Activities of Mikael GUSTAFSSON related to 2011/0438(COD)
Plenary speeches (1)
Award of concession contracts - Public procurement - Procurement by entities operating in the water, energy, transport and postal services sectors (debate)
Amendments (53)
Amendment 184 #
Proposal for a directive
Recital 5
Recital 5
(5) Under Article 9 of the Treaty on the Functioning of the European Union, the Union must take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health in defining and implementing its policies and activities. Under Article 11 of the Treaty on the Functioning of the European Union, environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development. This Directive clarifies how the contracting authorities mayshould contribute to the protection of the environment and the promotion of sustainable development, whilst ensuring that they can obtain the best value for money for their contracts. , social protection and public health and safety and can use their discretionary powers to lay down technical specifications and award criteria conducive to the conclusion of socially and environmentally sustainable public contracts, whilst guaranteeing a link with the subject- matter of the contract and ensuring that they can obtain the best value for money for their contracts. This Directive recognises in particular the right of any Member State to ratify and comply with ILO Convention No. 94.
Amendment 206 #
Proposal for a directive
Recital 11
Recital 11
(11) Other categories of services continue by their very nature to have a limited cross- border dimension, namely what are known as services to the person, such as certain 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 public contracts for these services, with a higher threshold of EUR 51 000 000. Services to the person with values below this threshold will typically not be of interest to providers from other Member States, unless there are concrete indications to the contrary, such as Union financing for transborder projects. Contracts for services to the person above this threshold should be subject to Union-wide transparency. Given the importance of the cultural context and the sensitivity of these services, Member States should be given wide discretion to organise the choice of the service providers in the way they consider most appropriate. The rules of this directive take account of that imperative, imposing only observance of basic principles of transparency and equal treatment and making sure that contracting authorities are able to apply specific quality criteria for the choice of service providers, such as the criteria set out in the voluntary European Quality Framework for Social Services of the European Union's Social Protection Committee17 . Member States and/or public authorities remain free to provide these services themselves or to organise social services in a way that does not entail the conclusion of public contracts, for example through the mere financing of such services or by granting licences or authorisations to all economic operators meeting the conditions established beforehand by the contracting authority, without any limits or quotas, provided such a system ensures sufficient advertising and complies with the principles of transparency and non-discrimination.
Amendment 210 #
Proposal for a directive
Recital 14
Recital 14
(14) There is considerable legal uncertainty as to how far cooperation between public authorities should be covered by public procurement rules. The relevant case-law of the Court of Justice of the European Union is interpreted divergently between Member States and even between contracting authorities. It is therefore necessary to clarify in what cases contracts concluded between contracting authorities are not subject to the application of public procurement rules. Such clarification should be guided by the principles set out in the relevant case-law of the Court of Justice. The sole fact that both parties to an agreement are themselves contracting authorities does not as such rule out the application of procurement rules. However, the application of public procurement rules should not interfere with the freedom of public authorities to decide how to organise the way they carry out their public service tasks. Contracts awarded to controlled entities or cooperation for the joint execution of the public service tasks of the participating contracting authorities should therefore be exempted from the application of the rules if the conditions set out in this directive are fulfilled. This directive should aim to ensure that any exempted public-public cooperation does not cause a distortionIn particular, this Directive is without prejudice to the right of public authorities at all levels to decide whether, how and to what extent they want to perform public functions themselves. Contracts awarded to controlled entities or social business, as defined in the Commission communication of 25 October 2011 entitled 'Social Business Initiative', ofr comopetiration in relation to private economic operators. Neither shouldfor the joint execution of the public service tasks of the participation of ang contracting authority as a tenderer in a procedure for the award of a public contract cause any distortion of competitionies should therefore be exempted from the application of the rules if the conditions set out in this directive are fulfilled.
Amendment 223 #
Proposal for a directive
Recital 15 a (new)
Recital 15 a (new)
(15 a) This Directive ensures the application of Directive 2001/23/EC on the approximation of laws of the Member States relating to the safeguarding or workers' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses in order to ensure the respect of the rules of equal competition and the protection of workers in the context of the transfer of the undertaking.
Amendment 240 #
Proposal for a directive
Recital 25
Recital 25
(25) Electronic means of communication are particularly well suited to support centralised purchasing practices and tools because of the possibility they offer to re- use and automatically process data and to minimise information and transaction costs. The use of such electronic means of communication should therefore, as a first step, be rendered compulsory for central purchasing bodies, while also facilitating converging practices across the Union. This should be followed by a general obligation to use electronic means of communication in all procurement procedures after a transition period of two yearscouraged.
