businesses, provision of higher quality electronic services by public administrations leads to increased productivity and competitiveness, by reducing the cost of the public service itself as well as transaction costs to businesses (time and effort). For example, electronic customs and VAT handling and electronic tax declarations offer the advantage of speeding up procedures at the same time as improving quality of service. The sophistication of online services, in terms of supporting interactivity and transactions, has advanced more in the business sector than in services to citizens.

In the case of services between administrations, eGovernment can provide ways to strengthen cooperation between national, regional and local government and Community institutions. Regional and local administrations are often at the forefront of the delivery of on-line public services. Development of eGovernment at regional and local level has also become a priority of the Structural Funds, representing about 30% of Information Society expenditure in Objective 1 regions and 20% in Objective 2 regions.

OBSTACLES TO GENERAL AVAILABILITY OF eGOVERNMENT: PRIORITY ISSUES

The Commission has identified a number of priority issues which have to be addressed in order to remove the obstacles to general availability of eGovernment.

Inclusive access

Access for all to online public services is a sine qua non for wide use of eGovernment. This point is all the more important considering the very real risk of a “digital divide” – due to unequal access to information and computer technologies. In this context, education and training are essential to acquire the digital literacy necessary in order to reap the full benefit of the services offered by eGovernment. Digital literacy is one of the priorities of the eLearning programme. Greater access to services also implies stepping up the multi-platform approach (allowing access to services through a range of devices, from PCs and digital TV to mobile terminals or public internet access points).

User confidence

Public services can be offered on line only in an environment guaranteeing fully secure access for citizens. With this in view, maximum protection of personal data and security of digital transactions and communications are primary issues. To this end, the use of privacy enhancing technologies in eGovernment should be promoted, inter alia through the relevant Community programmes. More generally, network and information security, the fight against cybercrime and dependability are prerequisites for a properly-functioning Information Society and, consequently, are core policy issues within the European Union.

Public procurement

Public procurement is one area where use of ICT can be particularly advantageous. Traditional public procurement operations are complex, time-consuming and resource-intensive. Use of ICT in public procurement can therefore improve efficiency, quality and value for money in public purchases. Until now the absence of clear Community rules has been an obstacle to the take-up of electronic public procurement in Europe. The adoption of the new package of legislation on public procurement, which includes specific rules on electronic public procurement, should be a turning point for the spread of electronic public procurement in Europe.

Pan-European services

Pan-European services are important means of supporting mobility in the internal market and European citizenship. Various types of pan-European service are already in place. Examples include EURES, the European employment services portal, and PLOTEUS the portal on learning opportunities in Europe. However, the provision of common pan-European services can be a sensitive issue. For example, when services have been developed from the Member State’s national perspective and tradition (e.g. language) alone, access to them for citizens and enterprises from other Member States may be difficult. It is therefore important to make sure that pan-European services take account of the needs of citizens from other Member States and also to establish true cooperation between Member States’ administrations and interoperable infrastructure.

Interoperability

Interoperability means the capacity to inter-link systems, information and ways of working. This kind of interoperability of information systems allows integrated provision of services in a one-stop portal *, no matter how many different administrative systems or bodies are involved. But interoperability is not just a question of linking up computer networks: it also concerns organisational issues, such as interworking with partner organisations which may well have different internal organisation and operating methods. Introduction of pan-European eGovernment services will also inevitably require agreements on common standards and specifications. Most Member States are already addressing this challenge by adopting national “eGovernment interoperability frameworks”, which are being complemented at European level by the development of the European interoperability framework.

Roadmap

The Commission regards the priorities set out above as the roadmap for eGovernment. However, these measures must be backed up by more horizontal action.

HORIZONTAL ACTION

Reinforcing exchanges of good practice

Best practices encompass technological, organisational and training components. They require a long-term commitment on the part of all key players involved. Exchanges of experience and replication of best practices can bring significant cost-savings in moving to broad take-up. They also prepare the ground for future interoperability and interworking between administrations.

Leveraging investment

A range of Community initiatives and programmes are addressing eGovernment. In particular, these include parts of the Sixth Framework RTD Programme, the eTEN and IDA programmes and investment in regional priorities through the Structural Funds. The Commission reports that investment is low compared to the total investment that should be made at European Union level.

