Proposition 51K2237

Projet de loi relatif aux marchés publics et à certains marchés de travaux, de fournitures et de services.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

Jan. 30, 2006

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive award of contract public procurement

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Discussion ¶

March 16, 2006 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, colleagues, the Committee on Finance and Budget discussed this bill during its meeting on 22 February, but after submitting an amendment by our House Speaker, last week in the plenary session, the draft was returned to the committee. Yesterday, March 15, it was treated again.

During the hearing, the amendment of our chairman was discussed, as well as two amendments of the CDH, which were not addressed because there was no unanimity on the discussion.

Mr Van Quickenborne, Secretary of State, gave the following explanation in his introductory presentation. The bill provides for the reform of the legislation on public procurement. This is necessary to comply with the transposition of two European Directives of 31 March 2004 by the European Parliament and the Council. These Directives aim to simplify and modernise. In addition, a number of clarifications are made, based on the case-law of the Court of Justice and the European Communities. Following the opinion of the Committee on Public Procurement, the existing law of 24 December 1993 is repealed, ensuring a coherent structure and a logical arrangement of the legal provisions.

During the general discussion, the commissioners agreed that the use of a new draft legislation for the transposition of European directives is a good thing. There were no comments on this subject. Mr. Devlies proposed a whole series of technical improvements, all of which were eventually accepted by the committee.

During the article-by-article discussion, there was mainly a discussion on Article 1 of the bill, which stipulates that the bill regulates a matter as referred to in Article 78. Collega Massin pointed out that Article 44 of the draft actually regulates a matter as referred to in Article 77, since it affects the jurisdiction of the courts of first instance. The Secretary of State acknowledged that, but stated that due to the urgency of the bill, one wanted to work in this way. As Mr. Massin continued to insist, together with Mrs. Marghem and Carl Devlies — one actually found that the draft was unconstitutional — the Secretary of State proposed to amend the entire article and subject the draft law to Article 77 of the Constitution. An amendment was adopted unanimously.

As I said, last week, during the plenary session, our House Chairman submitted an amendment, following the submission of the report. The draft law was, as regards Article 1, returned to the Finance Committee.

The problem here is that the entire bill has actually been subjected to Article 77, which almost irrevocably introduces the mandatory bicameral system, in which the Chamber and Senate in the future are competent for public procurement, which is actually disproportionate, with the intention of preserving the unity of the text.

Mr De Croo’s amendment proposes that the draft law in its entirety be subject to Article 78, with the exception of Articles 44 and 74. The amendment is adopted with 8 votes in favour and 3 against.

There is also a discussion on Article 8. Article 8 regulates the incompatibilities in the context of the award and execution of a public procurement applicable to any official involved in the award procedure. It stipulates that if that official owns at least 5% of the social capital, he must report this to the government.

Mr. Devlies proposes to remove the 5% threshold. This amendment is also rejected, with the replica that this procedure has actually been applied for years.

Article 9 clarifies the prohibition of any act, agreement or arrangement that may distort normal conditions of competition. The mandatory cessation of the execution of a contract shall cease because it may be more detrimental to the contracting authority.

Mr. Devlies wondered if that could not lead to a dispute when candidates who took the assignment beside the assignment have problems about it. The Secretary of State points out that these are actually very exceptional situations in which the government would still be obliged to continue to cooperate with the same company due to international monopoly positions.

Finally, there was also a discussion on Article 25. For public procurement that reaches the amount of the European publication, there must be a weighting of each award criterion. If this is not the case, the criteria should be listed in decreasing order of importance.

For contracts that do not reach that amount, the award criteria can be chosen between a weighting and a ranking. Collega Devlies in this regard, in an amendment, advocates for a uniform arrangement giving priority to weighting. The Secretary of State warns that it still threatens to create excessive burdens and excessive formalism and also says that the weighing system nevertheless always leaves some room for free variants, which must be evaluated. The amendment is therefore rejected.

