Congress report - European Health Forum Gastein

Forum III: Health and the Single European Market
International Forum Gastein, Tauernplatz 1, A-5630 Bad Hofgastein
Tel.: +43 (6432) 7110-70, Fax: Ext. 71, e-mail: info@ehfg.org, website: www.ehfg.org
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Public procurement of goods and services: a legal analysis of the
Spanish case:
Fernando Silio
1.Background
It is estimated that up to 15 per cent of the European Union's Member States economic
activity originates in the public sector to fulfil needs such as the execution of public works
and supply and services demanded by the public administration. Public procurement, as
well as being one of the essential tools of each administration for its own functioning, has a
great deal of influence in the evolution of the industrial and commercial structure of society.
For this very reason the inclusion of Spain in the European Community has provoked a
substantial change in the way public procurement is regulated. The legislative process was
begun in 1986 and concluded with the enforcement of the 13/1995 Public Procurement Act of
May 18th.
One of the backbone policies of the European Union in the construction of a single internal
market aims to "effectively open the public markets" with the purpose of ensuring
transparency of information and contract award procedures. This enables both suppliers
and businesses greater opportunities to develop and carry out their activities in the
community. The market expansion allows the reduction of cost through scale returns and
improved efficiency thanks to the positive effects of competition. Also, the diverse public
administrations benefit from greater choice which allows important budgetary savings.
Finally, consumers and users benefit from services at better value for money14.
The basic principles of public procurement which derive from the Directives are: equality,
transparency and competitiveness. These are basic principles which have to be complied with
in any contract. In the health sector the new legal framework has caused a revolution, as
there is a high level of public procurement in the health sector administration.
As in any other sector, deficiencies in the application of communitarian regulations in the
Spanish legal system have been immediately identified. First of all, the Directives on the
excluded sectors have not been implemented in time to our legal system. Secondly, the lack
of determination in our public sector, from the organizational point of view, has resulted in
the non-application of the law contracts, breaching the communitarian law. Thirdly, from a
technical perspective, we should point out that there is excessive formalities in the
enforcement of the regulations, a contradiction according to the communitarian principles.
Finally, we should also mention the infringement of a rule which has lead the European Court
of Justice to condemn Spain for putting into practice usages contrary to the freedom of
movement of people, goods and services. These are some of the reasons which have lead
the Spanish working party to make a study of the impact of the new legal framework on
Public Procurement one of their main objectives.
14 During the time we were doing our research, the European Commission has adopted a package of
amendments to simplify and modernise the public procurement Directives. The Lisbon European Council
acknowledged the importance of this legislative package for the competitiveness of European companies,
effective allocation of public resources, economic growth and job creation, and recommended its adoption and
implementation by 2002.