Council Directive 71/305/EEC of 26 July 1971 concerning the co-ordination of procedures for the award of public works contracts

• Published date: 16 August 1971
• Subject Matter: Internal market - Principles,Freedom of establishment,Approximation of laws
• Official Gazette Publication: Journal officiel des Communautés européennes, L 185, 16 août 1971

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Council Directive 71/305/EEC of 26 July 1971 concerning the co-ordination of procedures for the award of public works contracts

Official Journal L 185 , 16/08/1971 P. 0005 - 0014
Danish special edition: Series I Chapter 1971(II) P. 0613
English special edition: Series I Chapter 1971(II) P. 0682
Greek special edition: Chapter 17 Volume 1 P. 0007
Spanish special edition: Chapter 17 Volume 3 P. 0009
Portuguese special edition Chapter 17 Volume 3 P. 0009

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( 1 ) OJ N 2 , 15 . 1 . 1962 , P . 36/62 .

( 2 ) OJ N 2 , 15 . 1 . 1962 , P . 32/62 .

( 3 ) OJ N 62 , 13 . 4 . 1965 , P . 883/65 .

( 4 ) OJ N 63 , 13 . 4 . 1965 , P . 929/65 .

( 5 ) OJ N L 185 , 16 . 8 . 1971 , P . 1 .

( 6 ) OJ N L 185 , 16 . 8 . 1971 , P . 15 .

( 7 ) OJ N L 124 , 8 . 6 . 1971 , P . 1 .

COUNCIL DIRECTIVE

OF 26 JULY 1971

CONCERNING THE CO-ORDINATION OF PROCEDURES FOR THE AWARD OF PUBLIC WORKS CONTRACTS

( 71/305/EEC )

THE COUNCIL OF THE EUROPEAN COMMUNITIES ,

HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY , AND IN PARTICULAR ARTICLES 57 ( 2 ) , 66 AND 100 THEREOF ;

HAVING REGARD TO THE GENERAL PROGRAMME FOR THE ABOLITION OF RESTRICTIONS ON FREEDOM OF ESTABLISHMENT , ( 1 ) AND IN PARTICULAR TITLE IV B 1 THEREOF ;

HAVING REGARD TO THE GENERAL PROGRAMME FOR THE ABOLITION OF RESTRICTIONS ON FREEDOM TO PROVIDE SERVICES , ( 2 ) AND IN PARTICULAR TITLE V C ( E ) 1 THEREOF ;

HAVING REGARD TO THE PROPOSAL FROM THE COMMISSION ;

HAVING REGARD TO THE OPINION OF THE EUROPEAN PARLIAMENT ( 3 ) ;

HAVING REGARD TO THE OPINION OF THE ECONOMIC AND SOCIAL COMMITTEE ( 4 ) ;

WHEREAS THE SIMULTANEOUS ATTAINMENT OF FREEDOM OF ESTABLISHMENT AND FREEDOM TO PROVIDE SERVICES IN RESPECT OF PUBLIC WORKS CONTRACTS AWARDED IN MEMBER STATES ON BEHALF OF THE STATE , OR REGIONAL OR LOCAL AUTHORITIES OR OTHER LEGAL PERSONS GOVERNED BY PUBLIC LAW ENTAILS NOT ONLY THE ABOLITION OF RESTRICTIONS BUT ALSO THE CO-ORDINATION OF NATIONAL PROCEDURES FOR THE AWARD OF PUBLIC WORKS CONTRACTS ;

WHEREAS SUCH CO-ORDINATION SHOULD TAKE INTO ACCOUNT AS FAR AS POSSIBLE THE PROCEDURES AND ADMINISTRATIVE PRACTICES IN FORCE IN EACH MEMBER STATE ;

WHEREAS THE COUNCIL , IN A STATEMENT CONCERNING THE AFOREMENTIONED GENERAL PROGRAMMES , HAS STRESSED THAT CO-ORDINATION SHOULD BE BASED ON THE FOLLOWING PRINCIPLES : PROHIBITION OF TECHNICAL SPECIFICATIONS THAT HAVE A DISCRIMINATORY EFFECT , ADEQUATE ADVERTISING OF CONTRACTS , THE FIXING OF OBJECTIVE CRITERIA FOR PARTICIPATION AND THE INTRODUCTION OF A PROCEDURE OF JOINT SUPERVISION TO ENSURE THE OBSERVATION OF THESE PRINCIPLES ;

WHEREAS SOME OF THE BODIES WHICH CURRENTLY ADMINISTER TRANSPORT SERVICES IN THE MEMBER STATES ARE GOVERNED BY PUBLIC LAW AND SOME BY PRIVATE LAW ; WHEREAS , IN ACCORDANCE WITH THE OBJECTIVES OF THE COMMON TRANSPORT POLICY , EQUALITY OF TREATMENT SHOULD BE ENSURED NOT ONLY BETWEEN SEPARATE UNDERTAKINGS CONCERNED WITH A SINGLE MODE OF TRANSPORT BUT ALSO BETWEEN SUCH UNDERTAKINGS AND UNDERTAKINGS CONCERNED WITH OTHER MODES OF TRANSPORT ;

