Commission Implementing Regulation (EU) 2023/2884 of 20 December 2023 amending Implementing Regulation (EU) 2019/1780 establishing standard forms for the publication of notices in the field of public procurement

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities in the field of defence and security, and amending Directives 2004/17/EC and 2004/18/EC (1), and in particular Article 32(1), Article 52(2) and Article 64 thereof,

Having regard to Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (2), and in particular Article 33(1) thereof,

Having regard to Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (3), and in particular Article 51(1), Article 75(3) and Article 79(3) thereof,

Having regard to Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (4), and in particular Article 71(1), Article 92(3) and Article 96(2), first subparagraph, thereof,

Having regard to Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (5), and in particular Article 3a thereof,

Having regard to Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (6), and in particular Article 3a thereof,

After consulting the Advisory Committee on Public Procurement,

Whereas:

(1) Commission Implementing Regulation (EU) 2019/1780 (7) establishes the standard forms (eForms) for the publication of notices in the field of public procurement. It replaced Commission Implementing Regulation (EU) 2015/1986 (8) in order to adapt the standard forms set out in that Implementing Regulation to the digital transformation. Implementing Regulation (EU) 2019/1780 was subsequently amended in 2022, to address requests from the Member States on several topics, including reporting requirements for Directive 2009/33/EC of the European Parliament and of the Council (9), Green Public Procurement and Innovative Procurement.

(2) To ensure policy alignment of the standard forms with Union objectives, in the interest of clarity and consistency of reporting, fields for Regulation (EU) 2022/1031 of the European Parliament and of the Council (10), Regulation (EU) 2022/2560 of the European Parliament and of the Council (11) and Directive (EU) 2023/1791 of the European Parliament and of the Council (12) should be added.

(3) Considering the needs of the Member States and the Union to have standardised format and procedures for publishing notices that are not subject to the publication requirements laid down in the Directives 2014/23/EU, 2014/24/EU, 2014/25/EU, and 2009/81/EC, six new forms should be added to enable contracting authorities to publish notices in the Official Journal of the European Union. Each new form should have a specific purpose, covering the planning phase (the pre-market-consultation notice, the prior information notice), the competition phase (the contract notice), the results phase (the award notice, the completion notice) and the publication of a contract modification notice.

(4) To improve the readability of the Annex, Table 2, of the three different mandatory categories, the meaning and difference between mandatory (M), conditional mandatory (CM) and existing mandatory (EM) should be clarified. The ‘mandatory’ category refers to those fields that are required either technically or by the Directives 2014/23/EU, 2014/24/EU, 2014/25/EU, and 2009/81/EC, while ’conditional mandatory’ refers to those fields that are required under certain conditions, such as the voluntary publication of information in optional fields with which the ‘conditional mandatory’ fields have a logical and technical connection. This includes the fields capturing detailed information on review requests and decisions (BT-784 – 798) that are conditionally mandatory because of their logical connection to the optional field relating to review requests and decisions (BT-783). The category of ’existing mandatory’ means that if this information exists, even though the Commission is not able to verify this, a notice must contain this information.

(5) In order to address the feedback by the Member States during the process leading to the adoption of Commission Implementing Regulation (EU) 2022/2303 (13), the standard forms should also be adjusted and improved as regards the description of certain business terms and the application of such terms, as laid out in the Annex, Table 2.

(6) In order to ensure a smooth technical transition, it is necessary to allow early use of the fields related to Regulation (EU) 2022/1031 and Regulation (EU) 2022/2560 set out in Implementing Regulation (EU) 2019/1780 as amended by this Regulation in addition to the fields set out in the Annex to Implementing Regulation (EU) 2019/1780 as amended by Implementing Regulation (EU) 2022/2303 for the publication of notices in the Official Journal of the European Union once the Commission has published a notice on its webpage announcing that the formats and procedures for sending notices have been adapted for that purpose. For a transitional period, it should be possible to use both the forms including information set out in the Annex to Implementing Regulation (EU) 2019/1780 as amended by this Regulation and those set out in the Annex to Implementing Regulation (EU) 2019/1780 as amended by Implementing Regulation (EU) 2022/2303 for the publication of notices in the Official Journal of the European Union.

(7) Implementing Regulation (EU) 2019/1780 should therefore be amended accordingly.