Annual spending on ICT in public administration is about EUR 30 billion, of which a growing proportion, currently some EUR 5 billion, is related to eGovernment. The Commission adds that this spending should be accompanied by much larger investment in organisation and human resources. As a result, the total investment needed is likely to run into tens of billions of euros each year. Community support should therefore aim at achieving maximum leverage for the much larger investment at Member State level.

Key terms used in the Act
  • eGovernment: eGovernment seeks to use information and communications technologies to improve the quality and accessibility of public services. It can reduce costs for businesses and administrations alike, and facilitate transactions between administrators and citizens. It also helps to make the public sector more open and transparent and governments more understandable and accountable to citizens.
  • Information and communication technologies (ICT): the term ITC covers a wide range of services, applications, technologies, devices and software, i.e. tools such as telephony and the Internet, distance learning, television, computers, and the networks and software needed to use these technologies, which are revolutionising social, cultural and economic structures by creating new attitudes towards information, knowledge, working life, etc.
  • One-stop portal: a single entry point to the Internet for a specific topic which can be used without any knowledge of how the administrative departments involved in providing the public service are organised.

Related Acts

Communication from the Commission, of 25 April 2006, “i2010 eGovernment Action Plan: Accelerating eGovernment in Europe for the Benefit of All” [COM(2006) 173 final – Not published in the Official Journal].
This Action Plan, adopted in 2006, is designed to make public services more modern and efficient and to target the needs of the population more precisely. It proposes a series of priorities and a roadmap to speed up the deployment of eGovernment in Europe. Five priority areas are identified:

  • Access for all;
  • Increased efficiency;
  • High-impact eGovernment services;
  • Putting key enablers in place;
  • Increased participation in democratic decision-making.

Independent Report of 27 June 2005: “eGovernment in the Member States of the European Union” (GOPA-Cartermill).

The report is a compilation of the factsheets produced by the eGovernment Observatory. These factsheets provide a picture of the situation and progress of eGovernment in each Member State.

Fifth annual study of e-Government

According to a 2005 survey carried out for the Commission, more than 90% of public service providers now have a website, and 40% of basic public services are totally interactive. The survey highlights the considerable progress made in developing and providing on-line public services throughout the EU. The gap between the new Member States and the EU-15 States in terms of service provision has narrowed significantly, and could close very quickly. The challenge now is to ensure that on-line public services are used as widely and as often as possible so as to simplify the administrative procedures for businesses and citizens alike.

Fourth annual study of e-Government

According to the results of an extensive survey published in January 2004 [PDF ], public administrations which combine the use of ICT to deliver new services with reorganisation of the way they work obtain higher approval ratings from businesses and citizens.
This large-scale survey, funded as part of the evaluation of the eEurope action plan, was conducted in every EU Member State, looking at a common list of 20 basic public services which should be available on line under the action plan. The survey included 29 in-depth case studies of “best practice”, for example substantial savings in enrolment in higher education in Finland and the United Kingdom.

The Commission concluded that the better results are due to the fact that reorganisation plus use of ICT in public administrations reduces costs, increases productivity and provides flexibility and simpler organisational structures. The practical results for the public and for businesses are fewer visits to administrations, together with faster, cheaper, more accessible and more efficient services, but also fewer errors, easier to use systems and greater user control.

Defence procurement exemptions

Defence procurement exemptions

Outline of the Community (European Union) legislation about Defence procurement exemptions

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Public procurement

Defence procurement exemptions

Document or Iniciative

Commission interpretative communication of 7 December 2006 on the application of Article 296 of the Treaty in the field of defence procurement [COM(2006) 779 final – Not published in the Official Journal].

Summary

Internal market rules do not apply to defence acquisitions for trade in arms, munitions and war material; the legal basis for this exemption is Article 296. The scope of this exemption is, however, limited by the concept of “essential security interests” and by the list of military equipment mentioned in Article 296(2).

Any exemption authorised by Article 296 goes to the very heart of the fundamental principles and objectives of the internal market. Such exceptions should therefore be strictly confined to cases where Member States have no other choice than to protect their security interests nationally.

The list of military equipment mentioned in Article 296 was adapted in 1958 by Council Decision 255 / 58. The nature of the products on the 1958 list and the explicit reference in Article 296 to “specifically military purposes” confirm that only the procurement of equipment which is designed, developed and produced for specifically military purposes can be exempted from Community rules (Article 296(1)(b) EC).

