41 Amendments of Jan ZAHRADIL related to 2012/0060(COD)
Amendment 145 #
Proposal for a regulation
Recital 16
Recital 16
Amendment 153 #
Proposal for a regulation
Recital 16 a (new)
Recital 16 a (new)
(16a) In the light of the overall policy objective of the Union to support small and medium sized enterprises (SMEs), this Regulation should also not apply to tenders submitted by autonomous SMEs manufacturing the goods or providing services subject to the procurement covered by IPI measures.
Amendment 165 #
Proposal for a regulation
Recital 18 a (new)
Recital 18 a (new)
(18a) In order to determine whether an investigation is in the interest of the Union, the Commission should consider a wide variety of aspects of political, economic or any other nature, in relation to the investigation and its potential consequences. The Commission should weigh up effects of starting the investigation against the impact of the investigation (and potential measures under this Regulation) on the EU's broader interest. The general objective of opening third country markets and improving market access opportunities for EU economic operators should be taken into account. The objective of limiting any unnecessary administrative burden for contracting authorities and contracting entities as well as economic operators should be taken into account. Member States and interested parties should have the possibility to present their views with regard to the interest of the Union.
Amendment 191 #
Proposal for a regulation
Recital 22
Recital 22
(22) If the consultations with the country concerned do not lead to sufficient improvements to the tendering opportunities for Union economic operators, goods and services within a reasonable timeframe, the Commission should be able to adopt, where appropriate, price adjustmentIPI measure applying to tenders submitted by economic operators originating in that country and/or including goods and services originating in that country.
Amendment 210 #
Proposal for a regulation
Recital 24
Recital 24
(24) Price adjustmentIPI measures should not have a negative impact on on-going trade negotiations with the country concerned. Therefore, where a country is engaging in substantive negotiations with the Union concerning market access in the field of public procurement, the Commission may suspend the measures during the negotiations.
Amendment 215 #
Proposal for a regulation
Recital 25
Recital 25
(25) In order to simplify the application of a price adjustmentIPI measures by contracting authorities or contracting entities, there should be a presumption that all economic operators originating in a targeted third country with which there is no agreement on procurement will be subject to the measure, unless they can demonstrate that less than 50% of the total value of their tender is made up of goods or services originating in the third country concerned.
Amendment 221 #
Proposal for a regulation
Recital 27
Recital 27
(27) It is imperative that contracting authorities and contracting entities have access to a range of high-quality products meeting their purchasing requirements at a competitive price. Therefore contracting authorities and contracting entities should be able not to apply price adjustmentIPI measures limiting access of non-covered goods and services in case there are no Union and/or covered goods or services available which meet the requirements of the contracting authority or contracting entity to safeguard essential public needs, for example in the fieldsregarding public security ofr health and public safetyemergencies, or where the application of the measure would lead to a disproportionate increase in the price or costs of the contract. The disproportionate increase in price or costs should be assessed by comparing the remaining offers with the estimated value of the contract notice. The exception should only apply in cases where the estimated value is significantly lower than the value in the remaining offers, rendering the execution of the contract economically unviable. When contracting authorities or contracting entities apply these exceptions, the Commission should be informed in a timely and comprehensive manner to allow for appropriate monitoring of the implementation of this Regulation.
Amendment 231 #
Proposal for a regulation
Recital 28
Recital 28
(28) In case of misapplication by contracting authorities or contracting entities of exceptions to price adjustmentIPI measures limiting access of non-covered goods and services, the Commission should be able to apply the corrective mechanism of Article 3 of Council Directive 89/665/EEC20 or Article 8 of Council Directive 92/13/EEC21 . In addition, contracts concluded with an economic operator by contracting authorities or contracting entities in violation of price adjustmentIPI measures limiting access of non-covered goods and services should be ineffective. _________________ 20Council Directive 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ L 395, 30.12.1989, p. 33). 21Council Directive 92/13/EEC coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 76, 23.3.1992, p. 14).
Amendment 232 #
Proposal for a regulation
Recital 30
Recital 30
(30) The examination procedure should be used for the adoption of implementing acts regarding the adoption, withdrawal, or suspension or reinstatement of a the price adjustment measureIPI measures and the Commission should be assisted by the Committee set up under the Trade Barriers Regulation. If necessary and for matters affecting the Union’s legal framework on public procurement, the Commission may also seek the advice of the Advisory Committee on Public Procurement established by Council Decision 71/306/EEC.
Amendment 240 #
Proposal for a regulation
Recital 33
Recital 33
Amendment 249 #
Proposal for a regulation
Article 1 – paragraph 1 – subparagraph 2
Article 1 – paragraph 1 – subparagraph 2
It provides for the possibility of applying price adjustmentIPI measures to certain tenders for contracts for the execution of works or a work, for the supply of goods and/or the provision of services and for concessions, on the basis of the origin of the economic operators, goods or services concerned. .
