The community's legal framework on public procurement: "The way forward" at last?

Common Market Law Review

Volumn 36, Issue 1, 1999, Pages 13-49

  Arrowsmith, Sue ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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EID: 0033438245     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1018682008349     Document Type: Article

References (160)

1. See Commission White Paper on "Completing the Internal Market", COM (85) 310 final.
2. See, in particular, Arts. 30, 52 and 59 EC and, for a discussion of the application of these provisions to public procurement, Arrowsmith, The Law of Public and Utilities Procurement (1996), ch. 4.
3. The earliest directives laying down specific award procedures were Directive 71/305/EEC. O.J. 1971, L 185/5 on public works contracts and Directive 77/62/EEC. O.J. 1977, L 13/1 on public supply contracts.
4. See White Paper, note 1, supra.
5. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
6. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
7. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
8. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
9. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
10. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
11. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
12. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
13. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
14. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
15. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
16. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
17. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
18. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
19. For an overview of the history see Arrowsmith, op. cit. supra note 2, pp. 50-57 and the works cited there. The current directives on contract award procedures are: for public works contracts Directive 93/37/EEC. O.J. 1993, L 199/4, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public supply contracts Directive 93/36/EEC. O.J. 1993, L 199/1, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for public services contracts Directive 92/50/EEC. O.J. 1992, L 395/33, as amended by Directive 97/52/EC. O.J. 1997, L 328/1; for contracts by utilities Directive 93/38/EEC. O.J. 1993, L 199/84, as amended by Directive 94/22/EEC. O.J. 1994, L 164/3 and Directive 98/4/EC. O.J. 1998, L 101/1. The directives on remedies are Directive 89/665/EEC. O.J. 1989, L 395/33, as amended by Directive 92/50/EEC. above and (for utilities) Directive 92/13/EEC. O.J. 1992, L 76/7. On the directives see further Arrowsmith, op. cit.; Cox, The Single Market Rules and the Enforcement Regime after 1992 (1993); Lee, Public Procurement (1992); Trepte, Public Procurement in the EEC (1993); Weiss, Public Procurement in European Community Law (1993); Bright, Public Procurement Handbook (1994); Digings and Bennett, EC Public Procurement: Law and Practice (looseleaf); Geddes, Public Procurement: a Practical Guide to UK Regulations and Associated Community Rules, 2nd ed. (1997); Arrowsmith, A Guide to the Procurement Cases of the Court of Justice (1992); Fernández Martín, The EC Public Procurement Rules (1996); Medhurst, EU Public Procurement Law (1997). The European Commission has recently published brief guides to the rules, although these have no official status and their contents and not endorsed by the Commission: see European Commission, Guide to the Community Rules on Public Supply Contracts (1997); European Commission, Guide to the Community Rules on Public Procurement of Services (1997); European Commission, Guide to the Community Rules on Public Works Contracts (1997).
20. 27 Nov. 1996, COM (96) 583 final.
21. Green Paper, summary at top of p. 4.
22. The empirical research commissioned on this subject had, as part of the Commission's general single market review, revealed that, whilst savings had been achieved as a result of the directives in some specific products areas, notably medical equipment, buses and office machinery, in most sectors they had as yet had no impact: see European Commission, The Single Market Review, sub-series III: Dismantling of Barriers, Vol.II, Public Procurement (1997). The results are summarized in a Commission Communication to the European Parliament and the Council on "The Impact and Effectiveness of the Single Market" COM (96) 520 final, pp. 16-17; and see also Gordon, Rimmer and Arrowsmith, "The economic impact of the European Union regime on public procurement: Lessons for the WTO" (1998) The World Economy, 159. The limited impact of the procurement regime has been due both to a low level of compliance with the directives (an issue discussed further in Section 4 infra) and structural market obstacles, such as non-competitive behaviour on the supply side (in particular pricing to national markets), and the existence of incompatible technical standards for some products. Nevertheless, it was assumed in the Green Paper that the existing legal framework should be maintained, since the potential for savings exist, as has been shown in some limited fields. On this issue of whether the present regulatory approach is correct in principle see Arrowsmith, "The Way Forward or a Wrong Turning? An Assessment of European Community Policy on Public Procurement in the Light of the Commission's Green Paper" 3 European Public Law (1997), 389.
