24 Amendments of Marc TARABELLA related to 2011/0437(COD)
Amendment 241 #
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 53 (1), Article 62 and Article 114 thereof, and Protocol 26 thereto,
Amendment 279 #
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, awards or similar acts, 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 310 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) This Directive is without prejudice to the Member States’ power to award, define and organise the provision of a public service task in accordance with Protocol 29 annexed to the Treaties on the system of public broadcasting in the Member States.
Amendment 318 #
Proposal for a directive
Recital 17
Recital 17
(17) There is considerable legal uncertainty as to how far cooperation between public authorities should be covered by concession award rules. The relevant case- law of the Court of Justice of the European Union is interpreted differently between Member States and even between contracting authorities or certain contracting entities. It is therefore necessary to clarify in what cases concessions concluded between such authorities are not subject to the application of public concession award rules. Such clarification should be guided by the principles set out in the relevant case-law of the Court of Justice. The sole fact that both parties to an agreement are themselves contracting authorities or contracting entities under Art. 4 (1) (1) does not as such rule out the application of concession award rules. However, the application of concession award rules should not interfere with the freedom of public authorities to decide how to organise the way they carry out their public service tasks. Concessions awarded to controlled entities or cooperation for the joint execution of the public service tasks of the participating contracting authorities or entities should therefore be exempted from the application of the rules if the conditions set out in this Directive are fulfilled. This Directive should aim to ensure that any exempted public-public cooperation does not cause a distortion of competition in relation to private economic operators. Neither should the participation of a contracting authority as a tenderer in a procedure for the award of a public contract cause any distortion of competition. contracting authorities – whether public authorities or bodies governed by public law, some of which have non-profit private participation engaged in meeting needs in the general interest not having an industrial or commercial character in accordance with Article 6(a) of this Directive – should be covered by concession award rules. The case-law of the Court of Justice of the European Union applicable to cooperation between public authorities is interpreted differently between Member States and even between contracting authorities, including as to the conditions for its extensive and proportionate application to cooperation between bodies governed by public law, which, unlike public authorities, may have non-profit private participation in accordance with the legislation in force in the Member States, and with reference to the concept of social enterprise set out in the Communication from the Commission of 25 October 2011 entitled ‘Social Business Initiative’. It is therefore necessary to clarify in what cases concessions concluded between contracting authorities, public authorities and bodies governed by public law are not subject to the application of public concession award rules. Such clarification should be guided by the principles set out in the relevant case-law of the Court of Justice on cooperation between public authorities and on their extensive and proportionate application to cooperation between bodies governed by public law, whose non-profit status is laid down in Article 4(1), point 1 of this Directive. The sole fact that both parties to an agreement are themselves contracting authorities does not as such rule out the application of concession award rules. The application of these rules must not interfere with the right of public authorities to decide freely how to organise the way they carry out their public service tasks. Contracts awarded to controlled entities or cooperation for the joint execution of the public service tasks of the participating contracting authorities should therefore be exempted from the application of the rules if the conditions set out in this Directive are fulfilled. Concessions granted to controlled entities and cooperation through the pooling of the resources required to perform public service tasks and for the joint execution of the public service tasks of participating contracting authorities in the context of the organisation and legislation of Member States shall not be subject to concession award rules if the conditions set out in this Directive are fulfilled. Those conditions should, in particular, take into account the definition of a body governed by public law and the concept of social business, i.e. a business which may contain socially beneficial non-profit private participation governed by the Member States’ legislation. Similarly, transfers of powers relating to public service tasks involving a global transfer of responsibility between local public authorities, or between local public authorities and groups composed exclusively of local public authorities, as part of the internal organisation of Member States, should be exempted from the rules laid down in this Directive. This Directive should aim to ensure that any exempted public-public cooperation does not cause a distortion of competition in relation to private economic operators. Neither should the participation of a contracting authority as a tenderer in a procedure for the award of a public contract cause any distortion of competition. To achieve this, the conditions for the exclusion of contracts from the scope of this Directive should be subject to a strict interpretation. If any of the cumulative conditions for exclusion from the scope is no longer fulfilled during the term of a contract or cooperation that has been excluded from the procurement rules, that ongoing contract or cooperation must be opened to competition through regular procurement procedures.
Amendment 356 #
Proposal for a directive
Recital 28 a (new)
Recital 28 a (new)
(28a) Technical specifications and concession award criteria play distinct roles in the process of awarding concessions, but the specifications and criteria are similar in substance. By means of the technical specifications, contracting authorities and entities lay down conditions governing the qualities required to take part. The ability to meet the technical specifications is a prerequisite for consideration as a candidate for the award of a concession contract and only works, supplies and services which comply with the specifications should therefore be considered. In addition, the award criteria enable contracting authorities and entities to compare the advantages of various combinations of criteria. Every tender should be assessed according to each criterion, but the ability to satisfy all the award criteria is not a necessary condition for consideration as a candidate for the award of a concession contract. Finally, the conditions governing the performance of the concession should be included in the contract in order to show how it should be implemented.
