Activities of Malcolm HARBOUR 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 (36)
Amendment 288 #
Proposal for a directive
Recital 8 a (new)
Recital 8 a (new)
(8a) An operating risk must stem from the factors which are outside the control of the parties and thus can not result from inappropriate performance of the contract by any of the parties to the contract. An operating risk may consist in either a demand risk or an availability risk, or both a demand and availability risk. Demand risk is to be understood as the risk on actual demand for the services which are the object of the contract. Availability risk is to be understood as the risk on the supply of the works or services which are the object of the contract, in particular the risk that the supply of the services will not match demand and the risk of liability for harm or damage resulting from the inadequacy of the works or services. This risk of inadequate supply, or liability, may arise from the decisions of the concessionaire about the capital investments and other investments needed in order to perform the concession, and may lead to a risk that the insufficient supply or inadequacy of the works and services adversely affects the concessionaire's ability to make a return on investment within the duration of the concession contract.
Amendment 296 #
Proposal for a directive
Recital 10
Recital 10
(10) It has also proven necessary to clarify what should be understood as a single procurement, with the effect that the aggregateWhile calculating the estimated value of all concessions, concluded for the purpose of this procurement has to be taken into account with regard to the thresholds of this Directive, and that the procurement should be advertised as a whole, possibly split into lots. The concept of single procurement encompasses all supplies, works and services needed to carry out a particular project. Itracting authorities and entities should take account of the total value of the concessions which are part of one single concession project from the point of view of a potential concessionaire. An indications for of the existence of onea single project can for instance consist in overall prior planning and conception by the contracting authority,onsist in the fact that the different elements purchased fulfil a single economic and technical function or that they are otherwise logically interlinked, require similar types of investment by the concessionaire, and require a concession of a similar start date and duration.
Amendment 322 #
Proposal for a directive
Recital 19
Recital 19
(19) In view of the detrimental effects on competition, awarding concessions without prior publication should only be permitted in very exceptional circumstances. This exception should be limited to cases where it is clear from the outset that a publication would not trigger more competition, notably because there is objectively only one economic operator who can perform the concession. Only situations of objective exclusivity can justify the award of a concession without publication to an economic operator, where the situation of exclusivity has not been created by the contracting authority or contracting entity itself in view of the future award procedure, and where there are no adequate substitutes, the availability of which should be assessed thoroughly.
Amendment 332 #
Proposal for a directive
Recital 20
Recital 20
(20) A review of so-called prioritary and non-prioritary services (‘A’ and ‘B’ services) by the Commission has shown that it is not justified to restrict the full application of procurement law to a limited group of services. As a result, this Directive should apply to a number of services (such as catering and water distribution services), which both showed a potential for cross- border trade.
Amendment 338 #
Proposal for a directive
Recital 21
Recital 21
(21) In the light of the results of the evaluation conducted by the Commission on the reform of public procurement rules it is appropriate to exclude from the full application of this Directive only those services which have a limited cross-border dimension, namely the so-called services to the person such as certain social, health and educational service, and other services of limited cross border dimension such as certain legal, hotel, and catering services. These services are provided within a particular context that varies widely amongst Member States, due to different cultural traditions. A specific regime should therefore be established for concession for these services which takes into account the fact that they are newly regulated. An obligation to publish a prior information notice and a concession award notice of any concession with a value equal to or greater than thresholds established in this Directive is an adequate way to provide information on business opportunities to potential tenderers as well as on the number and type of contracts awarded to all interested parties. Furthermore, Member States should put in place appropriate measures with reference to the award of concession contracts for these services aimed at ensuring compliance with the principles of transparency and equal treatment of economic operators while allowing contracting authorities and contracting entities to take into account the specificities of the services in question. Member States should ensure that contracting authorities and contracting entities may take into account the need to ensure quality, continuity, accessibility, availability and comprehensiveness of the services, the specific needs of different categories of users, the involvement and empowerment of users and innovation.
Amendment 374 #
Proposal for a directive
Recital 38
Recital 38
(38) In order to adapt to rapid technical and economic developments, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission in respect of a number of non- essential elements of this Directive. In fact, the technical details and characteristics of the devices for electronic receipt should be kept up to date with technological developments and administrative needs; it is also necessary to empower the Commission to make mandatory technical standards for electronic communication, such as the submission of three- dimensional digital representations when tendering for a works concession, to ensure the interoperability of technical formats, processes and messaging in concession award procedures conducted using electronic means of communication taking into account technological developments and administrative needs. Furthermore, the list of legislative acts of the Union establishing common methodologies for the calculation of life- cycle costs should be quickly adapted to incorporate the measures adopted on a sectoral basis. In order to satisfy these needs, the Commission should be empowered to keep the list of legislative acts including LCC methodologies up-to date.
Amendment 388 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. The application of this Directive is subject to Articles 36, 51, 52, 62 and 346 TFEU.
