Public Procurement Seminar

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Public Procurement Seminar

• Main Changes arising from
• Dir. 2004/18 (public sector)
• Dir. 2004/17 (utilities)

Yves AllainValletta, 25-26 January 2006
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AGENDA

• WHY TWO NEW DIRECTIVES IN 2004 ?
• CHANGES WHICH ARE COMMON TO DIR. 2004/18 AND
  2004/17
• CHANGES WHICH ARE SPECIFIC TO DIR. 2004/18
• CHANGES WHICH ARE SPECIFIC TO DIR. 2004/18

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WHY TWO NEW DIRECTIVES IN 2004 ?

• 1961 WORKING PROGRAMME
• 1971 DIR. 71/305 (WORKS CONTRACTS)
• 1976 DIR. 76/82 (SUPPLY CONTRACTS)
• 1989 DIR. 89/665 (REMEDIES / PUBLIC SECTOR)
• 1990 DIR. 90/531 (UTILITIES / WORKS SUPPLY)
• 1992 DIR. 92/13 (REMEDIES / UTILITIES)
• DIR. 92/50 (SERVICES CONTRACTS)
• 1993 DIR. 93/36 (SUPPLY), 93/37 (WORKS), 93/38
  (UTILITIES)
• 1997 DIR. 97/52 (GPA / PUBLIC SECTOR)
• 1998 DIR. 98/4 (GPA / UTILITIES)

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WHY TWO NEW DIRECTIVES IN 2004 ?

• NOVEMBER 1996 COMMISSION GREEN PAPER  WHAT
  RESULT HAS BEEN GOT? 
• MARCH 1998 - MORE THAN 300 REPLIES
•  WE WOULD LIKE MORE
  FLEXIBILITY 
• - SOME INITIAL IDEAS
• (TO BE DISCUSSED BY THE ADVISORY
  COMMITTEE
• FOR PUBLIC PROCUREMENT)
• MAY 2000 TWO PROPOSALS OF NEW DIRECTIVES
• DEC. 2003 AGREEMENT BETWEEN THE PARLIAMENT, THE
  COUNCIL AND THE COMMISSION

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PROVISIONS WHICH ARE COMMON TO DIR. 2004/18 AND
2004/17

• 1/ SIMPLIFICATION MEASURES
• PUBLIC SECTOR 1 DIRECTIVE INSTEAD OF 4
• UTILITIES 1 DIRECTIVE INSTEAD OF 2
• TOTAL NUMBER OF THRESHOLDS REDUCED
• THRESHOLDS EXPRESSED IN (BUT TO BE UPDATED
  EACH TWO YEARS)

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PROVISIONS WHICH ARE COMMON TO DIR. 2004/18 AND
2004/17

• 2/ POSSIBILITY TO USE ELECTRONIC MEANS OF
  COMMUNICATION
• ADVANTAGES REDUCTION OF TIME FOR DATA
  TRANSMISSION,
• REDUCTION OF TRANSACTION COSTS
• KEY PROBLEM HOW TO ENSURE NON- DISCRIMINATION
  AND EQUAL TREATMENT OF ALL THE CANDIDATES ?

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HOW TO USE THE ELECTRONIC MEANS OF COMMUNICATION ?

• 1/ TO TRANSMIT THE CONTRACT NOTICES TO THE OJEU
• CONDITIONS THE MEANS MUST BE GENERALLY
  AVAILABLE AND INTEROPERABLE WITH THE
  COMMUNICATION TECHNOLOGY PRODUCTS IN GENERAL USE
• ADVANTAGE POSSIBILITY TO REDUCE THE TIME-LIMITS
  FOR RECEIPT OF TENDERS AND REQUESTS TO PARTICIPATE

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HOW TO USE THE ELECTRONIC MEANS OF COMMUNICATION ?

• 2/ TO TRANSMIT THE TENDER DOCUMENTATION (AS WELL
  ANY ADDITIONAL DOCUMENT)
• CONDITIONS UNRESTRICTED AND FULL ACCESS TO THE
  CONTRACT DOCUMENT FROM THE DATE OF PUBLICATION OF
  THE NOTICE BY GENERALLY AVAILABLE AND
  INTEROPERABLE MEANS OF COMMUNICATION (SEE
  TRANSMISSION OF NOTICES)
• ADVANTAGE POSSIBILITY TO REDUCE THE TIME-LIMIT
  FOR RECEIPT OF TENDERS

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HOW TO USE THE ELECTRONIC MEANS OF COMMUNICATION ?