WHEREAS , THEREFORE , PENDING THE ADOPTION OF PROVISIONS CONCERNING THE CO-ORDINATION OF PROCEDURES WHICH TAKE INTO ACCOUNT THE SPECIAL CIRCUMSTANCES DESCRIBED ABOVE , IT IS NECESSARY TO EXCLUDE FROM THE SCOPE OF THIS DIRECTIVE AUTHORITIES REFERRED TO ABOVE WHICH , BY REASON OF THEIR LEGAL STATUS , WOULD FALL WITHIN ITS SCOPE ;

WHEREAS IT IS NECESSARY TO AVOID THE SUBJECTION OF THE PRODUCTION , DISTRIBUTION AND TRANSMISSION OR TRANSPORTATION SERVICES FOR WATER AND ENERGY TO DIFFERENT SYSTEMS FOR THEIR WORKS CONTRACTS , DEPENDING ON WHETHER THEY COME UNDER THE STATE , REGIONAL OR LOCAL AUTHORITIES OR OTHER LEGAL PERSONS GOVERNED BY PUBLIC LAW OR WHETHER THEY HAVE SEPARATE LEGAL PERSONALITY ; WHEREAS IT IS THEREFORE NECESSARY TO EXCLUDE FROM THE SCOPE OF THIS DIRECTIVE THOSE SERVICES REFERRED TO ABOVE WHICH BY REASON OF THEIR LEGAL STATUS , WOULD FALL WITHIN ITS SCOPE UNTIL SUCH TIME AS A DEFINITIVE SOLUTION CAN BE ADOPTED IN THE LIGHT OF EXPERIENCE ;

WHEREAS PROVISION MUST BE MADE FOR EXCEPTIONAL CASES WHERE MEASURES CONCERNING THE CO-ORDINATION OF PROCEDURES MAY NOT NECESSARILY BE APPLIED , BUT SUCH CASES MUST BE EXPRESSLY LIMITED ;

WHEREAS WORKS CONTRACTS OF LESS THAN 1 000 000 UNITS OF ACCOUNT CAN , FOR THE MOMENT , BE EXEMPTED FROM COMPETITION AS PROVIDED FOR UNDER THIS DIRECTIVE , AND IT IS APPROPRIATE TO PROVIDE FOR THEIR EXEMPTION FROM CO-ORDINATION MEASURES ; WHEREAS , IN THE LIGHT OF EXPERIENCE , THE COMMISSION WILL AT A LATER DATE SUBMIT TO THE COUNCIL A NEW PROPOSAL FOR A DIRECTIVE WHOSE AIM IS TO LOWER THE THRESHOLD FOR THE APPLICATION OF CO-ORDINATION MEASURES TO PUBLIC WORKS CONTRACTS ;

WHEREAS TO ENSURE DEVELOPMENT OF EFFECTIVE COMPETITION IN THE FIELD OF PUBLIC CONTRACTS IT IS NECESSARY THAT CONTRACT NOTICES DRAWN UP BY THE AUTHORITIES OF MEMBER STATES AWARDING CONTRACTS BE ADVERTISED THROUGHOUT THE COMMUNITY ; WHEREAS THE INFORMATION CONTAINED IN THESE NOTICES MUST ENABLE CONTRACTORS ESTABLISHED IN THE COMMUNITY TO DETERMINE WHETHER THE PROPOSED CONTRACTS ARE OF INTEREST TO THEM ; WHEREAS , FOR THIS PURPOSE , IT IS APPROPRIATE TO GIVE THEM ADEQUATE INFORMATION ABOUT THE SERVICES TO BE PROVIDED AND THE CONDITIONS ATTACHED THERETO ; WHEREAS , MORE PARTICULARLY , IN RESTRICTED PROCEDURES ADVERTISEMENT IS INTENDED TO ENABLE CONTRACTORS OF MEMBER STATES TO EXPRESS THEIR INTEREST IN CONTRACTS BY SEEKING FROM THE AUTHORITIES AWARDING CONTRACTS INVITATIONS TO TENDER UNDER THE REQUIRED CONDITIONS ;

WHEREAS ADDITIONAL INFORMATION CONCERNING CONTRACTS MUST , AS IS CUSTOMARY IN MEMBER STATES , BE GIVEN IN THE CONTRACT DOCUMENTS FOR EACH CONTRACT OR ELSE IN AN EQUIVALENT DOCUMENT ;

HAS ADOPTED THIS DIRECTIVE :

TITLE I

GENERAL PROVISIONS

ARTICLE 1

FOR THE PURPOSES OF THIS DIRECTIVE :

