36 Amendments of Mikael GUSTAFSSON related to 2011/0437(COD)
Amendment 251 #
Proposal for a directive
Recital 2
Recital 2
(2) Public procurement plays a key role in the Europe 2020 strategy as one of the market-based instruments to be used to achieve a smart, sustainable and inclusive growth while ensuring the most efficient use of public funds. The award of works concessions is presently subject to basic rules of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts while the award of services concessions with a cross-border interest is subject to the principles of the Treaty, and in particular the principle of free movement of goods, freedom of establishment and freedom to provide services as well as to the principles deriving therefrom such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. There is a risk of legal uncertainty related to different interpretations of the principles of the Treaty by national legislators and of wide disparities among the legislations of different Member States. Such risk has been confirmed by the extensive case law of the Court of Justice of the European Union but which has only partially addressed certain aspects of the award of concession contracts. Hence, a uniform concretisation of the Treaty principles across all Member States and the elimination of discrepancies in their understanding following therefrom is necessary at the Union level in order to eliminate persisting distortions of the Internal Market.
Amendment 254 #
Proposal for a directive
Recital 3
Recital 3
(3) This Directive should not in any way affect the freedomrecognises and reaffirms the right of Member States orand public authorities to decide on the direct provision of works orthe means of administration they judge to be most appropriate for performing the works and providing the services for which they are responsible. This Directive should not in any way affect the freedom of Member States and public authorities to perform works and provide services directly to the public or ton the outsourcing ofe such provision to third parties. Member States or public authorities shouldall remtain free to definethe right to define and specify the characteristics of the services to be provided, including any conditions regarding the quality or price of the services as well as concerning work conditions under which the services are provided, in order to pursue their public policy objectives
Amendment 259 #
Proposal for a directive
Recital 4
Recital 4
Amendment 262 #
Proposal for a directive
Recital 5
Recital 5
Amendment 284 #
Proposal for a directive
Recital 7
Recital 7
(7) Difficulties related to the interpretation of the concepts of concession and public contract have been source of continued legal uncertainty among stakeholders and have given rise to numerous judgments of the Court of Justice of the European Union on this subject. Therefore, the definition of concession should be clarified, in particular by referring to the concept of substantial operating risk. The main feature of a concession, the right to exploit the works or services, always implies the transfer to the concessionaire of an economic risk involving the possibility that it will not recoup the investments made and the costs incurred in operating the works or services awarded under normal operating conditions. The application of specific rules governing the award of concessions would not be justified if the contracting authority or entity relieved the contractor of any potential loss, by guaranteeing a minimal revenue, equal or higher to the costs that the contractor has to incur in relation with the performance of the contract. At the same time it should be made clear that. However certain arrangements which are fully paid by a contracting authority or a contracting entity should qualify as concessions where the recoupment of the investments and costs incurred by the operator for execution the work or provididng the service depends on the actual demand for or the availability of the service or asset.
Amendment 300 #
Proposal for a directive
Recital 11
Recital 11
(11) To ensure a real opening up of the market and a fair balance in the application of concession award rules in the water, energy, transport and postal services sectors it is necessary for the entities covered to be identified on a basis other than their legal status. It should be ensured, therefore, that the equal treatment of contracting entities operating in the public sector and those operating in the private sector is not prejudicgranted. It is also necessary to ensure, in keeping with Article 345 of the Treaty, that the rules governing the system of property ownership in Member States are not prejudiced.
Amendment 302 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) In accordance with Article 14 TFEU in association with Protocol No 26, national, regional or local competent authorities shall have wide discretion in deciding whether to award contracts for services of general interest.
Amendment 306 #
Proposal for a directive
Recital 13
Recital 13
(13) It is appropriate to exclude from the scope of this Directive certain services concessions awarded to an economic operator which is itself a contracting authority or a contracting entity on the basis of an exclusive right which that operator enjoysenjoys an exclusive right under published national law, regulation or administrative act and which has been granted in accordance with the Treaty and Union sectoral legislation concerning the management of networks infrastructure related to the activities set out in annex III, since such exclusive right makes it impossible to follow a competitive procedure for the award. By way of derogation and without prejudice to the legal consequences of the general exclusion from the scope of this Directive, concessions as defined i, since such exclusive right makes it impossible to follow a competitive procedure for the award. The concessions referred to are those concerning the management of network infrastructure relating to the activities set out in Annex III or those concerning an arcticle 8 (1) should be subject to the obligation to publish a concession awardvity subject to a tariff regulated at noatice in view of ensuring basic transparency unless the conditions of such transparency are providonal level or those where socio-economic interest can be deemed fmore in sectoral legislationmportant.
