Local view for "http://purl.org/linkedpolitics/eu/plenary/2003-06-30-Speech-1-070"
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"en.20030630.10.1-070"2
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". Mr President, I am happy that these two issues have now entered their second reading, as a quick but thorough examination is necessary to avoid the dangers of the proposals not being adopted before the end of this legislature.
In respect of social award criteria, we should also keep in mind that the common positions already clarify that such criteria may be used where they meet the same conditions as environmental award criteria. However, these amendments to the utilities directive would permit social award criteria to be used to meet social policy objectives concerning the behaviour or the social responsibility of the tenderer, rather than the intrinsic qualities of the product or service in question. This could lead to the award of contracts on the basis of considerations which have nothing to do with the principal of better value for money.
On the amendments aimed at favouring small and medium enterprises, I should like to stress that information available to us does not show that SMEs currently encounter any major difficulty in gaining access to public tenders. Their European federation even told us that they would not support any positive discrimination in favour of SMEs vis-à-vis big enterprises.
In general, we should all be careful not to introduce changes which might
lead to national preferences which are incompatible with Community law and which might end up protecting economic interests.
Let me draw the attention of Parliament to the sensitive issue of thresholds, which may be the one where our divergence of views may be very hard to reconcile. My aim is to ensure effective competition at European level. If we increase the thresholds, not only would we breach our international obligations, but we would also reduce efficiencies. If we raise the thresholds we do not necessarily simplify life for local authorities, which are in any case subject to an obligation of adequate publicity under the current case-law of the European Court of Justice. That is why the Commission cannot accept those amendments.
In line with the interinstitutional agreement on better regulation we have recently reached, we all share the three objectives on modernising, simplifying and increasing the flexibility of the current rules. It is in this spirit that I have some reluctance in accepting some further amendments relating to different subjects such as e-auctions, framework agreements, dynamic purchasing systems, the competitive dialogue and the choice between separate or joint awarding of contracts for design and execution of works contracts. In fact, I fear that these amendments would multiply or complicate procedures unnecessarily or impose certain choices at Community level where the necessary flexibility could be better assured by making such choices possible at the national level.
I should now like to say something on some central issues specific to the utilities directive. Concerning the amendments to the mechanism for exempting contracting entities from the directive – Article 30 of the common position – let me stress that the common position is based on two principles, legal certainty and real, effective liberalisation. The Commission is therefore of the opinion that the presence of genuine competition should be established by a known procedure. Otherwise, neither contracting entities nor interested suppliers would be sure of their legal position.
The Commission is also opposed to other initiatives regarding specific sectors, which would permit exclusion on the basis of free access alone, irrespective of whether or not this results in effective and real competition. For essentially the same reasons, the Commission cannot accept the proposed changes concerning postal services.
Finally, concerning the 'intra-group' exception of Article 23, the Commission already made it clear that it has major difficulties in accepting the extension of this exclusion to works and supply contracts. It does not however, want to make the directive less flexible than it already is. For that reason, the Commission can accept the fact that the extension to works and supplies contracts should be eliminated, but not that contracting entities should be deprived of the existing flexibility for services.
In concluding I repeat that I am confident that by focusing on our main common goals to modernise, simplify and ensure an effective use of public money, we can provide a happy ending to the long saga of this reform to public procurement rules. This result is impatiently awaited by European enterprises, public authorities and contracting entities. It will be of great benefit to the European economy as a whole.
Finally, may I point out that the Commission's opinion on the individual amendments has been provided in writing.
Our common task and aim is to modernise and simplify public procurement rules and in this respect I believe that the texts agreed upon in Council already strike a fair balance among the different interests at stake. Indeed, although there are a few issues that the Commission considers less than ideal, overall these common positions clearly represent an advance compared to the current legislation.
When I look at the substance of most of the amendments tabled to date by Parliament I feel even more convinced of what I said just now. I am therefore fairly optimistic that the vote due to take place later this week will preserve our chances of closing this file in a way that is satisfactory to all three institutions, indeed, in my view quite a number of amendments are already incorporated in one form or another in the common positions. I refer for example to the social aspects – other than social award criteria – where I understand that the main concern of this Parliament is to clarify that both contracting authorities and bidders respect the obligations laid down in social legislation. That concern was also explicitly debated with Council. It is therefore in my view appropriately reflected in the recitals of the current text.
I am ready to accept that it should be mandatory for contracting authorities and entities to indicate where information on the applicable social, fiscal and environmental obligations may be obtained. Equally, with some redrafting, the Commission could accept Amendment No 29 to the public sector – or classic – directive and Amendment No 26 to the utilities directive, which emphasise certain possibilities which already exist in the social field.
As for the environmental aspects and in general on the issue of award criteria, the amendments which Parliament has tabled clearly show some differing views. I am ready, as always, to debate further this interesting issue with Parliament through answers to questions, though in respect of the real aim of public procurement rules, as interpreted and confirmed by the European Court of Justice. Indeed, I have no doubt that we all agree that our priority is to make public procurement rules a simplified tool for public bodies to spend taxpayers' money as well as possible.
These differences of views have often meant that conflicting amendments have been adopted in the Committee on Legal Affairs and the Internal Market which, if accepted, would make legislation incoherent. We should perhaps all keep in mind our common stated goal of 'better regulation'.
This inconsistency is well illustrated by the amendments to the utilities directive concerning award criteria. Let us start by looking at how the common positions deal with this issue. In full accordance with the current state of jurisprudence, the common positions already clarify that environmental characteristics may be used as award criteria and that it is not necessary to show that each and every award criterion taking individually provides an economic benefit for the contracting authorities or entities.
It is sufficient that, taken as a whole, the award criteria meet their proper function: to allow an objective evaluation and comparison of the intrinsic qualities of the product or service and the award of the contract to the most economically advantageous tender.
It is, therefore, with some concern that I see amendments to the utilities directive that would go well beyond this. The effect of such amendments would be to allow vague, immeasurable elements, for the benefit of civil society in the broadest sense, to be used as award criteria. That would not only prevent award criteria from playing their proper role, but also introduce an unacceptable degree of arbitrary choice, or perhaps even discrimination to the detriment of potential contractors."@en1
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