Yearbook of European Law - Vol. 10

By Francis Geoffrey Jacobs | Go to book overview

Legal Reforms in Public Procurement*

RICHARD WAINWRIGHT


I. Introduction

One of the main purposes of the EEC Treaty is the abolition as between Member States of obstacles to the free movement of goods and services--as is clear from Article 3 paragraphs a) and c) of the Treaty. None of the provisions of the EEC Treaty refers expressly to public procurement. For procurement of goods, effect was given to Article 30 of the Treaty, which forbids quantitative restrictions on import of goods and measures of equivalent effect, by Commission Directive 70/32 of 17 December 19691 concerned with procurement by the State, territorial authorities, and other public corporate bodies. For procurement of public works, effect was given to Article 52 (freedom of establishment) and Article 59 (freedom to provide services) by Council Directive 71/3042 which requires Member States to abolish restrictions affecting the right of non-nationals to bid for or participate in the performance of public works contracts.

The Commission's White Paper of June 1985 on Completing the Internal Market contains a chapter on Public Procurement,3 which underlines that the basic rules contained in Articles 30 and 59 of the EEC Treaty on free movement of goods and freedom to supply services apply fully to the supply of goods and services to public purchasing bodies. Directives 71/3054 and 77/62,5 by co-ordinating national award procedures, give concrete application to these rules. Since however statistics indicated a 'minimal application' of the Directives the White Paper announced in the same chapter that, as a matter of priority, there would be 'discussions' with the Member States on the application of the Directives. These would be based on studies of the Directives' implementation and application in each Member State concentrating on a number of key areas such as procedures, awarding entities, and products. In addition action would be taken to improve the quality and speed of the publication of notices to tender in the Supplement to the Official Journal of the European Communities and to develop the electronic publishing system TED (Tenders Electronic Daily)

____________________
*
© Richard Wainwright, 1990. Legal adviser, Commission of the European Communities. The opinions expressed are strictly personal.
1
JO 1970 L 13/1.
2
JO 1971 L 185/1.
3
June 1985, published by Office for Official Publications of the European Communities, paras 81-7.
4
JO 1971 L 185/5.
5
OJ 1977 L 13/1.

-133-

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