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Sirs,

 

Mrs Rhoda Grant claims (Hebrides News 6th April) that "there is no need for the current head-head between Calmac and Serco to take place", referring to the current tender process held by the Scottish Government in accordance with European law.

 

The Scottish Government's position is that "The Teckal exemption requires a challenging series of conditions to be met to avoid European procurement regulations. Notwithstanding the applicability, or otherwise, of the Teckal exemption, the European Commission’s Maritime Cabotage Regulations still require the tendering of the Clyde and Hebrides and Northern Isles ferry services, given the provision of state aid to support these services. Consequently, the Scottish Government has not discussed the Teckal exemption with the European Commission.”

 

According to legal advice received by the RMT Union on whether Teckal exemption applies in this case, the law firm Thompson's of Manchester concedes (Para 6) that: "If the Teckal exemption does not apply, I agree that the 1992 Regulation as interpreted by the CJEU, coupled with the State aid rules, oblige the Scottish Ministers to conduct a competitive tendering exercise for the relevant ferry services. Hence the default position is that the Scottish Ministers are correct to proceed with a re-tendering exercise along the lines proposed, as they were in 2004."

 

The RMT union wanted Thompsons to provide judgment on whether (para 3) "an undertaking wholly owned by the Scottish Ministers attracts the Teckal exemption to EU procurement rules (Teckal SrL v. Commune di Viano, Case C-107/98 [1999] ECR I-8121), so far as the exemption is applicable to the award of public service contracts under the 1992 Regulation."

 

The judgment in the Commune di Viano case (para 51) was that "Directive 93/36 is applicable in the case where a contracting authority, such as a local authority, plans to conclude in writing, with an entity which is formally distinct from it and independent of it in regard to decision-making, a contract for pecuniary interest for the supply of products, whether or not that entity is itself a contracting authority."

 

Moreover (para 42) the court's judgment stated that "if the estimated amount of the contract, without value added tax, is equal to or greater than 200 000 euros, Directive 93/36 will apply. Whether the supplier is or is not a contracting authority is not conclusive in this regard."

 

Thompson's advice to the RMT union was (Para 72) that "Where a public sector body begins to act commercially in a way that makes it a market player so as potentially to distort competition, its funding arrangements may attract the State aid rules."

 

It can be concluded, on the balance of probability, that Directive 93/36 applies and the Scottish Government is obliged to hold a tender.

 

Dr David Wilson

12b Tolsta Chaolais

Isle of Lewis

Letter:  Labour wrong on ferry tendering

 

7 April 2016  6