( A ) " PUBLIC WORKS CONTRACTS " ARE CONTRACTS FOR PECUNIARY CONSIDERATION CONCLUDED IN WRITING BETWEEN A CONTRACTOR ( A NATURAL OR LEGAL PERSON ) AND AN AUTHORITY AWARDING CONTRACTS AS DEFINED UNDER ( B ) , WHICH HAVE AS THEIR OBJECT ONE OF THE ACTIVITIES REFERRED TO IN ARTICLE 2 OF THE COUNCIL DIRECTIVE OF 26 JULY 1971 CONCERNING THE ABOLITION OF RESTRICTIONS ON FREEDOM TO PROVIDE SERVICES IN THE FIELD OF PUBLIC WORKS CONTRACTS AND ON THE AWARD OF PUBLIC WORKS CONTRACTS TO CONTRACTORS THROUGH ACTING AGENTS OR BRANCHES ( 5 ) ;

( B ) THE STATE , REGIONAL OR LOCAL AUTHORITIES AND THE LEGAL PERSONS GOVERNED BY PUBLIC LAW SPECIFIED IN ANNEX I SHALL BE REGARDED AS " AUTHORITIES AWARDING CONTRACTS " ;

( C ) A CONTRACTOR WHO HAS SUBMITTED A TENDER SHALL BE DESIGNATED BY THE TERM " TENDERER " , AND ONE WHO HAS SOUGHT AN INVITATION TO TAKE PART IN A RESTRICTED PROCEDURE BY THE TERM " CANDIDATE " .

ARTICLE 2

IN AWARDING PUBLIC WORKS CONTRACTS , THE AUTHORITIES AWARDING CONTRACTS SHALL APPLY THEIR NATIONAL PROCEDURES ADAPTED TO THE PROVISIONS OF THIS DIRECTIVE .

ARTICLE 3

1 . IN THE EVENT OF THE AUTHORITIES AWARDING CONTRACTS CONCLUDING A CONTRACT OF THE SAME TYPE AS THAT INDICATED IN ARTICLE 1 ( A ) EXCEPT FOR THE FACT THAT THE CONSIDERATION FOR THE WORKS TO BE CARRIED OUT CONSISTS EITHER SOLELY IN THE RIGHT TO EXPLOIT THE CONSTRUCTION OR IN THIS RIGHT TOGETHER WITH PAYMENT , THE PROVISIONS OF THIS DIRECTIVE SHALL NOT APPLY TO THIS SO CALLED " CONCESSION " CONTRACT . IN ALL OTHER CASES , APPLICATION OF THE PROCEDURES FOR THE AWARD OF PUBLIC CONTRACTS SHALL BE COMPULSORY .

2 . WHEN THE CONCESSIONAIRE IS HIMSELF ONE OF THE AUTHORITIES AWARDING CONTRACTS , HE MUST APPLY THE NATIONAL PROCEDURES FOR THE AWARD OF PUBLIC WORKS CONTRACTS ADAPTED TO THE PROVISIONS OF THIS DIRECTIVE FOR WORKS TO BE CARRIED OUT BY THIRD PARTIES .

3 . WHEN THE STATE , A REGIONAL OR LOCAL AUTHORITY OR ONE OF THE LEGAL PERSONS GOVERNED BY PUBLIC LAW SPECIFIED IN ANNEX I GRANTS TO A CONCESSIONAIRE OTHER THAN AN AUTHORITY AWARDING CONTRACTS THE RIGHT TO HAVE PUBLIC WORKS CARRIED OUT AND TO EXPLOIT THEM , THE CONCESSION CONTRACT SHALL STIPULATE THAT SUCH CONCESSIONAIRE MUST OBSERVE THE PRINCIPLE OF NON-DISCRIMINATION ON GROUNDS OF NATIONALITY IN RESPECT OF CONTRACTS AWARDED TO THIRD PARTIES .

4 . PUBLIC WORKS CONTRACTS AWARDED BY BODIES WHICH ARE GOVERNED BY PUBLIC LAW AND WHICH ADMINISTER TRANSPORT SERVICES SHALL NOT BE SUBJECT TO THE PROVISIONS OF THIS DIRECTIVE .

5 . THE PROVISIONS OF THIS DIRECTIVE SHALL NOT APPLY TO PUBLIC WORKS CONTRACTS AWARDED BY THE PRODUCTION , DISTRIBUTION , TRANSMISSION OR TRANSPORTATION SERVICES FOR WATER AND ENERGY .

ARTICLE 4

THIS DIRECTIVE SHALL NOT APPLY TO PUBLIC CONTRACTS AWARDED BY A MEMBER STATE :

_ IN PURSUANCE OF AN INTERNATIONAL AGREEMENT CONCLUDED WITH A THIRD COUNTRY WHICH , IN RESPECT OF THE AWARD OF CONTRACTS , CONTAINS PROVISIONS WHICH DIFFER FROM THOSE OF...