Article 33, paragraph 2, permits the King to apply specific award rules to the contracts of legal services in disputes limited to consultation and representation before courts and other dispute resolution bodies.

Following a question from colleague Devlies, the Secretary of State clarifies that the services of law firms must be distinguished according to the urgency of the procedure. Legal study services are subject to the normal procedure, judicial defence services sometimes require urgency and must be subject to the special arrangement.

At the request of Ms. Marghem, the Secretary of State clarifies that the law explicitly provides for the possibility of deviating from the normal procedure in case of urgency arising from unforeseen events.

Following Mr Massin’s concerns as to why the urgent cases were not expressly provided for in that article, the Secretary of State promises that this will be taken into account when drafting the implementing decisions.

Article 64 states that the King has the power to determine the rules concerning the right of access and the qualitative selection of candidates and tenderers. With an amendment, Mr Devlies intended to add a second paragraph aimed at denying access to any public procurement in the case of serious facts such as participation in criminal organizations, bribery, fraud or money laundering, except for imperative reasons of public interest. The Secretary of State points out that the article covers the special private sectors, especially the private undertakings enjoying special exclusive rights. Ultimately, the text does not go beyond the requirements imposed by the Directive. The amendment is rejected in this sense.

Finally, an extensive discussion took place on Article 80. This article contains cancellation provisions. Among other things, Article 115 of the Act of 14 January 2002 on measures relating to health care is repealed. Collega Devlies fears that this will result in problems for public hospitals, as they fall within the scope of the draft law by that article. Collega Devlies outlined the full history of the creation of Article 115. I refer to the written report. According to him, the draft resulted in public hospitals being subject to legislation on public procurement, while that for private hospitals remains limited to the situation in which they are primarily funded by the public. Collega Devlies fears that this will again create a competitive disadvantage for public hospitals. He also asks whether private hospitals will not escape the application of the law by calculating the amount of the subsidies. The Secretary of State confirms that this has given rise to problems in the past, but for the article refers to the concept of "public law institution", as it is supplemented by the Court of Justice and in this respect, however, differs from the meaning we give it in Belgian administrative law. The Court of Justice adopts a functional approach, which does not take into account the legal form of the legal person or body concerned. This means that a private hospital also meets the definition criterion of Article 2, in this case the criterion of need of general interest.

The only hospital institutions that would not be covered by this law in the future are private hospitals that operate exclusively or mainly with their own money.

Collega Devlies reiterates his concern about the competitive disadvantage of the concept of subsidy, but the Secretary of State responds that the concept of “financing” must be understood in a very broad sense, depending on the interpretation given to it by the case-law of the Court of Justice.

The amendment of Mr. Devlies is also rejected here and eventually the entire draft law as amended, including all legislative technical improvements, is adopted with eight votes for and three against.

The general discussion is open, but I am still waiting for Mr. by Jamar. by

The main reason for this is that Mr. Landuyt believed to go with a small project of a few minutes; thus, during his absence, we went on to this project. This is the light problem. I am waiting for mr. by Jamar. I’m going to propose a solution that I don’t like very much, because when you start something, you have to finish it. If Mr. Vanvelthoven is present—and I find that he is—and if the Chamber permits me to do so, I will leave it to Mr. Vanvelthoven. Take the opportunity to ask your question. But I don’t like this very much: a discussion that has begun must continue.

Since Mr. Vanvelthoven is here, I suspend this discussion to allow Mr. Ask the last oral question.

Mr. Speaker, Mr. Minister, the debate on competitiveness is serious, we all agree with it, as well as that on taxation and that on the purchasing power of citizens, especially low-income workers.

As weeks go by, I’m getting more and more frustrated and I risk one day losing patience! In fact, for the past three months, opinions have gone in all directions within the government regarding the three aforementioned topics.

This began in December when, in the ink of the Generation Solidarity Pact barely dry, the Prime Minister called for a Competitiveness Pact that should first, according to his legendary enthusiasm, be concluded by the end of December, before being postponed to the end of March. In February, the chairman of the Socialist Party came out of proposals he called "second tax reform to fight poverty and job traps". In March, the trade unions indicated, based on convincing arguments, that a short-term Competitiveness Pact was not possible for a range of reasons and called for the project to be postponed to autumn.

