European Union: Proposal For New EU Procurement Directives

Last Updated: 4 January 2012
Article by David Marks and Susan Hankey

The European Commission published on 20 December 2011 its proposals for new procurement directives to replace the current directives on public and utilities procurements. This has been much anticipated and follows a consultation on this area earlier in 2011 (see our earlier law-now). The European Commission has aimed to modernise and simplify the procurement rules.

The European Commission has additionally published a proposal for a directive on the award of concession contracts (partnerships between the public sector and mostly private companies, where the latter exclusively operate, maintain and carry out the development of infrastructure (e.g. ports, water distribution, parking garages, toll roads) or provide services of general economic interest (e.g. energy, water and waste disposal). This introduces competition in the award of high value contracts of this type. This proposal does not set out specific procures for the award of concessions. It will be left to Member States to define the applicable procedures for the award of concessions, while ensuring the procedures used are fair and transparent.  The aim of this new directive is to reduce uncertainty surrounding the award of concession contracts.

These proposals will now enter the EU legislative process, passing to the Council of Ministers and European Parliament. The European Commission hopes that these proposals can be adopted by the end of 2012 with a view to coming into force in Member States by June 2014.

Major changes in the public procurement proposal include:

  • the scrapping of the distinction between Part A and Part B services, although for procurements involving a limited class of "social services", a higher threshold of €500,000 will apply, below which Member States remain free to determine the procedural rules applicable. There will be an obligation to publish a contract notice and a contract award notice for social services cases. (See below for more detail on what is covered by "social services");
  • simplification of information obligations in prequalification, notably the mandatory acceptance of self-declarations on the fulfilment of the selection criteria, with only the successful tenderer(s) being asked to submit documentary proof of these matters;
  • there would be no right to negotiate in all cases, but there would be an increased ability to negotiate, whereby contracting authorities can negotiate with the tenderers to improve the quality of the offers. Certain safeguards will be put in place to ensure all parties are aware of changes in those parts of the technical specifications which are open to negotiations and all are able to submit a final tender;
  • simplified procedures for regional and local contracting authorities, who can replace the publication of individual contract notices by the publication of a general notice for their planned procurement for the next year;
  • the promotion of e-procurement, aiming at full electronic communication in public procurement within two years of the implementation deadline of the adopted directive, through, for example, mandatory transmission of notices in electronic form, mandatory availability of procurement documents and e-submissions;
  • improvements to the competitive dialogue procedure. This procedure will no longer restricted to complex cases;
  • time limits for participations and submission of offers have been shortened, with a view to streamlining the overall process;
  • measures facilitating cross-border procurement;
  • the introduction of a new "innovation partnership procedure". This is a new , special procedure for the development and subsequent purchase of new, innovative products, works and services, provided they can be delivered to agreed performance levels and costs;
  • it will be possible to base award decisions on life-cycle costs of the products/services/works to be purchased;
  • encouraging access to public procurement for SMEs, for example by introducing strong incentives to divide tenders into lots and limits on the financial capacity requirements for the submission of a tender;
  • the appointment of a single national "oversight" authority in charge of monitoring, implementation and control of public procurement. Contracting authorities will be obliged to transmit the text of concluded contracts to this oversight body for scrutiny for possible favouritism, corruption etc where the value of the contract exceeds €1 million for supplies and services and €10 million for works. Third parties may have access to these contracts "to the extent that legitimate public or private interests are not jeopardised";
  • obliging Member States to provide support structures offering legal and economic advice, guidance, training and assistance in preparing and conducting procurement procedures.

"Social services" are defined by reference to particular CPV codes covering:

  • "health and social services";
  • "administrative, educational, healthcare and cultural services";
  • "compulsory social security services";
  • "benefit services";
  • "other community, social and personal services";
  • "services furnished by trade unions"; and
  • "religious services".

Many of the features of the public procurement proposal also apply to the utilities directive proposal. In addition, major changes in relation to the utilities procurement proposal include:

  • an exclusion from the scope of the directive for the exploration of oil and gas, because this sector has consistently been found to be exposed to competition;
  • improvements to the exemption mechanism under the current utilities directive;
  • clarification of the notion of special and exclusive rights. The proposal notes that rights which have been granted by means of a procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria, notably pursuant to EU legislation, do not constitute special or exclusive rights for the purposes of the directive;
  • the introduction of the new "innovation partnership procedure";
  • clarification of the exemption for contracts awarded to affiliated undertakings or joint ventures;
  • the appointment of an oversight body as described for the public procurements proposal and accompanying obligation to transmit the text of concluded contracts to it where they exceed the limits mentioned above.

The new national "oversight" body to be set up under the proposals will have wide-ranging responsibilities:

  • to monitor the application of public procurement rules;
  • to provide legal advice to contracting authorities on the interpretation of public procurement rules and principles and on the application of public procurement rules in specific cases;
  • to issue own-initiative opinions and guidance on questions of general interest relating to the interpretation and application of public procurement rules, on recurring questions and on systemic difficulties related to the application of the public procurement rules;
  • to establish and applying comprehensive, actionable 'red flag' indicator systems to prevent, detect and adequately report instances of procurement fraud, corruption, conflict of interest and other serious irregularities;
  • to draw the attention of the national competent institutions, including auditing authorities, to specific violations detected and to systemic problems;
  • to examine complaints from citizens and businesses on the application of public procurement rules in specific cases and to transmit the analysis to the competent contracting authorities, which shall have the obligation to take it into account in their decision, or, where the analysis is not followed, to explain the reasons for disregarding it;
  • to monitor the decisions taken by national courts and authorities following ECJ reference or findings of the European Court of Auditors establishing violations of EU public procurement rules related to projects co-financed by the EU.

This is an extensive package of proposals but is not as far reaching as it might seem or some stakeholders may have sought.

Notably, there has been no increase in the generally applicable value thresholds, largely due to WTO obligations. Negotiated procedures with notice cannot be used as of right for public (as opposed to utilities) procurement and the circumstances when negotiation with notice or competitive dialogue can be used have only been slightly relaxed.

The replacement of the Part A and Part B services distinction with a very light touch regime with a higher value threshold for social services only may be welcomed particularly in the UK National Health Service.

It is unlikely that Member States will universally welcome the obligation to establish a national oversight body, which in the UK might be an "Office of Fair Procurement". Member States may argue with some justification that such a step is not necessary when the remedies regime has recently been tilted in favour of the challenger of a procedure, and against the contracting authority.

Please click for the texts of the  public and  utilities proposals and for the proposed new directive on the award of  concession contracts.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 21/12/2011.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.