Amendment 244 #
Proposal for a directive
Recital 26
Recital 26
Amendment 248 #
Proposal for a directive
Recital 28
Recital 28
(28) Contracting authorities that wish to purchase works, supplies or services with specific environmental, social or other characteristics should be able to refer to particular labels, such as the European Eco-label, (multi-)national eco-labels or any other label provided that the requirements for the label are linked to the subject-matter of the contract, such as the description of the product and its presentation, including packaging requirements and the production process. It is furthermore essential that these requirements are drawn up and adopted on the basis of objectively verifiable criteria, using a procedure in which stakeholders, such as government bodies, consumers, manufacturers, distributors, trade unions and environmental organisations, can participate, and that the label is accessible and available to all interested parties.
Amendment 259 #
Proposal for a directive
Recital 35
Recital 35
(35) Allowance should, however, be made for the possibility that economic operators may adopt compliance measures aimed at remedying the consequences of any criminal offences or misconduct and at effectively preventing further occurrences of the misbehaviour. These measures may consist in particular in personnel and organisation measures such as the severance of all links with persons or organisations involved in the misbehaviour, appropriate staff reorganisation measures, the implementation of reporting and control systems, the creation of an internal audit structure to monitor compliance and the adoption of internal liability and compensation rules. Where such measures offer sufficient guarantees, the economic operator in question should no longer be excluded on these grounds. Economic operators should have the possibility to request that contracting authorities examine the compliance measures taken with a view to possible admission to the procurement procedure. The maximum period for exclusion of an economic operator should be 10 years.
Amendment 305 #
Proposal for a directive
Recital 49
Recital 49
(49) The evaluation has shown that Member States do not consistently and systematically monitor the implementation and functioning of public procurement rules. This has a negative impact on the correct implementation of provisions stemming from these directives, which is a major source of cost and uncertainty. Several Member States have appointed a national central body dealing with public procurement issues, but the tasks entrusted to such bodies vary considerably across Member States. Clearer, more consistent and authoritative monitoring and control mechanisms would increase knowledge of the functioning of procurement rules, improve legal certainty for businesses and contracting authorities, and contribute to establishing a level playing field. Such mechanisms could serve as tools for the detection and early resolution of problems, especially with regard to projects cofunded by the Union, and for the identification of structural deficiencies. There is in particular a strong need to coordinate these mechanisms to ensure consistent application, controlshould therefore step up their monitoring efforts and in the case of uncertainties they should not hesitate to ask the Commission for clarification. Moreover, the European Commission should report annually on the need for clarifications, on new jurisprudence of the European Court of Justice, and monitoring of public procurement policy, as well as systematic assessment of the outcomes of procurement policy across the Union frequently heard complaints concerning the implementation of this Directive.
Amendment 315 #
Proposal for a directive
Recital 53
Recital 53
(53) Effective cooperation is necessary to ensure consistent advice and practice within each Member State and across the Union. Bodies designated for monitoring, implementation, control and technical assistance should be able to share information and cooperate; in the same context, the national authority designated by each Member State should act as the preferred contact point with the Commission services for the purpose of collecting data, exchanging information and monitoring the implementation of Union public procurement law.
Amendment 318 #
Proposal for a directive
Recital 54
Recital 54
(54) In order to adapt to rapid technical, economic and regulatory developments, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of a number of non-essential elements of this Directive. In fact, due to the need to comply with international agreements, the Commission should be empowered to modify the technical procedures for the calculation methods concerning thresholds as well as to periodically revise the thresholds themselves and to adapt Annexes V and XI; the lists of central government authorities are subject to variations due to administrative changes at national level. These are notified to the Commission, which should be empowered to adapt the Annex I; references to the CPV nomenclature may undergo regulatory changes at EU level and it is necessary to reflect those changes into the text of this Directive; the technical details and characteristics of the devices for electronic receipt should be kept up to date with technological developments and administrative needs; it is also necessary to empower the Commission to make mandatory technical standards for electronic communication to ensure the interoperability of technical formats, processes and messaging in procurement procedures conducted using electronic means of communication taking into account technological developments and administrative needs; and the content of the European Procurement Passport to reflect administrative needs and regulatory changes at both national and EU level; the list of legislative acts of the Union establishing common methodologies for the calculation of life-cycle costs should be quickly adapted to incorporate the measures adopted on a sectoral basis. In order to satisfy these needs, the Commission should be empowered to keep the list of legislative acts including LCC methodologies up-to date.
