Brussels, 24/04/2006 (Agence Europe) - On 21 April, the European Parliament's Internal Market and Consumer Protection Committee organised a hearing on the functioning and effectiveness of public procurement directives. Various experts and local authority representatives addressed the three meetings on cooperation among local authorities and the implementation of public procurement rules; internal public procurement procedures (the 'Teckal criteria'); and implementation, appeals, thresholds and public private partnerships (PPPs).
Bertrand Carsin, Director at DG Internal Market at the European Commission, outlined recent Commission initiatives on public procurement and explained that an impact study would be completed next year on PPPs, as requested by several stakeholders wanting clarification of the matter. On other work being carried out at the European Commission, Carsin said it was also in the process of finalising an explanatory report to help adjudicating authorities in cases where public procurement contracts are not subject to existing EU legislation, to provide them with 'good practice'. The Austrian Presidency, represented by Michael Fruhmann of the Budeskanzeramt Verfassungsdient said that public procurement procedures were extremely complex and detailed rules were required in this field. He said the new public procurement directives were the outcome of tough negotiations and compromises among the various players and did not always provide sufficient legal security. Fruhmann said the situation surrounding cooperation among local authorities was pretty vague, because Member States' views on the matter were not very clear and there was not enough respect for subsidiarity.
The Austrian Presidency's representative's views were backed and illustrated at length by representatives of local authorities. Hans-Jorg Duppre, chair of the association of German local authorities, regretted that only Court of Justice rulings at present actually governed cooperation among local authorities, despite the importance of this cooperation for associations like his own, which suffer from the consequent legal uncertainty. He urged the Commission to ensure good cooperation among local authorities was protected and not covered by public procurement directives. Christof Delatter said recent Court of Justice rulings had cast a shadow over cooperation among local authorities and it was pointless to subject cooperation among local authorities to internal market rules given the fact that cooperation among local authorities has little impact on the common market. He said cooperation among local authorities should be decided upon by local authorities. Same reaction from Giuseppe Sverzellati, Director General of Conservizi (an Italian federation of local companies), who argued that public procurement rules were insufficient and ad hoc procedures were required because legislation should always take account of the nature of the industry in question and public procurement directives are insufficient to guarantee PPPs. Sharing the opinions already expressed, Lee Diggins, national advisor on public procurement at the UK agency for improving and boosting local governance, said that there were cases, however, where legal uncertainty existed, particularly in terms of cooperation among public agencies. Inese Matvejeva, advisor at the Latvian association of local and regional governments, also pointed out problems faced by Latvian local authorities in public procurement proceedings, calling for internal procedures for small contracts rather than referring to EU public procurement legislation.
Various MEPs intervened in the debate, like German Social Democrat Barbara Weiler, who understood the cry for help from local authorities but said it would be very problematic to exclude them entirely from public procurement directives. Marianne Thyssen (EPP-ED, Belgium) said there was rather too much legislation and traditions that worked well should be respected. She asked whether the EU could afford to issue legislation that interfered in Member States' legislation. The Commission was asked to take action by several speakers, with Charlotte Cederschiold (EPP-ED, Sweden) asking it to unveil initiatives and flexibility regarding cross-border cooperation. Angelika Niebler (EPP-ED, Germany) said the Commission was not taking matters seriously enough.
In response, Carsin said the Commission had not intention of banning local authorities from working together according to their own rules, and it was only when a municipality calls on the services of a company from the outside for paid services that the European Commission asks for EU public procurements directives to be respected.
The directives do not cover full exemption for this type of transaction because the legislators were unable to agree on the issue, he explained, and the directives are the outcome of a series of compromises among Member States. Noting that half of the Member States have not yet transposed the legislation into their domestic laws, Carsin said it was too soon to criticise them - one had to wait and see how the applicable law would be interpreted and improved upon since the situation was still open.
In a press release, British Conservative Malcolm Harbour called on the European Commission to clarify its position with regard to public procurement proceedings for local and regional authorities. He said it was not needed for the European Commission to approve of local authorities working together on a public contract for the supply of a public service as long as internal market rules were not breached, but he did not favour full exemption from internal market rules because 'this would run counter to the freedom to provide services in the internal market that has just recently been enforced by the new EU services directive.'