Amendment 421 #
Proposal for a directive
Article 2 – paragraph 1 – point 12
Article 2 – paragraph 1 – point 12
(12) ‘'electronic means’' means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.; in the case of a works concession, 'electronic means' shall also refer to the use of interoperable three-dimensional representations covering the design, execution and the operation of the building or infrastructure;
Amendment 429 #
Proposal for a directive
Article 2 – paragraph 2 – subparagraph 1
Article 2 – paragraph 2 – subparagraph 1
The right to exploit the works or services as referred to in points 2, 4 and 7 of the first paragraph shall impliyrequire the transfer to the concessionaire of the substantial operating risk. The concessionaire shall be deemed to assume the substantial operating risk where it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject-matter of the concession. Where the concession is in a sector of activity subject to rules or regulation which limit the financial risk involved in the operation of the concession, the concessionaire shall nevertheless be deemed to assume the substantial operating risk where the concessionaire assumes all, or at least a significant share, of the operating risk faced by the contracting authority or entity even if that risk is, from the outset, very limited on account of the detailed rules of public law governing that service.
Amendment 442 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. This Directive shall apply to the following concessions the value of which is equal to or greater than EUR 5 000 000:
Amendment 445 #
Proposal for a directive
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) concessions concluded by contracting entities forEUR 5 000 000 where the pdursuit of atione of the activities referred to in Annex III;concession does not exceed five years
Amendment 447 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) concessions concluded by contracting authoritiesEUR 1 000 000 multiplied by the maximum duration of the concession in calendar years, where the intended duration, not including any permitted extension, exceeds five years. Where the intended duration is not a round number of years, the duration shall be rounded down to the nearest complete calendar month and the threshold rounded down to the nearest EUR 80 000. The intended duration for the calculation of the threshold shall be that set out in the concession notice, or where a call is not foreseen, the duration estimated at the moment the contracting authority or entity commences the concession award procedure, for instance by contacting economic operators in relation to the procurement.
Amendment 448 #
Proposal for a directive
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
1a. The Commission shall review the thresholds established in paragraph 1, points (a) and (b), every two years from the entry into force of this Directive and if necessary revise them in accordance with the procedure laid down in this Directive. The thresholds shall be increased by the compound average annual inflation rate as measured by the Harmonised Index of Consumer Prices for the European Union defined in Council Regulation (EC) No 2494/95 of 23 October 1995 concerning harmonized indices of consumer prices, and published by Eurostat, using the most recently published index prior to the date of the review under this Article. The value of the thresholds thus revised, shall where necessary, be rounded down to the nearest EUR 100 000.
Amendment 449 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Amendment 498 #
Proposal for a directive
Article 8 – paragraph 4
Article 8 – paragraph 4
4. Subject to Article 346 of the Treaty on the Functioning of the European Union, this Directive shall not apply to the awarding of concessions in the fields of defence and security to, with the extent that the protection of the essential security interests of a Member State cannot be guaranteed by the rules provided for in this Directive. ception of the following contracts: (a) concessions for which the application of the rules of this Directive would oblige a Member State to supply information the disclosure of which it considers contrary to the essential interests of its security, (b) concessions awarded in the framework of a cooperative programme referred to in Article 13(c) of Directive 2009/81/EC, (c) contracts awarded by a government to another government relating to works and services directly linked to military equipment or sensitive equipment, or works and services specifically for military purposes, or sensitive works and sensitive services; (d) concessions awarded in a third country, carried out when forces are deployed outside the territory of the Union where operational needs require them to be concluded with economic operators located in the area of operations.
Amendment 499 #
Proposal for a directive
Article 8 – paragraph 4 a (new)
Article 8 – paragraph 4 a (new)
4a. This Directive shall not apply to concession contracts not otherwise exempted under paragraph 4 where: (a) the protection of the essential security interests of a Member state cannot be guaranteed in a procurement procedure as provided for in this Directive; (b) the application of this Directive would oblige the Member State to supply information the disclosure of which it considers essential to its security interests; or (c) the procurement and performance of the concession contract must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned.
Amendment 685 #
Proposal for a directive
Article 16 – paragraph 1 a (new)
Article 16 – paragraph 1 a (new)
For concessions lasting more than 5 years, the maximum duration of the concession shall not exceed the time estimated to be necessary for the concessionaire to recoup the investments made in operating the works or services together with a return on invested capital. This estimate shall be carried out by the contracting authority or entity, acting reasonably, at the moment at which the concession notice is sent, or, where a call is not foreseen, the duration estimated at the moment the contracting authority or entity commences the concession award procedure, for instance by contacting economic operators in relation to the procurement.
Amendment 690 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
Concessions for social and other specific services listed in Annex X falling within the scope of this Directive shall be subject only to the obligation of paragraph 3 of Art. 26 and of paragraph 1 of Article 27.
