22002A0430(06)

Agreement between the European Community and the Swiss Confederation on certain aspects of government procurement - Final Act - Joint Declarations - Information relating to the entry into force of the seven Agreements with the Swiss Confederation in the sectors free movement of persons, air and land transport, public procurement, scientific and technological cooperation, mutual recognition in relation to conformity assessment, and trade in agricultural products

Official Journal L 114 , 30/04/2002 P. 0430 - 0467

Agreement

between the European Community and the Swiss Confederation on certain aspects of government procurement

The EUROPEAN COMMUNITY (hereinafter "the Community"),

of the one part, and

The SWISS CONFEDERATION (hereinafter "Switzerland"),

of the other part,

hereinafter referred to as "the Parties",

CONSIDERING the Parties' efforts and commitments to liberalise their respective public procurement markets, notably through the Government Procurement Agreement (GPA) concluded in Marrakesh on 15 April 1994, which entered into force on 1 January 1996, and through the adoption of national rules providing for effective market opening in the field of government procurement through progressive liberalisation,

CONSIDERING the exchange of letters of 25 March and 5 May 1994 between the European Commission and the Swiss Federal Office for Foreign Economic Affairs,

CONSIDERING the Agreement concluded on 22 July 1972 between Switzerland and the Community,

DESIROUS to improve and broaden the scope of their respective Annexes to Appendix I of the GPA,

DESIROUS also to pursue liberalisation efforts among themselves by granting access to procurement of products, works and services by their respective telecommunications and railway operators, entities active in the field of energy other than electricity, and private utilities which operate on the basis of special or exclusive rights granted by a competent state authority and are active in the sectors of drinking water, electricity, urban transport, airports and maritime or inland ports,

HAVE AGREED AS FOLLOWS:

CHAPTER 1

BROADENING THE SCOPE OF THE GOVERNMENT PROCUREMENT AGREEMENT CONCLUDED WITHIN THE FRAMEWORK OF THE WORLD TRADE ORGANISATION

Article 1

Obligations of the Community

1. In order to supplement and broaden the scope of its commitments vis-à-vis Switzerland under the Government Procurement Agreement (GPA) signed on 15 April 1994 within the framework of the World Trade Organisation (WTO), the Community undertakes to amend its Annexes and General Notes to Appendix I of the GPA as follows:

delete the reference to Switzerland in the first indent of General Note No 2, so as to allow Swiss suppliers and service providers to challenge, pursuant to Article XX, the award of contracts by Community entities listed in Annex 2, paragraph 2.

2. The Community shall notify the WTO Secretariat of this amendment within one month after the entry into force of this Agreement.

Article 2

Obligations of Switzerland

1. In order to supplement and broaden the scope of its commitments vis-à-vis the Community under the GPA, Switzerland undertakes to amend its Annexes and General Notes to Appendix I of the GPA as follows:

Insert in Annex 2, under "List of entities", the following new point after point 2:

"3. Authorities and public bodies at district and municipality level."

2. Switzerland shall notify the WTO Secretariat of this amendment within one month from the entry into force of this Agreement.

CHAPTER II

PROCUREMENT BY TELECOMMUNICATIONS AND RAILWAY OPERATORS AND BY CERTAIN UTILITIES

Article 3

Objectives, definitions and scope

1. The aim of this Agreement is to secure reciprocal, transparent and non-discriminatory access of the Parties' suppliers and service providers to purchases of products and services, including construction services, by telecommunications operators, railway operators, entities active in the field of energy other than electricity and private utilities of both Parties.

2. For the purposes of this Chapter:

(a) "telecommunications operators" (hereinafter referred to as "TOs") shall mean entities which provide or operate public telecommunications networks or provide one or more public telecommunications services and which either are public authorities or public undertakings or operate on the basis of special or exclusive rights granted by a competent authority of one of the Parties;

(b) "public telecommunications network" shall mean the telecommunications infrastructure available to the public which enables signals to be conveyed between defined network termination points by wire, microwave, optical means or other electromagnetic means;

(c) "public telecommunications services" shall mean services the provision of which consists wholly or partly in the transmission and routing of signals on the public telecommunications network by means of telecommunications processes, with the exception of radio broadcasting and television;

(d) "railway operators" (hereinafter referred to as "ROs") shall mean contracting entities which either are public authorities or public undertakings or operate on the basis of special or exclusive rights granted by a competent authority of one of the Parties and which have as one of their activities the operation of networks providing a service to the public in the field of transport by railway;

(e) "entities active in the field of energy other than electricity" shall mean contracting entities which either are public authorities or public undertakings or operate on the basis of special or exclusive rights granted by a competent authority of one of the Parties and which have as one of their activities any of those referred to in i) and ii) below or any combination thereof:

(i) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of gas or heat or the supply of gas or heat to such networks; or

(ii) the exploitation of a geographical area for the purpose of exploring for or extracting oil, gas, coal or other solid fuels;

(f) "private utilities" shall mean contracting entities which are not covered by the GPA but operate on the basis of special or exclusive rights granted by a competent authority of one of the Parties and which have as one of their activities any of those referred to in i) to v) below or any combination thereof:

(i) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water or the supply of drinking water to such networks;

(ii) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity or the supply of electricity to such networks;

(iii) the provision of airport or other terminal facilities to carriers by air;

(iv) the provision of maritime or inland port or other terminal facilities to carriers by sea or inland waterway;

(v) the operation of networks providing a service to the public in the field of transport by urban railway, automated systems, tramway, trolley bus, bus or cable.

