EIC replies to EU Consultation on Reciprocity in Public Tenders
EIC has submitted on 28 July 2011 its position on the EU Commission's questionnaire on access of third countries to the EU's public prourement market.
EIC considers the EU Commission’s public consultation as a “golden opportunity” for the European Union and its Member States to establish a uniform, standardised and legally binding regulation on the sensitive subject matter of access of third-country goods, services and companies to the EU procurement markets. We fully concur with the introduction of a new legislative instrument as considered by the EU Commission (Option 3) and recommend that it be structured in such a way that EU Member States are only allowed to permit the participation of third-country companies if European companies are granted symmetrical access in the relevant market segment to the procurement market of the home country of the potential tenderer or supplier.
Considering the recent award of an EU-financed road contract to a Chinese state-owned construction company in Poland, EIC considers it paradoxical that, under current EU law, individual EU Member States are not legally bound to forego all measures that could weaken or even undermine the negotiating position of the EU Commission. Such legal incoherence in the internal EU law severely weakens the negotiating position of the European Commission in its international trade negotiations thus raising the fundamental question of the value of this mechanism if the EU Commission’s positions are not supported or upheld by EU Member States. EIC would dare to argue that there is an unintended loophole in the EU law to the extent that Article 3a paragraph 3 of the EU Treaty of Lisbon stipulates that “pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties... The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives”.
In order to prevent deviations between the above legal principle and the acts of individual Contracting Authorities, EIC would support Option 3 - a Legislative Instrument - with the proposed approach 3(A) with one important amendment: EU Contracting Authorities should be required to notify EX ANTE to the European Commission any decision to allow the participation of third-country goods, services or companies not covered by the EU’s international commitments and should be required to set out its reason for doing so. Whilst approach 3(A) would ensure a uniform application of the principle of reciprocity across the European Union, the alternative approach 3(B) would inevitably lead to confusion and disaccord inside of the European Union, as the decision to apply the principle of reciprocity would be left to the discretion of individual Contract Authorities which, evidently, would construe such discretionary powers in accordance with the national than with the European interest.
EIC calls with its latest Position Paper on political and business leaders in the European Union to, firstly, acknowledge the immense importance of the issue of third-country access to the European public procurement market and, secondly, to support the EU Commission acquiring a powerful mandate in that matter which is crucial for the identity and strength of the Europe Union in a globalised economy.
Interested stakeholders may access the Commission's questionnaire through the Internet under http://ec.europa.eu/yourvoice/ipm/forms/dispatch?form=internationalPP, the deadline for responding terminates by 2nd August 2011. More information on the issue of interntional trade negotiations and construction services are available here