Richtlinie gegen ungerechte öffentliche Auftragsvergabe[en][fr] 

Public procurement is a cornerstone of the internal market as it accounts for roughly one fifth of all EU spending. 

However, mechanisms aimed at ensuring that public contracts go to the company that has made the best offer, although improved over recent years, are still lacking in a number of member states. 

Furthermore, significant procedural disparities among EU countries and a lack of effective review mechanisms that businesses can use when a contract has been awarded unfairly are discouraging Community enterprises from tendering – particularly outside their country of origin. 

The Commission proposed a Directive in May 2006 aimed at harmonising national procedures and introducing new rights for rejected bidders in order to create stronger incentives for EU businesses to bid for contracts anywhere in the EU. 

Members of the European Parliament on 21 June approved a text amending existing legislation on public procurement in order to cut down on the number of errors and illegal procedures in the award of public contracts. 

The new rules aim to provide stronger incentives for businesses to bid for public contracts all over the EU, by making it easier for bidders to seek 'remedies' when they consider that a contract has been unfairly or illegally awarded. 

In particular, the new Directive would oblige contracting authorities to wait at least ten days after deciding who has won the public contract before it can be signed. This "standstill period" is designed to give bidders time to examine the decision and to assess whether it is appropriate to initiate a review procedure. 

Furthermore, national courts will be able to annul public contracts if they have not been awarded according to a transparent competitive tendering procedure. In such cases, the contract will need to be tendered again, unless the court decides that they should remain in force in virtue of general interest. Alternative penalties, including the shortening of the duration of the contract or the imposition of fines on the contracting authority, will be applied instead. 

The continuing lack of co-ordinated review procedures for the awarding of public contracts has been described by the European Court of Justice as "the most serious breach of Community law in the field of public procurement on the part of an awarding authority". 

British Socialist MEP Arlene McCarthy, author of an own-initiative report on the state of transposition and implementation of EU public procurement law, pointed out: "Favouritism for national champions and other failures to award contracts on a competitive basis are a continued threat to the internal market." Her report underlines that with public procurement accounting for more than 16% of EU GDP, "correct transposition and implementation of EU laws in this sphere is a pressing concern" and says that the Commission "should be given the human resources to police late and incorrect transposition more effectively". 

Internal Market and Services Commissioner Charlie McCreevy said: "Businesses who bid for public contracts - and taxpayers who ultimately finance them - need to be confident that they are awarded fairly. So if a public authority does make an unfair decision, businesses need to have the opportunity to challenge the decision while it can still be corrected, no matter where in the EU the public authority is based. Improving bidders' rights in this way will mean better protection for businesses, more competition and better value for money." 

Michael Burnett, public procurement expert and senior lecturer at the European Institute of Public Administration (EIPA) told EurActiv: "You can't complete the internal market without public procurement, because about one fifth of EU spending is public procurement subject to the directives. However, there's a big gap between what should be advertised Europe-wide and what is actually advertised – only about one sixth of what should be advertised Europe-wide is advertised…So, public procurement is important for the internal market and yet it isn't being enforced." He added: "A Commission report in 2004 showed that, when you use the directives and you implement them correctly, you save a third of the price. Of course that's a bit crude – it depends on the quality – but the political point was that, if only a part of the savings were replicated across the public sector, every country in the eurozone would meet the Maastricht deficit criteria. So this is politically important." (Click here for full interview with Burnett)