30.4.2004 Official Journal of the European Union L 1341 | (Acts whose publication is obligatory) DIRECTIVE 2004/ 17/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Com- munity, and in particular Article 47(2) and Article 55 and Article 95 thereof, Having regard to the proposal from the Commission ('), Having regard to the Opinion of the Economic and Social Committee (%), Having regard to the Opinion of the Committee of the Regions (%), Acting in accordance with the procedure laid down in Article 251 of the Treaty (¥, in the light of the joint text approved by the Conciliation Committee on 9 December 2003, Whereas: (1) On the occasion of new amendments being made to Council Directive 93/38/EEC of 14 June 1993 coordi- nating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (°), which are necessary to meet requests for simplification and modernisation made by contracting entities and economic operators alike in their responses to the Green Paper adopted by the Commission on 27 November 1996, the Directive should, in the inter- ests of clarity, be recast. This Directive is based on Court of Justice case-law, in particular case-law on award criteria, which clarifies the possibilities for the (") OJ C 29 E, 30.1.2001, p. 112 and OJ C 203 E, 27.8.2002, p. 183. () O] C 193, 10.7.2001, p. 1. () O] C 144, 16.5.2001, p. 23. (*) Opinion of the European Parliament of 17 January 2002 (O] C 271 E, 7.11.2002, p. 293), Council Common Position of 20 Mars 2003 (O] C 147 E, 24.6.2003, p. 137) and Position of the European Parliament of 2 July 2003 (not yet published in the Official Journal). Legislative Resolution of the European Parliament of 29 January 2004 and Decision of the Council of 2 February 2004. () OJ L 199, 9.8.1993, p. 84. Directive as last amended by Commis- sion Directive 2001/78/EC (O] L 285, 29.10.2001, p. 1). contracting entities to meet the needs of the public concerned, including in the environmental and/or social area, provided that such criteria are linked to the sub- ject-matter of the contract, do not confer an unrest- ricted freedom of choice on the contracting entity, are expressly mentioned and comply with the fundamental principles mentioned in recital 9. (2)  One major reason for the introduction of rules coordi- nating procedures for the award of contracts in these sectors is the variety of ways in which national autho- rities can influence the behaviour of these entities, including participation in their capital and representa- tion in the entities’ administrative, managerial or super- visory bodies. (3)  Another main reason why it is necessary to coordinate procurement procedures applied by the entities operat- ing in these sectors is the closed nature of the markets in which they operate, due to the existence of special or exclusive rights granted by the Member States concern- ing the supply to, provision or operation of networks for providing the service concerned. (4)  Community legislation, and in particular Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air trans- port sector (°) and Regulation (EEC) No 3976/87 of 14 December 1987 on the application of Article 85(3) of the Treaty to certain categories of agreements and concerted practices in the air transport sector (), is designed to introduce more competition between car- riers providing air transport services to the public. It is therefore not appropriate to include such entities in the scope of this Directive. In view of the competitive position of Community shipping, it would also be inappropriate to make the contracts awarded in this sector subject to the rules of this Directive. () OJ L 374, 31.12.1987, p. 1. Regulation as last amended by Regula- tion (EC) No 1/2003 (O] L 1, 4.1.2003, p. 1). () OJ L 374, 31.12.1987, p. 9. Regulation as last amended by the 1994 Act of Accession.