36 Amendments of Maria GRAPINI related to 2021/0114(COD)
Amendment 28 #
Proposal for a regulation
Recital 1 a (new)
Recital 1 a (new)
(1a) The European internal market should create a level playing field for economic activities in a market economy taking into account social progress.
Amendment 30 #
Proposal for a regulation
Recital 3 a (new)
Recital 3 a (new)
(3a) Not only financial contributions should be considered as distortive subsidies, social or environmental dumping should also be taken into account as distorting elements of competition and of a level playing field.
Amendment 32 #
Proposal for a regulation
Recital 7
Recital 7
(7) To ensure a level playing field throughout the internal market and consistency in the application of this Regulation, the Commission should be the sole authority competent to apply this Regulation. The Commission should have the power to examine any foreign subsidy to the extent it is in the scope of this Regulation in any sector of the economy on its own initiative relying on information from all available sources. The Commission could also, where necessary, set thresholds differentiated according to the type of contract. Member States should work with the Commission to provide it with the information they consider appropriate and relevant. To ensure effective control, in the specific case of large concentrations (mergers and acquisitions) and public procurement procedures above certain thresholds, the Commission should have the power to review foreign subsidies based on a prior notification by the undertaking to the Commission.
Amendment 40 #
Proposal for a regulation
Recital 12
Recital 12
(12) Once the existence of a foreign subsidy is established, the Commission should assess whether the foreign subsidy distorts the internal market. Unlike State aid granted by a Member State, foreign subsidies are not generally prohibited. Subsidies in the form of export financing may be a cause of particular concern because of their distortive effects. This is not the case if such financing is provided in line with the OECD Arrangement on officially supported export credits. The Commission should assess on a case-by- case basis whether a foreign subsidy distorts the internal market. Failure to comply with international labour standards or environmental legislation should also be considered as an element of distortion.
Amendment 45 #
Proposal for a regulation
Recital 15 a (new)
Recital 15 a (new)
(15a) Goods and services from third countries should respect core labour and environmental standards in public procurement.
Amendment 57 #
Proposal for a regulation
Recital 33
Recital 33
(33) The need to address distortive foreign subsidies is especially salient in public procurement, given its economic significance in the internal market and the fact that it is financed by taxpayer funds, it is therefore necessary to ensure a level playing field. The Commission should have the power, upon notification prior to the award of a public contract or concession, to examine information on foreign financial contributions to the participating undertakings in the context of a public procurement procedure. Prior notifications should be mandatory above a threshold set in this Regulation to capture economically significant cases while minimising the administrative burden and not hindering the participation of SMEs in public procurement. That obligation of prior notification above a threshold should also apply to groups of economic operators referred to in Article 26(2) of Directive 2014/23/EU of the European Parliament and of the Council40 , Article 19(2) of Directive 2014/24/EU of the European Parliament and of the Council41 and Article 37(2) of Directive 2014/25/EU of the European Parliament and of the Council42 . It should also apply to the main subcontractors and the main suppliers of undertaking. _________________ 40 Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ L 94, 28.3.2014, p. 1). 41 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65). 42 Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ L 94, 28.3.2014, p. 243).
Amendment 58 #
Proposal for a regulation
Recital 33 a (new)
Recital 33 a (new)
(33a) In order to ensure a level playing field in the internal market, the Commission should establish specific control conditions for subcontracting
Amendment 63 #
Proposal for a regulation
Recital 36 a (new)
Recital 36 a (new)
(36a) Foreign subsidies should also be controlled with regard to unduly advantageous offers in relation to works and services. Since it is necessary for the tenderer to be able to justify or explain those costs sufficiently, otherwise, the contracting authority would have the right to reject the tender.
Amendment 66 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
(1) This Regulation lays down rules and procedures for investigating foreign subsidies that distort the internal market and for redressing such distortions. Such distortions may arise with respect to any economic activity, and in particular in concentrations and public procurement procedures. This legislation also intends to ensure a level playing field in the public procurement market and to improve the access of Union economic operators, goods and services to the public procurement and concessions markets of third countries.
