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Decision in case 2259/2017/CEC on the European Commission’s decision that Directive 2014/24/EU does not apply to actions carried out in the context of EU external aid

The complaint to the European Commission

1. The complainant, a French citizen, is the general manager of a private company in Albania.

2. On 4 September 2017, the complainant wrote to the European Commission complaining about irregularities in contracts concluded under the so-called ‘negotiated procedure’[1], ‘competitive negotiated procedure’[2] and the ‘competitive dialogue’[3] for the Enlargement (‘IPA’) and Neighbourhood (‘ENI’) regions. In support, the complainant referred to different Articles of Directive 2014/24/EU[4], which he considered applicable to those actions.

The Commission’s response to the complainant

3. On 18 October 2017, the Commission replied to the complainant. It stated that Directive 2014/24/EU does not apply to actions carried out in the context of EU external aid. According to the Commission, it is only Title V of the EU Financial Regulation[5], the regulation(s) of the relevant instrument concerned, and the Practical Guide on Contract Procedures for a European Union External Action (PRAG)[6] that apply to such types of actions.

4. In further correspondence with the complainant, the Commission reiterated its point of view.

5. The complainant turned to the Ombudsman on 21 December 2017, arguing that the Commission erred in considering that Directive 2014/24/EU is not applicable to actions carried out in the context of EU external aid.

The European Ombudsman's findings

6. Directive 2014/24/EU establishes rules on the procedures for procurement by contracting authorities of Member States[7]. The Directive does not apply to public procurement procedures launched by the EU institutions. Instead, and as the Commission correctly stated, the EU Financial Regulation, which lays down the rules for the implementation of the general budget of the Union, is applicable to such procedures. The EU rules on public procurement are to be found in Title V[8] of the said Directive.

7. Therefore, the Ombudsman considers that the Commission’s reply is correct and in line with the applicable legislation.

8. Thus, no maladministration occurred in this case.[9]

 

Lambros Papadias

Head of Inquiries - Unit 3

Strasbourg, 03/10/2018

 

 

 

[1] The ‘negotiated procedure’ is one of the different types of EU public procurement procedures. In a negotiated procedure, the public authority invites at least three businesses with whom it will negotiate the terms of the contract. See https://europa.eu/youreurope/business/public-tenders/rules-procedures/index_en.htm and Article 2.6.8 of the Practical Guide on Contract Procedures for an European Union External Action (PRAG), http://ec.europa.eu/europeaid/prag/document.do?nodeNumber=2.6.8

[2] Under the ‘simplified procedure’ (formerly known as ‘competitive negotiated’ procedure), the contracting authority invites at least three candidates of its choice to submit tenders. The evaluation (including the use of an evaluation committee) and the award of the contract follow the rules of the open procedure. See Article 2.6.4 of the PRAG, http://ec.europa.eu/europeaid/prag/document.do?nodeNumber=2.6.4

[3] The ‘competitive dialogue’ is often used for complex contracts such as large infrastructure projects where the public authority cannot define the technical specifications at the start. The public authority must invite at least three candidates to a dialogue in which the final technical, legal and economic aspects are defined. See https://europa.eu/youreurope/business/public-tenders/rules-procedures/index_en.htm and Article 2.6.7 of the PRAG, http://ec.europa.eu/europeaid/prag/document.do?nodeNumber=2.6.7.

[4] Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC Text with EEA relevance, OJ L 94, 28.3.2014, p. 65.

[5] Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002, OJ L 298, 26.10.2012, p. 1.

[6] The PRAG is the practical guide on contract procedures for European Union external action, available at http://ec.europa.eu/europeaid/prag/.

[7] See Article 1 of Directive 2014/24/EU and preamble 29 to that Directive.

[8] See also Article 190 of the EU Financial Regulation on ‘external action procurement’, which also refers to Title V of the EU Financial Regulation.

[9] This complaint has been dealt with under delegated case handling, in accordance with Article 11 of the Decision of the European Ombudsman adopting Implementing Provisions.