23. The empirical research commissioned on this subject had, as part of the Commission's general single market review, revealed that, whilst savings had been achieved as a result of the directives in some specific products areas, notably medical equipment, buses and office machinery, in most sectors they had as yet had no impact: see European Commission, The Single Market Review, sub-series III: Dismantling of Barriers, Vol.II, Public Procurement (1997). The results are summarized in a Commission Communication to the European Parliament and the Council on "The Impact and Effectiveness of the Single Market" COM (96) 520 final, pp. 16-17; and see also Gordon, Rimmer and Arrowsmith, "The economic impact of the European Union regime on public procurement: Lessons for the WTO" (1998) The World Economy, 159. The limited impact of the procurement regime has been due both to a low level of compliance with the directives (an issue discussed further in Section 4 infra) and structural market obstacles, such as non-competitive behaviour on the supply side (in particular pricing to national markets), and the existence of incompatible technical standards for some products. Nevertheless, it was assumed in the Green Paper that the existing legal framework should be maintained, since the potential for savings exist, as has been shown in some limited fields. On this issue of whether the present regulatory approach is correct in principle see Arrowsmith, "The Way Forward or a Wrong Turning? An Assessment of European Community Policy on Public Procurement in the Light of the Commission's Green Paper" 3 European Public Law (1997), 389.
24. The empirical research commissioned on this subject had, as part of the Commission's general single market review, revealed that, whilst savings had been achieved as a result of the directives in some specific products areas, notably medical equipment, buses and office machinery, in most sectors they had as yet had no impact: see European Commission, The Single Market Review, sub-series III: Dismantling of Barriers, Vol.II, Public Procurement (1997). The results are summarized in a Commission Communication to the European Parliament and the Council on "The Impact and Effectiveness of the Single Market" COM (96) 520 final, pp. 16-17; and see also Gordon, Rimmer and Arrowsmith, "The economic impact of the European Union regime on public procurement: Lessons for the WTO" (1998) The World Economy, 159. The limited impact of the procurement regime has been due both to a low level of compliance with the directives (an issue discussed further in Section 4 infra) and structural market obstacles, such as non-competitive behaviour on the supply side (in particular pricing to national markets), and the existence of incompatible technical standards for some products. Nevertheless, it was assumed in the Green Paper that the existing legal framework should be maintained, since the potential for savings exist, as has been shown in some limited fields. On this issue of whether the present regulatory approach is correct in principle see Arrowsmith, "The Way Forward or a Wrong Turning? An Assessment of European Community Policy on Public Procurement in the Light of the Commission's Green Paper" 3 European Public Law (1997), 389.
25. The empirical research commissioned on this subject had, as part of the Commission's general single market review, revealed that, whilst savings had been achieved as a result of the directives in some specific products areas, notably medical equipment, buses and office machinery, in most sectors they had as yet had no impact: see European Commission, The Single Market Review, sub-series III: Dismantling of Barriers, Vol.II, Public Procurement (1997). The results are summarized in a Commission Communication to the European Parliament and the Council on "The Impact and Effectiveness of the Single Market" COM (96) 520 final, pp. 16-17; and see also Gordon, Rimmer and Arrowsmith, "The economic impact of the European Union regime on public procurement: Lessons for the WTO" (1998) The World Economy, 159. The limited impact of the procurement regime has been due both to a low level of compliance with the directives (an issue discussed further in Section 4 infra) and structural market obstacles, such as non-competitive behaviour on the supply side (in particular pricing to national markets), and the existence of incompatible technical standards for some products. Nevertheless, it was assumed in the Green Paper that the existing legal framework should be maintained, since the potential for savings exist, as has been shown in some limited fields. On this issue of whether the present regulatory approach is correct in principle see Arrowsmith, "The Way Forward or a Wrong Turning? An Assessment of European Community Policy on Public Procurement in the Light of the Commission's Green Paper" 3 European Public Law (1997), 389.
26. Arrowsmith, op. cit. supra note 8, 389.
27. European Commission, "Green Paper on Public Procurement: Summary of the Main Topics Raised in the Contributions".
28. See further Arrowsmith, note 8, supra.
29. COM (98) 143.
30. The importance of the consultation process is highlighted in European Parliament Resolution on "The communication from the Commission on Public Procurement in the European Union" (draft), para 1.