Amendment 380 #
Proposal for a regulation
Article 7 – paragraph 3 – subparagraph 1 - point ii
Article 7 – paragraph 3 – subparagraph 1 - point ii
ii) decide, by implementing act, to impose a price adjustmentn IPI measure pursuant to Article 8.
Amendment 385 #
Proposal for a regulation
Article 7 – paragraph 6
Article 7 – paragraph 6
6. In the event that consultations with a third country do not lead to satisfactory results within 15 months from the day those consultations started, the Commission shall terminate the consultations and shall take appropriate action. In particular, the Commission may decide, by means of an implementing act, to impose a price adjustmentn IPI measure, pursuant to Article 8. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 14(2).
Amendment 390 #
Proposal for a regulation
Article 8 – title
Article 8 – title
Amendment 392 #
Proposal for a regulation
Article 8 – paragraph 1 – subparagraph -1 (new)
Article 8 – paragraph 1 – subparagraph -1 (new)
-1. Where the Commission finds, following an investigation and consultations pursuant to Article 4, that a third country measure or practice exists, it may, if it considers it to be in the interest of the Union, adopt an implementing act to impose an IPI measure as provided in paragraph 5 of this article. An IPI measure shall only apply if the main subject of the procurement procedure falls within the scope of the implementing act as defined in accordance with paragraph 7(a). The design of the procurement procedure shall not be made with the intention of excluding it from the scope of this Regulation.
Amendment 393 #
Proposal for a regulation
Article 8 – paragraph 1 – subparagraph 1
Article 8 – paragraph 1 – subparagraph 1
Amendment 398 #
Proposal for a regulation
Article 8 – paragraph 1 – subparagraph 2
Article 8 – paragraph 1 – subparagraph 2
Amendment 402 #
Proposal for a regulation
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
1a. The IPI measure shall be determined on the basis of the following criteria, in light of available information and the Union’s interest:
Amendment 403 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
Amendment 412 #
Proposal for a regulation
Article 8 – paragraph 2 – point e a (new)
Article 8 – paragraph 2 – point e a (new)
(ea) availability of alternative sources of supply for the goods and services concerned, in order to avoid or minimise a significant negative impact on contracting authorities or contracting entities;
Amendment 413 #
Proposal for a regulation
Article 8 – paragraph 2 – point e b (new)
Article 8 – paragraph 2 – point e b (new)
(eb) proportionality of the IPI measure with regard to the third country measure or practice;
Amendment 414 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
Amendment 418 #
Proposal for a regulation
Article 8 – paragraph 3 a (new)
Article 8 – paragraph 3 a (new)
3a. The IPI measure shall only apply to procurement procedures with an estimated value above a threshold to be determined by the Commission following the investigation and consultations, taking into consideration the criteria laid down in the previous paragraph. That estimated value should be equal to or above EUR 17 000 000 net of value-added tax for works and concessions, and equal to or above EUR 6 000 000 net of value-added tax for goods and services.
Amendment 420 #
Proposal for a regulation
Article 8 – paragraph 3 b (new)
Article 8 – paragraph 3 b (new)
3b. The IPI measure shall also apply in the case of specific contracts awarded under a dynamic purchasing system, when those dynamic purchasing systems were subject to the IPI measure, with the exception of specific contracts the estimated value of which is below the respective values set out in Article 8 of Directive 2014/23/EU, Article 4 of Directive 2014/24/EU and Article 15 of Directive 2014/25/EU. The IPI measure shall not apply to procedures for the award of contracts based on a framework agreement. The IPI measure shall also not apply to individual lots to be awarded according to Article 5 (10) of Directive 2014/24/EU or Article 16 (10) of Directive 2014/25/EU.
Amendment 421 #
Proposal for a regulation
Article 8 – paragraph 3 c (new)
Article 8 – paragraph 3 c (new)
3c. In its implementing act, the Commission may decide, within the scope defined in paragraph 6 of this Article, to restrict the access of operators, goods or services from third countries to procurement procedures by requiring contracting authorities or contracting entities to: (a) impose a score adjustment measure on tenders submitted by economic operators originating in that third country; or (b) exclude tenders submitted by economic operators originating in that third country; or (c) impose a combination of (a) and (b), if different sectors or categories of goods and services are subject to IPI measures.
Amendment 422 #
Proposal for a regulation
Article 8 – paragraph 3 d (new)
Article 8 – paragraph 3 d (new)
3d. The score adjustment measure referred to in paragraph 5(a) shall apply only for the purpose of the evaluation and ranking of the tenders. It shall not affect the price due to be paid under the contract to be concluded with the successful tenderer.
Amendment 423 #
Proposal for a regulation
Article 8 – paragraph 3 e (new)
Article 8 – paragraph 3 e (new)
3e. The implementing act, adopted in accordance with Article 10(2), shall specify the scope of application of the IPI measure, including: (a) the sectors or the categories of goods, services and concessions based on the Common Procurement Vocabulary as well as any applicable exceptions, (b) specific categories of contracting authorities or contracting entities; (c) specific categories of economic operators; (d) specific thresholds equal or above those set out in paragraph 3; (e) as regards the score adjustment measure referred to in paragraph 5(a), the percentage value of the adjustment shall be set up to 40% of the evaluation score of the tender depending on the third country and sector of goods, services, works or concessions envisaged.
