47 Amendments of Jens NILSSON related to 2011/0438(COD)
Amendment 57 #
Proposal for a directive
Citation 1
Citation 1
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 14, Article 45.2, Article 53(1), Article 62 and Article 114 as well as Protocol 26 thereof,
Amendment 59 #
Proposal for a directive
Recital 2
Recital 2
(2) Public procurement plays a key role in the Europe 2020 strategy12 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. For that purpose, the current public procurement rules adopted pursuant to 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 and 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 have to be revised and modernised in order to increase the efficiency of public spending,enable procurers to make better use of public procurement in support of sustainable development compliance with social and labour rights and other common societal goals and in order thereby to increase the efficiency of public spending, guaranteeing the best possible result in terms of cost- effectiveness and facilitating in particular the participation of small and medium- sized enterprises in public procurement and to enable procurers to make better use of public procurement in support of common societal goals. There is also a need to simplify Union rules on public procurement, in particular as regards the method used to achieve the sustainability objectives which should be part and parcel of public procurement policy and clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well-established case-law of the Court of Justice of the European Union.
Amendment 61 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) This Directive ensures the enforcement of Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees' 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 an undertaking. In particular the right to require employees to be taken over by the legal entity that take over the business.
Amendment 69 #
Proposal for a directive
Recital 38
Recital 38
(38) Where cContracting authorities choose to award a contract to the most economically advantageous tender, they must determine the award criteria on the basis of which they will assess tenders in order to identify which one offers the best value, including environmental and social responsibility, for money. The determination of these criteria depends on the subject-matter of the contract or the subject matter of the production since they must allow the level of performance offered by each tender to be assessed in the light of the subject-matters of the contract and production, as defined in the technical specifications, and the value for money of each tender to be measured. Furthermore, the chosen award criteria should not confer an unrestricted freedom of choice on the contracting authority and they should ensure the possibility of effective and fair competition and be accompanied by requirements that allow the information provided by the tenderers to be effectively verified.
Amendment 70 #
Proposal for a directive
Recital 41
Recital 41
(41) Furthermore, in technical specifications and in award criteria, contracting authorities should be allowed to refer to a specific production process, a specific mode of provision of services, or a specific process for any other stage of the life cycle of a product or service, provided that they are linked to or the production of the subject-matter of the public contract. In order to better integrate social considerations in public procurement, procurers may also be allowed to include, in the award criterion of the most economically, socially and environmentally advantageous tender, characteristics related to the working conditions of the persons directly participating in the process of production or provision in question. Those characte. Contracting authoristices may only concern the protection of health of the staff involved in the production process or the favouring of social integration of disadvantaged persons or memrequire the production of certificates/laberls of vulnerable groups amongst the persons assigned to performing the contract, including accessibility for persons with disabilities. Any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff members in their working environment. They 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 workerdrawn up by independent bodies attesting that the economic operator complies with rules and standards in the frameworkield of the provision of services and in a way that does not discriminate directly or indirectly against economic operators from other Member States or from third countries parties to the Agreement or to Free Trade Agreements to which the Union is party. For service contracts and for contracts involving the design of works, contracting authorities should also be allowed to use as an award criterion the organisation, qualification and experience of the staff assigned to performing the contract in question, as this may affect the quality of contract performance and, as a result, the economic value of the tenderalth and safety, social and labour law defined by Union and national legislation and by collective agreements which apply in the place where the work, service or supply is to be performed.
Amendment 72 #
Proposal for a directive
Recital 43
Recital 43
(43) Contract performance conditions are compatible with this Directive provided that they are not directly or indirectly discriminatory, are linked to the subject- matter of the contract and or production, and are indicated in the contract notice, the prior information notice used as a means of calling for competition or the procurement documents. They may, in particular, be intended to favour on-site vocational training, the employment of people experiencing particular difficulty in achieving integration, the fight against unemployment, protection of the environment or animal welfare. For instance, mention may be made, amongst other things, of the requirements - applicable during performance of the contract - to recruit long-term job-seekers or to implement training measures for the unemployed or young persons, to comply in substance with fundamental International Labour Organisation (ILO) Conventions, in particular ILO Convention 94, even where such Conventions have not been implemented in national law, and to recruit more disadvantaged persons than are required under national legislation.