Amendment 320 #
Proposal for a directive
Recital 55
Recital 55
(55) It is of particular importance that the Commission carries out appropriate consultations during its preparatory work, including at expert levelwith all stakeholders, including SME-, environmental-, and consumer organisations and trade unions. When preparing and drawing up delegated acts, the Commission should ensure simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and the Council.
Amendment 338 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. This Directive shall not apply to contracts for the supply of goods or the provision services which are subject by law to a fixed price and in relation to which a public procurement procedures ipso facto holds no value.
Amendment 383 #
Proposal for a directive
Article 4 – paragraph 1 – point a
Article 4 – paragraph 1 – point a
(a) EUR 58 000 000 for public works contracts;
Amendment 385 #
Proposal for a directive
Article 4 – paragraph 1 – point b
Article 4 – paragraph 1 – point b
(b) EUR 1300 000 for public supply and service contracts awarded by central government authorities and design contests organised by such authorities; where public supply contracts are awarded by contracting authorities operating in the field of defence, that threshold shall apply only to contracts concerning products covered by Annex III;
Amendment 389 #
Proposal for a directive
Article 4 – paragraph 1 – point c
Article 4 – paragraph 1 – point c
(c) EUR 2400 000 for public supply and service contracts awarded by sub-central contracting authorities and design contests organised by such authorities.
Amendment 397 #
Proposal for a directive
Article 4 – paragraph 1 – point d
Article 4 – paragraph 1 – point d
(d) EUR 51 000 000 for public contracts for social and other specific services listed in Annex XVI.
Amendment 407 #
Proposal for a directive
Article 5 – paragraph 9
Article 5 – paragraph 9
9. Contracting authorities may award contracts for individual lots without applying the procedures provided for under this Directive, provided that the estimated value net of VAT of the lot concerned is less than EUR 8160 000 for supplies or services or EUR 12 million for works. However, the aggregate value of the lots thus awarded without applying this Directive shall not exceed 20 % of the aggregate value of all the lots into which the proposed work, the proposed acquisition of similar supplies or the proposed purchase of services has been divided.
Amendment 420 #
Proposal for a directive
Article 10 – paragraph 1 – point c
Article 10 – paragraph 1 – point c
(c) arbitration and conciliation services; and any of the following legal services: (i) legal representation of a client in judicial proceedings before courts, tribunals or public authorities by a lawyer within the meaning of Article 1 of Directive 77/249/EEC; (ii) document certification services which must be provided by notaries; (iii) legal services provided by trustees, appointed guardians or other legal services the providers of which are designated by a court or tribunal in the Member State concerned; (iv) other legal services which in the Member State concerned are connected with the exercise of official authority.
Amendment 448 #
Proposal for a directive
Article 10 – paragraph 1 a (new)
Article 10 – paragraph 1 a (new)
Amendment 583 #
Proposal for a directive
Article 12 – paragraph 1 – point a – introductory part
Article 12 – paragraph 1 – point a – introductory part
(a) works contracts which are subsidised directly by contracting authorities by more than 50 % and the estimated value of which, net of VAT, is equal to or greater than EUR 58 000 000, where those contracts involve one of the following activities:
Amendment 584 #
Proposal for a directive
Article 12 – paragraph 1 – point b
Article 12 – paragraph 1 – point b
(b) service contracts which are subsidised directly by contracting authorities by more than 50 % and the estimated value of which, net of VAT, is equal to or greater than EUR 2400 000 and which are connected to a works contract within the meaning of point (a).
Amendment 612 #
Proposal for a directive
Article 18 – paragraph 2 a (new)
Article 18 – paragraph 2 a (new)
2a. This Article shall not prevent public disclosure of concluded contracts, including any subsequent changes.
Amendment 623 #
Proposal for a directive
Article 19 – paragraph 7 – subparagraph 1
Article 19 – paragraph 7 – subparagraph 1
7. Member States shall ensure that, at the latest 2 years after the date provided for in Article 92(1), all procurement procedures under this Directive are performed usingtake all necessary steps to facilitate the use of electronic means of communication, in particular e- submission, for all procurement procedures under this Directive, in accordance with the requirements of this Article.
