BETA

32 Amendments of Henri WEBER related to 2012/0060(COD)

Henri WEBER, Marc TARABELLA

Proposal for a regulation
Recital 9 a (new)

(9a) Public contracts cannot be awarded to economic operators that: -do not meet the requirements laid down by Union legislation or international provisions in the areas of social, labour and environmental law, in accordance with the public procurement directives; -are involved or have been involved in a criminal organisation or in human trafficking or child labour.

2013/10/03
Committee: INTA

Henri WEBER, Marc TARABELLA

Proposal for a regulation
Recital 9 b (new)

(9b) The Commission should ensure that it does not fund programmes for which international public contracts are awarded or implemented in a manner inconsistent with the principles laid down in the public procurement directive.

2013/10/03
Committee: INTA

Proposal for a regulation
Recital 17

(17) The Commission should be able to prevent the possible negative impact of an intended exclusion on on-going trade negotiations with the country concerned. Therefore, the Commission may, where a country is engaging in substantive negotiations with the Union concerning market access in the field of public procurement and the Commission considers that there is a reasonable prospect of removing the restrictive procurement practices in the near future, it should be able to adopt a implementing act providing that goods and services from that country should not be excluded from procedures for the award of contracts for a period of one year.deleted

2013/10/03
Committee: INTA

Proposal for a regulation
Article 1 – paragraph 1

1. This Regulation lays down rules on the access of third-country goods and services to the award of contracts for the execution of works or a work, the supply of goods and the provision of services by Union contracting authorities/entities, and establishes procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries. Member States or their contracting authorities/entities may restrict the access of third-country goods and services to their tendering procedures only by means of measures provided for and authorised under Union law.

2013/10/03
Committee: INTA

Henri WEBER, Marc TARABELLA

Proposal for a regulation
Article 1 – paragraph 1 a (new)

(1a) Member States shall ensure that economic operators performing a public contract comply with applicable obligations in the areas of environmental, social and labour law laid down in Union legislation, national legislation, collective agreements and in the international environmental, social and labour law provisions listed in Annex XI to the public procurement directive, including Convention No 94 of the International Labour Organisation.

2013/10/03
Committee: INTA

Proposal for a regulation
Article 2 – paragraph 1 – point e

(e) ‘non-covered goods or services’ means a good or service originating in a country with which the Union has not concluded an international agreement in the field of public procurement including market access commitments or a goods or service originating in a country with which the Union has concluded such an agreement, but in respect of which the relevant agreement does not apply; those goods or services which are subject to the specific market access reservations specified by the EU in an international agreement (Agreement on Government procurement or a bilateral agreement) shall also be considered ‘non-covered goods or services’; these specific reservations shall be listed, and regulated updated and published by the Commission, in Annex II to this Regulation.

2013/10/03
Committee: INTA

Henri WEBER, Marc TARABELLA

Proposal for a regulation
Article 2 – paragraph 1 – point g a (new)

(ga) ‘lack of substantial reciprocity’ means any measure restricting access to public procurement markets or the award of concessions which consists of repeated, serious discrimination against EU goods and services, in particular by means of discriminatory legislative, financial or administrative provisions or the formal or practical lack of guarantees of equal and transparent treatment.

2013/10/03
Committee: INTA

Proposal for a regulation
Article 6 – paragraph 2 – subparagraph 1

Where contracting authorities/entities intend to request the exclusion from procedures for the award of contracts on the basis of paragraph 1 they shall indicate this in the contract notice they publish pursuant to Article 35 of Directive 2004/18/EC or pursuant to Article 42 of Directive 2004/17/EC or Article 26 of the Directive on the award of concession contracts.deleted

2013/10/03
Committee: INTA

Henri WEBER, Marc TARABELLA

Proposal for a regulation
Article 6 – paragraph 4 – subparagraph 1 – point a a (new)