3. This Agreement applies to any law, regulation or practice regarding procurement by the Parties' TOs, ROs, entities active in the field of energy other than electricity and private utilities (hereinafter referred to as "Covered Entities") as defined in this Article and specified in Annexes I to IV and to the award of all procurement contracts by such Covered Entities.

4. Articles 5 and 6 shall apply to contracts, or series of contracts, the estimated value of which, excluding VAT, is not less than:

(a) when awarded by TOs:

(i) EUR 600000 or its equivalent in SDRs, as regards supplies and services;

(ii) EUR 5000000 or its equivalent in SDRs, as regards works;

(b) when awarded by ROs and entities active in the field of energy other than electricity:

(i) EUR 400000 or its equivalent in SDRs, as regards supplies and services;

(ii) EUR 5000000 or its equivalent in SDRs, as regards works;

(i) SDR 400000 or its equivalent in euro, as regards supplies and services;

(ii) SDR 5000000 or its equivalent in euro, as regards works.

The conversion of euro in SDRs shall be in accordance with the procedures established in the Government Procurement Agreement (GPA).

5. This Chapter shall not apply to contracts, awarded by TOs, for purchases intended exclusively to enable them to provide one or more telecommunications services where other entities are free to offer the same services in the same geographical area and under substantially the same conditions. Each Party shall promptly inform the other Party about such contracts. This provision shall apply under the same conditions also to contracts awarded by ROs, entities active in the field of energy other than electricity and private utilities as soon as these sectors have been liberalised.

6. With regard to services, including construction services, this Agreement shall apply to those listed in Annexes VI and VII to this Agreement.

7. This Agreement shall not apply to Covered Entities where they fulfil the conditions laid down in Articles 2(4), 2(5), 3, 6(1), 7(1), 9(1), 10, 11, 12 and 13(1) of Directive 93/38/EEC, as last amended by Directive 98/4/EC (OJ L 101, 4.4.1998, p. 1) for the Community and in Annexes VI and VIII for Switzerland.

This Agreement shall not apply to contracts awarded by ROs where such contracts concern the purchase or lease of products in order to re-finance supply contracts awarded in accordance with the provisions of this Agreement.

Article 4

Procurement procedures

1. The parties shall ensure that the procurement procedures and practices for the award of contracts followed by their Covered Entities comply with the principles of non-discrimination, transparency and fairness. Such procedures and practices shall at least meet the following conditions:

(a) calls for competition shall be made by publication of a tender notice, an indicative notice or a notice on the existence of a qualification system. These notices, or a summary of the important elements thereof, shall be published in at least one of the official languages of the GPA at national level in the case of Switzerland, on the one hand, and at Community level, on the other hand. They shall contain all necessary information about the intended procurement, including where applicable the type of award procedure being followed;

(b) time-limits shall be adequate to allow suppliers or service providers to prepare and submit tenders;

(c) tender documentation shall contain all information necessary, notably technical specifications and selection and award criteria, to enable tenderers to submit eligible tenders. Tender documentation shall be forwarded to suppliers or service providers upon request;

(d) selection criteria shall be non-discriminatory. Qualification system applied by Covered Entities must be based on pre-defined and non-discriminatory criteria and the procedure and conditions for participation shall be made available upon request;

(e) award criteria may be either the most economically advantageous tender, involving specific evaluation criteria such as delivery or completion date, cost-effectiveness, quality, technical merit, after-sales service, commitments with regard to spare parts, price, etc., or the lowest price only.

2. The Parties shall also ensure that their Covered Entities define the technical specifications set out in the tender documentation in terms of performance rather than design or descriptive characteristics. Such specifications shall be based on international standards, where they exist, otherwise on national technical regulations, recognised national standards or recognised building codes. Any technical specifications adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to procurement by a Party's Covered Entity of products or services from the other Party and to related trade between the Parties shall be prohibited.

Article 5

Challenge procedures

1. The Parties must provide non-discriminatory, timely, transparent and effective procedures enabling suppliers or service providers to challenge alleged breaches of the Agreement arising in the context of procurements in which they have, or have had, an interest. The challenge procedures laid down in Annex V shall apply.

2. The Parties must ensure that their respective Covered Entities retain documentation relating to procurement procedures covered by this Chapter for at least three years.