Amendment 644 #
Proposal for a directive
Article 21 a (new)
Article 21 a (new)
Article 21a Protection of whistleblowers Procurement agencies and authorities 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 776 #
Proposal for a directive
Article 29
Article 29
Amendment 796 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point a
Article 30 – paragraph 2 – subparagraph 1 – point a
(a) where no tenders or no suitable tenders or no requests to participate have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially altered and that a report is sent to the Commission or the national oversight body designated according to Article 84 where they so request.
Amendment 802 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point c – point i
Article 30 – paragraph 2 – subparagraph 1 – point c – point i
(i) the absence of competition for technical or legal reasons;
Amendment 814 #
Proposal for a directive
Article 30 – paragraph 3 – point b
Article 30 – paragraph 3 – point b
(b) for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the duration of such contracts as well as that of recurrent contracts shall not, as a general rule, exceed threefour years;
Amendment 839 #
Proposal for a directive
Article 31 – paragraph 5 a (new)
Article 31 – paragraph 5 a (new)
5 a. Contracting authorities have the possibility to add new economic operators to the framework agreement during the term of the contract, provided that these economic operators meet all the criteria set in this article, and did not exist yet at the time of the conclusion of the agreement. Contracting authorities have the possibility to remove economic operators from the framework agreement during the term of the contract, where the economic operator has shown significant or persistent deficiencies in the performance of any substantive requirement under the agreement.
Amendment 847 #
Proposal for a directive
Article 32 – paragraph 6 – introductory part
Article 32 – paragraph 6 – introductory part
6. Contracting authorities shall indicate the duration of the dynamic purchasing system in the call for competition. They shall notify the Commission of any change in duration, using the following standard forms:
Amendment 856 #
Proposal for a directive
Article 33 – paragraph 1 – subparagraph 1
Article 33 – paragraph 1 – subparagraph 1
Contracting authorities may use electronic auctions, in which new prices, revised downwards, and/or new values concerning certain elements of tenders are presented. Electronic auctions can only be used for commonly used purchases of goods that are generally available on the market at a more or less standardised quality. They cannot be used for the purchase of services or complex or non standardised products.
Amendment 861 #
Proposal for a directive
Article 33 – paragraph 6 – subparagraph 1
Article 33 – paragraph 6 – subparagraph 1
Amendment 874 #
Proposal for a directive
Article 38
Article 38
Amendment 910 #
Proposal for a directive
Article 40 – paragraph 1 a (new)
Article 40 – paragraph 1 a (new)
1. Technical specifications may also include requirements relating to: a) Employment conditions, organisation, qualification and experience of staff assigned to performing the contract in question;
Amendment 924 #
Proposal for a directive
Article 40 – paragraph 4
Article 40 – paragraph 4
4. UnlessOn an exceptional basis, and only when justified by the subject-matter of the contract, technical specifications shall notmay refer to a specific make or source, or a particular process, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract pursuant to paragraph 3 is not possible. Such reference shall be accompanied by the words ‘'or equivalent’'.
Amendment 929 #
Proposal for a directive
Article 40 – paragraph 6 – subparagraph 2 a (new)
Article 40 – paragraph 6 – subparagraph 2 a (new)
Contracting authorities must be able to control and follow up that the requirements are fulfilled, during the tendering process as well as during the performance of the contract.
Amendment 946 #
Proposal for a directive
Article 41 – paragraph 1 – subparagraph 1 – point c
Article 41 – paragraph 1 – subparagraph 1 – point c
(c) the labels are established in an open and transparent procedure in which all stakeholders, including government bodies, consumers, trade unions, manufacturers, distributors and environmental organisations, may participate,
Amendment 963 #
Proposal for a directive
Article 41 – paragraph 1 – subparagraph 2
Article 41 – paragraph 1 – subparagraph 2
Contracting authorities requiring a specific label shall accept all equivalent labels that fulfil the requirements of the label indicated by the contracting authorities. For products that do not bear the label, contracting authorities shall also accept a technical dossier of the manufacturer or other appropriate means of proof.
