(2004/C 33 E/178)

WRITTEN QUESTION E-1837/03

by Christopher Heaton-Harris (PPE-DE) to the Commission

(3 June 2003)

Subject:   European Union tenders

Can the Commission confirm that, when a company in the EU wins a tender put by an EU body the tender is subject to Competition Law, and measures to increase the cost, which can include refusal by an EU company to supply the winner of the tender and prevent parallel imports, are in breach of the Treaty?

Can the Commission confirm what sanctions would be imposed in such a case?

Answer given by Mr Bolkestein on behalf of the Commission

(18 July 2003)

The Commission's understanding of the Honourable Member's question is that it refers both to the European institutions' obligations in the field of competition when awarding contracts, and to the situation of a company awarded a contract which is confronted with a refusal to sell by another EU company.

When it comes to awarding contracts, the Community institutions are obliged to comply with the provisions of the Council's Financial Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 (1), and particularly Title V thereof which stipulates and describes the different procedures which are applicable. Under these provisions, the contract should, generally speaking, be put out to tender on the broadest possible basis among interested operators. The tendering stage ends with the award of the contract and leads to a contract being signed with the successful tenderer.

As regards the situation of a company awarded a contract which is confronted with a refusal to sell by another EU company and/or the prevention of parallel imports, the situation in question may well constitute an infringement of the provisions of Article 82 and/or Article 81 of the EC Treaty. Under certain circumstances and certain conditions, the application of these rules may indeed lead to a ban on refusals to sell and the prevention of parallel imports. However, the lack of information on the facts behind the Honourable Member's question means that the Commission is unable to take a useful position on the applicability of Competition Law in this instance. For the same reason, the Commission is not able to give its position on what sanctions might be imposed.

(1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ L 248, 16.9.2002.