In the aftermath, the prime minister proposes, a few days later, to coupl this pact with fiscal measures that increase purchasing power and to close the project by the end of March. Two days later, Mr. Reynders makes a media "barnum" by announcing his tax reform. For the citizens who watch it on television and listen to it on the radio, they understand that this reform is already decided. However, I think it is always just a take of position, like that of mr. Di Rupo, that of a party president and ⁇ not of the government.

Finally, on Tuesday in commission, despite your legendary caution, you tell me in a very simple but very clear, very clear way that the government will not take any initiative before the fall in order not to challenge the current conventions. When I asked you whether there was a political link with the tax reform, you added that the competitiveness debate had no connection with the new tax reform announced by Mr. Trump. and Reynders. Now, on the same day — I read it after the commission; I had not had time to browse the press before —, your party chairman, mr. Vande Lanotte states that — I read it again to not make a mistake — “A new tax reform is not on the agenda. This will be discussed at the earliest in June, during the preparation of the 2007 budget. In the agenda at the end of March, there is competitiveness and not tax reform.”

My questions are the following.

As a minister engaging the government, you tell me one thing about competitiveness and your party chairman says the opposite. How should this double message be interpreted?

If I rely on your reply in commission, you leave the space for a tax reform separate from any debate on competitiveness. Is this reasonable? Wouldn’t it have been more rational, from every point of view and in particular for the budgetary balance of the federal authority, to combine the two debates?

Mr. President, Mr. Drèze, the Government has decided, within the framework of these workshops, to organize a debate on the flat-rate deductibility of professional costs. I quote: "The government will seek to increase the purchasing power which is ⁇ guaranteed by the indexation system and which can be strengthened by increasing the flat-rate deductibility of professional costs."

It goes without saying that the above-mentioned workshops contain a wider range of measures that concern the entire cost of wages for companies but also the purchasing power of people. by

In this regard, I refer to the debate in which the social partners will participate on wage agreements, the continued implementation of the measures provided for in the Covenant on Solidarity between Generations and the 2005-2006 IPP, as well as a series of complementary themes that influence household purchasing power such as energy spending and rental prices.

All these factors influence inflation and therefore have an impact on the competitiveness of our economy. by

I believe that all these issues should be addressed in a comprehensive discussion.

The chairman of sp.a wanted to draw attention to the fact that a new large-scale tax reform operation, spanning several years, is not on the agenda. I do not see any contradiction between the two themes.

Mr. Speaker, Mr. Minister, I agree that the President of the sp.a could not express otherwise regarding the tax reform.

However, as regards the Competitiveness Pact, he said: “This is the priority for the end of March.” While you have said — and I share your position on this point — that, given the current conventions, this would not be appropriate and that we would talk about it in autumn.

All these elements lead me to think that, at least at the level of party presidents, especially when they are ministers in addition, as the newspaper "Le Soir" said a few weeks ago, this government is a real souk! by

What should we deduce from all this? The election campaign has begun! This means that for two years the government will not manage the country and, let me be honest, in terms of employment, it will be four years! by

In fact, since Mr. Vandenbroucke has gone, this government has no longer any employment policy! And only the members of the sp.a succeeded the head of this department; after Mr. Vandenbroucke, we had Mr. Vande Lanotte, Mrs. Van den Bossche and now Mr. by Vanvelthoven. by

If you add the two years of electoral campaign, it will therefore be four years without employment policy when that was the main theme of the government statement of July 2003!

The incident is closed. The incident is closed.

The general discussion is resumed. Of general speaking is hervat.

( ... ...

May 4, 2006 | Plenary session (Chamber of representatives)

Full source

On 16 March, I presented a very comprehensive report in the plenary session. The draft was returned to the committee for the discussion of two amendments by Mr Wathelet. The committee was consulted with the State Council. After the opinion, the amendments were withdrawn.