Amendment 81 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 2 – point 1 (new)
Article 1 – paragraph 2 – subparagraph 2 – point 1 (new)
(1) 1.3 Contracts for social and other specific services listed in Annex XVI are exclusively regulated by articles 74-76 in this Directive.
Amendment 82 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 2 – point 2 (new)
Article 1 – paragraph 2 – subparagraph 2 – point 2 (new)
(2) 1.4 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. Public authorities may perform public interest tasks using their own resources, without being obliged to call on outside economic operators. They may do so in cooperation with other public authorities.
Amendment 83 #
Proposal for a directive
Article 2 – paragraph 1 – point 22 a (new)
Article 2 – paragraph 1 – point 22 a (new)
(22a) 'socially sustainable production process' means the production process in which the provision of works, services and supplies, respects health and safety, social and labour law, rules and standards, in particular with regard to the principle of equal treatment at the workplace. The principle of equal treatment at the workplace refers to the respect of the applicable terms and conditions of employment, including health and safety, social and labour law, rules and standards, defined by Union and national legislation and collective agreements, which apply where the provision of works, services and supplies takes place;
Amendment 90 #
Proposal for a directive
Article 10 – paragraph 1 – point e
Article 10 – paragraph 1 – point e
(e) employment contracts or collective agreements which contributes to the improvement of conditions of work and employment;
Amendment 91 #
Proposal for a directive
Article 11
Article 11
Amendment 113 #
Proposal for a directive
Article 15 – paragraph 2 a (new)
Article 15 – paragraph 2 a (new)
Public procurement is to be used to achieve a smart, sustainable and inclusive growth and to support common societal goals and to provide goods and services of high quality. It is the right of public authorities at all levels to decide how they want to provide commissioning and organise their services.
Amendment 114 #
Proposal for a directive
Article 15 – paragraph 2 b (new)
Article 15 – paragraph 2 b (new)
Economic operators shall apply obligations relating to social and employment protection and the working conditions which apply in the place where the work, service or supply is to be performed as set out by national legislation and/or collective agreements or international labour law provisions listed in Annex XI and in particular ILO Convention 94.
Amendment 117 #
Proposal for a directive
Article 21 – paragraph 4 a (new)
Article 21 – paragraph 4 a (new)
4a. Member States that have whistle- blower protection for public employees to combat corruption and other breaches of civil law and/or crimes (within the public sector) may request that an equivalent protection is given to an employee employed by the economic operator, if the economic operator performs publically funded services.
Amendment 127 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 1
Article 40 – paragraph 1 – subparagraph 1
The technical specifications as defined in point 1 of Annex VIII shall be set out in the procurement documents. They shall define the characteristics required of a works, service or supply in order to achieve both use and sustainability objectives of the contracting authority.
Amendment 128 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 2
Article 40 – paragraph 1 – subparagraph 2
These characteristics may also refer to the specific process of production or provision of the requested works, supplies or services or of any other stage of its life cycle and socially sustainable production process as referred to in point (22) and 22 a (new) of Article 2.
Amendment 129 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 5 – point a (new)
Article 40 – paragraph 1 – subparagraph 5 – point a (new)
(a) Technical specifications may for instance also include requirements relating to:
Amendment 130 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 5 – point b (new)
Article 40 – paragraph 1 – subparagraph 5 – point b (new)
Amendment 131 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 5 – point c (new)
Article 40 – paragraph 1 – subparagraph 5 – point c (new)
(c) the organisation, qualification and experience of the staff assigned to performing the contract in question;
Amendment 132 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 5 – point d (new)
Article 40 – paragraph 1 – subparagraph 5 – point d (new)
(d) safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions;
Amendment 133 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 5 – point e (new)
Article 40 – paragraph 1 – subparagraph 5 – point e (new)
(e) life cycle characteristics (as defined in point 22 of Article 2);
Amendment 134 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 5 – point f (new)
Article 40 – paragraph 1 – subparagraph 5 – point f (new)
(f) socially sustainable production process characteristics (as defined in point 22a of Article 2);
Amendment 135 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 5 – point g (new)
Article 40 – paragraph 1 – subparagraph 5 – point g (new)
(g) rules relating to design and costing, the test, inspection and acceptance conditions for works and methods or techniques of construction and all other technical conditions which the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they involve.
