92002E0588

WRITTEN QUESTION E-0588/02

by Margrietus van den Berg (PSE), Michiel van Hulten (PSE)and Joke Swiebel (PSE) to the Commission

(5 March 2002)

Subject: Investigation of fraud by construction companies

Is the Commission aware of the newspaper articles which appeared in the Haagsche Courant on 20 December 2001 (Bouwfraude is ook een zaak voor de Europese Commissie [Construction fraud is also a matter for the European Commission]) and in the Volkskrant on 14 January 2002 (Fraude met bustunnel onderzoeken [Bus tunnel fraud needs investigating] and De Zuidtangent en het vluggertje van 300 miljoen [The Zuidtangent tunnel and the 300-million quickie]) concerning fraud by construction companies in the Netherlands?

Were the public procurement procedures relating to the Schiphol rail tunnel and the construction of the Zuidtangent bus tunnel in the Netherlands carried out in accordance with European public-procurement rules?

Does the Commission still consider that a system whereby construction companies agree concerted tendering arrangements amongst themselves (such that even construction companies whose tenders are unsuccessful are compensated for the cost of tendering) violates Article 81(1) of the EC Treaty (to the extent that trade between Member States is affected)?

Would a statutory concerted-tendering system, which would make it superfluous for companies to enter into agreements with one another on this subject, likewise violate the EC Treaty?

Answer given by Mr Monti on behalf of the Commission

(17 April 2002)

The Commission is aware that various questions have been raised recently as to the legality of the behaviour of certain construction companies in the Netherlands and that the Dutch competition authority is currently examining the matter.

It has no information liable to give rise to suspicions that the public procurement procedures relating to the Schiphol rail tunnel and the Zuidtangent bus tunnel were not carried out in accordance with the Community directives on public procurement.

The Commission takes the view that agreements between construction companies setting up a concerted tendering system including compensatory payments restrict competition and, where such agreements are liable to affect trade between Member States, violate Article 81(1) of the EC Treaty. In this context the Commission would remind the Honourable Members that it has already adopted a decision imposing a EUR 22,5 million fine on 28 Dutch construction-sector associations which had entered into an agreement to coordinate their competitive behaviour in the context of public or private procurement by competitive tendering or private contract (Commission Decision 92/204/EEC of 5 February 1992)(1). The Commission's decision was upheld by the Court of First Instance(2) and the European Court of Justice(3).

The Commission takes the view that national rules providing for concerted tendering could violate Community law. However, it cannot take a final position on the issue without knowing the detailed provisions laid down by such rules.

(1) OJ L 92, 7.4.1992.

(2) Case T-29/92 [1995] ECR II-289.

(3) Case C-137/95 P [1996] ECR I-1611.