Activities of Edite ESTRELA related to 2011/0437(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on the award of Concession Contracts
Amendments (23)
Amendment 1 #
Proposal for a directive
Recital 2 a (new)
Recital 2 a (new)
(2a) Under Article 9 of the Treaty on the Functioning of the European Union, the Union must take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health in defining and implementing its policies and activities. This Directive contributes to attaining these objectives by encouraging sustainable concession contracts, the integration of social criteria in all stages of concession procedure and the respect of obligations relating to social and employment conditions, health and safety at workplace, social security and working conditions as set out by EU, national laws and international labour law provisions listed in Annex XIII a (new).
Amendment 2 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3a) 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 3 #
Proposal for a directive
Recital 3 b (new)
Recital 3 b (new)
(3b) The essential role and wide discretion of national, regional and local authorities in providing, commissioning and organizing services of general interest as closely as possible to the needs of the users is also in line with Protocol 26 on Services of General Interest, Article 14 of the Treaty on the Functioning of the European Union and Article 36 of the Charter of Fundamental Rights of the European Union.
Amendment 4 #
Proposal for a directive
Recital 3 c (new)
Recital 3 c (new)
(3c) Contracting authorities have broad discretion to use both technical specifications and award criteria to achieve their objectives, including sustainability objectives. Provided that the link to the subject matter rule is satisfied, this Directive is not intended to further constrain the types of concerns that a contracting authority can address through technical specifications or award criteria.
Amendment 15 #
Proposal for a directive
Recital 25
Recital 25
(25) In order to ensure transparency and equal treatment, criteria for the award of concessions should always comply with some general standards. These should be disclosed in advance to all potential tenderers, be related to the subject matter of the contract and should not offer to the contracting authority or contracting entity an unrestricted freedom of choice. They should ensure the possibility of effective competition and be accompanied by requirements that allow the information provided by the tenderers to be effectively verified. In order to comply with these standards while improving legal certainty, Member States may provide for the use of the criterion of the most economically advantageous and sustainable tender.
Amendment 16 #
Proposal for a directive
Recital 26
Recital 26
(26) Where contracting authorities and contracting entities choose to award a concession to the most economically advantageous and sustainable tender, they should determine the economic and quality criteria on the basis of which they assess the tenders in order to identify which one offers the best value for money. The determination of theose criteria depends on the object of the concession since they should allow the level of performance offered by each tender to be assessed in the light of the subject-matter of the concession, as defined in the technical specifications and the value for money of each tender to be measured.
Amendment 19 #
Proposal for a directive
Recital 29
Recital 29
(29) In technical specifications and in award criteria, contracting authorities and contracting entities 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 the subject-matter of the concession. In order to better integrate social considerations in the award of concessions, procurers may also be allowed to include, in the award criteria, characteristics related to the working conditions. However, where the contracting authorities or contracting entities use the most economically advantageous and sustainable tender, such criteria may only relate 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. In this case, 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 workers in the framework 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. Contracting authorities and contracting entities should, also where they use the criterion of the most economically advantageous and sustainable tender, be allowed to use as an award criterion the organisation, qualification and experience of the staff assigned to performing the concession in question, as this may affect the quality of concession performance and, as a result, the economic value of the tender.
Amendment 20 #
Proposal for a directive
Recital 29 a (new)
Recital 29 a (new)
(29a) This Directive ensures the application of Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of workers' 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.
Amendment 22 #
Proposal for a directive
Recital 32 a (new)
Recital 32 a (new)
(32a) The national legislation and collective agreements that apply in the place where the work, service or supply is performed, as regards obligations relating to social and employment protection, and working conditions also apply during the performance of a concession. Non- compliance with those obligations shall be considered to be a grave misconduct on the part of the economic operator concerned, liable to lead to the exclusion of that economic operator from the procedure for the award of a concession contract.