31. There remains, however, the possibility that legislative changes could be delayed or even fail because of opposition from the European Parliament, since any amendments will be subject to the co-decision procedure. The Parliament's priorities as identified in its resolution on "The communication from the Commission on Public Procurement in the European Union" are a little different from those of the Council. The Parliament has welcomed one of the main proposals, the creation of the new competitive dialogue procedure, but, whilst not opposed to the suggestions, it takes a cautious approach to suggestions of extending the possibility of framework purchasing and of exempting from the directives utilities operating in competitive markets.
32. European Parliament Resolution of 9 Oct. 1997 on "The Commission Green Paper on public procurement in the European Union: exploring the way forward" at 13-15, 31 and 34.
33. See note 5, supra.
34. For an examination of the extent of permitted discussions see Arrowsmith, "The Problem of Discussion with Tenderers under the EC Procurement Directives: The Current Law and the Case for Reform", 7 Public Procurement Law Review (1998), 65.
35. For a fuller explanation of the problem see Arrowsmith, note 17, supra.
36. Art. 6 of Directive 93/36/EEC.; Art. 7 of Directive 93/37/EEC.; Art. 11 of Directive 92/50/EEC.
37. Communication at 2.1.2.2.
38. Arrowsmith, supra note 17.
39. Communication at 2.1.2.2. (boxed text)
40. Communication at 2.1.2.2. (boxed text).
41. See e.g. Case 199/85, Commission v. Italy, [1987] ECR 1039; Case C-71/92, Commission v. Spain, [1993] ECR I-5923; Case C-328/92, Commission v. Spain, [1994] ECR 1-1569; Case C-57/94, Commission v. Italy, [1995] ECR I-1249; Case C-318/94, Commission v. Germany, [1996] ECR I-1949. None of these cases have concerned the competitive version of the negotiated procedure but since both versions of the procedure are dealt with in the same derogation provisions it is generally assumed that the Court's reasoning will apply to the competitive version also.
42. For an explanation of the rules applicable in negotiated procedures see Arrowsmith, op. cit. supra note 2, pp. 269-279.
43. Case C-243/89, Commission v. Denmark, [1993] ECR I-3353 (Storebaelt); Case C-87/94, Commission v. Belgium, [1996] ECR I-2043. The principle of equal treatment is now stated expressly in all the procedural directives: see Art. 5(7) of Directive 93/36/EEC.; Art. 6(6) of Directive 93/37/EEC.; Art. 3(2) of Directive 92/50/EEC.; Art. 4(2) of Directive 93/38/EEC.
44. Note 26, supra. The principle of equality was also applied in Storebaelt, note 26, supra.
45. This was based on the fact that in both respects other bidders had not been given a similar opportunity; the Court left open the question of whether in an open procedure it is permitted to allow alterations to bids provided that all bidders are given an equal opportunity in this respect, which clearly would be allowed in an open procedure, at least where bidders are notified of the possibility in advance. On this issue see Statement of the Council and Commission concerning "Article 7(4) of the Public Works Directive 93/37/EEC.", O.J. 1994, L 111/114. The same rules will clearly apply to the Supply and Services Directives which are identical in relevant respects. The Statement was cited with approval by A.G. Tesauro in Case C-243/89, Commission v. Denmark, [1993] ECR I-3353. For discussion see Kruger, "The Scope for Post-Tender Negotiations in International Tendering Procedures", chapt. 10 in Arrowsmith and Davies (Eds.), Public Procurement: Global Revolution (1998).
46. This appears to be permitted since the directives only require negotiation with three or more bidders; they do not require that all participants should be invited to submit final offers.
47. Communication at 2.1.2.2. (boxed text).
48. This seems obvious from the fact that it is not mainly framework contracts but non-contractual framework arrangements which currently cause practical problems; and officials from the Commission have confirmed this with the author.
49. The directives only apply to contracts for consideration: A framework contract is probably a contract for consideration either where there is a commitment to some specific quantities or where there is a commitment to order all or part of a requirement from a particular source if the requirement should arise. An agreement under which the provider is bound to supply but the purchaser not bound to order is probably not a contract for consideration and is to be treated in the same way as non-contractual framework agreements.
50. The legal definition given in Art. 1(5) of the Utilities Directive is set out below.
51. Art. 1(5), Art. 5(2) and Art. 20(2)(i) of Utilities Directive 93/38/EEC.
52. Under Art. 20(2)(h) of Directive 93/38/EEC, there is an exception to the call for competition for purchases on commodity markets which might apply in some of these cases, but no parallel provision is found in the other directives.