(aa) where it can demonstrate by any appropriate means that violations of applicable obligations have occurred in the areas of environmental, social and labour law laid down in Union legislation, national legislation, collective agreements and in the international environmental, social and labour law provisions listed in Annex XI to the public procurement directive, including Convention No 94 of the International Labour Organisation;

2013/10/03
Committee: INTA

Henri WEBER, Marc TARABELLA

Proposal for a regulation
Article 6 – paragraph 5 – point b a (new)

(ba) When assessing whether there is evidence of serious and repeated violations of the fundamental rights of workers or the social or labour law laid down in Union legislation, national legislation, collective agreements and the international environmental, social and labour law provisions listed in Annex XI to the public procurement directive, including Convention No 94 of the International Labour Organisation (ILO), the Commission shall examine the following: (i) to what degree laws and practices in the country concerned uphold workers’ fundamental rights and social and labour law laid down in Union legislation, national legislation, collective agreements and the international environmental, social and labour law provisions listed in Annex XI to the public procurement directive, including the ILO Convention No 94; (ii) to what degree public authorities and/or individual contracting entities employ social dumping practices in respect of the goods and services concerned.

2013/10/03
Committee: INTA

Marc TARABELLA, Henri WEBER

Proposal for a regulation
Article 7 – paragraph 1

~~Where the cont~~Contracting authority/entity, under Article 69 of the Directive on public procurement or under Article 79 of the Directive on procurement by entities operacting ~~authority/entity intends, under Article 69 of the~~in the water, energy, transport and postal services sectors, shall require economic operators to explain the price or costs proposed in the tender where tenders appear to be abnormally low in relation to the works, supplies or services. 2. The explanations referred to in paragraph 1 may in particular relate to: (a) the economics of the construction method, the manufacturing process or the services provided (b) the technical solutions chosen or any exceptionally favourable conditions available to the tenderer for the execution of the work or for the supply of the goods or services; (c) the originality of the work, supplies or services proposed by the tenderer; (d) compliance with obligations referred to in Article 6. 1 (a) new. (da) compliance with obligations referred to in Article 71 of Directive on public procurement or under Article 7981 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors~~, a~~. (e) the possibility of the tenderer obtaining State aid. After verifying the explanations of the tenderer, to accept an abnormally low tender comprising goods and/or services originating outside the Union, in which the value of the non- covered goods or services exceeds 50 % of the total value of the goods or services constituting the tender, it shall inform the other tenderers of this in writing, including the reasons for the abnormally low character of the price or costs charged. 3.The contracting authority shall assess the information provided by consulting the tenderer. It may only reject the tender where the evidence supplied does not satisfactorily account for the low level of price or costs proposed, taking into account the elements referred to in paragraph 2. Contracting authorities shall reject the tender, where they have established that the tender is abnormally low because it does not comply with applicable obligations referred to in Article 6. 1 (a) new. 4. Where a contracting authority establishes that a tender is abnormally low because the tenderer has obtained State aid, the tender may be rejected on that ground alone only after consultation with the tenderer where the latter is unable to prove, within a sufficient time limit fixed by the contracting authority, that the aid in question was compatible with the internal market within the meaning of Article 107 of the Treaty. 5. Upon request, Member States shall make available to other Member States by way of administrative cooperation any information at its disposal, such as laws, regulations, universally applicable collective agreements or national technical standards, relating to the evidence and documents produced in relation to details listed in paragraph 2.

2013/10/03
Committee: INTA

Marc TARABELLA, Henri WEBER

Proposal for a regulation
Article 7 – paragraph 2

A contracting authority/entity may withhold any information release of it would impede law enforcement, would otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of economic operators, whether public or private, or might prejudice fair competition between them.deleted