3. The Parties must ensure that decisions taken by bodies responsible for challenge procedures are properly enforced.

CHAPTER III

GENERAL AND FINAL PROVISIONS

Article 6

Non-discrimination

1. The Parties shall ensure that, in their procedures and practices for the award of procurement contracts above the value thresholds laid down in Article 3(4), Covered Entities established in their respective territories do not:

(a) treat products, services, suppliers and service providers of the other Party less favourably than

(i) domestic products, services, suppliers and service providers; or

(ii) third-country products, services, suppliers and service providers;

(b) treat a locally-established supplier or service provider less favourably than another locally-established supplier or service provider on the basis of the degree of affiliation to, ownership of or control by natural or legal persons from the other Party;

(c) discriminate against a locally-established supplier or service provider on the basis of the fact that the product or service being supplied originates from the other Party;

(d) prescribe offsets in the qualification and selection of products, services, suppliers or service providers, or in the evaluation of tenders and award of contracts.

2. The Parties undertake to refrain from requiring either the competent authorities or the Covered Entities to act in a discriminatory manner, either directly or indirectly. An illustrative list of areas where such discrimination is possible is set out in Annex X.

3. In their procedures and practices for the award of procurement contracts below the value thresholds laid down in Article 3(4), the Parties undertake to encourage their Covered Entities to treat the suppliers and service providers of the other Party in accordance with the provisions of paragraph 1. The Parties agree that, not later than five years after the entry into force of this Agreement, the conditions and implementation of this provision will be reviewed in the light of experience acquired in their mutual relations. To that end, the Joint Committee will draw up lists of situations in which the principle established in this Article 6 is applied.

4. The principles set out in paragraph 1, notably in a), no i), and in paragraphs 2 and 3 shall be without prejudice to measures made necessary by the particular integration process of the Community and the establishment and functioning of its internal market, as well as by the development of the Swiss domestic market. Likewise, these principles, notably those set out in a), no ii), shall be without prejudice to preferential treatment granted under existing or future regional economic integration agreements. However, the application of this provision must not jeopardise the administration of this Agreement. The measures to which this paragraph applies are listed in Annex IX; either Party may notify other measures covered by this paragraph. Consultations by the Joint Committee shall take place at the request of either Party with a view to ensuring that this Agreement continues to be implemented satisfactorily.

Article 7

Information exchange

1. To the extent necessary to ensure effective implementation of Chapter II, the Parties shall inform each other of planned changes to their relevant legislation falling or likely to fall within the scope of this Agreement (proposals for directives, draft laws and orders and draft amendments to the Concordat intercantonal).

2. The Parties shall also inform each other about any other issue relevant to the interpretation and application of this Agreement.

3. The Parties shall communicate to each other the names and addresses of "contact points" responsible for providing information on the rules of law falling within the scope of this Agreement and of the GPA, including at local level.

Article 8

Monitoring authority

1. The implementation of this Agreement shall be monitored, within each Party, by an independent authority. This authority shall be competent to receive any complaint or grievance concerning the application of this Agreement and shall act promptly and effectively.

2. Not later than two years after the entry into force of this Agreement, the authority shall also be competent to initiate proceedings or take administrative or judicial action against Covered Entities in the event of a breach of this Agreement in the context of a procurement procedure.

Article 9

Urgent measures

1. If a Party considers that the other Party has failed to comply with its obligations under this Agreement or that a law, regulation or practice of the other Party substantially reduces or threatens to reduce substantially the benefits accruing to it under this Agreement, and the Parties are unable to agree promptly on appropriate compensation or other remedial action, the adversely affected Party may, without prejudice to its other rights and obligations under international law, suspend partly or completely, as appropriate, the application of this Agreement. It shall immediately notify the other Party of any such suspension. The adversely affected Party may also terminate the Agreement in accordance with Article 18(3).

2. The scope and duration of such measures shall be limited to what is necessary in order to remedy the situation and to secure, if necessary, a fair balance of rights and obligations under this Agreement.

Article 10

Settlement of disputes

Each Contracting Party may bring a matter under dispute which concerns the interpretation or application of this Agreement to the Joint Committee, which shall endeavour to settle the dispute. The Joint Committee shall be provided with all relevant information for an in depth examination of the situation with a view to finding an acceptable solution. To that end, the Joint Committee shall be required to examine all possibilities for maintaining the good functioning of this Agreement.

Article 11

Joint Committee

1. A Joint Committee is hereby established. It shall ensure the effective implementation and operation of this Agreement. To that end, it shall carry out exchanges of views and information and constitute the forum for consultations between the Parties.

2. The Joint Committee shall consist of representatives of the Parties and shall act by mutual consent. It shall adopt its rules of procedure and may establish working groups to assist it in carrying out its tasks.

3. In order to ensure the effective operation of this Agreement, the Joint Committee shall meet at least once a year or at the request of either Party.

4. The Joint Committee shall regularly examine the Annexes to this Agreement. The Joint Committee may amend them at the request of either Party.

Article 12

Information technology

1. The Parties shall cooperate with a view to ensuring that the type of procurement information, notably in tender notices and documentation, held on their respective databases is comparable in terms of quality and accessibility. Likewise, they shall cooperate with a view to ensuring that the type of information exchanged through their respective electronic means between interested parties for the purposes of public procurement is comparable in terms of quality and accessibility.