Amendment 38 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point e
Article 8 – paragraph 5 – subparagraph 1 – point e
(e) employment contracts or collective agreements which contribute to the improvement of conditions of work;
Amendment 48 #
Proposal for a directive
Article 22 – paragraph 4 a (new)
Article 22 – paragraph 4 a (new)
4a. Contracting authorities shall aim for "best value" in concession award. This is achieved through the most broadly advantageous combination of cost, quality and sustainability considerations.
Amendment 49 #
Proposal for a directive
Article 22 – paragraph 4 b (new)
Article 22 – paragraph 4 b (new)
4b. Contracting authorities shall respect the delay of payment as established in Directive 2001/7/EU.
Amendment 50 #
Proposal for a directive
Article 22 – paragraph 4 c (new)
Article 22 – paragraph 4 c (new)
4c. Economic operators shall comply with 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 XIII a (new).
Amendment 51 #
Proposal for a directive
Article 22 – paragraph 4 d (new)
Article 22 – paragraph 4 d (new)
4d. The details of contract concessions shall be made public and open to scrutiny.
Amendment 52 #
Proposal for a directive
Article 25 – paragraph 8
Article 25 – paragraph 8
8. Contracting authorities may use the data processed electronically for public procurementaward concessions procedures in order to prevent, detect and correct errors occurring at each stage by developing appropriate tools.
Amendment 53 #
Proposal for a directive
Article 32 – paragraph 1 – subparagraph 1
Article 32 – paragraph 1 – subparagraph 1
The technical specifications as defined in point 1 of Annex VIII shall be set out in the concession documents. They shall define the characteristics required of a works, service or supply in order to achieve the objectives of the contracting authority, including sustainability objectives.
Amendment 64 #
Proposal for a directive
Article 39 – paragraph 4 – introductory part
Article 39 – paragraph 4 – introductory part
4. Member States may provide that contracting authorities and contracting entities shall base the award of concessions on the criterion of the most economically advantageous and sustainable tender, in compliance with paragraph 2. Those criteria may include, in addition to price or costs, any of the following criteria
Amendment 67 #
Proposal for a directive
Article 39 – paragraph 4 – point a a (new)
Article 39 – paragraph 4 – point a a (new)
(aa) social criteria, such as respect of: social and employment protection, working conditions, health and safety regulation; employment opportunities, including promotion of: youth employment, gender balance, employment opportunities for the long-term unemployed and for older workers, for persons from disadvantaged groups, people with disabilities; decent work standards; social inclusion; ethical trade; access to on-site vocational training; human rights.
Amendment 68 #
Proposal for a directive
Article 39 – paragraph 4 – point b
Article 39 – paragraph 4 – point b
(b) for service concessions and concessions involving the design of works, the organisation, qualification and experience of the staff assigned to performing the concession in question may, as well as the qualification and professional of any subcontractor, shall be taken into consideration, with the consequence that, following the award of the concession, such staff may only be replaced with the consent of the contracting authority or the contracting entity, which must verify that replacements ensure equivalent organisation and quality, quality, qualification or experience;
Amendment 71 #
Proposal for a directive
Article 39 – paragraph 5 – subparagraph 1
Article 39 – paragraph 5 – subparagraph 1
In the case referred to in paragraph 4, the contracting authority or entity shall specify in the contract notice, in the invitation to submit a tender, or in the concession documents, the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous and sustainable tender.
Amendment 72 #
Proposal for a directive
Article 40 – paragraph 1 – point b a (new)
Article 40 – paragraph 1 – point b a (new)
(ba) external social costs directly linked to the life cycle, which may include precarious work, long working hours, poor health and safety compliance and lack of vocational training.
Amendment 74 #
Proposal for a directive
Article 41 – paragraph 1
Article 41 – paragraph 1
1. In the concession documents, the contracting authority or contracting entity may ask or may be required by a Member State to 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, providing information regarding the subcontractor including names, contact details and legal representatives. Any changes in the subcontracting chain shall be indicated without delay to the contracting authority, including their names, contact details and legal representatives.
Amendment 80 #
Proposal for a directive
Annex 13 a (new)
Annex 13 a (new)