92003E1981

WRITTEN QUESTION P-1981/03

by Elly Plooij-van Gorsel (ELDR) to the Commission

(10 June 2003)

Subject: Role of the Netherlands Broadcasting Corporation (NOS) in European rules on invitations to tender for Digital Audio Broadcasting (DAB) transmitters

The Netherlands Broadcasting Corporation (NOS) has drawn up tender specifications relating to the operating licence for the development and management of DAB transmitters.

DAB (Digital Audio Broadcasting) is a digital audio standard in respect of which the NOS had held a licence for one terrestrial multiplex since 1 February 2003. That operating licence will probably be granted to Nozema.

59 % of Nozema is owned by the Netherlands Government, 40 % by the NOS and 1 % by Radio Nederland Wereldomroep (Radio Netherlands World Broadcasting Service). It is reported that there is a veritable confusion of offices on the Management Board of the NOS and on the Administrative Board of Nozema. The duality of offices in those bodies prompts serious doubts as to the independence of decisions taken during the tendering procedure. The NOS states that the procedures set out in the European Directive on the award of tenders are adequate to guarantee fair implementation. It also states that any connection between members of the Management Board and of the Administrative Board and one of the bidders cannot result in unlawful preferential treatment. However, by making that statement, the NOS itself admits that preferential treatment cannot be ruled out.

Given that DAB has never been operational in the Netherlands in a regular set up, it is striking that the tendering procedure shows that NOS gives preference to a service provider with proven experience when all other considerations are equal. In 2001, Nozema won a contract from the NOS to develop a roll-out plan for DAB. In 2000, Nozema was involved in DAB projects with regard to what is known as the WebAnywhere project, in which the NOS also took part.

1. Is the Commission aware of this situation?

2. Does it take the view that Nozema has a possibly decisive competitive advantage in the award procedure compared with other bidders for the operating licence?

3. Does it take the view that, whenever fair competition and a level playing field between various bidders is involved, the prospects of DAB are enhanced and that this is desirable in the introduction of new technologies such as DAB?

4. Does the Commission take the view that Nozema should keep separate accounts in respect of the public and commercial services that it provides, and is it prepared to verify with the Netherlands Government that Nozema does indeed keep such separate accounts?

5. Does it take the view that the NOS is properly complying with European law on the awarding of contracts, and, if not, does it intend to take appropriate measures?

6. Is it aware that the Netherlands Government has exempted Nozema from the payment of company tax?

Answer given by Mr Bolkestein on behalf of the Commission

(8 July 2003)

1. The Commission was not informed about this tendering procedure.

2. and 3. The Commission holds the opinion that on the basis of the information provided, the Commission has found no evidence of activities that indicate possible infringements of public procurement legislation or relevant provisions of the EC-treaty.

The Court of Justice of the European Communities (hereafter: the Court) has ruled in the judgement C-94/99 that:

the mere fact that contracting authorities allow bodies which receive subsidies enabling them to submit tenders at prices appreciably lower than those of the other, unsubsidised, tenderers, to take part in a procedure for the award of a public procurement contract does not amount to a breach of the principle of equal treatment.

Therefore, the mere fact that Nozema is participating in a public procurement procedure as an organisation exempt from paying corporation tax, nor the current situation regarding the state of separation in the bookkeeping of Nozema, does in itself not constitute a breach of the principle of equal treatment of tenderers.

The fact that the NOS is requiring past experience for qualification and Nozema has acquired such experience, is not viewed discriminatory by the Commission as this does not exclude service providers in other Member States to meet this requirement as well.

4. The Commission would like to refer to the answer on the previous question.

5. and 6. The Commission has concluded that, as mentioned before, it has not found evidence of activities that indicate a possible infringement of public procurement legislation or relevant provisions of the EC-treaty. This conclusion is based on all of the information provided by the Honourable Member. The Commission, as guardian of the EC-treaty, shall however not hesitate to take action under Article 226 of the EC-treaty in case new evidence should provide proof for possible breaches of this legislation.