2. Paying due attention to issues of interoperability and interconnectivity, and after having agreed that the type of procurement information referred to in paragraph 1 is comparable, the Parties shall take all the necessary measures to ensure that suppliers and service providers of the other Party have access to relevant procurement information, such as tender notices, held on their respective databases. They shall also afford suppliers and service providers of the other Party access to their respective electronic procurement systems, such as electronic tendering systems. The Parties shall also comply with Article XXIV(8) of the GPA.

Article 13

Implementation

1. The Parties shall take all the necessary measures, whether general or specific, to ensure that they fulfil their obligations under this Agreement.

2. They shall refrain from any action that could jeopardise attainment of the objectives of this Agreement.

Article 14

Revision

The Parties shall review the functioning of this Agreement not later than three years from the date of its entry into force with the aim of improving its operation, if necessary.

Article 15

Relationship with WTO agreements

This Agreement does not affect the rights and obligations of the Parties under agreements concluded under the auspices of the WTO.

Article 16

Scope of territorial application

This Agreement shall apply, on the one hand, to the territories in which the Treaty establishing the European Community is applied and under the conditions laid down in that Treaty and, on the other, to the territory of Switzerland.

Article 17

Annexes

The annexes to this Agreement shall form an integral part thereof.

Article 18

Entry into force and duration

1. This Agreement shall be ratified or approved by the Parties according to the procedures applicable to them. It shall enter into enter into force on the first day of the second month following the last notification of deposit of the instruments of ratification or approval of all seven of the following agreements:

- agreement on certain aspects of government procurement;

- agreement on the free movement of persons;

- agreement on air transport;

- agreement on the carriage of goods and passengers by rail and road;

- agreement on trade in agricultural products;

- agreement on mutual recognition in relation to conformity assessment;

- agreement on scientific and technological cooperation.

2. This Agreement is concluded for an initial period of seven years. It shall be renewed for an indefinite period unless the Community or Switzerland notifies the other Party to the contrary before the expiry of the initial period. In the event of such notification, the provisions of paragraph 4 shall apply.

3. The Community or Switzerland may terminate this Agreement by notifying the other Party of its decision. In the event of such notification, the provisions of paragraph 4 shall apply.

4. The seven agreements referred to in paragraph 1 shall cease to apply six months after the receipt of notification of non-renewal referred to in paragraph 2 or of termination referred to in paragraph 3.

Hecho en Luxemburgo, el veintiuno de junio de mil novecientos noventa y nueve.

El presente Acuerdo se establecer por duplicado en lenguas alemana, danesa, española, finesa, francesa, griega, inglesa, italiana, neerlandesa, portuguesa y sueca y cada uno de estos textos será auténtico./Udfærdiget i Luxembourg, den enogtyvende juni nitten hundrede og nioghalvfems.

Denne aftale er udfærdiget i to eksemplarer på dansk, engelsk, finsk, fransk, græsk, italiensk, nederlandsk, portugisisk, spansk, svensk og tysk, idet hver af disse tekster har samme gyldighed./Geschehen zu Luxemburg am einundzwanzigsten Juni neunzehnhundertneunundneunzig.

Dieses Abkommen ist in zwei Urschriften in dänischer, deutscher, englischer, finnischer, französischer, griechischer, italienischer, niederländischer, portugiesischer, spanischer und schwedischer Sprache abgefaßt, wobei jeder Wortlaut gleichermaßen verbindlich ist./Έγινε στο Λουξεμβούργο, στις είκοσι μία Ιουνίου χίλια εννιακόσια ενενήντα εννέα.

Η παρούδα συμφωνία καταρτίζεται εις διπλούν στα αγγλικά, τα γαλλικά, τα γερμανικά, τα δανικά, τα ελληνικά, τα ισπανικά, τα ιταλικά, τα ολλανδικά, τα πορτογαλικά, τα σουηδικά και τα φινλανδικά, καθένα από τα κείμενα αυτά είναι αυθεντικό./Done at Luxembourg on the twenty-first day of June in the year one thousand and ninety-nine.

This Agreement is drawn up in duplicate in the Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish languages, each of these texts being equally authentic./Fait à Luxembourg, le vingt-et-un juin mil neuf cent quatre-vingt dix-neuf.

Le présent accord est établi, en double exemplaire, en langues allemande, anglaise, danoise, espagnole, finnoise, française, grecque, italienne, néerlandaise, portugaise et suédoise, chacun de ces textes faisant également foi./Fatto a Lussemburgo, addì ventuno giugno millenovecentonovantanove.

Il presente Accordo è redatto, in duplice copia, in lingua danese, finlandese, francese, greca, inglese, italiana, olandese, portoghese, spagnola, svedese e tedesca; ognuno di questi testi fa ugualmente fede./Gedaan te Luxemburg, de eenentwintigste juni negentienhonderd negenennegentig.