• 3/ TO ALLOW ELECTRONIC TRANSMISSION AND RECEIPT
  OF REQUESTS TO PARTICIPATE AND TENDERS
• CONDITIONS INTEGRITY OF DATA
• CONFIDENTIALITY OF
  REQUESTS AND
• TENDERS, AT LEAST
  UNTIL THE DEADLINES
• TO SUBMIT THEM
• TO MAKE AVAILABLE
  PIECES OF INFORMATION
• REGARDING THE
  SPECIFICATIONS RELATING
• TO THE
  ELECTRONIC CONNECTION
• ADVANTAGE POSSIBILITY TO REDUCE THE
  TIME-LIMITS
• FOR RECEIPT OF
  TENDERS

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HOW TO USE THE ELECTRONIC MEANS OF COMMUNICATION ?

• 4/ TO ORGANIZE ELECTRONIC REVERSE AUCTIONS (ERA)
• ERA ARE POSSIBLE ONLY IF THE CONTRACT
  SPECIFICATIONS
• CAN BE ESTABLISHED WITH PRECISION
• ERA MUST BE ANNOUNCED IN THE CONTRACT NOTICE
• ERA MUST BE BASED ON FEATURES THAT ARE
  QUANTIFIABLE
• AND CAN BE EXPRESSED IN FIGURES OR
  PERCENTAGES
• ANY RELEVANT INFORMATION CONCERNING THE TECHNICAL
• SPECIFICATIONS FOR CONNECTION AND THE
  ELECTRONIC AUCTION PROCESS MUST BE AVAILABLE

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HOW TO USE THE ELECTRONIC MEANS OF COMMUNICATION ?

• 5/ TO SET UP A DYNAMIC PURCHASING SYSTEM
• A COMPLETELY ELECTRONIC PROCESS
• FOR MAKING COMMONLY USED PURCHASES
• LIMITED IN DURATION
• OPEN THROUGHOUT ITS VALIDITY
• TO ANY ECONOMIC OPERATOR
• WHICH SATISFIES THE SELECTION CRITERIA
• AND HAS SUBMITTED AN INDICATIVE TENDER
  THAT COMPLIES WITH THE SPECIFICATIONS.

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HOW TO DEFINE THE TECHNICAL SPECIFICATIONS ?

• KEY OBJECTIVE OF THE DIRECTIVES
• TO ENSURE PROPER APPLICATION OF THE PRINCIPLES
• OF THE TREATY FREE MOVEMENT OF GOODS
• FREE MOVEMENT
  OF SERVICES
• 
  NON-DISCRIMINATION
• EQUALITY OF
  TREATMENT
• RISKS
• TAILORED MADE SPECIFICATIONS CAN LIMIT
  COMPETITION OR PREDETERMINE THE CHOICE OF THE
  SUPPLIER OR CONTRACTOR

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HOW TO DEFINE THE TECHNICAL SPECIFICATIONS ?

• A KEY RULE EQUAL ACCESS FOR TENDERERS
• THE TECHNICAL SPECIFICATIONS CAN BE DEFINED
• BY REFERENCE TO NATIONAL STANDARDS
  IMPLEMENTING EU STANDARDS
• OR IN TERMS OF PERFORMANCE OR FUNCTIONAL
  REQUIREMENTS IF THEY ARE SUFFICIENTLY PRECISE TO
  DETERMINE THE SUBJECT-MATTER OF THE CONTRACT
• OR PARTLY BY REFERENCE TO STANDARDS AND
  PARTLY IN TERMS OF PERFORMANCE OR FUNCTIONAL
  REQUIREMENTS
• EACH REFERENCE SHALL BE ACCOMPANIED BY THE WORDS
•  OR EQUIVALENT 

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ENVIRONMENTAL ISSUES

• ART. 3 OF EC TREATY  THE ACTIVITIES OF THE
  COMMUNITY SHALL INCLUDE A POLICY IN THE SPHERE
  OF ENVIRONMENT  ( ART. 174 TO 176)
• PROBLEM CAN CONTRACTING AUTHORITIES COMBINE
• ENVIRONMENTAL REQUIREMENTS WITH PUBLIC
  PROCUREMENT RULES ?
• IF SO, HOW ?
• FOR INSTANCE, CAN THEY BUY  GREEN BUSES  (
  LESS POLLUTING) EVEN THEY ARE MORE EXPENSIVE ?