Amendment 136 #
Proposal for a directive
Article 40 – paragraph 3 – point a
Article 40 – paragraph 3 – point a
(a) in terms of performance or functional requirements, including social and environmental characteristics, provided that the parameters are sufficiently precise to allow tenderers to determine the subject- matter of the contract and to allow contracting authorities to award the contract; in accordance with paragraph 1 above, technical specifications can be formulated in terms of performance or functional requirements relating to life cycle or socially sustainable production process characteristics of the requested works, supplies or services, in addition to technical specifications in terms of the performance or functional requirements of the works, supplies, or services in use;
Amendment 137 #
Proposal for a directive
Article 41 – paragraph 1 – subparagraph 1 – point a
Article 41 – paragraph 1 – subparagraph 1 – point a
(a) the requirements for the label only concern characteristics which are linked to the subject-matter of the contract or the production of the subject-matter of the contract and are appropriate to define characteristics of the works, supplies or services that are the subject-matter of the contract;
Amendment 138 #
Proposal for a directive
Article 54 – paragraph 1 – point b
Article 54 – paragraph 1 – point b
(b) the tender comes from a tenderer that is not excluded in accordance with Articles 21 and 55 and that meets the selection criteria set out by the contracting authority in accordance with Article 56 and, where appropriate, the non-discriminatory rules and criteria referred to in Article 64 and Article 71.
Amendment 141 #
Proposal for a directive
Article 54 – paragraph 2
Article 54 – paragraph 2
2. Contracting authorities may decide not to award a contract to the tenderer submitting the best tender where they have established that the tender does not comply, at least in an equivalent manner, with obligations established by Union legislation and national laws, regulations and other binding provisions in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in Annex XI.
Amendment 143 #
Proposal for a directive
Article 55 – paragraph 3 – subparagraph 1 – point a
Article 55 – paragraph 3 – subparagraph 1 – point a
(a) where it is aware of any violation of obligations established by Union legislation or national laws, regulations and other binding provisions in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in Annex XI. Compliance with Union legislation or with international provisions also includes compliance in an equivalent manner.
Amendment 144 #
Proposal for a directive
Article 55 – paragraph 3 – subparagraph 1 – point d
Article 55 – paragraph 3 – subparagraph 1 – point d
(d) where the economic operator has shown significant or persistent deficiencies in the performance of any substantive requirement under a prior contract or contracts of a similar nature with the same contracting authority.
Amendment 146 #
Proposal for a directive
Article 56 – paragraph 5 – subparagraph 1 (new)
Article 56 – paragraph 5 – subparagraph 1 (new)
Provisions set in paragraphs 1, 2, 3, 4 and 5 apply to subcontracting procedures and subcontracting operators.
Amendment 147 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point a
Article 66 – paragraph 1 – subparagraph 1 – point a
(a) the most economically, socially and environmentally advantageous tender;
Amendment 151 #
Proposal for a directive
Article 66 – paragraph 2 – introductory part
Article 66 – paragraph 2 – introductory part
2. The most economically, socially and environmentally advantageous tender referred to in point (a) of paragraph 1 from the point of view of the contracting authority shall be identified on the basis of criteria linked to the subject-matter of the public contract in question. Those criteria shall include, in addition to the price or costs referred to in point (b) of paragraph 1, other criteria linked to the subject-matter or the production of the subject-matter of the public contract in question, such as:
Amendment 152 #
Proposal for a directive
Article 66 – paragraph 2 – point a a (new)
Article 66 – paragraph 2 – point a a (new)
(aa) life-cycle process criteria;
Amendment 153 #
Proposal for a directive
Article 66 – paragraph 2 – point a b (new)
Article 66 – paragraph 2 – point a b (new)
(ab) socially sustainable production process criteria, which may also involve the employment of disadvantaged individuals or members of vulnerable groups;
Amendment 154 #
Proposal for a directive
Article 66 – paragraph 2 – point b
Article 66 – paragraph 2 – point b
(b) for service contracts and contracts involving the design of works, the organisation, qualification and experience of the staff assigned to performing the contract in question as well as the capacities, abilities and professional conduct of any subcontractor may be taken into consideration, with the consequence that, following the award of the contract, such staff may only be replaced and further subcontracting will only be permitted with the consent of the contracting authority, which must verify that replacements or further subcontracting ensure equivalent organisation and quality;
Amendment 155 #
Proposal for a directive
Article 66 – paragraph 3
Article 66 – paragraph 3
3. Member States may provide that the award of certain types of contracts shall be based on the most economically, socially and environmentally advantageous tender as referred to in point (a) of paragraph 1 and in paragraph 2.
