33 Amendments of Anna HEDH related to 2011/0438(COD)
Amendment 168 #
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 No 26 thereof,
Amendment 176 #
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 sectors13 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 contracts14 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 188 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5 a) 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 269 #
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 287 #
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 advantageous tender, characteristics related to the working conditions of the persons directly participating in the process of production or provision in question. Those characteristics 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 members 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 worker. Contracting authorities may require the production of certificates/labels drawn up by independent bodies attesting that the economic operator complies with rules and standards in the frameworkield of the provision of services22 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 295 #
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 340 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. Contracts for social and other specific services listed in Annex XVI are exclusively regulated by Articles 74 to 76 of this Directive.
Amendment 440 #
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 455 #
Proposal for a directive
Article 11
Article 11
Amendment 582 #
Proposal for a directive
Article 11 a (new)
Article 11 a (new)
Article 11a Service contracts awarded on the basis of exclusive right This Directive shall not apply to public service contracts awarded by a contracting authority to another contracting authority or to an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a published law, regulation or administrative provision which is compatible with the treaties.
Amendment 596 #
Proposal for a directive
Article 15 – paragraphs 2 a and b (new)
Article 15 – paragraphs 2 a and b (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. 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 642 #
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 937 #
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 1033 #
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 1051 #
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 1064 #
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 1133 #
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 1160 #
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 1175 #
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 1178 #
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 1183 #
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 1199 #
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 1206 #
Proposal for a directive
Article 66 – paragraph 5 – subparagraph 1
Article 66 – paragraph 5 – subparagraph 1
5. 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 1250 #
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 1257 #
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 1263 #
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 1266 #
Proposal for a directive
Article 69 – paragraph 1 – point c
Article 69 – paragraph 1 – point c
Amendment 1283 #
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 1289 #
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 1317 #
Proposal for a directive
Article 70 a (new)
Article 70 a (new)
Article 70a Obligations relating to taxes, environmental protection, employment protection provisions and working conditions 1. 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. 2. 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. 3. 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 1437 #
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 1440 #
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.
Amendment 1588 #
Proposal for a directive
Annex 16 - row 6
Annex 16 - row 6