91997E3113

WRITTEN QUESTION E-3113/97 by Roberta Angelilli (NI) to the Commission (13 October 1997)

Subject: Contract for providing canteen meals to railway workers in Le Marche and the district of Pescara

Recently the Ferrovie dello Stato spa (FS) issued a public invitation to tender for the catering service for railway employees in Le Marche and the Pescara district. Although when the offers were examined the most advantageous was that submitted by the Centro Ternano di Ristorazione (CTR) catering company, the FS, in accordance with widespread practice, granted a right of pre-emption to the Dopolavoro Ferroviari (DLF), an organization set up by the trade unions. So the contract for the provision of 150 000 meals per year was awarded, for the same price as that asked by the CTR, to the Ancona DLF, which made use of its above-mentioned pre-emptive right.

In view of the foregoing:

1. Did the public invitation to tender issued by the FS comply with the provisions of Directives 93/38/EEC ((OJ L 199, 9.8.1993, p. 84.)) and 92/50/EEC ((OJ L 209, 24.7.1992, p. 1.)) on the award of contracts, both with regard to procedures and with regard to the rules on advertising such contracts?

2. Did the award of a right of pre-emption to the Ancona DLF not constitute a breach of the rules on free competition and, in particular, the above-mentioned directives?

3. Can the outcome of the invitation to tender be regarded as lawful?

Answer given by Mr Monti on behalf of the Commission (19 November 1997)

1. Canteen services come under Category No 17 (hotel and restaurant services) of Annex I B to Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts and Annex XVI B to Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors. The awarding of the contract is therefore subject only to compliance with the provisions on technical specifications (Article 14 of Directive 92/50/EEC and Article 18 of Directive 93/38/EEC) and to the obligation to send a notice of the results of the procedure to the Commission within two months of the date the contract was awarded (Article 16 of Directive 92/50/EEC and Article 24 of Directive 93/38/EEC).

2. and 3. On the question of the pre-emptive right, the Commission will decide whether this constitutes a discriminatory national measure in breach of the EC Treaty. The answer to the third question will depend on what is decided.