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ENVIRONMENTAL ISSUES

• ART. 23 POSSIBILITY TO INCLUDE ENVIRONMENTAL
  CHARACTERISTICS INTO THE TENDER DOCUMENTS
• ART. 50 POSSIBILITY TO REQUIRE CERTIFICATES
  ATTESTING THE COMPLIANCE OF THE ECONOMIC OPERATOR
  WITH ENVIRONMENTAL MANAGEMENT STANDARDS BY
  REFERENCE TO EMAS OR EU OR INTERNATIONAL
  STANDARDS, OR EQUIVALENT CERTIFICATES
• ART. 53 POSSIBILITY TO USE ENVIRONMENTAL
  CHARACTERISTICS AS AWARD CRITERIA

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ENVIRONMENTAL ISSUES

• ENVIRONMENTAL AWARD CRITERIA ARE ALLOWED ONLY IF
  THOSE CRITERIA
• ARE LINKED TO THE SUBJECT-MATTER OF THE CONTRACT
• DO NOT CONFER UNRESTRICTED FREEDOM OF CHOICE ON
• THE CONTRACTING AUTHORITY
• ARE EXPRESSLY MENTIONED IN THE CONTRACT NOTICE
  AND TENDER DOCUMENTS
• COMPLY WITH THE FUNDAMENTAL PRINCIPLES OF EU LAW

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SOCIAL ISSUES

• DIFFICULTY TO COMBINE SOCIAL REQUIREMENTS WITH
  OBJECTIVITY OF PUBLIC PROCUREMENT
• CONTRACTING AUTHORITIES ARE ALLOWED TO LAY DOWN
  SPECIAL CONDITIONS RELATING TO THE PERFORMANCE OF
  A CONTRACT (PERFORMANCE TO BE CHECKED)
• POSSIBILITY TO RESERVE THE RIGHT TO PARTICIPATE
  IN AWARD PROCEDURES TO SHELTERED WORKSHOPS WHOSE
  MORE THAN 50 EMPLOYEES ARE PEOPLE
• WITH DISABILITIES

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PROVISIONS WHICH ARE SPECIFIC TO DIR. 2004/18

• POSSIBILITY TO USE FRAMEWORK AGREEMENTS
• POSSIBILITY TO USE CENTRAL PURCHASING BODIES
• POSSIBILITY TO USE THE COMPETITIVE DIALOGUE

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FRAMEWORK AGREEMENTS

• AGREEMENT BETWEEN ONE OR MORE CONTRACTING
  AUTHORITIES
• AND ONE OR MORE ECONOMIC OPERATORS
• AIMING AT ESTABLISHING THE TERMS
• OF CONTRACTS TO BE AWARDED DURING A GIVEN PERIOD,
• IN PARTICULAR WITH REGARD TO PRICE AND, WHEN
  APPROPRIATE, THE QUANTITY ENVISAGED

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FRAMEWORK AGREEMENTS

• USE OF FRAMEWORK AGREEMENTS PREVIOUSLY ALLOWED
  ONLY FOR THE UTILITIES
• ADVANTAGES FOR REPETITIVE NEEDS, EVEN FOR
  SEVERAL CONTRACTING AUTHORITIES, ONE PROCEDURE
  INSTEAD OF SEVERAL PROCEDURES
• POSSIBILITY TO BUY PRODUCTS AS THE NEED APPEARS
  INSTEAD OF BUYING (AND PAYING) TO PAY BIG
  QUANTITY
• POSSIBILITY TO GET BETTER PRICES
• POSSIBILITY TO RE-OPEN COMPETITION IN ORDER TO
  AWARD ORDERS OR CONTRACTS
• CONDITION THE FRAMEWORK AGREEMENT MUST BE
  AWARDED AFTER OPEN OR RESTRICTED PROCEDURE,
• OR AFTER NEGOTIATED PROCEDURE ONLY IF IT IS
  ALLOWED.