Amendment 382 #
Proposal for a directive
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
1a. 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 external economic operators. They may do so in cooperation with other public authorities.
Amendment 423 #
Proposal for a directive
Article 2 – paragraph 1 – point 13 a (new)
Article 2 – paragraph 1 – point 13 a (new)
(13a) ‘socially sustainable production process’ means that the concession contract is performed in accordance with the laws, rules and standards governing health and safety and with social and employment law, in particular with regard to equal treatment in the workplace. The principle of equal treatment in the workplace refers to compliance with the relevant conditions of employment, including the laws, rules and standards governing health and safety and social and employment law, as laid down in Union and national legislation and in the collective agreements applying in the place where the works, services or supplies are provided;
Amendment 426 #
Proposal for a directive
Article 2 – paragraph 1 – point 14
Article 2 – paragraph 1 – point 14
(14) ‘life cycle’ meansand ‘socially sustainable production process’ should determine the most economically advantageous tender by taking into account the social and environmental aspects resulting from all consecutive and/or interlinked stages, including production, transport, use and maintenance, throughout the existence of a product or a works or the provision of a service, from raw material acquisition or generation of resources to disposal, clearance and finalisation. Contracting authorities and entities may also use the technical specifications or award criteria to minimise the harmful social or environmental impact and maximise the positive social or environmental impact with a view to achieving the most cost- effective outcome.
Amendment 504 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point b
Article 8 – paragraph 5 – subparagraph 1 – point b
(b) the acquisition, development, production or co-production of programme material intended for broadcasting, defined as transmission and distribution using any form of electronic network, that are awarded by broadcasters, nor to concessions for broadcasting time, that are awarded to broadcasterand preparatory services intended for media services, nor to concessions for broadcasting time or the media, nor to the transmission and distribution of media services;
Amendment 532 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 2
Article 8 – paragraph 5 – subparagraph 2
The broadcastingmedia services referred to in point (b) of the first paragraph shall include any transmission and distribution usingover any form of electronic network.
Amendment 562 #
Proposal for a directive
Article 15 – title
Article 15 – title
Amendment 567 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point b
Article 15 – paragraph 1 – subparagraph 1 – point b
Amendment 584 #
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 the forms of private non-profit-making participation specific to the controlling contracting authority or to the controlled legal person that are to be found in certain social enterprises entrusted with carrying out a public service task that have been specifically established to meet public interest requirements other than those of an industrial or commercial nature and are governed by the applicable laws in the Member States.
Amendment 597 #
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 concessiontract, with the exception of the forms of private non- profit-making participation specific to the controlling contracting authority or entity or to the controlled legal person that are to be found in certain social enterprises entrusted with carrying out a public service task that have been specifically established to meet public interest requirements other than those of an industrial or commercial nature and are governed by the applicable laws in the Member States.
Amendment 604 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 1 – point a
Article 15 – paragraph 3 – subparagraph 1 – point a
(a) the contracting authorities or entities as referred to in paragraph 1 subparagraph 1 of Article 4 exercise jointly overmanagement boards of the legal person as control which is similar to that which it exercises over its own departmentcerned are nominated by most of the participating contracting authorities.
Amendment 607 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 1 – point b
Article 15 – paragraph 3 – subparagraph 1 – point b
Amendment 623 #
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 the forms of private non-profit-making participation specific to the controlling contracting authority or entity or to the controlled legal person that are to be found in certain social enterprises entrusted with carrying out a public service task that have been specifically established to meet public interest requirements other than those of an industrial or commercial nature and are governed by the applicable laws in the Member States.
Amendment 630 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 2 – point c
Article 15 – paragraph 3 – subparagraph 2 – point c
(c) the controlled legal person does not pursue any interests which are distinctdiverge from thatose of the public authorities affiliated to it;
Amendment 638 #
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 their public service tasks or pooling the resources required to perform them properly and involving mutual rights and obligations of the parties;
Amendment 653 #
Proposal for a directive
Article 15 – paragraph 4 – point c
Article 15 – paragraph 4 – point c
Amendment 667 #
Proposal for a directive
Article 15 – paragraph 4 – point e
Article 15 – paragraph 4 – point e
(e) there is no private participation in any of the contracting authorities or entities involved, with the exception of the forms of private non-profit-making participation specific to the controlling contracting authority or to the controlled legal person in their capacity as bodies governed by public law, as defined in Article 4(1), point 1, that are to be found in certain social enterprises entrusted with carrying out a public service task that have been specifically established to meet public interest requirements other than those of an industrial or commercial nature and are governed by the applicable laws in the Member States.
Amendment 674 #
Proposal for a directive
Article 15 – paragraph 5 – subparagraph 2
Article 15 – paragraph 5 – subparagraph 2
Amendment 890 #
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 mayshall ask and shall 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.
Amendment 892 #
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 subcontractors 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, in addition to or in place of the employing subcontractor or the contractor of which the employer is a direct subcontractor. Member States may provide for more stringent liability rules under national law.