53. A binding framework contract could eliminate this problem but also eliminates flexibility to go elsewhere if the market conditions change so that the framework no longer offers favourable terms.
54. Communication at 2.1.2.3.
55. Art. 5(4) of Directive 93/38/EEC.
56. This requirement forms part of the definition of framework agreement under Art. 1(5) of the Directive.
57. For further discussion of both legal and practical issues see Haagsma, "Information and Communication Technology Issues in International Public Procurement", chapt. 9 in Arrowsmith and Davies (Eds.), op. cit. supra note 28.
58. Communication at 3.2.2. This figure is intended to refer to number rather than value of transactions and includes transactions falling below the directives' thresholds, as it is in fact in relation to standard low value transactions that electronic procurement may offer the greatest savings. It is acknowledged by Commission officials that this target does not envisage electronic payment in all these transactions as the technology for this is unlikely to be in place by the target date.
59. Système d'information pour les marchés publics.
60. See generally Section 3.2. of the Communication.
61. See Section 3.2.1 of the Communication.
62. The system referred to is to be found at http://simap.eu.int. Notices submitted in this way are published the following day and users receive confirmation of submission by E-mail.
63. These last two are also found on the Internet site referred to in note 45 supra.
64. Communication at 3.2.1.
65. Communication at 3.2.3.
66. Art. 15 of Directive9 3/36/EEC. as amended by Art. 2(5) of Directive 97/52/EC.; Art. 18 of Directive 93/37/EEC. as amended by Art. 3(5) of Directive 97/52/EC.; Art. 23 of Directive 92/50/EEC. as amended by Art. 1(6) of Directive 97/52/EC.
67. Art. 11(2) of Directive 93/36/EEC.; Art. 13(2) of Directive 93/37/EEC.; Art. 19(2) of Directive 92/50/EEC.
68. Communication at 2.2.2
69. See further Street, "The Common Procurement Vocabulary (CPV): Development of the Community Nomenclature" 4 Public Procurement Law Review (1995), CS 86; Laudal, "Advantages of a Common Product Nomenclature in Public Procurement" 4 Public Procurement Law Review (1995), CS 112.
70. See further Street, "The Common Procurement Vocabulary (CPV): Development of the Community Nomenclature" 4 Public Procurement Law Review (1995), CS 86; Laudal, "Advantages of a Common Product Nomenclature in Public Procurement" 4 Public Procurement Law Review (1995), CS 112.
71. See O.J. 1996, C 255/8.
72. For an overview see Treasury Taskforce, Partnerships for Prosperity: the Private Finance Initiative (1998).
73. See the Commission Communication on "Public-Private Partnerships in Trans-European Network Projects", COM (97) 453 final. This paper envisaged some of the suggestions in this field set out in the public procurement Communication.
74. See Art. 1(d), Art. 11(3) and Art. 15 of Directive 93/37/EEC. There are also limited rules applying to works concessionaires themselves. As an express provision on services concessions was removed from the original draft of directive 92/50/EEC. it is generally considered that these are not regulated at all, a view confirmed by A. G. Pergola, Opinion of 19 Feb. 1998 in Case C-360/96, BFI Holding v. Arnhem, paras. 25-27, judgment of 10 Nov. 1998, nyr.
75. Communication at 2.1.2.4.
76. Communication at 2.1.2.4 (boxed text)
77. For a discussion of these problems see Priess, "Privatisation and the EC Public Procurement Rules" 7 Public Procurement Law Review (1998), 1; Arrowsmith, "Some Problems in Delimiting the Scope of the Public Procurement Directives: Privatisations, Purchasing Consortia and In-house Tenders" 6 Public Procurement Law Review (1997), 198.
78. For a discussion of these problems see Priess, "Privatisation and the EC Public Procurement Rules" 7 Public Procurement Law Review (1998), 1; Arrowsmith, "Some Problems in Delimiting the Scope of the Public Procurement Directives: Privatisations, Purchasing Consortia and In-house Tenders" 6 Public Procurement Law Review (1997), 198.
