Brussels, 17/10/2002 (Agence Europe) - The European Commission has sent France a reasoned opinion asking it to amend its public procurement code adopted by decree in March 2001. It had already sent France a warning in March, but the French authorities dispute the Commission's interpretation of the 1992 and 1993 "public procurement" directives.
The main complaints are as follows: 1) non-discrimination and transparency: the Commission considers that France must respect the principles of non-discrimination and transparency stemming from the Treaty, even for contracts below the thresholds defined by the "public procurement" directive; 2) loans and financial commitments: the public procurement directives do not apply to some loan contracts subject to the "issue, sale, purchase or transfer of securities or other financial instruments", but, according to the Commission, "loan contracts without the issue of securities and not contracted with central banks" cannot be excluded from the rules of tender of the "Public Procurement" directives: 3) appointment contracts: the Commission considers that, when appointment contracts are concluded between public authorities in France and those responsible for undertaking specific tasks risk in fact being remunerated and recategorised as public works, supply or service contracts in accordance with the Community directive, they must comply with the obligations contained in the latter; 4) thresholds: the French public procurement code sets a uniform threshold of EUR 200,000 below which European obligations of advertising and putting out to tender do not apply. For the Commission, this threshold does not comply with the directive, that sets a threshold at EUR 130,000 excluding tax for central government authorities and EUR 200,000 for other awarding authorities; 5) negotiated procedures: according to the Commission, the French code allows for a contract to be awarded without calls for tender or prior publicity (negotiated procedure) in two cases where it is not authorised by the directives: if a contractor fails to comply with his contractual obligations and must be replaced, and in the case of supplementary contracts following an initial works supervision contract; 6) evidence of the tenderers' compliance with the law: the Commission accuses France allowing tenderers of third (non-EU) countries to provide evidence of their lawful compliance with obligations with regard to tax and social contributions by alternative means (like sworn statements), while refusing companies established in other Member states this same option; 7) minimum number of participants in restricted procedures: France is said not to respect the directives' provisions that provide for there having to be at least five participants in restricted procedures; 8) prior information and variants: according to the Commission, France does not comply with the conditions laid down in the directive to be able to shorten the time between publication of a notice and the receipt of bids.