Amendment 694 #
Proposal for a directive
Article 18 – paragraph 4
Article 18 – paragraph 4
4. WSubject to subparagraphs 5a(new) and 5b(new), where contracts have as their object concessions covered by this Directive as well as procurement or other elements not covered by it nor by Directives [replacing 2004/17/EC and Directive 2004/18] or 2009/81/EC, the part of the contract which constitutes a concession covered by this Directive shall be awarded in accordance with this Directive. However, when the different parts of the contract are objectively not separable, the application of this Directive shall be determined on the basis of the main subject of that contract.
Amendment 699 #
Proposal for a directive
Article 18 – paragraph 5 – subparagraph 1
Article 18 – paragraph 5 – subparagraph 1
In the case of concessions subject to this Directive and contracts subject to [Directive 2004/18/EC or 2004/17/EC] or 2009/81/EC21, the part of the contract which constitutes a concession covered by this Directive shall be awarded in accordance with the provisions thereof.
Amendment 701 #
Proposal for a directive
Article 18 – paragraph 5 a (new)
Article 18 – paragraph 5 a (new)
5a. In the case of contracts which have as their object concessions covered by this Directive and Directive 2009/81/EC as well as concessions or other elements not being subject to either Directive, the contract shall not be subject to this Directive provided that the award of a single contract is justified for objective reasons. The decision to award a single contract may not, however, be taken for the purpose of excluding contracts from the application of this Directive.
Amendment 702 #
Proposal for a directive
Article 18 – paragraph 5 b (new)
Article 18 – paragraph 5 b (new)
5b. Where the different parts of such contracts are not objectively separable, the application of this Directive shall be determined on the basis of the main subject of that contract.
Amendment 703 #
Proposal for a directive
Article 18 – paragraph 5 c (new)
Article 18 – paragraph 5 c (new)
5c. In the case of contracts which have as their object concessions covered by this Directive as well as concessions or other elements covered by Directive 2009/81/EC, the contract shall be awarded in accordance with Directive 2009/81/EC provided that the award of a single contract is justified for objective reasons.
Amendment 736 #
Proposal for a directive
Article 26 – paragraph 3
Article 26 – paragraph 3
3. Contracting authorities and contracting entities wishing to award a concession for social and other specific services listed in Annex X shall make known their intention of planned concession award through the publication of a prior information notice as soon as possible after the beginning of the budgetary year. Those notices shall contain the information set out in Annex XIII.
Amendment 771 #
Proposal for a directive
Article 32 – paragraph 1 – subparagraph 1
Article 32 – paragraph 1 – subparagraph 1
The technical specifications as defined innd/or functional requirement shall be set out in the concession documents and shall comply with the porint 1 of Annex VIII shall be set out in the concession documents. They shall define the characteristics requirciple 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. In particular, unless justified by the subject-matter of the contract, technical specifications 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, ofn a works, service or supply.. n 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".
Amendment 772 #
Proposal for a directive
Article 32 – paragraph 1 – subparagraph 2
Article 32 – paragraph 1 – subparagraph 2
Amendment 773 #
Proposal for a directive
Article 32 – paragraph 1 – subparagraph 3
Article 32 – paragraph 1 – subparagraph 3
Amendment 774 #
Proposal for a directive
Article 32 – paragraph 1 – subparagraph 4
Article 32 – paragraph 1 – subparagraph 4
Amendment 775 #
Proposal for a directive
Article 32 – paragraph 1 – subparagraph 5
Article 32 – paragraph 1 – subparagraph 5
Amendment 776 #
Proposal for a directive
Article 32 – paragraph 2
Article 32 – paragraph 2
Amendment 777 #
Proposal for a directive
Article 32 – paragraph 3
Article 32 – paragraph 3
Amendment 779 #
Proposal for a directive
Article 32 – paragraph 4
Article 32 – paragraph 4
Amendment 780 #
Proposal for a directive
Article 32 – paragraph 5
Article 32 – paragraph 5
Amendment 781 #
Proposal for a directive
Article 32 – paragraph 6 – subparagraph 1
Article 32 – paragraph 6 – subparagraph 1
Amendment 782 #
Proposal for a directive
Article 32 – paragraph 6 – subparagraph 2
Article 32 – paragraph 6 – subparagraph 2
Amendment 911 #
Proposal for a directive
Article 42 – paragraph 4
Article 42 – paragraph 4
4. Where the value of a modification can be expressed in monetary terms, the modification shall not be considered to be substantial within the meaning of paragraph 1, where its value does not exceed the thresholds set out in Article 5 and where it is below 520 % of the price of the initial contract, provided that the modification does not alter the overall nature of the contract. Where several successive modifications are made, the value shall be assessed on the basis of the cumulative value of the successive modifications. An increase in the actual sums received by the concessionaire from third parties compared to the sums estimated by the contracting authority or entity at the commencement of the procurement process shall not comprise a modification to the contract