Nevertheless, Article 296 can also cover the procurement of dual-use equipment for both military and non-military purposes, but only if the application of Community rules would oblige a Member State to disclose information prejudicial to its essential security interests (Article 296(1)(a)).

Military items included in the 1958 list are not automatically exempted from internal market rules. Any Member State seeking exemption under Article 296 must demonstrate that the exemption in question is necessary for the protection of its essential security interests, this being the only objective which may justify such an exemption. General references to the country’s geographical and political situation, history and alliance commitments are not sufficient.

The concept of essential security interests gives Member States flexibility in the choice of measures to protect those interests. It is essential for contracting authorities to assess each procurement contract with great care.

As guardian of the Treaty, the Commission may verify – with due regard to the sensitive nature of the defence sector – whether the conditions for exempting procurement contracts on the basis of Article 296 are fulfilled.

The Commission may also bring the matter directly before the Court of Justice if it considers that a Member State is making improper use of the powers provided for in Article 296.

Background

The majority of defence contracts are exempted from internal market rules and awarded on the basis of widely differing national procurement rules. With a view to the establishment of a European defence equipment market, the 2004 Green Paper on Defence Procurement (link) launches a debate on how to improve transparency and openness of defence markets between EU Member States. In December 2005 the Commission announced two separate initiatives (link to COM(2005) 626 final): the adoption of an “Interpretative Communication on the application of Article 296 EC” (analysed above) and the preparation of a possible new directive on the procurement of defence equipment to which Article 296 exemptions do not apply.

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.

 

Rules applicable to Institutionalised Public-Private Partnerships

Rules applicable to Institutionalised Public-Private Partnerships

Outline of the Community (European Union) legislation about Rules applicable to Institutionalised Public-Private Partnerships

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Public procurement

Rules applicable to Institutionalised Public-Private Partnerships (IPPP)

Document or Iniciative

Commission interpretative communication on the application of Community law on Public Procurement and Concessions to institutionalised PPP (IPPP) [2008/C 91/02 – Official Journal C 91 of 12.4.2008].

Summary

This communication details how Community provisions on public procurement and concessions in the case of institutionalised public-private partnerships (IPPP) * are to be applied. The aim is to enhance legal certainty and to assuage concerns regarding the participation of private partners in IPPP.

Creating an IPPP

An IPPP is generally set up through:

  • the creation of a new entity in which the capital is held jointly by the contracting entity and the private partner and which is assigned public procurement or concessions; or
  • the participation of a private entity in an existing company which has obtained public contracts or concessions in the past.

The contracting entity * must comply with the Community’s legal provisions on public procurement and concessions and in particular follow a fair and transparent procedure, either when selecting the private partner for the IPPP or when granting a public contract or a concession to the public-private entity.

A double tendering procedure (one for selecting the private partner to the IPPP and another one for awarding public contracts or concessions to the public-private entity) is not considered practical. However, one possible way of avoiding a double tendering procedure is by selecting a private partner for the IPPP by means of a transparent and competitive procedure, the subject of which is both the public contract and concession attributed to the IPPP and the partner’s operational contribution to the IPPP.

Applicable Regulation

There are no specific rules governing the creation of an IPPP in Community law. However, the principles of fair treatment and the prohibition of discrimination on grounds of nationality derived from Article 43 of the Treaty establishing the European Community (EC Treaty) on freedom of establishment and from Article 49 EC on the freedom to provide services apply to the fields of public procurement and concessions.

Rules applicable to the selection process of a private partner are different depending on whether or not the public procurement or the concession is covered by the so-called “traditional” Directive (2004/18/CE: on public works contracts, public supply contracts and public service contracts) and/or the Directive on “special sectors” (2004/17/CE on public procurement in the water, energy, transport and postal services sectors).

  • If the public-private entity’s task is to carry out a public contract fully covered by the Public Procurement Directives, the procedure for selecting the private partner is determined by these same Directives.
  • If it relates to a public procurement or concession partially covered by these Directives, the rules derived from the EC Treaty apply in addition to the relevant provisions of these Directives.
  • In the case of a public procurement or a concession not being covered by the Directives, the selection of the private partner must comply with the principles of the EC Treaty.

The contracting entity must publicise the selection and award criteria for identifying the private partner for the IPPP. The criteria used must comply with the principle of equal treatment. The Public Procurement Directives specify requirements related to the personal capacity of the private partner, such as the personal situation of the candidate, his economic and financial standing, his technical ability, etc. Such criteria may also be used in the context of concessions and public contracts not fully covered by the Public Procurement Directives.

