Friday, June 20, 2008

The Inexorable March of the Code Napoléon

Well, it is really beginning to wind me up. As people keep pointing out, there is a very significant difference between Common Law nations, such as England1 and America, and Code Law nations, such as most of Europe - i.e. most of the fucking EU. Unfortunately, the egregious cretins at the Berlaymont never take any account of this difference.

I work for an IT company and they do quite a reasonable amount of UK national and local government work. We are now looking at bidding for some EU work - in my area - and I have been looking at the Pre-Qualification Questionnaire for this. It amazes me2:

3.1 Is the Applicant insolvent (or the subject of bankruptcy proceedings if an individual) or being wound up? Proof A or C required, see next page for further details.

3.2 Is the Applicant having its affairs administered by the courts?
Proof A or C required, see next page for further details.

3.3 Has the Applicant entered into an arrangement with creditors?
Proof A or C required, see next page for further details.

3.4 Has the Applicant suspended business actitivies?
Proof A or C required, see next page for further details.

3.5 Is the Applicant the subject of proceedings concerning any such matters referred to in 3.1, 3.2, 3.3 or 3.,4 above or in any analogous situation arising from a similar procedure provided for in national legislation or regulations?
Proof A or C required, see next page for further details.

3.6 Has the Applicant been convicted of any offence (if an individual) or judgement been made against it concerning its professional conduct by a judgement which has the force of res judicata?
Proof A or C required, see next page for further details.

3.7 Has the Applicant been guilty of grave professional misconduct?
Proof not required.

3.8 Has the Applicant failed to fulfil its obligations relating to the payment of social security contributions or the payment of taxes in accordance with the legal provisions of the country in which they are established or with those of the country of the contracting authority or those of the country where the contract is to be performed?
Proof B or C required, see next page for further details.

3.9 Has the Applicant been the subject of a judgement which has the force of res judicata for fraud, corruption, involvement in a criminal organisation or any other illegal activity detrimental to the European Community’s financial interests?
Proof A or C required, see next page for further details.

3.10 Following any other procurement procedure or grant award procedure financed by European Community budget, has the Applicant been declared to be in serious breach of contract for failure to comply with their contractual obligation and is the Applicant subject to any administrative penalty as a result of this?
Proof not required.

Now the questions themselves are probably not too unreasonable (although 3.9 is likely to exclude nearly all MEPs and many recipients of EU grants). What concerns me is the "proofs" that are required:

AProof regarding situations mentioned in points 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.9 in the form of a recent extract from the judicial record, or failing that, a recent equivalent document issued by a judicial or administrative authority in the country of origin or provenance showing that these requirements are satisfied. The extract(s) or equivalent documentation must be the most recent available.
BYour Imperial Overlords will accept a recent certificate issued by the competent authority of the country concerned as satisfactory evidence that the Applicant is not in the situation mentioned in the point 3.8 above. The certificate must be dated less than four months before the final date for submission of this PQQ.
CWhere no such certificates or documents are issued in the country concerned, they may be replaced by a sworn or a solemn statement made by the Applicant before a judicial or administrative authority, a notary or a qualified professional body in the country of origin of provenance.

Now, where, in a common law country, do you actually get such proofs? If you have done something, there may be a certificate saying that, or not. And "Proof C" is no proof at all - just bloody arse-covering!

Of all of the things I haven't done, I don't have a single piece of paper saying that I haven't done them3. It reminds me of the St Trinian's film4, where the Headmistress (IIRC) says "I'm the only person here with a certificate to say I'm sane!"

1. Scotland, interestingly, is somewhere in between. It does retain most of the aspects of Common Law although much of its early law was codified in the C18 and 'they' are trying to do it again.

2. Although not as much as the ones from pre-Boris London that asked us for the number of transexual lesbians amongst our staff and shareholders. Not information we gather!

3. I don't work with children and am no longer in a specified occupation, so do not have an Enhanced or Standard Disclosure certificate.

4. The 1966 "The Great St Trinian's Train Robbery", apparently (i.e. according to the great god, Google).

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