Activities of Pier Antonio PANZERI related to 2011/0437(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on the award of concession contracts PDF (1 MB) DOC (2 MB)
Amendments (40)
Amendment 256 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3a) This directive does not affect the freedom of public authorities to define, at national level the scope of services of general economic interest and characteristics of the service to be provided, including any conditions regarding the quality of the service, in order to pursue its public policy objectives. This Directive does not deal with the funding of services of general economic interest or with systems of aids granted by Member States, in particular in the social field, in accordance with Community rules on competition.
Amendment 257 #
Proposal for a directive
Recital 3 b (new)
Recital 3 b (new)
(3b) This Directive does not affect terms and conditions of employment, including maximum work periods and minimum rest periods, minimum paid annual holidays, minimum rates of pay as well as health, safety and hygiene at work, which Member States apply in compliance with Union law nor does it affect relations between social partners, including the right to negotiate and conclude collective agreements, the right to strike and to take industrial action in accordance with national law and practices which respect Union law
Amendment 258 #
Proposal for a directive
Recital 3 c (new)
Recital 3 c (new)
(3c) Member States may provide that contracting authorities and contracting entities shall base the award of concessions inter alia on the criterion of the most economically advantageous tender. This criterion may refer, in addition to price or costs, to quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, environmental, social characteristics and innovative character. It may also refer to after-sales service and technical assistance, delivery date, delivery period or period of completion, the organisation, qualification and experience of the staff assigned to performing the concession in question as well as to the specific process of production or provision of the requested works, supplies or services to the extent that it does not discriminates between economic operators
Amendment 271 #
Proposal for a directive
Recital 6
Recital 6
(6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or licences issued for limited periods, whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources, such as land lease contracts whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services.
Amendment 386 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. This Directive does not affect the terms and conditions of employment, including environmental, health and safety, social and labour law, rules and standards, defined by Union and national legislation and collective agreements, which apply where the provision of works, services and supplies takes place.
Amendment 398 #
Proposal for a directive
Article 1 a (new)
Article 1 a (new)
Article 1 a Principle of free administration by public authorities 1. This Directive recognises the principle of free administration by contracting authorities and contracting entities in conformity with the EU Treaties. The latter will be free to decide how best to provide, organise and manage the execution of the work and the provision of the services for which they are responsible, in accordance with the legislative arrangements and the methods which they judge to be the most effective manner to ensure a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights in public services. 2. This Directive does not affect the freedom of Member States to define, in conformity with the Union law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with the State aid rules, and what specific obligations they should be subject to.
Amendment 401 #
Proposal for a directive
Article 1 b (new)
Article 1 b (new)
Article 1 b Principles of transparency by public authorities The details of concession contracts, including regarding the transfer of operating risk and eventual payments from the grantor to the economic operator, shall be made public and open to scrutiny. Any subsequent modifications to the contract shall also be made public. Member States shall ensure that periodic evaluation of the performance of concessions shall be made public.
Amendment 407 #
Proposal for a directive
Article 2 – paragraph 1 – point 2 a (new)
Article 2 – paragraph 1 – point 2 a (new)
Amendment 413 #
Proposal for a directive
Article 2 – paragraph 1 – point 7
Article 2 – paragraph 1 – point 7
Amendment 420 #
Proposal for a directive
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
(10) “economic operator” means any natural or legal person, or public entity, or a group of such persons and/or entities, including consortia of undertakings, which offers the execution of works and/or a work, supplies or services on the market.
Amendment 424 #
Proposal for a directive
Article 2 – paragraph 1 – point 14
Article 2 – paragraph 1 – point 14
(14) ‘l'Life cycle’ means all consecutive and/or interlinked stages, including production, transport, use and maintenance, throughout the existenc characteristics' relates to any part of the life cycle of a product or works or the provision of a service. Life cycle characteristics are embedded in a product as a result of choices made in the production process or other non-use phases of the life cycle of athe product or a work, even if such characteristics are not apparent in the physical or functional qualities orf the provision of a service, from raw material acquisition or genresulting work or service. Life cycle characteristics relating to production processes shall encompass the respect of environmental, health and safety, social and labour law requirements as defined by internation of resources to disposal, clearance and finalisational, European Union and national legislation and, where applicable, collective agreements applying in the place where the work or service is carried out.