Amendment 316 #
Proposal for a directive
Recital 17
Recital 17
Amendment 323 #
Proposal for a directive
Recital 19
Recital 19
(19) In view of the detrimental effects on competition, aAwarding concessions without prior publication should only be permitted in very exceptional circumstances. This exception should be limitbe allowed toin cases where it is clear from the outset that a publication would not trigger more competition, notably because there is objectively only one economic operator who can perform the concession. Only situations of objective exclusivity can justify the award of a concession without publication to an economic operat, or when the concession concerns social services and other special services of socio- economic importance, or, where the situation of exclusivity has not been created by the contracting authority or contracting entity itself in view of the future award procedure, and where there are no adequate substitutes, the availability of which should be assessed thoroughlyinterests of citizens, environment and climate are deemed more important, or when the concession concerns services with minimal cross-border impact.
Amendment 339 #
Proposal for a directive
Recital 21
Recital 21
(21) In the light of the results of the evaluation conducted by the Commission on the reform of public procurement rules it is appropriate toServices of general interest that address citizens' basic needs shall be excluded from the full application of this Directive only those services which have a limited cross-border dimension, namely the so-called services to the person such as certainsuch as municipal water supply, wastewater treatment and disposal, refuse handling services and services such as social, health and educational services. These services are provided within a particular context that varies widely amongst Member States, due to different cultural traditions. A specific regime should therefore be established for concession for these services which takes into account the fact that they are newly regulated. An obligation to publish a prior information notice and a concession award notice of any concession with a value equal to or greater than thresholds established in this Directive is an adequate way to provide information on business opportunities to potential tenderers as well as on the number and type of contracts awarded to all interested parties. Furthermore, Member States should put in place appropriate measures with reference to the award of concession contracts for these services aimed at ensuring compliance with the principles of transparency and equal treatment of economic operators while allowing contracting authorities and contracting entities to take into account the specificities of the services in question. Member States should ensure that contracting authorities and contracting entities may take into account the need to ensure innovation, quality, continuity, accessibility, availability and comprehensiveness of the services, equal treatment, equality between women and men, minimal climate-impact, the specific needs of different categories of users, the involvement and empowerment of users and innovation.
Amendment 349 #
Proposal for a directive
Recital 24
Recital 24
(24) The choice and application of proportional, non-discriminatory and fair selection criteria to economic operators is crucial for their effective access to the economic opportunities related to concessionsis important. In particular, the possibility for a candidate to rely on the capacities of other entities can be decisive to enable the participation of small and medium sized enterprises. Therefore, it is appropriate to provide that the selection criteria should relate exclusively to the technical, financial and economic capacity of operatorsbe clearly defined, should be announced in the concession notice and cannot preclude an economic operator candidate from relying on the capacities of other entities, regardless of the legal nature of its links with those entities, if the latter proves to the contracting authority or entitygrantor that it will have at its disposal the necessary resources.
Amendment 352 #
Proposal for a directive
Recital 25 a (new)
Recital 25 a (new)
(25a) In order to ensure that women and men have equal access to the labour market, the grantor should also be able to include characteristics relating to promoting gender equality.
Amendment 353 #
Proposal for a directive
Recital 25 b (new)
Recital 25 b (new)
(25b) In order to better integrate social considerations in the award of concessions, the grantor should also be able to include characteristics relating to working conditions among the award criteria. Those characteristics shall aim to protect the health of the staff involved in the production process or to promote the social integration of disadvantaged persons or members of vulnerable groups among the persons responsible for performing the contract, including accessibility for disadvantaged groups, such as the young, long-term unemployed, people with migration backgrounds and persons with disabilities. In this case, the award criteria should be applied in accordance with Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services[1], in such a way as not to discriminate directly or indirectly against economic operators from other Member States. The grantor should also be allowed to use as award criteria the organisation, qualifications and experience of the staff assigned to the performance of the concession contract, as they may affect the quality of provision and, as a result, the economic value of the tender. [1] OJ L 18, 21.1.1997, p. 1.
Amendment 362 #
Proposal for a directive
Recital 32
Recital 32
(32) The laws, regulations and collective agreements, at both national and European Union level, which are in force in the areas of employment conditions and safety at work should apply during performance of a concession, providing that such rules, and their application, comply with Union law. In cross-border situations, where workers from one Member State provide services in another Member State for the purpose of performing a concession, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services11 lays down the minimum conditions which must be observed by the host country in respect of such posted workersthe laws, regulations and collective agreements of the host country apply.
