WRITTEN QUESTION E-1201/02

by Christopher Huhne (ELDR) to the Commission

(26 April 2002)

Subject: Notification of contracts

Will the Commission state whether in its view a vaccine contract for the sum of £ 32 million placed by a Member State ought to be notified for open competition under the procedures of the procurement directives?

Joint answerto Written Questions E-1199/02, E-1200/02 and E-1201/02given by Mr Bolkestein on behalf of the Commission

(6 June 2002)

The Commission understands that Written Questions E-1200/02 and E-1201/02 relate to the award of a contract by the United Kingdom authorities for the supply of smallpox vaccines to address possible terrorist attacks in the light of the 11 September 2001 atrocities and in particular the ensuing concerns about bio chemical terrorist attacks.

The Commission is not fully aware of all the steps which the United Kingdom authorities may have taken in the award of the contract. In the absence of such information, it is not possible to conclude with any certainty whether this particular contract falls within the scope of Council Directive 93/36/EEC of 14 June 1993, coordinating procedures for the award of public supply contracts(1) and whether the award of the contract should have been subject to open competition.

As regards Written Question E-1199/02, information received by the Commission indicates that the Member States that have procured emergency vaccines to counter potential terrorist threats following the anthrax attacks in the United States in 2001 did not follow open public tender procedures on account of the security implications involved.

Article 2 of the above-mentioned Directive constitutes a derogation from the provisions for open public tendering. This includes supply contracts which are declared secret or the execution of which must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member States concerned or when the protection of the basic interests of the Member State's security so requires.

As a derogation from the general rule that public contracts must be awarded by public tender, Article 2 has to be restrictively construed on a case by case basis. Relevant factors could include a perceived need at the time of the contract not to announce the existence or nature of the contract for public security reasons. Statements made by the European Court of Justice in Case C- 273/97 of 26 October 1999 to the effect that Member States have a degree of discretion when adopting measures which they consider to be necesssary in order to guarantee public security, may also be a relevant factor in this type of case.

(1) OJ L 199, 9.8.1993.