Amendment 470 #
Proposal for a directive
Article 6 – paragraph 6
Article 6 – paragraph 6
Amendment 472 #
Proposal for a directive
Article 6 – paragraph 6 a (new)
Article 6 – paragraph 6 a (new)
6a. Contracting authorities may decide to award a concession in separate lots, in which case the total estimated value of all such lots shall be taken into account. Where the aggregate value of the lots is equal to or exceeds the threshold laid down in Article 5, this Directive shall apply to the awarding of each lot.
Amendment 474 #
Proposal for a directive
Article 6 – paragraph 7
Article 6 – paragraph 7
Amendment 570 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point b
Article 15 – paragraph 1 – subparagraph 1 – point b
b) at least 9080 % of the activities of that legal person are carried out for the controlling contracting authority or entity or for other legal persons controlled by that contracting authority or entity
Amendment 581 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point c
Article 15 – paragraph 1 – subparagraph 1 – point c
c) there is no private participation in the controlled legal person, with the exception of legally enforced forms of private participation.
Amendment 594 #
Proposal for a directive
Article 15 – paragraph 2
Article 15 – paragraph 2
2. Paragraph 1 also applies where a controlled entity which is a contracting authority or contracting entity as referred to in paragraph 1 subparagraph 1 of Article 4 awards a concession to its controlling entity or entities, or to another legal person controlled by the same contracting authority, provided that there is no private participation in the legal person being awarded the public concession, with the exception of legally enforced forms of private participation.
Amendment 601 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 1 – introductory part
Article 15 – paragraph 3 – subparagraph 1 – introductory part
A contracting authority or a contracting entity as referred to in paragraph 1 subparagraph 1 of Article 4, which does not exercise over a legal person control within the meaning of paragraph 1, may nevertheless award a concession without applying the provisionsoutside the scope of the current Directive to a legal person which it controls jointly with other such contracting authorities or entities, and the legal person over which the contracting authority or authorities exercise control may acquire goods and services from those public owners without applying this directive, where the following conditions are fulfilled:
Amendment 610 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 1 – point b
Article 15 – paragraph 3 – subparagraph 1 – point b
b) at least 980% of the activities of that legal person are carried out for the controlling contracting authorities or entities as referred to in paragraph 1 subparagraph 1 of Article 4 or other legal persons controlled by the same contracting authority or entity;
Amendment 620 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 1 – point c
Article 15 – paragraph 3 – subparagraph 1 – point c
c) there is no private participation in the controlled legal person, with the exception of legally enforced forms of private participation.
Amendment 627 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 2 – point a
Article 15 – paragraph 3 – subparagraph 2 – point a
(a) the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities or contracting entities as referred to in paragraph 1 subparagraph 1 of Article 4; while one representative may represent one or many participating contracting authorities;
Amendment 629 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 2 – point c
Article 15 – paragraph 3 – subparagraph 2 – point c
Amendment 632 #
Proposal for a directive
Article 15 – paragraph 4 – introductory part
Article 15 – paragraph 4 – introductory part
4. An agreement concluded between two or more contracting authorities or contracting entities as referred to in paragraph 1 subparagraph 1 of Article 4 shall not be deemed to be a concession within the meaning of point 1 of paragraph 1 of Article 2 of this Directive, and thus fall outside the scope of this Directive where the following cumulative conditions are fulfilled:
Amendment 636 #
Proposal for a directive
Article 15 – paragraph 4 – point a
Article 15 – paragraph 4 – point a
(a) the agreement establishes a genuine co-operation between the participating contracting authorities or entities aimed at carrying out jointly theirpurpose of the partnership is the provision of a public -service tasks and involving mutual rights and obligations of the par conferred on all participating public authorities;
Amendment 655 #
Proposal for a directive
Article 15 – paragraph 4 – point c
Article 15 – paragraph 4 – point c
(c) the participating contracting authorities or entities shall do not perform on the open market more than 1020 % in terms of turnover of the activities which are relevant in the context of the agreement;
Amendment 664 #
Proposal for a directive
Article 15 – paragraph 4 – point e
Article 15 – paragraph 4 – point e
(e) the task is carried out solely by the public authorities concerned and there is no active private participation in any of the contracting authorities or entities involved with the exception of forms of legally enforced private participation.