As for the discussion, I refer to the supplementary report.

Mr. Speaker, this draft was returned to the committee for a very precise question, which concerned its exact scope: namely, in what circumstances should a contract be subject to the rules of public procurement and in which case is it a private contract that should not comply with this draft law?

I will limit my speech essentially to the discussion we had about the amendment I had submitted. But first of all, I would like to remind, in order to avoid any quiproquo, that this project seems to me very positive. In fact, it clarifies the rules of public procurement and introduces maximum transparency. In addition, it uniformizes these rules at the European level. by

The question is whether this transposed directive has the effect of subjecting private law institutions to public procurement regulations. We discussed in a committee the interpretation that should be given to a case-law of the Court of Justice, defining the public law bodies falling within the scope of future legislation. If one follows the reasoning of the government, it is the entire private property of these individuals of private law that is - without a valid reason, it seems to me - "contaminated" by the legislation on public procurement and therefore subject to a legal regime totally alien to private property.

There is a lot of talk about markets that have been passed on the basis of private property, therefore private property held by a private company. Although some companies are subsidised and fall under this law, they have private capital and do private investments. Therefore, this private property would be assimilated to public money. This seems to me to be contrary to the objectives of the Directive, which, I recall, consists in ensuring that the regulation on public procurement cannot be circumvented by granting subsidies to private persons. Indeed, if it were enough to subsidize a company or entity so that it goes out of the scope of the directive and the project, it would no longer make sense. by

Therefore, when any institution, such as a university, concludes contracts in areas for which it is subsidised, it obviously falls within the scope of the directive and the project. by

In our view, it is impossible to argue that the presence of a majority public financing would change anything in the management of a private person’s private property. A private property is and remains such, whether or not public subsidy is granted. It is around this private market that the contract is concluded. Therefore, it should not be subject to this project. by

Indeed, the consequences of such practice and such interpretation are not small. A few examples have been cited in the commission and I will repeat it here. What is done about donations and legacy from private individuals for the benefit of private institutions? Private libraries receiving public grants representing more than 50% of their budget will be subject to public procurement legislation for all their activities, even those carried out exclusively through their own assets. Private law universities will be bound by the same regime, as will university hospitals and other hospital institutions receiving majority public funding. This applies to all non-profit associations created by these institutions through their private assets.

However, in my view, there is no valid reason to subject the activities generated by the private property of a private person to a legal regime which falls within the scope of administrative law. That is why we submitted amendments to return to the spirit of the Act of 24 December 1993, which prevented public authorities from escaping public procurement regulations.

Faced with the difficulty of perceiving all the nuances of the Cambridge and Mannesmann judgments mentioned by the government in the preliminary discussions, we had sought the opinion of the State Council, which was supposed to examine the admissibility of the special status granted to free universities in the context of private procurement. "Either the proposed amendments (including the one I had initially introduced) do not intend to deviate from the legal conditions allowing to identify among the legal persons of private law those who are subject to the whole legislation on public procurement, or the amendments intend to reserve a particular fate to the universities of private law by making them escape from these conditions." In the first case, the State Council does not see the usefulness of the amendments and in the second case, it considers that the proposed text is not compatible with the rulings invoked by the government in commission. Obviously, the aim of these amendments is to reserve a status for private universities. The conclusion of the State Council opinion is therefore based on a finding of incompatibility with Community directives. What are the foundations of this conclusion? The State Council is limited to advancing the conclusions drawn by the Court of Justice in the judgment concerning the University of Cambridge. The opinion highlights that in that judgment, the Court explicitly specified the scope of the criterion relating to the majority financing of the institution by specifying that it should be assessed on an annual basis. The State Council considers that the conclusions nuanced by this judgment do not appear in the text of the amendment when it limits the application of the legislation on public procurement to only contracts subsidized by public authorities.