Amendment 68 #
Proposal for a regulation
Article 1 – paragraph 2
Article 1 – paragraph 2
(2) This Regulation addresses foreign subsidies granted to an undertaking engaging in an economic activity in the internal market. An undertaking acquiring control or merging with an undertaking established in the Union or an undertaking participating in a public procurement procedure is considered to be engaging in an economic activity in the internal market. The application of this Regulation shall be without prejudice to the international obligations of the Union as well as to measures that Member States and contracting entities may take in accordance with Directives 2014/23/EU, 2014/24/EU and 2014/25/EU
Amendment 71 #
Proposal for a regulation
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
(2a) This Regulation applies with respect to restrictive or discriminatory procurement measures or practices applied by a third country in relation to purchases of goods and services not covered by public procurement.
Amendment 78 #
Proposal for a regulation
Article 3 – paragraph 1 – point e a (new)
Article 3 – paragraph 1 – point e a (new)
(ea) strategic autonomy
Amendment 81 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
(2) A foreign subsidy is unlikely to distort the internal market if its total amount is below EUR 52 million over any consecutive period of three fiscal years.
Amendment 90 #
Proposal for a regulation
Article 4 – paragraph 1 – point 4
Article 4 – paragraph 1 – point 4
(4) a foreign subsidy enabling an undertaking to submit an unduly advantageous or abnormally low tender, on the basis of which the undertaking would be awarded the public contract.
Amendment 91 #
Proposal for a regulation
Article 4 – paragraph 1 – point 4 a (new)
Article 4 – paragraph 1 – point 4 a (new)
(4a) all export finance subsidies granted by countries that are not signatories to the OECD Arrangement on Officially Supported Export Credits.
Amendment 93 #
Proposal for a regulation
Article 4 – paragraph 1 – point 4 b (new)
Article 4 – paragraph 1 – point 4 b (new)
(4b) foreign subsidies to operators that have privileged or protected access to a significant non-EU market, especially if the non-EU market is the operator’s domestic market.
Amendment 95 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
(1) To remedy the distortion on the internal market actually or potentially caused by a foreign subsidy, the Commission may impose redressive measures based on an analysis of the impact of the subsidy on the internal market. The undertaking concerned may also offer commitments.
Amendment 103 #
Proposal for a regulation
Article 6 – paragraph 3 – point h a (new)
Article 6 – paragraph 3 – point h a (new)
(ha) compliance with the environmental, social and labour standards applicable to them
Amendment 110 #
Proposal for a regulation
Article 6 – paragraph 6
Article 6 – paragraph 6
(6) Where the undertaking concerned proposes to repay the foreign subsidy including an appropriate interest rate, the Commission shall accept such repayment, provided that it fully remedies the distortion caused. It should be ascertain that the repayment as commitment if it can ascertain that the repayment is transparent and effective, while taking into account the risk of circumvention.
Amendment 123 #
Proposal for a regulation
Article 12 – paragraph 7
Article 12 – paragraph 7
(7) Upon request of the Commission, aor on its own initiative, the Member State shall in its own territory carry out any inspection or other fact- finding measure under its national law in order to establish whether there is a foreign subsidy distorting the internal market.
Amendment 129 #
Proposal for a regulation
Article 26 – paragraph 1
Article 26 – paragraph 1
Foreign subsidies that cause or risk causing a distortion in a public procurement procedure shall be understood as foreign subsidies that enable an undertaking to submit a tender that is unduly advantageous in relation to the works, supplies or services concerned. The assessment of whether there is a distortion on the internal market pursuant to Article 3 and whether a tender is unduly advantageous in relation to the works, supplies or services concerned shall be limited to the public procurement procedure at stake. Only foreign subsidies granted during the threfive years prior to the notification shall be taken into account in the assessment.
Amendment 133 #
Proposal for a regulation
Article 27 – paragraph 2
Article 27 – paragraph 2
(2) For the purpose of Article 28, a notifiable foreign financial contribution in an EU public procurement procedure shall be deemed to arise where the estimated value of that public procurement is equal or greater than EUR 2150 million.