Amendment 364 #
Proposal for a directive
Recital 33
Recital 33
(33) Concessions should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption, fraud to the detriment of the Union's financial interests or, money laundering. N and non-payment of taxes or social security contributions should also be sanctioned by mandatory exclusion at the level of the Union. Furthermore, contracting authorities and contracting entitie. Furthermore, grantors should be given the possibility to exclude candidates or tenderers for violating social, labour or environmental law, for serious violations of Union or national law aimed at the protection of public interests compatible with the Treaty or where the economic operator has shown significant or persistent deficiencies in the performance of a prior concession or concessions of a similar nature with the same contracting authority or contracting entitygrantor.
Amendment 391 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. This Directive shall not affect the right of public authorities at any level to decide whether they shall perform public works or services themselves, by using their own internal resources without being obliged to award concessions to external economic operators. These tasks may be performed in cooperation with other public contracting authorities.
Amendment 482 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
Contracting authorities and contracting entities shall treat economic operators equally and shall act in a transparent and proportionate way. The design of the concession award procedure shall not be made with the objective of excluding it from the scope of this Directive or of artificially narrowing competition.
Amendment 518 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point g
Article 8 – paragraph 5 – subparagraph 1 – point g
(g) Public passenger transport services within the meaning of Regulation (EC) 1370/2007 of the European Parliament and of the Council.19.
Amendment 534 #
Proposal for a directive
Article 8 – paragraph 5 a (new)
Article 8 – paragraph 5 a (new)
5a. This Directive shall not apply to service concessions relating to services of general economic interest and services of general interest such as: (a) water services; (b) wastewater services; (c) refuse collection services; (d) energy services; (e) social services according to the voluntary European quality framework for social services adopted by the Social Protection Committee in the sectors of health and social protection, statutory social insurance, emergency and disaster response services.
Amendment 540 #
Proposal for a directive
Article 11 – paragraph 2 – point c a (new)
Article 11 – paragraph 2 – point c a (new)
(ca) may be controlled by public-public cooperation;
Amendment 651 #
Proposal for a directive
Article 15 – paragraph 4 – point c
Article 15 – paragraph 4 – point c
Amendment 683 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
The duration of the concession shall be limited to the time estimated, among other factors, to be necessary for the concessionaire to recoup the investments made in operating the works or services together with a reasonable return on invested capitalaking into account other objective criteria such as the public interest in ongoing high-quality provision or environmentally and socially sustainable performance of the service.
Amendment 687 #
Proposal for a directive
Article 17
Article 17
Amendment 709 #
Proposal for a directive
Article 20 – paragraph 1
Article 20 – paragraph 1
Member States may reserve the right to participate in concession award procedures to sheltered workshops and economic operators whose main aim is the social and professional integration of disabled and disadvantaged workers or provide for such concessions to be performed in the context of sheltered employment programmes provided that more than 30% of the employees of those workshops, economic operators or programmes areemploy disabled and/or disadvantaged workers. persons. Disadvantaged persons includes amongst others: the unemployed, people with migration background, people at risk of exclusion, members of vulnerable groups, long term sick and members of disadvantaged minorities.
Amendment 716 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
Amendment 724 #
Proposal for a directive
Article 24 – paragraph 1
Article 24 – paragraph 1
1. Unless otherwise provided in this Directive or in the national law concerning access to information, and without prejudice to the obligations relating to the advertising of awarded concession contracts and to the information to candidates and tenderers set out in Articles 27 and 35 of this Directive, the contracting authoritygrantor shall not disclose information forwarded to it by economic operators which they have reasonably designated as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders. Failure to comply with this requirement shall render the grantor liable. This Article shall not prevent public disclosure of concluded contracts, including any subsequent changes
Amendment 767 #
Proposal for a directive
Article 30 a (new)
Article 30 a (new)
Article 30a Protection of whistleblowers Contracting authorities and contracting entities shall have in place internal whistleblowing procedures for staff to ensure that: (a) any staff member (including temporary and contract workers, interns and consultants) who makes a good-faith disclosure regarding any type of material wrongdoing is protected from any and all forms of retaliation, harassment or deleterious actions; (b) the confidentiality of whistleblowers is maintained unless explicitly waived by them; (c) adequate mechanisms are made available for disclosures to be made, such as helplines and online forms; (d) a whistleblower who has been retaliated against has the right to a fair hearing before an impartial forum and shall be fully compensated; those who commit retaliation shall be duly sanctioned; (e) disclosures are properly investigated and corrective action taken (if appropriate), and that whistleblowers have the option to participate in these procedures; (f) managers must prove that any actions taken against a whistleblower were motivated by reasons other than the whistleblowing; (g) inaccurate disclosures, if made in good faith, are protected; disclosures shown to be made in bad faith are not protected; (h) management and staff should be adequately trained in whistleblower rights, policies and procedures; (i) whistleblower policies should be monitored and evaluated at regular intervals by independent bodies; (j) external whistleblowing to elected officials, NGOs, the media and other appropriate parties is protected if internal channels do not function or do not exist;
