EUR-Lex – 52015DC0454 – EN – EUR-Lex

EUROPEAN COMMISSIONBrussels, 9.9.2015COM(2015) 454 finalCOMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCILon Public Procurement rules in connection with the current asylum crisisThe European Union currently faces numerous challenges due to a sudden, steeply increased influx of asylum seekers. Not least, Member States have to satisfy adequately and speedily the most immediate needs of the asylum seekers (housing, supplies and services).This Communication provides an overview of the possibilities for public procurers, the contracting authorities 1 , to provide infrastructure (housing) as well as supplies and services of first necessity quickly.European public procurement rules provide all the necessary tools to satisfy those needs, under the provisions of the current Directive 2004/18/EC 2 (the „Directive“) as well as under the newest public procurement Directive 2014/24/EU 3 . This directive has to be transposed by 18 April 2016 and is currently only applicable in those Member States, where transposition measures have already entered into force.The Communication is based on Directive 2004/18/EC, but indicates the specificities of Directive 2014/24/EU, where those are relevant in the present circumstances 4 .This Communication does not create any new legislative rules. It reflects the Commission’s understanding of the Treaties, the public procurement directives and the case-law of the Court of Justice of the European Union (the Court). It should be noted that, in any event, the binding interpretation of Union law is ultimately the role of the Court.1.Scope of Union public procurement rules1.1.Infrastructure – worksInfrastructure (i.e. housing) can be provided either by renting existing buildings not requiring extensive adaptations (i.e. works) or by constructing ex novo or refurbishing existing buildings.Renting existing buildings is not subject to public procurement rules (Article 16(a) of the Directive 5 ). Provided it is available, housing can be provided without public procurement procedures by renting existing buildings on the market or by allocating existing public infrastructure (e.g. barracks, schools, sports facilities) to such use. Where it becomes necessary to build ex novo, to refurbish or otherwise adapt existing buildings, Union public procurement rules may be applicable 6 .For the Directive to be applicable, the estimated value of the concrete building/renovation/adaptation project must be equal to or greater than the current threshold of EUR 5 186 000 Euro 7 . This applies to each functionally independent project. A municipality, which plans to implement several different housing schemes, will, in general, calculate the value of each scheme separately in order to decide whether the threshold is reached. It is not allowed to subdivide works projects to prevent their coming within the scope of the Directive (Article 9(3) of the Directive).Below this threshold, national law applies. However, the basic principles of Union law in this area – the principles of non-discrimination on the basis of nationality, equal treatment and transparency – apply, should the concrete project have a certain cross-border interest 8 .1.2.SuppliesThe arrival of numerous asylum seekers will also require the urgent provision of supplies (e.g. tents, containers, clothes, blankets, beds, food).The Directive will apply to all supply contracts awarded by a contracting authority 9 , provided that their estimated value is equal to or greater than the applicable threshold, which can be either EUR 134 000 or EUR 207 000 10 , depending on the nature of the contracting authority 11 .Below these thresholds national law applies. The above-mentioned basic principles of Union law apply under the same conditions as for works contracts.1.3.ServicesFinally, the arrival of asylum seekers also requires the procurement of services (e.g. cleaning, health, catering, security).For service contracts the rules of the current Directive and of Directive 2014/24/EU are fundamentally different.Under Directive 2004/18/EC services are only subject to the Directive in full if they are exhaustively listed 12 . Of these services, bus transport and cleaning services especially might be needed for asylum seekers. For all other services than those exhaustively listed, the Directive 13 only requires ex post transparency 14 and application of the provisions governing technical specifications.Service contracts are subject to the Directive from the same thresholds as supply contracts. In addition, the basic principles of Union law apply to service contracts if they have a certain cross-border interest under the same conditions as for works contracts 15 .Directive 2014/24/EU is, in principle, applicable in full to all services. However, particular procurement rules apply to „social and other specific services“ 16 , the ‚light regime‘ 17 . The light regime, in the context of providing services to asylum seekers, could be relevant for ins

Quelle: EUR-Lex – 52015DC0454 – EN – EUR-Lex