79. Communication at 2.1.2.4. (boxed text)
80. Communication at 2.1.2.1.
81. Green Paper, para 31.
82. Referred to in the directives as "contracting authorities". These are defined as covering the State, regional and local authorities, and bodies governed by public law. The last concept is further defined to cover, in essence, a body financed, appointed or controlled mainly by other contracting authorities, provided that it is established to meet needs in the general interest not of an industrial or commercial character (as to which last condition see the decisions of the ECJ in Case C-44/96, Mannesmann Anlagenbau Austria v. Strohal Rotationsdruck, [1998] ECR I-73, annotated by Bovis, in this Review at 205-225; and Case C-360/96, BFI Holding v. Arnhem, cited supra note 56 in which the Court ruled that a need would not necessarily be of a commercial or industrial charactar just because its provision was subject to competition, although this was a relevant factor; and Case C-306/97, Connemara Machine Turf v. Coillte Teoranta and Case C-353/96, Commission v. Ireland, judgments of 17 Dec. 1998, nyr, in which this condition was discussed by the A.G. although not by the Court (which based its judgment on a provision which has now been repealed)). The directives also impose obligations on private entities awarding certain specific works and services contracts which are financed mainly by contracting authorities, and impose some limited obligations on private firms holding works concessions and private holders of services concessions. (On these see Arrowsmith, op. cit. supra note 2, chapt. 8).
83. The covered entities are set out in Art. 2(1) of Directive 93/38/EEC.
84. The rules contained in the current Directive were first applied to works and supply contract of utilities in 1991 by Directive 90/531/EEC. O.J. 1990, L 297/1. The current Directive was introduced to extend the regime to services contracts, and also consolidates the works and supply rules with the services rules in a single directive.
85. Case C-392/93, The Queen v. HM Treasury ex parte British Telecommunications plc, [1996] ECR I-1631.
86. Para 33 of the judgment.
87. Para 34 of the judgment.
88. Art. 8(2) of Directive 93/38.
89. Directive 94/50/EEC. on "Hydrocarbons Licensing ", O.J. 1994, L 164/3.
90. For discussion of what this might require see Maund, "The Derogation for the Oil and Gas Sector under Article 3 of the Utilities Directive", 6 Public Procurement Law Review (1997), 227.
91. This assumption appears to underlie the perceived need for exemptions in specific sectors as outlined below, even if the exemptions would not be entirely redundant without such an assumption since they could still apply to public authorities and public undertakings. Case C-392/93, British Telecommunications cited supra note 66, I-1631.
92. Case C-302/94, R v. Secretary of State for Trade and Industry ex parte British Telecommunications plc, [1996] ECR I-6417.
93. Directive 92/44/EEC, O.J. 1992, L 165/27.
94. See para 34 of the judgment which makes no mention of a condition that licences need to be unrestricted in number.
95. For a discussion of the textual and contextual differences between Directive 92/44/EEC. and Directive 93/38/EEC. which may be relevant to this question see further Arrowsmith, "Deregulation of Utilities Procurement in the Changing Economy: Towards a Principled Approach?" 18 ECLR (1997), 420 at 424.
96. Section 2.1.2.1. of the Communication.
97. Under Directive 90/388/EEC as amended by Directive 96/19/EC. A Commission Decision set a date of 1 July 1998 for Luxembourg and Decisions have also granted extended implementation periods for Greece (31 Dec. 2000), Ireland (1 Jan. 2000), Spain (1 Dec. 1998) and Portugal (1 Jan. 2000).
98. Communication at 2.1.2.1.
99. Commission Notice to Contracting Entities in the Telecommunications Sector, O.J. 1998, C 273/12.
100. Section 2.1.2.1 of the Communication. That amending legislation is envisaged to this end is indicated by the fact that Section 2 of the Communication deals generally with legislative amendments. The timetable states that this will be done in 1998 but the timetable has already slipped.
101. For example, it is difficult to develop strategic alliances with critical suppliers which extend beyond the lifetime of a contract, or for the European operations of global firms to use the firms' more general sourcing arrangements which have not been tendered under the directives.
102. These issues have been considered by the author in an article pre-dating the Communication, in which the need for reform and the available options were examined more fully: see Arrowsmith, op. cit. supra note 76.
103. This objection could, however, be overcome to a large extent by providing for the Commission to authorize exemptions for specific sectors.
104. Commission, The Single Market Review; Sub-series III: Dismantling of Barriers; Volume 2, Public Procurement (1997), at 17.1.