Deze overeenkomst is opgesteld in tweevoud in de Deense, de Duitse, de Engelse, de Finse, de Franse, de Griekse, de Italiaanse, de Nederlandse, de Portugese, de Spaanse en de Zweedse taal, zijnde alle teksten gelijkelijk authentiek./Feito no Luxemburgo, em vinte e um de Junho de mil novecentos e noventa e nove.

O presente Acordo é estabelecido em exemplar duplo, nas línguas alemã, inglesa, dinamarquesa, espanhola, finlandesa, francesa, grega, italiana, neerlandesa, portuguesa e sueca, fazendo igualmente fé qualquer dos textos./Tehty Luxemburgissa kahdentenakymmenentenäensimmäisenä päivänä kesäkuuta vuonna tuhatyhdeksänsataayhdeksänkymmentäyhdeksän.

Tämä sopimus on laadittu kahtena kappaleena englannin, espanjan, hollannin, italian, kreikan, portugalin, ranskan, ruotsin, saksan, suomen ja tanskan kielellä, ja jokainen teksti on yhtä todistusvoimainen./Utfärdat i Luxemburg den tjugoförsta juni nittonhundranittionio

i två exemplar på det danska, engelska, finska, franska, grekiska, italienska, nederländska, portugisiska, spanska, svenska och tyska språket, vilka samtliga texter är lika giltiga.

Por la Comunidad Europea/For Det Europæiske Fællesskab/Für die Europäische Gemeinschaft/Για την Ευρωπαϊκή Κοινότητα/For the European Community/Pour la Communauté européenne/Per la Comunità europea/Voor de Europese Gemeenschap/Pela Comunidade Europeia/Euroopan yhteisön puolesta/På Europeiska gemenskapens vägnar

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Por la Confederación Suiza

For Det Schweiziske Edsforbund

Für die Schweizerische Eidgenossenschaft

Για την Ελβετική Συνομοσπονδία

For the Swiss Confederation

Pour la Confédération suisse

Per la Confederazione svizzera

Voor de Zwitserse Bondsstaat

Pela Confederação Suíça

Sveitsin valaliiton puolesta

På Schweiziska edsförbundets vägnar

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ANNEX I

(referred to in Articles (3)(1) and (2)(a) to (c) and (5) of the Agreement)

TELECOMMUNICATIONS OPERATORS COVERED

Annex I A - Community

>TABLE>

These telecommunications operators are covered inasmuch as they come under the scope of application of Directive 93/38/EEC, as amended by Directive 98/4/EC (OJ L 101 of 4.4.1998, p. 1).

Annexe I B - Switzerland

Specification of the entities active in the field of telecommunications as referred to in Articles (3)(1) and (2)(a) to (c) of the Agreement

Entities providing a public telecommunications service under a concession within the meaning of Article 66, first indent, of the Federal Law on Telecommunications of 30 April 1997.

For example: Swisscom.

ANNEXE II

(referred to in Articles (3)(1) and (2)(d) and (5) of the Agreement)

RAILWAY OPERATORS COVERED

Annex II A - Community

>TABLE>

Annexe II B - Switzerland

Specification of railway operators as referred to in Articles (3)(1) and (2)(d) of the Agreement

Chemins de fer fédéraux (CFF)(1)

Entities within the meaning of Articles 1(2) and 2(1) of the "Loi fédérale sur les chemins de fer" of 20 December 1957, where they operate public transport services by standard- or narrow-gauge railway(2).

For example: BLS, MthB, Chemin de fer du Jura, RhB, FO, GFM.

(1) Except for holdings and undertakings which are not directly active in the transport sector.

(2) Except for holdings and undertakings which are not directly active in the transport sector.

ANNEX III

(referred to in Articles (3)(1) and (2)(e) and (5) of the Agreement)

ENTITIES ACTIVE IN THE FIELD OF ENERGY

Annex III A - Community

(a) Transport or distribution of gas or heat

>TABLE>

(b) Exploration for and extraction of oil or gas

>TABLE>

Annex III B - Switzerland

(a) Transport or distribution of gas or heat

Entities transporting or distributing gas pursuant to Article 2 of the "Loi fédérale sur les installations de transport par conduits de combustibles ou carburants liquides ou gazeux" of 4 October 1963

Entities transporting or distributing heat on the basis of a cantonal concession

For example: SWISSGAS AG, Gaznat SA, Gasverbund Ostschweiz AG, REFUNA AG, Cadbar SA

(b) Exploration for and extraction of oil or gas

Entities exploring for and extracting oil or gas in accordance with the "Concordat Intercantonal concernant la prospection et l'exploitaiton du pétrole entre les cantons de Zurich, Schwyz, Glaris, Zoug, Schaffhouse, Appenzell Rh.-Ext., Appenzell Rh.-Int., Saint-Gall, Argovie et Thurgovie" of 24 September 1955

For example: Seag AG

No entities in Switzerland

ANNEX IV

(referred to in Articles (3)(1) and (2)(f) and (5) of the Agreement)