Amendment 138 #
Proposal for a regulation
Article 27 – paragraph 2 a (new)
Article 27 – paragraph 2 a (new)
Amendment 141 #
Proposal for a regulation
Article 28 – paragraph 1
Article 28 – paragraph 1
(1) When submitting a tender or a request to participate in a public procurement procedure, undertakings shall either notify to the contracting authority or the contracting entity either by indicating all foreign financial contributions received in the three years preceding that notification or confirm in a declarby indicationg that they did not receive any foreign financial contributions in the last three years. Undertakings which do not submit such information or declarnotification shall not be awarded the contract.
Amendment 151 #
Proposal for a regulation
Article 28 – paragraph 6
Article 28 – paragraph 6
(6) Where the Commission suspects that an undertaking may have benefitted from foreign subsidies in the threfive years prior to the submission of the tender or request to participate in the public procurement procedure, it may request the notification of the foreign financial contributions received by that undertaking in any public procurement procedure which are not notifiable under Article 27(2) or fall within the scope of paragraph 5 of this Article, at any time before the award of the contract. Once the Commission has requested the notification of such a financial contribution, it is deemed to be a notifiable foreign financial contribution in a public procurement procedure.
Amendment 154 #
Proposal for a regulation
Article 28 – paragraph 6 a (new)
Article 28 – paragraph 6 a (new)
(6a) In the case of large procedures with different calls for tender, the Commission will have the possibility to group these tenders in one lot in order to be able to carry out a joint notification procedure and avoid administrative overload
Amendment 156 #
Proposal for a regulation
Article 29 – paragraph 2
Article 29 – paragraph 2
(2) The Commission shall carry out a preliminary review no later than 630 days after it received the notification.
Amendment 165 #
Proposal for a regulation
Article 29 – paragraph 4
Article 29 – paragraph 4
(4) The Commission may adopt a decision closing the in-depth investigation no later than 1200 days after it received the notification. In exceptional circumstances, this time limit may be extended after consultation with the concerned contracting authority or contracting entity.
Amendment 175 #
Proposal for a regulation
Article 32 – paragraph 1
Article 32 – paragraph 1
(1) The Commission may impose fines and periodic penalty payments as set out in Article 15 as well as excluding the undertaking concerned for a limited period of time from the new public procurement procedures.
Amendment 177 #
Proposal for a regulation
Article 32 – paragraph 1 a (new)
Article 32 – paragraph 1 a (new)
(1a) In case of deliberate non- compliance with the notification requirement for foreign subsidies, the Commission may exclude the company from future procurement procedures for a limited period of time across the EU.
Amendment 181 #
Proposal for a regulation
Article 32 – paragraph 2 a (new)
Article 32 – paragraph 2 a (new)
(2a) In both procedures under Articles 19 and 28, the Commission shall involve the Member States in the examination procedure and shall maintain a regular exchange of information with them.
Amendment 182 #
Proposal for a regulation
Article 32 – paragraph 2 b (new)
Article 32 – paragraph 2 b (new)
Amendment 188 #
Proposal for a regulation
Article 34 – paragraph 1
Article 34 – paragraph 1
(1) Where the information available substantiates a reasonable suspicion that foreign subsidies in a particular sector, for a particular type of economic activity or based on a particular subsidy instrument may distort the internal market, the Commission mayshould conduct a market investigation into the particular sector, the particular type of economic activity or into the use of the subsidy instrument concerned. In the course of that market investigation, the Commission may request the undertakings or associations of undertakings concerned to supply the necessary information and may carry out the necessary inspections. The Commission may also request the Member State or third country concerned to supply information.
Amendment 190 #
Proposal for a regulation
Article 34 – paragraph 2
Article 34 – paragraph 2
(2) The Commission mayshould publish a report on the results of its market investigation into particular sectors, particular types of economic activity or particular subsidy instruments and invite comments from interested parties.
Amendment 192 #
Proposal for a regulation
Article 34 – paragraph 4
Article 34 – paragraph 4
(4) Articles 11, 12, 13, 14 and 15 of this Regulation shall apply.
Amendment 201 #
Proposal for a regulation
Article 46 – paragraph 1
Article 46 – paragraph 1
Within fivthree years after the entry into force of this Regulation at the latest, the Commission shall present a report to the European Parliament and the Council on the application of this Regulation, accompanied, where the Commission considers it appropriate, by relevant legislative proposals.