Brussels, 30/11/2010 (Agence Europe) - In an interview with this newsletter last week, EU Internal Market Commissioner Michel Barnier said: “I observe unacceptable imbalances. Japan has only opened 25% of its public contracts to European companies, but the EU has opened 75%. Europeans only have access to public contracts in half of the states in the US federal system, but Americans have access to all EU member states. This is not right”. In order to rectify these imbalances, he has announced plans to give the EU “reciprocity tools” with draft legislation in 2011 to properly implement the Government Procurement Agreement (GPA) that is currently being negotiated by the World Trade Organisations. Transposing the agreement using an EU regulation would give European adjudicating authorities the power to override and restrict access, where necessary, to their public contracts to companies from non-EU countries that have signed up to the AMP. We are still being “open”, explained Barnier, but the time of being “naïve” is over. He called for China and India to join the thirty countries negotiating the GPA.
In its new trade strategy and policy to revitalise the internal market (see EUROPE 10250 and 10245), the Commission announced draft legislation in 2011 to ensure a matching of access for companies from outside the EU to public tenders in European countries. European industry has slammed unfair competition from Chinese companies that have won public contracts in Europe (see EUROPE 10070).
Contracts for services Michel Barnier discussed the Commission's aim to harmonise the granting of services contracts at EU level: “I think that objectively there is a need for regulation for this type of contract of a certain size in order to ensure more transparent information and also greater legal certainty.” He said it had been “clearly decided” in the European Parliament's Rühle Report to submit draft legislation that provides value-added. The commissioner said that reluctance towards such an idea from local authorities and public companies is mainly due to their fear of services like social services and healthcare being covered by over-complicated legislation. “We are prepared to discuss the thresholds below which the old rules will remain in place”, he explained.
Services contracts are different from normal contracts in that the contracting authority gives a company the right to run a tangible project (like a toll-road, bridge or tunnel) or a service (like public transport) commercially. Contracts for tangible projects are covered by EU rules, but services contracts are currently only covered by the general stipulations set out in the EU Treaty.
The commissioner explained that he would be holding a public consultation exercise next year on the review of the public tender directives that have been in force since 2006. The aims of the review include simplifying the contract-granting procedures, cutting red tape for local communities and helping small business gain access to public contracts. “Another concern of mine is to use public contracts to achieve the EU's big policy objectives of protecting the environment, social inclusion and innovation. We would like to encourage the adjudicating authorities to achieve these objectives without creating an uneven playing field by allowing them to use special clauses over and above what is already possible”, added Barnier. An EU guide to social considerations when granting public contracts will be published later this year.
e-commerce. Opening a public hearing in Brussels last week on putting public contracts online, Barnier set out a number of ways that Brussels can encourage e-commerce for public tenders. “We could even give member states the explicit option of making electronic public procurement compulsory, as was done in Portugal in 2009”, he suggested, raising the question of making various electronic signature formalities less onerous. He also recommended greater use of certified electronic procedures by relaxing the obligations on civil services making use of them.
In October 2010, the Commission published a Green Paper on electronic public procurement at the start of a public consultation period that will run until 31 January 2011 (see EUROPE 10238). The Commission calculates that reasonable savings could be expected from 5% of total state purchasing in Europe going online (5% of public tenders in Europe being the equivalent of 17% of EU GDP), but despite the convincing results obtained by the civil services leading the way in this domain, transition to totally electronic procedures is proceedings more slowly than expected, admitted Barnier. He said that obstacles to transition include the cost of investing in the technology that would be needed and the lack of interoperability of existing applications. (M.B./transl.fl)