(8) In order to allow the Member States and the Commission sufficient time to prepare for use of the new forms, the date of application of this Regulation should be deferred,

HAS ADOPTED THIS REGULATION:

Article 1

Implementing Regulation (EU) 2019/1780 is amended as follows:

(1) the following Article 3b is inserted: ‘Article 3b Transitional provision for new forms and changes From 1 June 2024 until 30 October 2024 the fields related to Regulation (EU) 2022/1031 of the European Parliament and of the Council(1) and Regulation (EU) 2022/2560 of the European Parliament and of the Council(2) set out in the Annex to this Regulation as amended by Commission Implementing Regulation (EU) 2023/2884(3) may be used in addition to the fields set out in the Annex to this Regulation as amended by Implementing Regulation (EU) 2022/2303 for the publication of notices in the Official Journal of the European Union once the Commission has published a notice on its webpage announcing that the formats and procedures for sending notices electronically as referred to in point 2 of Annex IX to Directive 2014/23/EU, in point 3 of Annex VIII to Directive 2014/24/EU and in point 3 of Annex IX to Directive 2014/25/EU have been adapted for that purpose. From 1 November 2024 until 28 February 2025, both the forms including information set out in the Annex to this Regulation and those set out in the Annex to Implementing Regulation (EU) 2019/1780 as amended by Implementing Regulation (EU) 2022/2303 may be used for the publication of notices in the Official Journal of the European Union. (1)  Regulation (EU) 2022/1031 of the European Parliament and of the Council of 23 June 2022 on the access of third-country economic operators, goods and services to the Union’s public procurement and concession markets and procedures supporting negotiations on access of Union economic operators, goods and services to the public procurement and concession markets of third countries (OJ L 173, 30.6.2022, p. 1)." (2)  Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market (OJ L 330, 23.12.2022, p. 1)." (3)  Commission Implementing Regulation (EU) 2023/2884 of 20 December 2023 amending Implementing Regulation (EU) 2019/1780 establishing standard forms for the publication of notices in the field of public procurement (OJ L, 2023/2884, 21,12,2023, ELI: http://data.europa.eu/eli/reg_impl/2023/2884/oj).’;"

(2) the Annex is amended in accordance with the Annex to this Regulation.

Article 2

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

It shall apply from 1 June 2024. However, Article 1, point (2), shall apply from 1 November 2024.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 20 December 2023.

For the Commission The President Ursula VON DER LEYEN

(1) OJ L 216, 20.8.2009, p. 76.

(2) OJ L 94, 28.3.2014, p. 1.

(3) OJ L 94, 28.3.2014, p. 65.

(4) OJ L 94, 28.3.2014, p. 243.

(5) OJ L 395, 30.12.1989, p. 33.

(6) OJ L 76, 23.3.1992, p. 14.

(7) Commission Implementing Regulation (EU) 2019/1780 of 23 September 2019 establishing standard forms for the publication of notices in the field of public procurement and repealing Implementing Regulation (EU) 2015/1986 (eForms) (OJ L 272, 25.10.2019, p. 7).

(8) Commission Implementing Regulation (EU) 2015/1986 of 11 November 2015 establishing standard forms for the publication of notices in the field of public procurement and repealing Implementing Regulation (EU) No 842/2011 (OJ L 296, 12.11.2015, p. 1).

(9) Directive 2009/33/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of clean road transport vehicles in support of low-emission mobility (OJ L 120, 15.5.2009, p. 5).

(10) Regulation (EU) 2022/1031 of the European Parliament and of the Council of 23 June 2022 on the access of third-country economic operators, goods and services to the Union’s public procurement and concession markets and procedures supporting negotiations on access of Union economic operators, goods and services to the public procurement and concession markets of third countries (OJ L 173, 30.6.2022, p. 1).

(11) Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market (OJ L 330, 23.12.2022, p. 1).

(12) Directive (EU) 2023/1791 of the European Parliament and of the Council of 13 September 2023 on energy efficiency and amending Regulation (EU) 2023/955 (OJ L 231, 20.9.2023, p. 1).

(13) Commission Implementing Regulation (EU) 2022/2303 of 24 November 2022 amending Implementing Regulation (EU) 2019/1780 establishing standard forms for the publication of notices in the field of public procurement (OJ L 305, 25.11.2022, p. 12).