COMMISSION STATEMENT concerning Article 115 of the Treaty

The Commission notes the concern expressed by the Council in its Resolution.

The Commission is aware that in awarding public supply contracts Member States may still, in accordance with the Treaty, apply certain measures of national commercial policy with regard to the eligibility of products originating in third countries for such contracts. The Commission recognizes that, until these national measures are harmonized within the framework of the contractual or unilateral common commercial policy and in the light of the outcome of current or future international negotiations, their application may give rise to difficulty in cases where tenders include products originating in third countries in free circulation in another Member State.

The Commission would recall that Article 115 of the Treaty enables the efficacy of such national measures to be safeguarded against deflection of trade resulting from the free movement within the Community of products originating in third countries.

In accordance with Article 115 of the Treaty, the Commission intends to authorize those Member States concerned which have applied for such authorization to provide, in respect of all entities not covered by the Agreement, in respect of entities covered by the Agreement vis-à-vis non-signatory countries and in respect of entities covered by the Agreement, but as regards products or contracts not covered by it, for the exclusion from their public contracts of certain products or categories of products originating in third countries which are in free circulation in another Member State, in all cases where similar arrangements are made as regards directly imported products originating in third countries.

The application of such measures will have effect only at the time of examination of tenders and not at the point of importation into the Member State concerned. These measures will not therefore entail any controls nor will they lead to the creation of any form of barrier at the frontiers within the Community and they will not affect the import arrangements for the import of products originating in third countries, nor in particular the extent of liberalization at Community or national level.

The Commission will make its decisions after examination of the applications of the Member States concerned. Applications shall specify the categories of goods and public contracts in question, the arrangements applied in the field of public contracts to such goods where they originate in third countries and are imported directly, and the grounds for the application of such arrangements.