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FRAMEWORK AGREEMENTS WITH SEVERAL OPERATORS

• MINIMUM 3 ECONOMIC OPERATORS
• IF ALL THE TERMS ARE LAID DOWN IN THE FRAMEWORK
  AGREEMENT, CONTRACTS MAY BE AWARDED BY
  APPLICATION OF THESE TERMS WITHOUT REOPENING
  COMPETITION
• IF NOT,
• OBLIGATION FOR EACH CONTRACT TO CONSULT THE
  ECONOMIC OPERATORS CAPABLE TO PERFORM THE
  CONTRACT
• TIME-LIMIT LONG ENOUGH TO ALLOW TENDERS TO
  BE SUBMITTED
• CONFIDENTIALITY OF THESE TENDERS UNTIL THE
  TIME-LIMIT HAS EXPIRED
• CONTRACT AWARDED TO THE TENDERER WHO HAS
  SUBMITTED THE BEST TENDER ON THE BASIS OF THE
  CRITERIA SET OUT IN THE FRAMEWORK AGREEMENT.

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CENTRAL PURCHASING BODIES

• A CENTRAL PURCHASING BODY ACQUIRES SUPPLIES OR
  SERVICES INTENDED FOR CONTRACTING AUTHORITIES
• OR AWARDS CONTRACTS OR FRAMEWORK AGREEMENTS
  TO WHICH CONTRACTING AUTHORITIES REFER.
• ADVANTAGE ONE PROCEDURE INSTEAD OF SEVERAL
  PROCEDURES (HENCE TRANSACTION COSTS REDUCED)
• COMPETITION AT EU LEVEL INSTEAD OF LOCAL
  LEVEL (HENCE LARGER CHOICE, BETTER PRICES)
• DIFFICULTY THE USE OF CENTRAL PURCHASING BODIES
  WAS NOT FORBIDDEN BY DIR. 93/36 OR 92/50 BUT IT
  WAS NECESSARY TO ORGANIZE AN OPEN OR RESTRICTED
  PROCEDURE IN ORDER TO CHOOSE SUCH A BODY

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THE COMPETITIVE DIALOGUE

• WHY A NEW PROCEDURE ?
• FOR COMPLEX PROJECTS, THE CONTRACTING AUTHORITY
  DOES NOT ALWAYS KNOW WHAT THE MARKET CAN OFFER.
• RESTRICTED PROCEDURE LEGALLY RIGHT, BUT TOO
  RIGID. RISKS TO PREVENT INNOVATIVE SOLUTIONS TO
  BE PROPOSED.
• NEGOTIATED PROCEDURE THE CONTRACTING AUTHORITY
  COULD BE BETTER INFORMED BUT THE PROCEDURE WOULD
  BE GENERALLY IRREGULAR IN SUCH A CASE, AND NOT
  TRANSPARENT ENOUGH.
• THUS, NEED TO CREATE SOMETHING MORE FLEXIBLE THAN
  THE RESTRICTED PROCEDURE BUT MORE TRANSPARENT
  THAN THE NEGOTIATED ONE.

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WHAT IS THE AIM OF A COMPETITIVE DIALOGUE ?

• TO IDENTIFY AND DEFINE THE MEANS BEST SUITED
  SATISFYING THE NEEDS OF THE CONTRACTING AUTHORITY
• A CONTRACTING AUTHORITY CAN USE THE COMPETITIVE
  DIALOGUE WHEN IT CANNOT KNOW WHAT THE MARKET CAN
  OFFER IN THE WAY OF TECHNICAL SOLUTIONS AND/OR
  FINANCIAL OR LEGAL SOLUTIONS

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HOW TO MANAGE A COMPETITIVE DIALOGUE ?

• 1st STEP SELECTION OF CANDIDATES (AT LEAST 3)
• TO PUBLISH A NOTICE IN THE OFFICIAL JOURNAL OF
  THE EUROPEAN UNION
• TO DEFINE THE NEEDS AND REQUIREMENTS TO BE MET IN
  THE NOTICE OR IN A DESCRIPTIVE DOCUMENT
• TO SELECT CANDIDATES AFTER THEIR SUITABILITY HAS
  BEEN CHECKED (SEE THE RESTRICTED PROCEDURE)

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HOW TO MANAGE A COMPETITIVE DIALOGUE ?