Amendment 675 #
Proposal for a directive
Article 15 – paragraph 5 – subparagraph 2
Article 15 – paragraph 5 – subparagraph 2
The exceptions provided for in this Article shall cease to apply from the moment any private participation takes place, with the exception of forms of legally enforced private participation, with the effect that ongoing concessions need to be opened to competition through regular concession award procedures.
Amendment 719 #
Proposal for a directive
Article 22 – paragraph 3
Article 22 – paragraph 3
3. Groups of economic operators, including consortia of undertakings, may submit tenders or put themselves forward as candidates.
Amendment 722 #
Proposal for a directive
Article 24 – paragraph 1
Article 24 – paragraph 1
1. Unless otherwise provided in this Directive or in the national law concerning access to information, and without prejudice to the obligations relating to the advertising of awarded concession contracts and to the information to candidates and tenderers set out in Articles 27 and 35 of this Directive, the contracting authoritygrantor shall not disclose information forwarded to it by economic operators which they have designated as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders. particular technical or trade secrets. Failure to comply with this requirement shall render the grantor liable
Amendment 726 #
Proposal for a directive
Article 24 – paragraph 2
Article 24 – paragraph 2
2. Contracting authorities or contracting entitiesThe grantor may impose on economic operators requirements aimed at protecting the confidential nature of information which the contracting authorities or contracting entitiesit makes available throughout the concession award procedure. Failure to comply with this requirement shall render the economic operator liable
Amendment 759 #
Proposal for a directive
Article 26 a (new)
Article 26 a (new)
Article 26a General principles 1. Concessions shall be awarded on the basis of the criteria set out by the grantor in accordance with Article 38a provided that the following cumulative conditions are fulfilled: (a) the tender complies with the requirements, conditions and criteria set out in the concession notice or in the invitation to submit a tender and in the concession award documents; (b) the tender comes from a tender who (i) is not excluded from participating in the award procedure in accordance with paragraphs 5 and 7 of Article 36, and subject to paragraph 8 of Article 39, and (ii) meets the selection criteria set out by the grantor in accordance with paragraphs 2 and 3 of Article 36 (iii) meets the applicable terms and conditions of employment, including environmental, health and safety, social and labour law, rules and standards, defined by Union and national legislation and collective agreements, which apply where the provision of works, services and supplies takes place 2. During the concession award procedure, the grantor shall treat economic operators equally and shall act in a transparent and proportionate way. In particular, it shall not provide information in a discriminatory manner which may give some candidates or tenderers an advantage over others. The design of the concession award procedure shall not be made with the objective of excluding it from the scope of this Directive or of artificially narrowing competition. 3. The grantor and the economic operator shall respect obligations relating to social and employment protection and working conditions applying in the place where the concession is performed, as set out by collective agreements, national and European union legislation, and international labour law provisions. The grantor has the full freedom to specify in tender documents social and environmental criteria that go beyond these obligations. This includes compliance with ILO Convention No. 94, even where the Convention has not been implemented in national law.
Amendment 768 #
Proposal for a directive
Article 30 a (new)
Article 30 a (new)
Article 30a Combating corruption and preventing conflicts of interest Member States shall adopt rules combating fraud, favouritism and corruption and preventing conflicts of interest, aimed at ensuring the transparency of the award procedure and the equal treatment of all candidates and tenderers. The measures adopted shall establish and apply a comprehensive, actionable indicator and monitoring systems to prevent, detect and eliminate report instances of concessions fraud, corruption, conflict of interest, and other serious irregularities. With regard to conflicts of interest, they shall allow for the exclusion of a tenderer or candidate from the procedure only where the conflict of interests cannot be effectively remedied by other means.