The principles of equal treatment and non-discrimination imply an obligation of transparency which consists in ensuring for any potential tenderer a degree of advertising sufficient to enable the market to be opened up to competition. In the context of an IPPP, the contracting entity should include in the contract notice or the contract documents basic information on the following: the public contracts and/or concessions which are to be awarded, the statutes and articles of association, the shareholder agreement and all other elements governing the contractual relationship between the contracting entity and the public-private entity before being created.

Subsequent modifications

The principle of transparency also requires the disclosure in the tender documents of optional renewals or modifications of the public contract or concessions, as well as the disclosure of optional assignments of additional tasks. The information provided should be sufficiently detailed, in order to ensure fair and effective competition.

The IPPP must remain within the scope of its initial activity and cannot obtain any further public contracts or concessions without a procurement procedure. However, the IPPP must be able to adjust to changes in the economic, legal or technical environment. An adjustment is possible on the condition that it complies with the principles of equal treatment and transparency. Any changes to the essential terms of a contract, not provided for in the initial tender documents, require a new procurement procedure.

Context

The public consultation undertaken at the time of the publication of the Green Paper on Public-Private Partnerships and Community law on public contracts and concessions showed the need for clarification on the Community’s legal provisions applicable to institutionalised public-private partnerships (IPPP). In effect, the perceived lack of legal certainty could undermine the success of such projects and dissuade public authorities and private entities from creating an IPPP.

Key terms of the Act

  • Institutionalised Public-Private Partnerships (IPPP): co-operation between public and private parties involving the establishment of a mixed capital entity which performs public contracts or concessions. The private input to the IPPP consists, apart from the contribution of capital or other assets, in the active participation in the operation of the contracts awarded to the public-private entity and/or the management of the public-private entity. Simple capital injections made by private investors into publicly owned companies do not constitute IPPP.
  • Contracting entity: the State, public services, bodies governed by public law and associations formed by one or more of these services or one or more of these bodies governed by public law.

Green public procurement

Green public procurement

Outline of the Community (European Union) legislation about Green public procurement

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Public procurement

Green public procurement

Document or Iniciative

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 16 July 2008 on Public procurement for a better environment [COM(2008) 400 final – Not published in the Official Journal].

Summary

The objective of this Communication is to provide guidance on how to reduce the environmental impact caused by public sector consumption and how to use Green Public Procurement (GPP) * to stimulate innovation in environmental technologies, products and services.

More specifically, the Communication proposes instruments which should enable the main obstacles to increased take-up of green public procurement to be removed. The Commission recommends the following:

  • setting common green public procurement criteria;
  • encouraging publication of information on life cycle costing of products;
  • increasing certainty about legal possibilities to include environmental criteria in tender documents;
  • establishing political support for the promotion and implementation of green public procurement through a political target linked to indicators and future monitoring.

Scope

This Communication covers all public procurement procedures, both above and below the thresholds defined by European public procurement Directives. The Commission has identified ten priority sectors for GPP:

  • construction;
  • food and catering services;
  • transport;
  • energy;
  • office machinery and computers;
  • clothing and other textiles;
  • paper and printing services;
  • furniture;
  • cleaning products and services;
  • equipment used in the health sector.

Common GPP criteria

The Commission highlights the need to define common green public procurement criteria. A preliminary set of criteria for products and services in the ten priority sectors has been established in the framework of a “Training Toolkit” (EN). The criteria have been based on criteria used in the granting of the European Eco-label, in particular, or, in the absence of a European label, national ecolabels and are the result of cooperation between the Commission and a group of experts made up of representatives from Member States.

GPP criteria are divided into two categories:

  • the “core” criteria are designed to allow easyapplication of green public procurement and are focused on the key area(s) of environmental performance of a product. They are aimed at keeping administrative costs to a minimum for companies who have to comply with the criteria and public authorities who have to enforce compliance with them. The Commission proposes that by 2010, 50% of all public procurement should comply with these criteria;
  • the “comprehensive” criteria take into account more aspects or are based on higher levels of environmental performance, for use by authorities that want to go further in supporting environmental goals.