• 2nd STEP DIALOGUE WITH THE SELECTED CANDIDATES
• THE CANDIDATES PRESENT THEIR FIRST PROPOSALS ON
  THE BASIS OF THE DESCRIPTIVE DOCUMENT
• DIALOGUE WITH EACH CANDIDATE ON ALL ASPECTS OF
  ITS PROPOSAL
• POSSIBILITY TO ORGANIZE SUCCESSIVE STAGES IN
  ORDER TO REDUCE THE NUMBER OF SOLUTIONS
• NO INFORMATION ON A TENDER OF A CANDIDATE CAN BE
  GIVEN TO OTHER CANDIDATES WITHOUT ITS CONSENT
  (EQUALITY OF TREATMENT)

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HOW TO MANAGE A COMPETITIVE DIALOGUE ?

• 3rd STEP AWARD OF THE CONTRACT
• WHEN THE SOLUTION OR SOLUTIONS HAVE BEEN
  IDENTIFIED, THE PARTICIPANTS ARE INVITED TO
  SUBMIT THEIR FINAL TENDERS
• THE CONTRACTING AUTHORITY CHOOSES THE MOST
  ECONOMICALLY ADVANTAGEOUS TENDER IN ACCORDANCE
  WITH THE CRITERIA MENTIONED IN THE NOTICE
• POSSIBILITY OF FINE-TUNING BUT NO SUBSTANTIAL
  CHANGE OF THE TENDER OR THE NOTICE IS ALLOWED

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CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17

• SCOPE OF APPLICATION OF DIR. 93/38
• CONTRACTS AWARDED BY CONTRACTING AUTHORITIES OR
  PUBLIC COMPANIES WHICH PURSUE THEIR ACTIVITY IN
  THE DRINKING WATER, ENERGY, TRANSPORT OR
  TELECOMMUNICATION SECTORS,
• OR BY OTHER ENTITIES (PRIVATE ENTITIES) HAVING
  ONE OF THESE ACTIVITIES AND OPERATING ON THE
  BASIS OF SPECIAL OR EXCLUSIVE RIGHTS GRANTED BY A
  PUBLIC AUTHORITY

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CHANGES WHICH ERE SPECIFIC TO DIR. 2004/17

• 1st CHANGE EXCLUSION OF THE TELECOMMUNICATION
  SECTOR
• 70 ONLY ONE OPERATOR IN EACH MEMBER STATE
  (FRANCE-TELECOM IN FRANCE, BELGACOM IN BELGIUM..)
• 90 LIBERALIZATION OF THIS SECTOR THE
  MONOPOLIES ARE ABOLISHED. THE OPERATORS ARE IN
  COMPETITION.
• AS A RESULT, ALL THEIR DECISIONS ARE TAKEN ON AN
  ECONOMICAL BASIS. NO REASON TO SUBMIT THEM TO THE
  PUBLIC PROCUREMENT DIRECTIVES.

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CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17

• 2nd CHANGE INCLUSION OF THE POSTAL OPERATORS
• 70 THE POSTAL OPERATORS ARE GENERALLY STATE
  AUTHORITIES OR BODIES GOVERNED BY PUBLIC LAW
  COVERED BY DIR. 92/50, 93/36 AND 93/37.
• FROM 2000, THEIR ACTIVITIES ARE PROGRESSIVELY
  SUBMITTED TO COMPETITION AND BECOME COMMERCIAL.
  AS A RESULT, THESE OPERATORS ARE TO BE
  SUBMITTED TO DIR. 2004/17 BEFORE 31-12-2008
  (DEPENDING ON EACH MEMBER STATE).

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CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17