2013/10/03
Committee: INTA

Proposal for a regulation
Article 8 – paragraph 1 – subparagraph 1

Where ~~the Commission considers it to be in the interest of the Union, it may~~an intended exclusion has been approved in accordance with Article 6(3) of this Regulation, the Commission shall initiate an external investigation into alleged restrictive procurement measures. The Commission may also at any time, on its own initiative or upon application of interested parties, namely a contracting authority/entity, or a Member State, ~~may~~ initiate an external procurement investigation into alleged restrictive procurement measures. The Commission shall, in that case, take account in particular of whether it has already been notified of a number of intended exclusions concerning the same restrictive measures. Should an investigation be initiated, the Commission shall publish a notice in the Official Journal of the Union, inviting interested parties and Member States to provide all relevant information to the Commission within a specified period of time. Should the Commission decline to initiate an investigation requested by a Member State or a contracting authority/entity, it shall justify its decision to the applicants within a period of four weeks.

2013/10/03
Committee: INTA

Proposal for a regulation
Article 8 – paragraph 1 – subparagraph 2

~~In particular, the Commission shall take into account whether a number of intended exclusions have been approved pursuant to Article 6(3) of this Regulation.~~deleted

2013/10/03
Committee: INTA

Proposal for a regulation
Article 8 – paragraph 3

3. The assessment by the Commission of whether restrictive procurement measures are maintained by the third country concerned shall be made on the basis of the information supplied by interested parties and Member States and/or facts collected by the Commission during its investigation and its regular monitoring of trade barriers, and shall be concluded within a period of ~~nin~~three months at the most after the initiation of the investigation. In duly justified cases this period may be extended by ~~thre~~one months.

2013/10/03
Committee: INTA

Proposal for a regulation
Article 9 – paragraph 2 a (new)

(2a) However, where the country concerned is a party to the World Trade Organisation Agreement on Government Procurement, and/ or has concluded a bilateral trade agreement with the EU containing a 'public procurement' chapter and if the European Union has formulated express reservations concerning market access for that country, the Commission shall without delay adopt implementing measures under Article 10 limiting access for the goods and services concerned.

2013/10/03
Committee: INTA

Proposal for a regulation
Article 9 – paragraph 3 – subparagraph 1

When, after the initiation of a consultation, the country concerned takes satisfactory remedial/corrective measures, but without undertaking new market access commitments, the Commission may suspend or terminate the consultation or invite the country concerned to enter into negotiations under Article 9(5).

2013/10/03
Committee: INTA

Proposal for a regulation
Article 9 – paragraph 3 – subparagraph 3 – introductory part

Where the remedial/corrective measures taken by the third country concerned are rescinded, suspended or improperly implemented, the Commission ~~may:~~shall proceed to adopt under Article 10 implementing acts to limit the access of goods and services originating in a third country.

2013/10/03
Committee: INTA

Proposal for a regulation
Article 9 – paragraph 3 – subparagraph 3 – point i

~~i) resume or restart the consultation with the third country concerned, and/or~~deleted

2013/10/03
Committee: INTA

Proposal for a regulation
Article 9 – paragraph 3 – subparagraph 3 – point ii

~~ii) act under Article 10 to adopt implementing acts to limit the access of goods and services originating in a third country~~deleted

2013/10/03
Committee: INTA

Proposal for a regulation
Article 9 – paragraph 4

4. Where, after the initiation of a consultation, it appears that the most appropriate means to end a restrictive procurement practice is the conclusion of an international agreement, negotiations shall be carried out in accordance with the provisions of Articles 207 and 218 of the Treaty on the Functioning of the European Union. If a country has engaged in substantive negotiations with the European Union concerning market access in the field of public procurement, the Commission may adopt an implementing act providing that goods and services from that country cannot be excluded from procedures for the award of contracts pursuant to Article 6.