Assessment and monitoring

In order to monitor green public procurement, the Commission proposes to establish two types of indicators: quantitative indicators to assess the progress of the policy and its impact on the supply side, and impact-oriented indicators allowing assessment of the environmental and financial gains made. In 2010, the Commission will evaluate the situation and produce a review which will serve as the basis for setting future targets.

Context

The potential for green public procurement was first highlighted in the European Union in 2003 in the Commission Communication on integrated product policy. In 2004, Directives 2004/17/EC and 2004/18/EC, which constitute the European framework for the procurement of public contracts, clarified how purchasers can integrate an environmental dimension into the tendering process. The Commission handbook “Buying green!”, adopted in August 2004, aims to further clarify how these new rules can be used to conclude green public contracts.

The new European Union strategy for sustainable development, adopted by the Council in June 2006, set a target that by 2010 the average level of green public procurement in the EU should be the same as the 2006 level of the best performing Member States in this area.

This Communication is part of the Action Plan for Sustainable Consumption and Production and the Sustainable Industrial Policy (SCP/SIP), which establishes a framework for the implementation of instruments aimed at improving the environmental performances of products.


Key terms of the Act

  • Green public procurement: a process whereby public authorities seek to procure goods, services and works with a reduced environmental impact throughout their life cycle when compared to goods, services and works with the same primary function that would otherwise be procured.

Public procurement in the fields of defence and security

Public procurement in the fields of defence and security

Outline of the Community (European Union) legislation about Public procurement in the fields of defence and security

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Public procurement

Public procurement in the fields of defence and security

Document or Iniciative

Directive 2009/81/EC 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 and 2004/18/EC (Text with EEA relevance). [See amending act(s)].

Summary

This Directive applies to public contracts in the fields of defence and security for:

  • the supply of military equipment;
  • the supply of sensitive equipment;
  • works, supplies and services directly related to military or sensitive equipment;
  • works and services for specifically military purposes or sensitive works and sensitive services.

Public procurement

Economic operators, whether they are natural or legal persons, can participate in invitations to tender in these fields. Groups of economic operators may also participate. If a contract is awarded to them, they may be required to assume a specific legal form.

Market thresholds and exclusions

This Directive shall apply to contracts which have a value excluding value-added tax (VAT) estimated to be no less than the following thresholds:

  • EUR 400,000 for supply and service contracts;
  • EUR 5,000,000 in the case of works contracts.

Exclusions

Certain specific contracts are excluded from the scope of this Directive, including:

  • contracts governed by specific procedural rules pursuant to an international agreement or arrangement between Member States and third countries and markets governed by the specific procedural rules of an international organisation purchasing for its purposes;
  • contracts for which the application of the rules of this Directive would oblige a Member State to supply certain information the disclosure of which it considers contrary to the essential interests of its security;
  • contracts awarded in the framework of a cooperation programme aimed at developing a new system;
  • contracts for the purposes of intelligence activities;
  • contracts awarded in a third country when forces are deployed outside the territory of the Union and transactions take place in the area of operations;
  • contracts relating to immovable property;
  • contracts awarded between governments.

Procedures

Contracting authorities/entities shall apply national procedures for the award of public contracts adjusted for the purposes of this Directive, by using the restricted procedure or the negotiated procedure with publication of a contract notice. An open procedure cannot be chosen.

Member States may use a competitive dialogue in the case of particularly complex contracts. In this case, contracting authorities/entities open a dialogue with the candidates selected in order to identify and define the means best suited to satisfying their needs.

There are also exceptional cases in which it is possible to use the negotiated procedure without publication of a contract notice.

The procedures are adjusted for the specific purposes of this Directive, in particular by proposing specific rules for the security of information, the security of supply and subcontracting.

The contracting authorities/entities may also conclude framework agreements, the duration of which may not exceed seven years. They must not, however, restrict competition.

Rules on advertising and transparency

Contracting authorities/entities may publish a prior information notice on their buyer profiles or on Tenders Electronic Daily (TED). They are obliged to publish a contract notice on TED with the sole exception of an exceptional negotiated procedure without publication of a contract notice.

In the case of restricted or negotiated procedures, contracting authorities/entities shall invite the selected candidates to submit their tenders and to negotiate. They shall also be invited to negotiate under the negotiated procedure. This invitation shall include contract documents, the deadline for receipt of tenders and an indication of any documents to be annexed.

For every contract or framework agreement, the contracting authorities/entities must draw up a written report describing the selection procedure chosen as well as information concerning the candidates.