105. This observation is based on the author's discussions with a number of purchasers in major oil companies in the UK and Norway. Of particular concern is the question of whether "competitive" procurement demands a competition for each individual contract, so precluding the possibility of building up long term "partnering" relationships with suppliers.
106. See Arts. 3-7 of Directive 92/13/EEC. and standard EN 45503. See Gjonnes, "Attestation for Conformity with the EC Procurement Rules for Utilities B advantages and disadvantages", in Gormley (Ed.), Gordian Knots in Public Procurement Law (1997), 23; Maund, "The New Attestation Standard" 5 Public Procurement Law Review (1996), CS 38; Duffy, "Establishment of an Attestation System in Ireland" 6 Public Procurement Law Review (1997), 26.
107. See Arts. 3-7 of Directive 92/13/EEC. and standard EN 45503. See Gjonnes, "Attestation for Conformity with the EC Procurement Rules for Utilities B advantages and disadvantages", in Gormley (Ed.), Gordian Knots in Public Procurement Law (1997), 23; Maund, "The New Attestation Standard" 5 Public Procurement Law Review (1996), CS 38; Duffy, "Establishment of an Attestation System in Ireland" 6 Public Procurement Law Review (1997), 26.
108. See Arts. 3-7 of Directive 92/13/EEC. and standard EN 45503. See Gjonnes, "Attestation for Conformity with the EC Procurement Rules for Utilities B advantages and disadvantages", in Gormley (Ed.), Gordian Knots in Public Procurement Law (1997), 23; Maund, "The New Attestation Standard" 5 Public Procurement Law Review (1996), CS 38; Duffy, "Establishment of an Attestation System in Ireland" 6 Public Procurement Law Review (1997), 26.
109. Communication at 2.2.5.
110. See Directive 89/665/EEC. O.J. 1989, L 395/33 as amended by Directive 92/50/EEC. and Directive 92/13/EEC. O.J. 1992, L 76/7.
111. In the utilities sector, States may, however, choose alternative methods of securing compliance, rather than using interim measures and set asides. There is an extensive literature on these directives. For an overview of both the directives and national implementation see Arrowsmith (Ed.), Remedies for Enforcing the Public Procurement Rules (1993) and Tyrell and Bedford (Eds.), Public Procurement in Europe: Enforcement and Remedies (1997) (although note that even the latter is now a little outdated so far as some national systems are concerned). In the light of subsequent decisions of the ECJ, the directives' requirements may have added little to existing Community law requirements on national remedies based on the principles of effectiveness and non-discrimination. Nevertheless, they have a valuable role, in particular by prompting most Member States to set up specific redress systems in this area, and by making suppliers more aware of their rights under Community law.
112. In the utilities sector, States may, however, choose alternative methods of securing compliance, rather than using interim measures and set asides. There is an extensive literature on these directives. For an overview of both the directives and national implementation see Arrowsmith (Ed.), Remedies for Enforcing the Public Procurement Rules (1993) and Tyrell and Bedford (Eds.), Public Procurement in Europe: Enforcement and Remedies (1997) (although note that even the latter is now a little outdated so far as some national systems are concerned). In the light of subsequent decisions of the ECJ, the directives' requirements may have added little to existing Community law requirements on national remedies based on the principles of effectiveness and non-discrimination. Nevertheless, they have a valuable role, in particular by prompting most Member States to set up specific redress systems in this area, and by making suppliers more aware of their rights under Community law.
113. On this possibility in procurement see Arrowsmith, pp. 920-936; Fernández Martín, "The European Commission's Centralised Enforcement of Public Procurement Rules: a Critical View" 2 Public Procurement Law Review (1993), 40.
114. European Commission, The Single Market Review; Sub-series III: Dismantling of Barriers; Volume 2, Public Procurement (1997) . A similar level of non-publication was found in a survey of Dutch municipalities: see Telgen and de Boer, "Experiences with the EC Directives on Public Procurement: A Survey of Dutch Municipalities" 6 Public Procurement Law Review (1997), 92. Obviously, the extent of publication of notices is the most easily measured aspect of compliance, and the most significant since when this is not done the directives are generally not being followed at all. The Single Market Review also found evidence of non-compliance with other aspects of the rules in those cases where notices were published (see pp. 326-329), and the Green Paper indicates other areas where the experience of the Commission has shown frequent non-compliance (such as excessive use of the accelerated procedures, and application of unlawful award criteria: see Green Paper at 3.2.).