2013/10/03
Committee: INTA

Proposal for a regulation
Article 9 – paragraph 5 – subparagraph 1 – introductory part

The Commission may terminate the consultation if the country concerned has undertake~~s international commitments agreed with the Union~~n with the Union or at international level the following measures: (i) corrective actions by the country concerned and (ii) international commitments with the European Union by the country concerned with no restrictions/exclusions regarding the goods and services concerned by the investigation. These international commitments shall be agreed in any of the following frameworks:

2013/10/03
Committee: INTA

Proposal for a regulation
Article 9 – paragraph 5 – subparagraph 2

The consultation may also be terminated in cases where the restrictive procurement measures are still in place at the time these commitments are undertaken, as long as they include detailed provisions relating to the phasing-out of those practices.deleted

2013/10/03
Committee: INTA

Proposal for a regulation
Article 9 – paragraph 6

6. In the event that a consultation with a third country does not lead to satisfactory results within 159 months from the day the consultation with the third country started, the Commission shall terminate the consultation and consider acting under Article 10 to adopt implementing acts to limit the access of goods and services originating in a third country.

2013/10/03
Committee: INTA

Proposal for a regulation
Article 10 – paragraph 1

1. Where it is found in an investigation pursuant to Article 8, and after following the procedure foreseen in Article 9, that ~~restrictive procurement measures adopted or maintained by that third country leads to~~there is a lack of substantial reciprocity in market opening between the Union and the third country as referred to in Article 62, the Commission ~~may~~shall adopt implementing acts to ~~temporarily~~ limit the access of non- covered goods and services originating in a third country. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17(2).

2013/10/03
Committee: INTA

Henri WEBER, Marc TARABELLA

Proposal for a regulation
Article 13 a (new)

Article 13a This Regulation shall be without prejudice to the freedom of Member States to define, in conformity with Union law, what they consider to be services of general economic interest, how these services should be organised and financed in compliance with the State aid rules and what specific obligations they should be subject to. Equally, this Regulation shall be without prejudice to the right of public authorities to decide whether, how and to what extent they wish to perform public functions themselves pursuant to Protocol (No 26) on Services of General Interest and Article 14 TFEU.

2013/10/03
Committee: INTA

Proposal for a regulation
Article 14 – paragraph 1

The Commission shall be empowered to adopt delegated acts in accordance with Article 14 concerning amendments to the Annexes to reflect the conclusion of new international agreements by the Union in the field of public procurement.

2013/10/03
Committee: INTA

Henri WEBER, Marc TARABELLA

Proposal for a regulation
Article 16 a (new)

Article 16a Procurement conditions in connection with Union-funded programmes in third countries. In connection with public procurements funded by the European Union and its Member States, the Commission shall ensure the introduction of a binding regulatory framework intended to govern the award and performance of public contracts. In this connection, the European Union shall adopt uniform rules to ensure fair conditions of competition between European Union and third country economic operators.

2013/10/03
Committee: INTA

Proposal for a regulation
Article 19 – paragraph 1

~~By 1 January 2017 and a~~At least every three years after the entry into force of this Regulation, the Commission shall submit a report to the European Parliament and the Council on the application of this Regulation and on progress made in international negotiations regarding access for EU economic operators to public contract award procedures in third countries undertaken under this Regulation. To this effect, Member States shall upon request provide the Commission with appropriate information. On submitting its second report on the application of this Regulation, it may submit to the European Parliament and the Council a legislative proposal for an amended Regulation or else set out the reasons why in its view no changes are needed.

2013/10/03
Committee: INTA

Henri WEBER, Marc TARABELLA

Proposal for a regulation
Article 20 – paragraph 1

On entry into force of this Regulation, the Commission shall, under Article 15 thereof establish whether Articles 58 and 59 of Directive 2004/17/EC ~~shall~~must be repealed ~~with effect from the entry into force of this Regulation~~.

2013/10/03
Committee: INTA

Proposal for a regulation
Article 20 – paragraph 1 a (new)

(1a) If any provision of this Regulation overlaps with Articles 58 and 59 of Directive 2004/17/EC as regards the award of a given contract, the provision of this Regulation shall prevail and shall apply to the contract in question.

2013/10/03
Committee: INTA

Proposal for a regulation
Annex 1 a (new)

ANNEX II Explicit market access reservations formulated by the EU in the WTO Agreement on Government Procurement

2013/10/03
Committee: INTA