PRIVATE UTILITIES COVERED

Annex IV A - Community

(a) Production, transport or distribution of drinking water

>TABLE>

(b) Production, transport or distribution of electricity

>TABLE>

(d) Contracting entities in the field of airport facilities

>TABLE>

(e) Contracting entities in the field of maritime or inland port or other terminal facilities

>TABLE>

Annex IV B - Switzerland

Specification of private utilities as referred to in Articles (3)(1) and (2)(f) of the Agreement

(a) Production, transport or distribution of drinking water

Entities producing, transporting and distributing drinking water and operating pursuant to cantonal or local legislation or under individual agreements complying with such legislation

For example: Wasserversorgung Zug AG, Wasserversorgung Düdingen

(b) Production, transport or distribution of electricity

Entities transporting and distributing electricity which may be granted a right to expropriate pursuant to the "Loi fédérale concernant les installations électriques à faible et à fort courant" of 24 June 1902

Entities producing electricity pursuant to the "Loi fédérale sur l'utilisation des forces hydrauliques" of 22 December 1916 and the Loi fédérale sur l'utilisation pacifique de l'énergie atomique of 23 December 1959

For example: CKW, ATEL, EGL

Entities operating tramway services within the meaning of Article 2(1) of the "Loi fédérale sur les chemins de fer" of 20 December 1957

Entities providing transport services to the public within the meaning of Article 4(1) of the "Loi fédérale sur les entreprises de trolleybus" of 29 March 1950

Entities providing, as a business activity, regular scheduled passenger transport services on the basis of a concession granted pursuant to Article 4 of the "Loi fédérale sur le transport de voyageurs et les transports par route" of 18 June 1993, where their lines provide a service within the meaning of Article 5(3) of the "Ordonnance sur les indemnités, les prêts et leas aides financières selon la loi des chemins de fer" of 18 December 1995

(d) Airports

Entities operating airports on the basis of a concession granted pursuant to Article 37(1) of the "Loi fédérale sur la navigation aérienne" of 21 December 1948

For example: Bern-Belp, Birrfeld, Grenchen, Samedan

ANNEX V

(referred to in Article 5 of the Agreement, relating to challenge procedures)

1. Challenges shall be heard by a court or by an impartial and independent review body having no interest in the outcome of the procurement, the members of which are secure from external influence and the decisions of which are legally binding. The time-limit, if any, within which a challenge procedure may be initiated shall in no case be less than 10 days and shall run from the time when the basis of the complaint is known or should reasonably have been known.

A review body which is not a court shall either be subject to judicial review or shall have procedures which provide that:

(a) participants have the right to be heard before a decision is reached, they may be represented and accompanied during the proceedings and shall have access to all proceedings

(b) witnesses may be presented and documentation relating to procurement under challenge and necessary to the proceedings shall be disclosed to the review body

(c) oral proceedings may be public and decisions shall be given in writing and shall state the reasons on which they are based.

2. The Parties shall ensure that measures concerning challenge procedures include at least either provisions for the powers:

(a) to take, at the earliest opportunity, interim measures with the aim of correcting the alleged infringement or preventing further injury to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a contract or the implementation of any decision taken by the Covered Entity and

b) to set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the tender notice, the indicative notice, the notice on the existence of a qualification system or any other document relating to the contract award procedure in question. However, the powers of the body responsible for challenge procedures may be limited to awarding damages to any person harmed by an infringement if the contract has already been concluded by a Covered Entity

or provisions for powers to exert indirect pressure on Covered Entities in order to make them correct any infringements or prevent them from committing infringements, and to prevent injury from occurring.

3. Challenge procedures shall also provide for the award of damages to persons injured by the infringement. Where damages are claimed on the grounds that a decision has been taken unlawfully, either Party may provide that the contested decision must first be set aside or declared illegal.

ANNEX VI

(referred to in Articles (3)(6) and (7) of the Agreement)

SERVICES

The following services, which are listed in the sectoral classification of services reproduced in document MTN.GNS/W/120, are covered by this Agreement:

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The commitments entered into by the Parties in the field of services, including construction services, under this Agreement are limited to the initial commitments specified in the final offers presented by the Community and Switzerland in the context of the General Agreement on Trade in Services.

Trade in Services. This Agreement does not apply to:

1) service contracts awarded to an entity which is itself a contracting authority within the meaning of this Agreement and of Annex 1, 2 or 3 to the GPA on the basis of an exclusive right which it enjoys pursuant to a published law, regulation or administrative provision

2) service contracts which a contracting entity awards to an affiliated undertaking or are awarded by a joint venture formed by a number of contracting entities for the purpose of carrying out a relevant activity within the meaning of Article 3 of this Agreement to one of those contracting entities or to an undertaking which is affiliated with one of these contracting entities, provided that at least 80 % of the average turnover of that undertaking with respect to services for the preceding three years derives from the provision of such services to undertakings with which it is affiliated. Where more than one undertaking affiliated with the contracting entity provides the same service or similar services, the total turnover deriving from the provision of services by those undertakings shall be taken into account

3) service contracts for the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon

4) employment contracts

5) contracts for the acquisition, development, production or co-production of programme material by broadcasters and contracts for broadcasting time.