• 3rd CHANGE A NEW DEFINITION OF SPECIAL OR
  EXCLUSIVE RIGHTS
• DIR. 93/38  SPECIAL OR EXCLUSIVE RIGHTS 
  RIGHTS DERIVING FROM AUTHORIZATIONS GRANTED BY A
  COMPETENT AUTHORITY OF THE MEMBER STATE CONCERNED
  BY LAW, REGULTION OR ADMINISTRATIVE ACTION,
  HAVING AS THEIR RESULT THE RESERVATION FOR ONE OR
  MORE ENTITIES OF THE EXPLOITATION OF AN ACTIVITY
  DEFINED IN PARAGRAPH 2.
• DIR. 2004/17  SPECIAL OR EXCLUSIVE RIGHTS 
  MEAN RIGHTS GRANTED BY A COMPETENT AUTHORITY OF A
  MEMBER STATE BY WAY OF ANY LEGISLATIVE,
  REGULATORY OR ADMINISTRATIVE PROVISION THE EFFECT
  OF WHICH IS TO LIMIT THE EXERCISE OF ACTIVITIES
  DEFINED IN ART. 3 TO 7 TO ONE OR MORE ENTITIES,
  AND WHICH SUBSTANTIALLY AFFECT THE ABILITY OF
  OTHER ENTITIES TO CARRY OUT SUCH ACTIVITY.

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CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17

• 4th CHANGE POSSIBILITY TO EXCLUDE AN ACTIVITY
  MENTIONED IN ART. 3 TO 7 IF IT IS DIRECTLY
  EXPOSED TO COMPETITION
• ART. 2-4 (TRANSPORT SECTOR), 3 (OIL, COAL, SOLID
  FUEL) AND 8-1 (TELECOMMUNICATION SECTOR) OF DIR.
  93/38 SECTORS EXCLUDED IF ACTIVITY SUBMITTED TO
  COMPETITION
• ART. 3 SITUATION CHECKED BY THE EUROPEAN
  COMMISSION, WHICH DECIDES WHETHER THE DIRECTIVE
  APPLIES OR NOT.
• ART. 8 CJECs RULING  IT IS UP TO THE OPERATOR
  TO DECIDE 
• PRACTICAL RESULT DIFFICULTY FOR THE OPERATORS

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CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17

• ART. 30-1 OF DIR. 2004/17 EXCLUSION OF
  CONTRACTS INTENDED TO ENABLE AN ACTIVITY
  MENTIONED IN ART. 3 TO 7 IF, IN THE MEMBER STATE
  IN WHICH IT IS PERFORMED, THE ACTIVITY IS
  DIRECTLY EXPOSED TO COMPETITION ON MARKETS TO
  WHICH ACCESS IS NOT RESTRICTED
• ART. 30-4 CONTRACTS EXCLUDED IF THE COMMISSION
  HAS ADOPTED A DECISION ESTABLISHING THE
  APPLICABILITY OF 30-1 WITHIN A 3-MONTH PERIOD
  (EXCEPTIONALLY 6 MONTHS) OR IF IT HAS ADOPTED NO
  DECISION WITHIN THIS PERIOD

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CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17

• THE PROCEDURE CAN BE INITIATED
• BY THE MEMBER STATE CONCERNED,
• BY CONTRACTING ENTITIES IF THE NATIONAL
• LEGISLATION PROVIDES FOR IT,
• OR BY THE COMMISSION.
• IN THESE CASES, THE MEMBER STATE IS INFORMED AND
  INVITED TO PROVIDE THE COMMISSION WITH ANY USEFUL
  INFORMATION (TEXTS OF LAWS, OPINION OF ANY
  INDEPENDANT AUTHORITY)
• DECISION 2005/15/EC ON THE DETAILED RULES FOR THE
  APPLICATION OF THE PROCEDURE PROVIDED FOR IN
  ARTICLE 30 OF DIRECTIVE 2004/17 PROVIDES THE LIST
  OF PIECES OF INFORMATION TO BE PROVIDED TO THE
  COMMISSION.

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CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17

• CRITERIA USED TO DECIDE WHETHER AN ACTIVITY IS
  DIRECTLY EXPOSED TO COMPETITION
  CHARACTERISTICS OF THE GOODS OR SERVICES,
• EXISTENCE OF ALTERNATIVE GOODS OR
  SERVICES,
• PRICES,
• ACTUAL OR POTENTIAL PRESENCE OF MORE
  THAN ONE
• SUPPLIER OF THE GOODS OR SERVICES
• FREE ACCESS DEEMED NOT TO BE RESTRICTED IF THE
  MEMBER STATE HAS IMPLEMENTED THE RELEVANT EU
  LEGISLATIOIN (ANNEX 11 OF DIR. 2004/17).
• IF NOT, IT HAS TO BE DEMONSTRATED (SEE DECISION
  2005/15/EC OF THE COMMISSION)