1. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU THE EU UTILITIES PROCUREMENT REGIME A COMPARISON WITH THE CLASSICAL SECTOR Yves Allain Regional Conference on “Public Procurement Reform in West Balkan" Pristina, 16-17 September 2008

2. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU THE EU UTILITIES PROCUREMENT REGIME A COMPARISON WITH THE CLASSICAL SECTOR Why a specific regime for the utilities ? l A choice made for Dir. 71-305 in order to avoid any difference of treatment between MS and between sectors of activity l The contracts of the utilities are usually more complex than the contracts of the utilities l As a result, procedures designed for administrations are not fully convenient for entities carrying out industrial activities

3. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU DIFFERENCES RELATING TO THE SCOPE OF APPLICATION Dir. 2004/18 (public authorities) : State administrations public local authorities bodies governed by public law Dir. 2004/17 (utilities) : State administrations public local authorities bodies governed by public law + public companies + any entity (= private entities) carrying out its activity on the basis of special or exclusive rights when these administrations, authorities or companies provide services to the public in the fields of drinking water, energy, transport and postal services

4. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU DIFFERENCES RELATING TO THE THRESHOLDS l Dir. 2004/18 (public authorities) Supply and services contracts 130 000 € (State) 206 000 € (local authorities + bodies pub law) Works contracts : 5 150 000 € l Dir. 2004/17 (utilities) Supply and services contracts : 412 000 € Works contracts : 5 150 000 €

5. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU DIFFERENCES RELATING TO THE PROCEDURES l Dir. 2004/18 (public authorities) Procedures that can be used for any contract : the open and the restricted procedures Procedure that can be used only in specific cases : the negotiated procedure l Dir. 2004/18 (public authorities) Procedures that can be used for any contract : the open procedure, the restricted procedure and the negotiated procedure with prior publication of a notice Procedure that can be used only in specific cases : the negotiated procedure without prior publication of a notice

6. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU DIFFERENCES RELATING TO THE NOTICES l Dir. 2004/18 (public authorities) : a notice for each contract l Dir. 2004/17 (utilities) : either a specific notice for specific contract or a periodic indicative notice or a notice relating to the existence of a system of qualification

7. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU ELEMENTS COMMON TO DIR. 2004/18 AND DIR. 2004/17 l A similar aim : making free movement of persons, goods, services and capital a reality in the fields of procurement by public authorities or utilities l Similar key provisions aiming at ensuring equality of treatment obligation to design the technical specifications in neutral terms similar provisions ensuring transparency (notices, as well as obligation to explain to the candidates why they were rejected) similar objective criteria for assessing the candidates similar objective criteria for determining the best tender