Amendment 424 #
Proposal for a regulation
Article 8 – paragraph 3 f (new)
Article 8 – paragraph 3 f (new)
3f. When determining the proportionality of the IPI measure according to paragraph 2(a), the Commission shall in particular consider the percentage value according to paragraph 7(e). The Commission shall impose an IPI measure in the form of exclusion according to paragraph 5(b) only when the third country measure or practice is sufficiently severe and the potential negative impact according to paragraph 2(b) due to the limited availability of alternative sources is comparatively small.
Amendment 425 #
Proposal for a regulation
Article 8 – paragraph 3 g (new)
Article 8 – paragraph 3 g (new)
3g. The Commission may withdraw the IPI measure or suspend its application if the third country takes satisfactory corrective actions or undertakes commitments to end the measure or practice in question. If the Commission considers that the corrective actions or commitments undertaken have been rescinded, suspended or improperly implemented, it shall make publicly available its findings and may reinstate the application of the IPI measure at any time. The Commission may withdraw, suspend or reinstate an IPI measure in accordance with the examination procedure referred to in Article 10(2) and followed by the publication of a notice in the Official Journal of the European Union.
Amendment 426 #
Proposal for a regulation
Article 8 – paragraph 3 h (new)
Article 8 – paragraph 3 h (new)
3h. An IPI measure shall expire five years from its entry into force or its extension, unless a review shows a need for continued application of an IPI measure. Such a review shall be initiated, by a publication of a notice in the Official Journal of the European Union, on the initiative of the Commission nine months before the date of the expiry, and shall be concluded within six months. Following the review, the Commission may extend the duration of an IPI measure for a period of another five years in accordance with the examination procedure referred to in Article 10(2).
Amendment 444 #
Proposal for a regulation
Article 10
Article 10
Amendment 450 #
Proposal for a regulation
Article 11
Article 11
Amendment 468 #
Proposal for a regulation
Article 12 – paragraph 1 – introductory part
Article 12 – paragraph 1 – introductory part
1. Contracting authorities and contracting entities may decide not to apply the price adjustmentIPI measure with respect to a procurement or a concession procedure if:
Amendment 474 #
Proposal for a regulation
Article 12 – paragraph 1 – point a
Article 12 – paragraph 1 – point a
(a) there are no Union and/or covered goods or services available which meet the requirements ofonly tenders from economic operators originating in the countracting authorityy subject to IPI measure, or contracting entityly such tenders meet tender requirements; or
Amendment 478 #
Proposal for a regulation
Article 12 – paragraph 1 – point a a (new)
Article 12 – paragraph 1 – point a a (new)
(aa) this is justified for overriding reasons relating to the public interest; or
Amendment 485 #
Proposal for a regulation
Article 12 – paragraph 1 – point b
Article 12 – paragraph 1 – point b
(b) without prejudice to Article 69 of Directive 2014/24/EU and Article 84 of Directive 2014/25/EU, based on objective criteria taking into account, among others, the estimated value of the contract, the application of the measure would lead to a disproportionate increase in the price or costs of the contract, that would render its execution economically unviable.
Amendment 488 #
Proposal for a regulation
Article 12 – paragraph 2
Article 12 – paragraph 2
2. Where a contracting authority or contracting entity intenddecides not to apply a price adjustmentn IPI measure , it shall indicate its intentform the Commission, in the contract notice that it publishes pursuant to Article 49 of Directive 2014/24/EU or Article 69 of Directive 2014/25/EU or in the concession notice pursuant to Article 31 of Directive 2014/23/EU. It shall notify the Commissiona manner to be decided by the respective Member State, no later than tenhirty calendar days after the publicationaward of the contract notice.
Amendment 505 #
Proposal for a regulation
Article 12 – paragraph 4 – subparagraph 1
Article 12 – paragraph 4 – subparagraph 1
In the event that a contracting authority or contracting entity conducts a negotiated procedure without prior publication, under Article 2 of Directive 2014/24/EU or under Article 50 of Directive 2014/25/EU and decides not to apply a price adjustmentn IPI measure , it shall indicate this in the contract award notice it publishes pursuant to Article 50 of Directive 2014/24/EU or Article 70 of Directive 2014/25/EU or in the concession award notice it publishes pursuant to Article 32 of Directive 2014/23/EU and notify the Commission no later than ten calendar days after the publication of the contract award notice.
Amendment 517 #
Proposal for a regulation
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Contracts concluded with an economic operator in violation of price adjustmentIPI measures adopted or reinstated by the Commission pursuant to this Regulation shall be ineffective.
Amendment 528 #
Proposal for a regulation
Article 17 – title
Article 17 – title
Amendment 529 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
Articles 858 and 8659 of Directive 20104/2517/EUC shall be deleted with effect from the entry into force of this Regulation.