92000E4116

WRITTEN QUESTION E-4116/00

by Juan Naranjo Escobar (PPE-DE), Salvador Jové Peres (GUE/NGL) and Carlos Carnero González (PSE) to the Commission

(11 January 2001)

Subject: Public works contracts and the fight against unemployment

Previous parliamentary questions as to whether objective social criteria should form part of the criteria for the awarding of public works contracts (see Questions E-0816/00 and E-0817/00(1)) have always met with a negative response, with the Commission alleging that this would be incompatible with Directive 93/37/EC(2) on coordinating procedures for the awarding of public works contracts.

Certain public authorities, galvanised by the enormous problem of unemployment in their respective Member States, have in fact included certain conditions concerning the creation or protection of stable employment amongst their public works contract award criteria, conditions which do not, however, entail discrimination against tenders from other Member States. The Commission has opened proceedings against several of these public authorities. In case C-255/98, Commission v. French Republic, this has led to a Court of Justice ruling that the public works contract Directives do not exclude the possible inclusion, by the contracting bodies, of a condition linked with the fight against unemployment as one of the awarding criteria, provided that the condition in question respects all the fundamental principles of Community law and, particularly, the principle of non-discrimination (paragraph 50 of the judgment).

In the light of the conclusions of this judgment, how does the Commission intend to pursue the proceedings it has opened against certain public authorities? Is it going to incorporate these conclusions in the new directives on public contracts which are currently being adopted by the Community institutions, so as to clarify the spirit of the ruling in question?

(1) OJ C 374 E, 28.12.2000, p. 164.

(2) OJ L 199, 9.8.1993, p. 54.

Answer given by Mr Bolkestein on behalf of the Commission

(5 March 2001)

The question asked by the Honourable Members, which concerns the implications of the recent judgment of the Court of Justice (C-225/98 School buildings, Nord-Pas de Calais) for the handling of infringement proceedings and the future directives on public procurement, raises complex issues.

The Commission is currently examining this case law and will present its interpretation in an interpretative communication on the possibilities of taking into account social objectives in public procurement, which it undertook to adopt by the end of June 2001.

On the basis of that communication, the Commission will decide on the action to be taken in infringement proceedings against certain Member States.

Furthermore, in the light of the communication and taking into account the discussions in the Council and in Parliament on the adoption of the recast public procurement directives, the Commission will examine the case for proposing the incorporation of an explicit provision in the legislation in order to clarify the possibility of including social criteria.