91997E2464

WRITTEN QUESTION P-2464/97 by Karin Riis-Jørgensen (ELDR) to the Commission (8 July 1997)

Subject: Rules on public contracts

There appear to be problems of interpretation and a need for clarification in regard to Directives 92/50 ((OJ L 209, 24.7.1992, p. 1. )), 93/36 ((OJ L 199, 9.8.1993, p. 1. )) and 93/37 ((OJ L 199, 9.8.1993, p. 54. )) concerning the award of public contracts.

To what extent do the rules governing the award of public contracts also cover the public authorities' use of financial services? At present, the Member States interpret these rules differently. Italy, for example, does not apply the rules in this area, whereas Denmark takes the view that they do apply in this respect.

Answer given by Mr Monti on behalf of the Commission (9 September 1997)

Community rules on public procurement do, as a starting point, cover the use of financial services by the public sector. In fact, in its Annex I A Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts ((OJ L 209, 24.7.1992. )) mentions 'Financial services', which category explicitly includes both a) insurance services and b) banking and investment services. Regarding banking and investment services, Article 1(a)(vii) excludes 'contracts for financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments, and central bank services' from the scope of the Directive.

Regarding loans in particular, the Commission is of the opinion that a loan which is not issued in the form of a negotiable security on the capital market is not comparable to a transferable instrument and, as such, is not excluded from the scope of Article 1(a)(vii) of Directive 92/50/EEC, unless it is floated by a central bank.

It is, however, correct that the application of Directive 92/50/EEC to financial services is subject to differing interpretations in various Member States. In order to ensure uniform interpretation of these provisions within the Community which, as the Honourable Member states, is essential, the Commission has taken the initiative to have this issue examined in the advisory committee for public contracts, in which all Member States are represented. To that end, a working document, prepared by the Commission, has been discussed and a written contribution requested from each Member State. Hitherto, only six Member States - Belgium, Germany, Ireland, the Netherlands, Austria and the United Kingdom - have contributed. It is nevertheless expected that the issue will be settled in a forthcoming meeting of the advisory committee.