Contract award criteria

Contracting authorities/entities shall award contracts on the basis of:

  • the most economically advantageous tender. Award shall then be based on various criteria linked to the subject-matter of the contract in question, such as quality, price or technical merit); or
  • the lowest price.

Subcontracting

Contracting authorities/entities may oblige the successful tenderer to organise a transparent and non-discriminatory competition when awarding subcontracts to third parties.

In addition, Member States may allow or require their contracting authorities/entities to ask that subcontracts representing at least a certain share of the value of the contract (a maximum of 30 %) be awarded to third parties following a transparent and non-discriminatory competition.

Review

A review of a decision taken by contracting authorities/entities may be sought in the event of an infringement of Community law. Member States must ensure that any operator that has suffered harm has access to effective and rapid rights to review. They may require that operators who wish to seek review either inform the contracting authority or first seek review from it.

During a review procedure, interim or final measures may be taken. In both cases, damages shall be granted to the persons concerned.

Context

The 2005 Green Paper on defence procurement highlighted the fact that it was essential to create a European market for defence equipment. This Directive should prove to be an appropriate legislative framework since it meets the specific requirements relating to goods and services in the fields of defence and security.

Reference

Act Entry into force Deadline for transposition in the Member States Official Journal

Directive 2009/81/EC

21.8.2009

21.8.2011

OJ L216, 20.8.2009

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal

Regulation (EC) No 1177/2009

1.1.2010

OJ L 314, 1.12.2009

Regulation (EU) No 1251/2011

2.12.2011

OJ L 319, 2.12.2011

Successive amendments and corrections to Directive 2009/81/EC have been incorporated into the original text. This consolidated version is for reference only.

Public procurement

Public procurement

Outline of the Community (European Union) legislation about Public procurement

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Public procurement

Public procurement

The purchase of goods and services and the ordering of works by a public authority such as a national government, a local authority or their dependent bodies, are public contracts. Opening up these contracts, which account for a large proportion of the GDP of the EU, has allowed an increase in competition between the enterprises of the European Union, reducing prices and guaranteeing better quality of services for citizens. Over the years, the EU has introduced legislative provisions which modernise and facilitate the award of contract process. It has increased transparency, fairness and interoperability in this respect through tools such as the TED (Tenders Electronic Daily) database, the single classification system (evidenced by the common vocabulary for the public contracts) and the System of Information on Public Procurement (SIMAP). It has also signed the multilateral Agreement on Government Procurement (AGP) and negotiated an international award procedure within the World Trade Organisation (WTO).

Areas of public procurement

  • Common procurement vocabulary
  • Public works contracts, public supply contracts and public service contracts
  • Public procurement in the water, energy, transport and postal services sectors
  • Green public procurement

Defence procurement

  • Public procurement in the fields of defence and security
  • Defence procurement
  • Defence procurement exemptions

Reviews in the area of public procurement

  • Review procedures: supply, works and service contracts
  • Remedies mechanisms: water, energy, transport and postal services sectors

Dematerialisation of public procurement markets

  • A strategy for e-procurement
  • Development of e-Procurement in the European Union (Green Paper)
  • eGovernment

Public private partnerships

  • Rules applicable to Institutionalised Public-Private Partnerships (IPPP)
  • Green Paper on public-private partnerships
  • Developing Public Private Partnerships
  • Concessions under Community law

Review procedures: supply, works and service contracts

Review procedures: supply, works and service contracts

Outline of the Community (European Union) legislation about Review procedures: supply, works and service contracts

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Public procurement

Review procedures: supply, works and service contracts

Document or Iniciative

Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts [See amending acts].

Summary

The purpose of this Directive is to ensure the effective application of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts by making it obligatory for the Member States to establish effective and rapid remedies in the event of infringements of these provisions. These procedures are available at least to any person having or having had an interest in obtaining a particular public procurement contract and who has been or is liable to be harmed by an alleged infringement.

Decisions of the contracting authorities which are in breach of the Community law on public procurement contracts must be subject to effective and rapid remedies. In all Member States, such remedies must include, in particular:

  • taking, by way of interlocutory procedures, interim measures (such as suspension of the award procedure in question);
  • setting aside unlawful decisions including discriminatory technical, economic and financial specifications in the invitation to tender;
  • compensating injured parties.

The Member States may provide that where damages are claimed on the grounds that a decision was taken unlawfully, the contested decision must first be set aside by a body having the necessary powers.

