|
The European Commission has sent Spain a further formal request to modify the law on land-and-town planning that applies to the Valencia Community – the Ley Urbanística Valenciana ("LUV"). This request takes the form of an additional "reasoned opinion", the second stage of the infringement procedure laid down in Article 226 of the EC Treaty. If there is no satisfactory reply within two months, the Commission may refer the matter to the European Court of Justice. The Commission has already sent a letter of formal notice and reasoned opinion (IP/05/1598, 14 December 2005) to Spain regarding law 6/1994 on land-and-town planning ("LRAU") of Valencia. In these, the Commission took the view that the award of integrated action programmes (Programas de Actuación Integrada – "PAI") constitute public works and/or service contracts that should be awarded in accordance with Directives 93/37/EEC and 92/50/EEC (now consolidated and amended by Directive 2004/18/EC). PAI are contracts awarded by local authorities that include the provision of services and performance of public infrastructure works by property developers ("agentes urbanizadores") selected by the local authority. The LRAU was revoked by law 16/2005 ("LUV"), which entered into force on 1 February 2006. The Commission sent a second letter of formal notice on 4 April 2006 (IP/06/443, 4 April 2006) asking the Spanish authorities for their observations on several provisions of the LUV and on their compliance with previous warnings regarding the continued award of contracts which were based on the LRAU and were in breach of the EU procurement directives. The Commission now considers that, although the LUV streamlines the procedure to select property developers, it still contravenes the EU procurement Directives in several respects. These include the position of bidders who request contracting authorities to open a procedure to award a PAI; the contents of contract notices and tender documents; some of the criteria for the award of the contract; and the possibility to make various amendments to the contract at the time of the award or during its performance. The Commission further considers that the Spanish authorities did not comply with their EU obligations by failing to adopt measures to prevent the award of contracts based on the LRAU, and in violation of EU legislation, in the run-up to the adoption of the LUV and until its entry into force. Finally, there is still a difference of opinion as regards the core issue of whether PAIs are public contracts subject to the EU procurement rules. The Spanish authorities maintain that PAIs are not public contracts, and therefore, that neither the LRAU nor the LUV contravene the EU Directives. The Commission holds the opposite view. The latest information on infringement proceedings concerning all Member States is available at: http://ec.europa.eu/community_law/eulaw/index_en.htm
|