However, the scope of the Cambridge judgment does not, in my view, allow to consider that the existence of a majority funding of universities would result in making market regulation applicable to operations financed by universities from private funds. Hence the nuance that I tried to bring in commission: rather than knowing who — this is what delimites the Cambridge judgment — would it be better to know what, with what funds? Is it through purely private funds? Is it through funds for which the institution receives a minimum of subsidies? And for a reason, since the question had not been submitted to the Court of Justice, which, in its turn, was only referred to the case of Cambridge properly speaking, namely which are the undertakings that are submitted, what is the definition to be taken? by

None of the four questions submitted to the Court by the referring court concerned the application of public procurement legislation to the private activities of a university financed mostly by public authorities. Therefore, no activity as such was private. I go back to what I said: it’s not about knowing who but on what? by

Without a doubt, in view of the opinion given by the State Council, the wording of the amendment could be modified by specifying that: "The public procurement legislation is not subject to public procurement, the private university procurement does not include any public financing." An alternative amendment, better responding to the opinion of the State Council, could have been submitted.

This amendment goes, of course, a little further than the current text, which submits private universities to the regulation of public procurement only for their procurement subsidized by public authorities. The wording would simply be reversed.

It is based on a logic that can be defended, namely that while private law persons can, subject to various conditions, be regarded as full-fledged contracting authorities and not only isolated operators, this status of “contracting authority” remains only within the limits drawn by the legislator. However, these limits are included in the above conditions, namely that the private law person must have been created in order to carry out tasks of general interest, other than industrial and commercial, and that it must be controlled mostly by the contracting authorities, either through its bodies or through its financing.

In our view, it could be argued that outside of this control or majority financing, the private entity remains such and is therefore not subject to the regulation on public procurement. Indeed, it is within this problem that it goes out of the scope of the project as such.

Three cases of figure could thus be met: 1. the private law person who does not meet the conditions of the law and is in no way subject to the regulation on public procurement; 2. the private-law person who does not meet the requirements of the law, but who is subject to the regulation of public procurement for very specific contracts receiving majority public financing — this is the very essence of the Cambridge judgment —; 3. the person of private law who fulfils the conditions of the law and who will be subject for all its operations to the regulation of public procurement, with the exception of those which do not fall within the framework drawn by the legal conditions. They will therefore allow it to make this regulation applicable to the activities of the legal person, of purely private law, either because despite the tasks of general interest for which the institution was established, it performs other tasks; or because the operations do not fall within the limits of majority control or financing.

As you can see, dear colleagues, the debate is far from closed, despite the reservations made by the State Council, given that it has taken a stand on the amendment as such. In my opinion, he may not have gone far enough or did not resume all the discussions we had in the committee. This did not allow him to go to the bottom of the reflection to ask himself, in addition to the question of the interpretation of the Cambridge judgment, the following fundamental question: What is this project also about?

In the interest of all these institutions, academic or other, which will be compelled to apply without nuance the legislation on public procurement, it therefore seems to me useful that the Senate make use of its right of evocation in order to allow the continuation of the debate initiated and to resolve the few elements of reflection that I wanted to remind this tribune.

However, I add that, overall, this project is quite positive, in the sense that it inserts even more transparency and uniformizes public procurement mechanisms at European level.

Mr. Speaker, I am grateful to the Secretary of State for wanting to hear my speech again.

The approval of the present draft will be a ⁇ black day for a number of bodies, which will now have to experience that the legislation on the procurement of public procurement also applies to, for example, the VZWs and the privately organized hospitals.

I understand that the European element is often used as an argument. I think the Secretary of State is very quickly fixing on this. I am very curious to know if this is happening in the same way in all countries.

For someone who advocates administrative simplification, this is a ⁇ sad moment in relation to that sector, namely the idea that everyone will now have to apply those procedures, including those who in the past have done so only in the case of subsidised works.

I recently asked the Prime Minister about the same legislation — he apparently has that service under his authority — the question: “Should public hospitals, if they want to hire a new doctor, now also do so through the Law on Public Procurement?”

