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For the past three years, OpenForum Europe (OFE) has published a report on the European Union (EU) Member States' practice of referring to specific trademarks when procuring for computer software packages and information systems.

As determined by Art. 23(8) of Directive 2004/18/EC, which consolidates the European Court of Justice's (ECJ) jurisprudence on the matter1, “technical specifications shall not refer to a specific make or source, or a particular process, or to trademarks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products”. According to the law, such references can only be made if justified by the subject-matter of the contract and always accompanied by the expression “or equivalent”.

The latest monitoring exercise examined 585 invitations to tender by Contracting Authorities (CA) procuring for computer software products during the three months from March 1st to May 31st 2012. It found that almost 1 in 5 notices included technical specifications with explicit references to trademarks.

These findings led us to conclude that engaging in a more comprehensive and global analysis of the EU's procurement market would show that the use of discriminatory technical specifications is a widespread practice within the EU.

In light of these results, the current revision of the EU Public Procurement Directives and the forthcoming draft of Guidelines for Procurement of ICT Products should take into account discriminatory practices persisting in the procurement market and to which the current legal framework contributes to. Such practices are not only against the principles of competition and the fulfilment of the Single Market, but are also an obstacle to SMEs willing to compete in a market that should be open, innovative and transparent.

1Cf., Cases C-359/93 Commission of the European Communities v. Kingdom of the Netherlands (UNIX) [1995] ECR I-157 and C-59/00 Bent Mousten Vestergaard v. Spøttrup Boligselskab [2001] ECR I-9505.