Amendment 970 #
Proposal for a directive
Article 42 – paragraph 2
Article 42 – paragraph 2
Amendment 986 #
Proposal for a directive
Article 43 – paragraph 3 – subparagraph 2
Article 43 – paragraph 3 – subparagraph 2
Amendment 1008 #
Proposal for a directive
Article 44 – paragraph 3
Article 44 – paragraph 3
Amendment 1040 #
Proposal for a directive
Article 54 – paragraph 4
Article 54 – paragraph 4
Amendment 1083 #
Proposal for a directive
Article 56 – paragraph 3 – subparagraph 1
Article 56 – paragraph 3 – subparagraph 1
1. With regard to sufficient economic and financial standing, cContracting authorities mayshall not require that economic operators to have adequate financial and economic capacity. For that purpose, they may require that economic operators have a certain minimum yearly turnover, including a certaina certain minimum yearly turnover, except in duly justified circumstances relating to the special risks attached to the nature of the works, services or supplies. The contracting authority shall indicate such exceptional circumstances in the procurement documents. In this case, the minimum yearly turnover in the area covered by the contract and an adequate professional risk indemnity insuranceshall not exceed two times the estimated contract.
Amendment 1086 #
Proposal for a directive
Article 56 – paragraph 3 – subparagraph 2
Article 56 – paragraph 3 – subparagraph 2
Amendment 1090 #
Proposal for a directive
Article 56 – paragraph 3 – subparagraph 3
Article 56 – paragraph 3 – subparagraph 3
Where a contract is divided into lots this Article shall apply in relation to each individual lot. However, the contracting authority may set the minimum yearly turnover by reference to groups of lots for the event that the successful tenderer is awarded several lots to be executed at the same time.
Amendment 1118 #
Proposal for a directive
Article 63 – paragraph 1 – subparagraph 2
Article 63 – paragraph 1 – subparagraph 2
Amendment 1242 #
Proposal for a directive
Article 67 – paragraph 3 – subparagraph 2
Article 67 – paragraph 3 – subparagraph 2
A list of such legislative and delegated acts is set out in Annex XV. The Commission shall be empowered to adopt delegated acts in accordance with Article 89 concerning the update of this list, when on the basis of the adoption of new legislation, repeal or modification of such legislation, such amendments prove necessary.
Amendment 1309 #
Proposal for a directive
Article 70
Article 70
Contracting authorities may lay down special conditions relating to the performance of a contract, provided that they are indicated in the call for competition or in the specifications. Those conditions may, in particular, concern social and environmental considclude social and environmental considerations, and may also include social and employment protection and working conditions applying in the place where the work, service or supply is to be performed as set out by national legislation and/or collective agreements or internationsal labour law provisions listed in Annex XI. They may also include the requirement that economic operators foresee compensations for risks of price increases that are the result of price fluctuations (hedging) and that could substantially impact the performance of a contract.
Amendment 1444 #
Proposal for a directive
Article 79 – paragraph 2 – subparagraph 2
Article 79 – paragraph 2 – subparagraph 2
Amendment 1458 #
Proposal for a directive
Article 83 a (new)
Article 83 a (new)
Article 83a Register of non-compliance 1. If an economic operator violates the conditions set out in the contract, in particular regarding social and employment protection and working conditions and subcontracting, it shall be inscribed in a register of non-compliance of public procurement rules. 2. The register of non-compliance shall be processed and updated regularly by the supervisory and administrative authorities mentioned in Article 84 and 88. Contracting authorities shall have the right and the obligation to consult the register before awarding a public contract.
Amendment 1467 #
Proposal for a directive
Article 84 – paragraph 1 – subparagraph 1
Article 84 – paragraph 1 – subparagraph 1
1. Member States shall appoint a single independent body responsible for the oversight and coordination of implementation activities (hereinaftensure the correct implementation and democratic, accounting and legal oversight over the implementation of this Directive. Member States are free to decide whether they want to appoint a single independent body for the oversight and coordination activities, or whether they want to leave the oversight to existing oversight bodies that already exercise democratic, accounting and legal control over ‘the contracting authorities. If a Member State decides not to appoint a single independent oversight body’)., Member States shall inform the Commission of their designationensure that: (a) city councils, regional parliaments and national parliaments, are fully equipped to supervise and exercise democratic control over the contracting authorities. (b) auditors, responsible for auditing local, regional and national authorities are fully equipped to supervise and audit the contracting authorities. (c) the judiciary is fully equipped to exercise legal control over the contracting authorities.
Amendment 1527 #
Proposal for a directive
Article 86
Article 86