115. European Commission, The Single Market Review; Sub-series III: Dismantling of Barriers; Volume 2, Public Procurement (1997) . A similar level of non-publication was found in a survey of Dutch municipalities: see Telgen and de Boer, "Experiences with the EC Directives on Public Procurement: A Survey of Dutch Municipalities" 6 Public Procurement Law Review (1997), 92. Obviously, the extent of publication of notices is the most easily measured aspect of compliance, and the most significant since when this is not done the directives are generally not being followed at all. The Single Market Review also found evidence of non-compliance with other aspects of the rules in those cases where notices were published (see pp. 326-329), and the Green Paper indicates other areas where the experience of the Commission has shown frequent non-compliance (such as excessive use of the accelerated procedures, and application of unlawful award criteria: see Green Paper at 3.2.).
116. Green Paper at 3.34.
117. Communication at 2.2.1.
118. Green Paper at 3.36.
119. On enforcement see chapter 3 Section IV of the Green Paper.
120. Green Paper at 3.37. and 3.38.
121. This is implied at 3.38 in the Commission's invitation to consultees to comment on the effectiveness of remedies.
122. Green Paper at 3.39-3.41.
123. O.J. 1962, 204.
124. See, in particular, the approach of the ECJ in Case C-87/94R, Commission v. Belgium, [1994] ECR I-1395.
125. Green Paper at 3.42-3.45.
126. On national implementation see the works cited in note 90 supra; and for a critical analysis of implementation see Arrowsmith, "Public Procurement: Example of a Developed Field of National Remedies Established by Community Law", in Micklitz and Reich (Eds.) Public Interest Litigation before European Courts, p. 125.
127. The author is currently undertaking a project to examine the use and threatened use of legal remedies in public procurement, which will explore the factors which influence suppliers' behaviour in this respect, and also the practical response of procuring entities. The practical effectiveness of a number of national remedies systems is also to be subject to evaluation as part of a pilot project in enforcement which has just been launched, and which is discussed further below.
128. It is not possible in this article to explain the details of these national remedies systems: information on these States is found in the works cited in notes 90 and 102 supra. Changes are reported in the Current Survey section of the Public Procurement Law Review.
129. Of course, this may be because cases are settled out of court.
130. Anecdotal evidence does, however, suggest to the author that the culture of different States may to some extent explain the differences in litigation patterns and may make a national remedies system less effective in some States than others. This is one hypothesis which will be explored further in the research referred to in note 103 supra. 108. Under Art. 2(6) of Directive 89/665/EEC. it is expressly contemplated that Member States may decline to set aside concluded contracts if they wish to do so.
131. If specific intervention is not possible, then there will effectively be no remedy where suppliers have incurred no costs and cannot show a reasonable chance of winning a contract, since damages will not be available in practice. Such a situation generally exists when the violation of the rules lies in a failure to advertise the contract at all, or failure to use a competitive award procedure.
132. Case C-236/95, Commission v. Greece, [1996] ECR I-4459; Case C-433/93, Commission v. Germany, [1995] ECR I-2303.
133. European Commission, The Single Market Review; Sub-series III: Dismantling of Barriers; Volume 2, Public Procurement (1997), p. 147.
134. This issue is dealt with in the Communication at 2.2.3.
135. See Danish Competition Authority, Pilot Project on Public Procurement of 10 Sept. 1998.
136. See Arrowsmith, op. cit. supra note 2, chs. 12-14 and the works cited there. In general adequate guidance has not been provided by the government: see the work referred to in note 102 supra. The CCT regime is shortly to be abolished but will be replaced by new (less prescriptive) rules.
137. In the meantime, with a view to resolving some issues before this phase of the pilot project begins, the problem is being investigated by a working group composed of members of DGXV, Eurostat, the National Statistical Offices and members of the States participating in the pilot project.
138. Communication at 2.2.2.
139. Green Paper at 3.42.
140. Communication at 2.2.2.
141. For further detail see Arrowsmith, "Public Procurement as a Tool of Policy and the Impact of Market Liberalisation", 111 Law Quarterly Review (1995), 235; Kunzlik, "Environmental Issues in International Procurement", chapt. 11 in Arrowsmith and Davies (Eds.), op. cit. supra note 28; McCrudden, "Social Policy Issues in Public Procurement: a Legal Overview", chapt. 12 in Arrowsmith and Davies, id.