ANNEX VII

(referred to in Article (3)(6) of the Agreement)

CONSTRUCTION SERVICES

Specification construction services covered:

1. Definition:

A contract for construction services is a contract which has as its object the execution, by whatever means, of construction, civil engineering or building work within the meaning of Division 51 of the Central Product Classification (CPC).

2. List of services covered according to Division 51 of the CPC

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The commitments entered into by the Parties in the field of services, including construction services, under this Agreement are limited to the initial commitments specified in the final offers presented by the EC and Switzerland in the context of the General Agreement on Trade in Services.

ANNEX VIII

(referred to in Article (3)(7) of the Agreement)

Switzerland

This Agreement shall not apply in Switzerland to:

(a) contracts which the contracting entities award for purposes other than the pursuit of their activities as described in Article (3)(2) and Annexes I to IV to this Agreement or for the pursuit of their activities outside Switzerland;

(b) contracts awarded for purposes of resale or hire to third parties, provided that the contracting entity enjoys no special or exclusive right to sell or hire the subject of such contracts and other entities are free to sell or hire it under the same conditions as the contracting entity

d) contracts awarded by a contracting entity other than a public authority supplying drinking water or electricity to networks which provide a service to the public, where the production of drinking water or electricity by the entity concerned takes place because its consumption is necessary for carrying out an activity other than that referred to in Article (3)(2)(f)(i) and (ii) and supply to the public network depends only on the entity's own consumption and has not exceeded 30 % of the entity's total production of drinking water or energy, having regard to the average for the preceding three years, including the current year

(e) contracts awarded by a contracting entity other than a public authority supplying gas or heat to networks which provide a service to the public, where the production of gas or heat by the entity concerned is the inevitable result of the exercise of an activity other than that referred to in Article 3(2)(e)(i) and the purpose of supply to the public network is solely the economic exploitation of such production and accounts for no more than 20 % of the entity's turnover, having regard to the average for the three preceding years, including the current year

(f) contracts awarded for the supply of energy or of fuels for the production of energy

(g) contracts awarded by contracting entities providing bus transport services to the public where other entities are free to provide those services, either in general or in a particular geographical area, under the same conditions as the contracting entities

h) contracts awarded by contracting entities carrying out an activity referred to in Article (3)(2)(d), provided that the contracts have as their object the sale and leasing of products for re-financing a supply contract awarded in accordance with the provisions of this Agreement

(i) contracts awarded pursuant to an international agreement and covering the joint implementation or exploitation of a project by the Parties

(j) contracts awarded pursuant to the particular procedure of an international organisation

(k) contracts when they are declared to be secret by the Parties or when their execution must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the signatory states or when the protection of the basic security interests of that state so requires.

ANNEX IX

(referred to in Article (6)(4) of the Agreement)

Annex IX A - Measures notified by the European Community:

Annex IX B - Measures notified by Switzerland:

Review procedures in accordance with Article (6)(4) of this Agreement introduced in the cantons and municipalities for contracts below the thresholds on the basis of the Loi fédérale sur le marché intérieur of 6 October 1995.

ANNEX X

(referred to in Article (6)(2) of the Agreement)

Examples of areas where discrimination may be possible:

Any law, procedure or practice, such as levies, price preferences, local content requirements, local investment or production requirements, terms of licence or authorization, or funding or bidding rights, which discriminate, or require a Party's Covered Entity to discriminate, against the other Party's products, services, suppliers or service providers in the award of procurement contracts shall be prohibited.

Final Act

The Plenipotentiaries

of the EUROPEAN COMMUNITY

and

of the SWISS CONFEDERATION,

meeting on the twenty-first day of June in the year one thousand nine hundred and ninety-nine in Luxembourg for the signature of the Agreement between the European Community and the Swiss Confederation on certain aspects of Government Procurement have adopted the Joint Declarations mentioned below and attached to this Final Act:

Joint Declaration by the Contracting Parties on the procedures for the award of contract and on challenging procedures

Joint Declaration by the Contracting Parties on the monitoring authorities

Joint Declaration by the Contracting Parties on updating the Annexes

Joint Declaration on further negotiations.

They also took note of the following Declarations annexed to this Final Act:

Declaration by Switzerland on the principle of reciprocity concerning the opening up of markets at the district and municipal level to Community suppliers and providers of services

Declaration on Swiss attendance of committee.,

Hecho en Luxemburgo, el veintiuno de junio de mil novecientos noventa y nueve.

Udfærdiget i Luxembourg, den enogtyvende juni nitten hundrede og nioghalvfems.

Geschehen zu Luxemburg am einundzwanzigsten Juni neunzehnhundertneunundneunzig.

Έγινε στο Λουξεμβούργο, στις είκοσι μία Ιουνίου χίλια εννιακόσια ενενήντα εννέα.