Amendment 785 #
Proposal for a directive
Article 34 – paragraph 1 – point b – point ii a (new)
Article 34 – paragraph 1 – point b – point ii a (new)
(iia) meets the applicable terms and conditions of employment, including environmental, health and safety, social and labour law, rules and standards, defined by Union and national legislation and collective agreements, which apply where the provision of works, services and supplies takes place.
Amendment 790 #
Proposal for a directive
Article 36 – title
Article 36 – title
Selection of and qualitative assessment of candidates and tenders and grounds for exclusion
Amendment 803 #
Proposal for a directive
Article 36 – paragraph 1 a (new)
Article 36 – paragraph 1 a (new)
1a. The grantor shall include in the concession notice, in the invitation to submit tenders or in the concession documents a description of the concession, the conditions for participation and the award criteria. The grantor shall verify the conditions for participation relating to: (a) suitability to pursue the professional activity; (b) economic and financial standing; (c) technical and professional ability; (d) environmental, health and safety, social and labour law, rules and standards, defined by Union and national legislation and collective agreements, which apply where the provision of works, services and supplies takes place. The professional and technical ability and financial standing of candidates or tenderers and the reference or references to be submitted as proof in accordance with the requirements specified in the concession notice. Those conditions shall both related to and proportionate to the subject-matter of the contract, shall be non-discriminatory and may be accompanied by minimum requirements, wherever necessary.
Amendment 821 #
Proposal for a directive
Article 36 – paragraph 5 – subparagraph 1 – point e a (new)
Article 36 – paragraph 5 – subparagraph 1 – point e a (new)
(ea) participation in exploitation of human trafficking and child labour covered by Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims
Amendment 837 #
Proposal for a directive
Article 36 – paragraph 7 – subparagraph 1 – point c a (new)
Article 36 – paragraph 7 – subparagraph 1 – point c a (new)
Amendment 859 #
Proposal for a directive
Article 38 a (new)
Article 38 a (new)
Article 38a Technical and/or functional requirements 1 Technical and/or functional requirements shall be set out in the concession documents. They shall define the characteristics required of a works, service or supply. These characteristics may also refer to the specific process of production or provision of the requested works, supplies or services or of any other stage of its life cycle as referred to in point (14) of Article 2. 2. Technical and/or functional requirements shall define the characteristics required of the works and/or services that are the subject matter of the concession. 3. Technical and/or functional requirements shall comply with the principle of equal access of economic operators to the concession award procedure and shall not have the effect of creating unjustified obstacles to the opening up of concessions to competition. Technical and/or functional requirements shall comply with the environmental characteristics, health and safety, social and labour law, rules and standards, defined by Union and national legislation and collective agreements, which apply where the provision of works, services and supplies takes place. In particular, unless justified by the subject-matter of the contract, technical and/or functional requirements shall not refer to a specific make or source, or a particular process, or to trade marks, patents, types or a specific production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted, on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract is not possible; such reference shall be accompanied by the words "or equivalent". Contracting authorities or contracting entities may require that economic operators provide a certificate issued by recognised body as means of proof of conformity with the technical and/or functional requirements set out in the concessions documents.
Amendment 886 #
Proposal for a directive
Article 41 – paragraph 1
Article 41 – paragraph 1
1. In the concession documents, the contracting authority or contracting entitygrantor 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. Member States shall limit the possibility for a tenderer to sub- contract out any parts of the works or services to be performed or goods to be delivered to no more than three successive levels of sub-contracting.
Amendment 891 #
Proposal for a directive
Article 41 – paragraph 2
Article 41 – paragraph 2
2. Paragraph 1 shall be without prejudice to the question of the principal economic operator's liability. Member States shall provide for a system of joint and several liability down the sub-contracting chain. They shall ensure that the main contractor and any intermediate subcontractor which have violated fundamental rights, health and safety requirements or social and labour rules and standards as laid down in Union and national legislation and in collective agreements which apply in the place where the work, service or supply is performed, may be liable to make the payments due in relation to such violations, such as outstanding remuneration, taxes or social contributions, in addition to or in place of the employing subcontractor or the contractor of which the employer is a direct subcontractor.