Deadlines

To encourage the smooth operation of the review procedure, the Directive sets certain deadlines: Contracts are to be concluded no sooner than 15 days (or ten, if electronic means are used) after they have been awarded. Similarly, national law may provide for a minimum period of 15 days after the contract has been awarded for applying for a review (or ten, if electronic means are used).

If Member States provide for a time limit for applying for a review, it must be a minimum of 30 days after the publication of the contract award notice.

In any event, reviews have to be applied for within six months of the contract being concluded.

Ineffectiveness

Following an independent review, a contract may be considered ineffective. Similarly, contractual obligations may be cancelled retroactively. In addition, Member States may penalise infringements by imposing fines or shortening the duration of the contract.

Corrective mechanism

Where, before a contract is concluded, the Commission considers that a clear and manifest infringement of Community public procurement law has been committed, it may request the Member State concerned to correct it.

Review

The Commission is to examine the implementation of the Directive by no later than 20 December 2012.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 89/665/EEC

3.1.1991

21.12.1991

OJ L 395 of 30.12.1989

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal
Directive 2007/66/EC

9.1.2008

20.12.2009

OJ L 335 of 20.12.2007

Related Acts

Communication of 28 May 2003 from the Commission to the Council, the European Parliament and the European Economic and Social Committee on a comprehensive EU policy against corruption [COM(2003) 317 final – Not published in the Official Journal].
This communication looks at what has been accomplished at EU level in tackling corruption, and shows what needs to be improved in order to tackle it more effectively. It is the Commission’s intention to reduce corruption at all levels in a coherent way within the EU institutions, in EU Member States and outside the EU.

Common procurement vocabulary

Common procurement vocabulary

Outline of the Community (European Union) legislation about Common procurement vocabulary

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Public procurement

Common procurement vocabulary

Document or Iniciative

Regulation (EC) No 2195/2002 of the European Parliament and of the Council of 5 November 2002 on the Common Procurement Vocabulary (CPV) [See amending acts].

Summary

The Regulation establishes a single classification system: the Common Procurement Vocabulary (CPV). This classification endeavours to cover all requirements for supplies, works and services. By standardising the references used by contracting authorities to describe the subject matter of their contracts, the CPV improves the transparency of public procurement covered by Community directives.

The CPV attaches to each numerical code a description of the subject of the contract, for which there is a version in each of the official languages of the EU. The CPV consists of:

  • a main vocabulary containing a series of numerical codes comprising eight digits each and subdivided into divisions, groups, classes and categories. A ninth digit serves to verify the previous digits;
  • a supplementary vocabulary expanding the description of the subject of a contract by adding further details regarding the nature or destination of the goods to be purchased.

The list of CPV codes and the tables of correspondence between the CPV and other nomenclatures can be consulted on the Internet site: System of Information on Public Procurement (SIMAP).

To remain effective, the CPV evolves in line with market developments. This is why the structure of the supplementary vocabulary has undergone radical changes, thereby including the characteristics of products and services and reducing the number of codes in the main vocabulary.

The latest review of the CPV was designed to make it more user-friendly by focusing it less on materials and more on products. In addition, the CPV’s hierarchy was rationalised.

The TED database ensures that notices of public tenders subject to European directives are published in the Official Journal ‘S’ series. Since 20 December 2003, TED has used the CPV codes which will become compulsory with the adoption of the revised European directives.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EC) No 2195/2002

16.12.2003

OJ L 340 of 16.12.2002

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EC) No 596/2009

7.8.2009

OJ L 188 of 18.7.2009

Successive amendments and corrections to Regulation (EC) No 2195/2002 have been incorporated in the basic text. This consolidated version is for reference purposes only.

Related Acts

Commission Regulation (EC) No 2151/2003 of 16 December 2003 [Official Journal L 329 of 17.12.2003].
This Regulation makes technical adjustments and improvements which were identified as being necessary during the legislative process leading to the adoption of Regulation (EC) No 2195/2002 but which could not be taken into account in that Regulation and should be introduced in the Annexes to that Regulation.

Regulation (EC) No 451/2008 of the European Parliament and of the Council of 23 April 2008 establishing a new statistical classification of products by activity (CPA) and repealing Council Regulation (EEC) No 3696/93 (Text with EEA relevance) [Official Journal L 145 of 4.6.2008].