There has still been a time when we from the opposition, in other words in great unanimousness with Mr. Mayeur of the PS, could approve a regulation exempting public hospitals from such obligation, except to the extent that Europe or the subsidy legislation would require it. All that is wiped out of the card, under the adage "Europe says it".

I had hoped for a much more critical reading that had shown the attitude that we would apply that legislation as little as possible, but I only read all possible methods to remain vague about it.

For private hospitals, honestly, Mr. Secretary of State, it is still not clear to me. I hope that we do not find ourselves in a situation where we have to check for each case separately whether the legislation applies or not. Efficiency is not encouraged, not promoted.

I am very disappointed — I have heard from my colleagues that there have been questions about it — that the answers are of such nature that the sector, after the Chamber has approved it, will see the administrative burden increase enormously.

I think we have discussed this issue several times in the committee. I highly appreciate the contributions of the various members, including those from the opposition. Mr Wathelet is pleased to have submitted an amendment. We submitted it, at his request, to the Council of State. The answer clearly demonstrated that the State Council conforms to what Europe says.

It is, of course, easy, Mr. Vandeurzen, to foet here against Europe. These are the guidelines, as they were determined. They are clear and clear. Administrative simplification is a matter. It is another matter to ensure that it is diligently skipped with the taxpayer’s coins. The rule of Europe is very clear: what is subsidised for more than 50% is subject to the rules of public procurement. Mr Wathelet also referred to a number of judgments of the European Court of Justice in this regard. This is also mentioned in the opinion of the State Council. The importance of proper and fair use of tax money sometimes goes beyond administrative simplification.

The paperless world, or the world in which there would no longer be any form of bullying, would also be a world in which certain institutions would disappear, Mr. Vandeurzen. I know some politicians who say: going to Parliament is a mess. I do not say that. One must go to Parliament, but there are different interests in society to serve. One of those interests is precisely reasonable and correct dealing with tax centers. This is what Europe demands of us. We do not do more than Europe asks us. We implement this Directive perfectly. We do this in accordance with what the State Council has said. This is what we want to present to you here today.

First Mr Vandeurzen is speaking, then Mr Wathelet.

Mr. Speaker, of course, I am not an expert in the matter, but if the benefits provided in hospitals and which are reimbursed through the compulsory health insurance are considered as subsidies and as the expenditure of public money, then I am very curious how anyone with this kind of insurance system, which is opposed to performance and reimbursement, can... If all this is called public funding, I find that a very peculiar reasoning. I am a little surprised.

If they are subsidies from the Flemish Community, then it is quite obvious. A file that goes through the Flemish VIP administration is on average 10% more expensive if it goes through the procurement rules, than if it does not go through those rules. We are talking about proper handling of public money. Well, I do not understand it. The case takes a very important turn. It is a break with the past, because last week, of course, the European legislation also existed. She was also of compulsory law. That is not new. However, you now put in Belgian law that private hospitals must follow this legislation for all possible services and goods purchased. I tell you that this adds a huge complexity. I do not understand. Why was it not so yesterday, with the same European directives, and today suddenly with your law? That is a big problem for me.

My speech goes in the same direction as the words of Mr. President. by Vandeurzen.

Take another example: a private hospital that is subsidized for a part. Let’s get into your logic. Therefore, the Cambridge judgment is respected: since it is a hospital that is subsidised for a part, it must therefore fall within the scope of the Public Procurement Act. Imagine that, as part of his activities, he receives a purely private legacy on the basis of which he concludes a purely private contract. In your logic, since you apply Cambridge jurisprudence even in this case, this hospital will also have to be subject to the Public Procurement Act. However, the Cambridge judgment only defines the scope of ratione personae — which are undertakings and institutions subject to the law —; it does not determine the types of markets concerned, it does not address the question of the funds used.

In my opinion, this question of what the market is about would allow to combine — I think that should be one of your concerns — the case-law of the European Court of Justice, the transposition of the directive and an administrative simplification in respect of those important actors that are, for example, hospitals and universities.