Done at Luxembourg on the twenty-first day of June in the year one thousand and ninety-nine.

Fait à Luxembourg, le vingt-et-un juin mil neuf cent quatre-vingt dix-neuf.

Fatto a Lussemburgo, addì ventuno giugno millenovecentonovantanove.

Gedaan te Luxemburg, de eenentwintigste juni negentienhonderd negenennegentig.

Feito em Luxemburgo, em vinte e um de Junho de mil novecentos e noventa e nove.

Tehty Luxemburgissa kahdentenakymmenentenäensimmäusenä päivänä kesäkuuta vuonna tuhatyhdeksänsataayhdeksänkymmentäyhdeksän.

Som skedde i Luxemburg den tjugoförsta juni nittonhundranittionio.

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Por la Confederación Suiza

For Det Schweiziske Edsforbund

Für die Schweizerische Eidgenossenschaft

Για την Ελβετική Συνομοσπονδία

For the Swiss Confederation

Pour la Confédération suisse

Per la Confederazione svizzera

Voor de Zwitserse Bondsstaat

Pela Confederação Suíça

Sveitsin valaliiton puolesta

På Schweiziska edsförbundets vägnar

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JOINT DECLARATION BY THE CONTRACTING PARTIES

on the procedures for the award of contract and on challenging procedures

The Parties agree that by requiring, on the one hand, Swiss Covered Entities to comply with the rules of the GPA, and, on the other, Covered Entities of the Community and its Member States to comply with the rules of Directive 93/38/EEC as last amended by Directive 98/4/EC (OJ L 101, 1.4.1998, p. 1) and of Directive 92/13/EEC (OJ L 76, 23.3.1992, p. 14) they each meet the requirements of Articles 4 and 5 of the Agreement on certain aspects of government procurement.

JOINT DECLARATION BY THE CONTRACTING PARTIES

on the monitoring authorities

With regard to the Community, the monitoring authority referred to in Article 8 of this Agreement may be the Commission of the European Communities or an independent national authority of a Member State without either having sole authority to act under this Agreement. Pursuant to Article 211 of the EC Treaty, the Commission of the European Communities already possesses the powers stipulated in Article 8(2).

With regard to Switzerland, the monitoring authority may be a federal authority for the whole of the country or a cantonal authority for the areas for which it is responsible.

JOINT DECLARATION BY THE CONTRACTING PARTIES

on updating the annexes

The Contracting Parties undertake to update the Annexes to the Agreement on certain aspects of government procurement not later than one month after its entry into force.

JOINT DECLARATION

on further negotiations

The European Community and the Swiss Confederation declare their intention of undertaking negotiations to conclude agreements in areas of common interest such as the updating of Protocol 2 to the 1972 Free Trade Agreement and Swiss participation in certain Community training, youth, media, statistical and environmental programmes. Preparatory work for these negotiations should proceed rapidly once the current bilateral negotiations have been concluded.

DECLARATION BY SWITZERLAND

on the principle of reciprocity concerning the opening up of markets at the district and municipal level to community suppliers and providers of services

In accordance with the principle of reciprocity and with the intention of restricting access to contracts awarded in Switzerland at district and municipal level to Community suppliers and providers of services, Switzerland will insert after the first paragraph in General Note No 1 of its Annexes to the Agreement on Government Procurement a new paragraph as follows:

"Concerning contracts awarded by the entities referred to in part 3 of Annex 2 to suppliers of products and services of Canada, Israel, Japan, the Republic of Korea, Norway, the United States of America, Hong Kong (China), Singapore and Aruba."

DECLARATION

on Swiss attendance of committees

The Council agrees that Switzerland's representatives may, in so far as the items concern them, attend meetings of the following committees and expert working parties as observers:

- Committees of research programmes, including the Scientific and Technical Research Committee (CREST)

- Administrative Commission on Social Security for Migrant Workers

- Coordinating Group on the mutual recognition of higher-education diplomas

- Advisory committees on air routes and the application of competition rules in the field of air transport.

Switzerland's representatives shall not be present when these committees vote.

In the case of other committees dealing with areas covered by these agreements in which Switzerland has adopted either the acquis communautaire or equivalent measures, the Commission will consult Swiss experts by the method specified in Article 100 of the EEA Agreement.

Information relating to the entry into force of the seven Agreements with the Swiss Confederation in the sectors free movement of persons, air and land transport, public procurement, scientific and technological cooperation, mutual recognition in relation to conformity assessment, and trade in agricultural products

The final notification of completion of the procedures necessary for the entry into force of the seven Agreements in the sectors free movement of persons, air and land transport, public procurement, scientific and technological cooperation, mutual recognition in relation to conformity assessment, and trade in agricultural products between the European Community and its Member States, on the one hand, and the Swiss Confederation on the other hand, signed in Luxembourg on 21 June 1999, having taken place on 17 April 2002, these agreements will enter into force, simultaneously, on 1 June 2002.