Amendment 827 #
Proposal for a directive
Article 36 – paragraph 6
Article 36 – paragraph 6
6. Any economic operator shall be excluded from participation in a concession where the contracting authority or contracting entity is aware of a decision having the force of res judicata or of a decision by a public authority with legal effect establishing that it has not fulfilled obligations relating to the payment of taxes or social security contributions in accordance with the legal provisions of theor any other obligation relating to social and employment conditions, such as health and safety at workplace, social security and working conditions as set out by Union and national laws, regulations or administrative provisions, arbitration award, collective agreement and country in which it is established oacts, and international labour law provisions listed in Annex XI, that apply in the place where the work, service or supply is performed; these obligations shall also apply in cross-border wsith those of uations, where workers from one Member State provide services in another Member State of the contracting authority or entityr where the competent authorities are aware of documented and proven infringements.
Amendment 833 #
Proposal for a directive
Article 36 – paragraph 7 – subparagraph 1 – introductory part
Article 36 – paragraph 7 – subparagraph 1 – introductory part
Member States mayshall provide that contracting authorities or contracting entities exclude from participation in a concession award any economic operator if one of the following conditions is fulfilled:
Amendment 838 #
Proposal for a directive
Article 36 – paragraph 7 – subparagraph 1 – point c a (new)
Article 36 – paragraph 7 – subparagraph 1 – point c a (new)
(ca) Breaches of social security provisions, employment, tax or environmental law.
Amendment 847 #
Proposal for a directive
Article 36 a (new)
Article 36 a (new)
Article 36a 1. Contracting authorities and contracting entities shall lay down special conditions relating to the performance of a service or works concession and concerning in particular social and environmental considerations, provided that these are indicated in the concession notice. 2. As regards wages (including allowances), hours of work and other conditions of labour for the workers concerned the contracting authorities shall include conditions which ensure to the workers concerned a level of protection which is not less favourable than that established for work of the same character in the trade or industry concerned in the district where the work is carried out by: a) collective agreement or other recognised machinery of negotiation between organisations of employers and workers representative respectively of substantial proportions of the employers and workers in the trade or industry concerned; or b) arbitration award (if this is provided by the relevant national law); or c) national laws or regulations. Where the conditions of labour referred to in the preceding subparagraph are not regulated in a manner referred to therein in the district where the work or service is carried out, the conditions for the performance of the contract shall be determined according to such instruments in the nearest appropriate district or to the general level observed in the trade or industry in which the concessionaire is engaged by employers whose general circumstances are similar.
Amendment 856 #
Proposal for a directive
Article 38 a (new)
Article 38 a (new)
Article 38a Award Criteria 1. The grantor may hold negotiations with candidates and tenderers. Concessions shall be awarded by the grantor on the basis of objective award criteria which comply with the principles set out in Article -26a(2). 2. The subject matter of the concession, the award criteria and the minimum requirements shall not be changed in an arbitrary or discriminatory manner during the course of the negotiations. Any changes shall be immediately brought to the notice of the candidates and tenderers concerned. 3. The award criteria shall be linked to the subject matter of the concession. They may include environmental, social, gender equality or innovation-related criteria. The grantor shall verify whether tenders properly meet the award criteria. 4. The grantor shall indicate in the concession notice or the invitation to submit a tender his ranking order, if any, for the criteria referred to in paragraph 1.
Amendment 889 #
Proposal for a directive
Article 41 – paragraph 1
Article 41 – paragraph 1
1. In the concession documents, the contracting authority or contracting entitygrantor may ask or may be required by a Member State to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors. The grantor may indicate which parts of the works or services may not be subcontracted. When parts of the works or services are subcontracted, the tenderer shall inform the grantor. Member States shall limit the possibility for a tenderer to sub-contract out any parts of the works or services to be performed to no more than three successive levels of sub-contracting. Subcontracting may not lead to lower work conditions or environmental standards.
Amendment 930 #
Proposal for a directive
Article 44
Article 44
Amendment 934 #
Proposal for a directive
Article 45
Article 45