Amendment 156 #
Proposal for a directive
Article 66 – paragraph 5 – subparagraph 1
Article 66 – paragraph 5 – subparagraph 1
In the case referred to in point (a) of paragraph 1 the contracting authority shall specify, in the contract notice, in the invitation to confirm interest, in the procurement documents or, in the case of a competitive dialogue, in the descriptive document, the relative weighting which it gives to each of the criteria chosen to determine the most economically, socially and environmentally advantageous tender.
Amendment 158 #
Proposal for a directive
Article 69 – paragraph 1 – introductory part
Article 69 – paragraph 1 – introductory part
1. Contracting authorities shall require economic operators to explain the price or costs charged, where allone of the following conditions areis fulfilled:
Amendment 159 #
Proposal for a directive
Article 69 – paragraph 1 – point a
Article 69 – paragraph 1 – point a
(a) the price or cost charged is more than 250 % lower than the average price or costs of the remaining tenders
Amendment 160 #
Proposal for a directive
Article 69 – paragraph 1 – point b
Article 69 – paragraph 1 – point b
(b) the price or cost charged is more than 210 % lower than the price or costs of the second lowest tender;
Amendment 161 #
Proposal for a directive
Article 69 – paragraph 1 – point c
Article 69 – paragraph 1 – point c
Amendment 165 #
Proposal for a directive
Article 69 – paragraph 3 – point d
Article 69 – paragraph 3 – point d
(d) compliance, at least in an equivalent manner, with obligations established by Union legislation in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in Annex XI or, where not applicable, with other provisions ensuring an equivalent level of protection with the provisions relating to employment protection and working conditions in force at the place where the work , service or supply is to be performed;
Amendment 167 #
Proposal for a directive
Article 69 – paragraph 4 – subparagraph 2
Article 69 – paragraph 4 – subparagraph 2
Contracting authorities shall reject the tender, where they have established that the tender is abnormally low because it does not comply with obligations established by Union legislation or national laws, regulations and other binding provisions in the field of social and labour law or environmental law or by the international social and environmental law provisions listed in Annex XI.
Amendment 170 #
Proposal for a directive
Article 70 – paragraph 1 a (new)
Article 70 – paragraph 1 a (new)
1 a. Obligations relating to taxes, environmental protection, employment protection provisions and working conditions: (a) A contracting authority may state in the contract documents, or be obliged by a Member State so to state, the body or bodies from which a candidate or tenderer may obtain the appropriate information on the obligations relating to taxes, to environmental protection, to the employment protection provisions and to the working conditions which are normally applied in the place where the works are to be carried out or services are to be provided and which shall be applicable to the works carried out on site or to the services provided during the performance of the contract. (b) A contracting authority which supplies the information referred to in paragraph 1 shall request the tenderers or candidates in the contract award procedure to indicate that they have taken account, when drawing up their tender, of the obligations relating to employment protection provisions and the working conditions which are normally applied in the place where the works are to be carried out or the service is to be provided. (c) Member States that have whistle- blower protection for public employee (within the public sector) may request that an equivalent protection is giving to employee employed by the economic operator, if the economic operator performs public funded services.
Amendment 171 #
Proposal for a directive
Article 71 – paragraph 1
Article 71 – paragraph 1
1. In the procurement documents, the contracting authority may ask or may be required by a Member State toshall 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.
Amendment 189 #
Proposal for a directive
Article 76 – paragraph 2 a (new)
Article 76 – paragraph 2 a (new)
2a. Member States are free to prescribe that social and other specific services listed in Annex XVI are to be undertaken in a specific type of economic operator.
Amendment 190 #
Proposal for a directive
Article 76 – paragraph 2 b (new)
Article 76 – paragraph 2 b (new)
2b. In contracts for social and other specific services listed in Annex XVI, contracting authorities may require economic operators to re-invest in the specific operation any profit gained in the same operation or only allow non-profit entities as tenderers.