142. For further detail see Arrowsmith, "Public Procurement as a Tool of Policy and the Impact of Market Liberalisation", 111 Law Quarterly Review (1995), 235; Kunzlik, "Environmental Issues in International Procurement", chapt. 11 in Arrowsmith and Davies (Eds.), op. cit. supra note 28; McCrudden, "Social Policy Issues in Public Procurement: a Legal Overview", chapt. 12 in Arrowsmith and Davies, id.
143. For further detail see Arrowsmith, "Public Procurement as a Tool of Policy and the Impact of Market Liberalisation", 111 Law Quarterly Review (1995), 235; Kunzlik, "Environmental Issues in International Procurement", chapt. 11 in Arrowsmith and Davies (Eds.), op. cit. supra note 28; McCrudden, "Social Policy Issues in Public Procurement: a Legal Overview", chapt. 12 in Arrowsmith and Davies, id.
144. For further detail see Arrowsmith, "Public Procurement as a Tool of Policy and the Impact of Market Liberalisation", 111 Law Quarterly Review (1995), 235; Kunzlik, "Environmental Issues in International Procurement", chapt. 11 in Arrowsmith and Davies (Eds.), op. cit. supra note 28; McCrudden, "Social Policy Issues in Public Procurement: a Legal Overview", chapt. 12 in Arrowsmith and Davies, id.
145. Green Paper at 5.43.
146. Green Paper at 5.43; Case 31/87, Gebroeders Beentjes v. Netherlands, [1988] ECR 4635 (on qualification); Case C-360/89, Commission v. Italy, [1992] ECR I-3401.
147. Art. 20 of Directive 93/36/EEC.; Art. 24 of Directive 93/37/EEC.; Art. 24 of Directive 92/50/EEC.; Art. 31(2) of Directive 93/38/EEC.
148. Beentjes, supra; Green Paper at 5.4.2; and Communication at 4.3 and 4.4.
149. The Court stated that it did not relate to technical capacity. Clearly it did not concern financial standing or any of the other express grounds for exclusion given in the directive. The judgment is generally considered, including by the Commission as stated above, to reflect the view stated by the A.G. in the case that the criteria listed in the Directive are exhaustive and thus that exclusion on the basis of social or environmental criteria is not generally permitted, although the judgment itself is not in fact explicit on this point.
150. A list of evidence which can be demanded is given in Art. 23 of Directive 93/36/EEC.; Art. 27 of Directive 93/37/EEC.; Art. 32 of Directive 92/50/EEC. The ECJ has ruled that in general this list is exhaustive: Case 76/81, SA Transporoute v. Minister of Public Works, [1982] ECR 471; Joined Cases 27-29/86, CEI and Bellini, [1987] ECR 3347. Of the listed matters only evidence of performance of certain past contracts is important for assessing whether the firm is likely to comply with social and environmental legislation.
151. This interpretation is endorsed by the Commission: see the Green Paper at 5.49 and the Communication at 4.3.
152. Art. 30(2) and Art. 31 (1) of Directive 93/38/EEC.
153. Green Paper at 5.44 and 5.53.
154. See the Communication at 4.3 and 4.4.
155. This can be deduced from the tenor of Sections 4.3 and 4.4 and, more specifically from (i) the summary of the existing position as given in these paragraphs, (ii) the reference in Section 4.3 to the fact that "the object of public procurement remains essentially economic" and (iii) the statement in 4.3 that "the Commission cannot, however, propose solutions in an interpretative document which go beyond the existing public procurement regime", which may imply a reluctance to recommend action beyond that already perceived as lawful under the directives.
156. Executive Summary of the Fifth Environmental Action Programme, O.J. 1993, C 138/11, para 4.
157. In a previous article, cited in note 119 supra, the author argued that the directives should be less restrictive in this area, but her experience of the practical operation of these policies since that time has led her to conclude that a more refined approach is required.
158. There are a number of reasons why public procurement may be the optimum policy tool for supporting particular policies, including, for example, because it offers an opportunity for close cooperation with "regulated" firms or because of the persuasive force of governmental example; and procurement may also be used in conjunction with other policies. It may also be chosen, however, because unlike other methods of policy implementation legislative approval may not be needed and/or because for reasons of political economy there is less resistance to this method.
159. Communication at 4.3 and 4.4.
160. Communication at 4.3.