40 Amendments of Helmut SCHOLZ related to 2012/0060(COD)
Amendment 46 #
Draft legislative resolution
Paragraph 2
Paragraph 2
2. Calls onRejects the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another textproposal;
Amendment 48 #
Proposal for a regulation
Citation 3 a (new)
Citation 3 a (new)
- Having regard to the revised public procurement directive
Amendment 49 #
Proposal for a regulation
Citation 3 b (new)
Citation 3 b (new)
- Having regard to the revised Plurilateral Agreement on Government Procurement (GPA);
Amendment 50 #
Proposal for a regulation
Recital 1
Recital 1
(1) Article 21 of the Treaty on European Union provides that the Union is toshall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph, and that the Union shall define and pursue common policies and actions, and work for a high degree of cooperation in all fields in international relations in order, inter alia, to help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development, to encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade, and to promote an international system based on stronger multilateral cooperation and good global governance.
Amendment 55 #
Proposal for a regulation
Recital 6
Recital 6
(6) Many third countries are reluctant to open their public procurement markets to international competition, or to open those markets further than what they have already done, because they consider public procurement as an important instrument to address development needs of their population, in particular in rural areas. As a result, Union economic operators face restrictive procurement practices in many of the trading partner of the Union. Those restrictive procurement practices result in the loss of substantial trading opportunities.
Amendment 57 #
Proposal for a regulation
Recital 7
Recital 7
(7) Directives 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 sectors10 and 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 contracts11 contain only a few provisions concerning the external dimension of the public procurement policy of the Union, in particular Articles 58 and 59 of Directive 2004/17/EC. These provisions however only have a limited scope and due to a lack of guidance t. They are not much applied by contracting entities. __________________ 10 11OJ L 134, 30.4.2004, p. 1 OJ L 134, 30.4.2004, p. 1 11 OJ L 134, 30.4.2004, p. 114. OJ L 134, 30.4.2004, p. 114.
Amendment 63 #
Proposal for a regulation
Recital 10
Recital 10
Amendment 68 #
Proposal for a regulation
Recital 15
Recital 15
(15) For contracts with an estimated value equal or above EUR 5.000.000 the Commission should approve the intended exclusion if the international agreement concerning market access in the field of public procurement between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union. Where such an agreement does not exist, the Commission should approve the exclusion where the third country maintains illegitimate restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. A lack of substantial reciprocity should be presumed where restrictive procurement measures result in serious and recurring discriminations of EU economic operators, goods and services.
Amendment 71 #
Proposal for a regulation
Recital 16
Recital 16
(16) When assessing whether a lthe legitimacky of substantial reciprocity existapplied public procurement restrictions, the Commission should examine to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination particularly against Union goods, services and economic operators. In addition, it should examine to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices considered illegitimate against Union goods, services and economic operators.
Amendment 78 #
Proposal for a regulation
Recital 17
Recital 17
(17) The Commission should be able to prevIn the assessment, the possible negative impact of an intended exclusion on on-going trade negotiations with the country concerned. Therefore, the Commission mayCommission shall take into consideration, whethere a country is engaging in substantive negotiations with the Union or within the GPA concerning market access in the field of public procurement and the Commission considers that there is a reasonable prospect of removing the restrictive procurement practices in the near future, it should be able to adopt a implementing act providquestion ing that goods and services from that country should not be excluded from procedures for the award of contracts for a period of one yeare near future.
Amendment 83 #
Proposal for a regulation
Recital 18
Recital 18
(18) In view of the fact that the access of third country goods and services to the public procurement market of the Union falls within the scope of the common commercial policy, Member States or their contracting authorities/entities should not be able to restrict the access of third country goods or services to their tendering procedures by any other measure than the ones provided for in this Regulatione Union's Directive on Public Procurement and related Directives, or other respective provisions established in accordance with the European Treaties.
Amendment 85 #
Proposal for a regulation
Recital 19
Recital 19
(19) In view of the greater difficulty for contracting authorities/entities to assess, in the context of tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services, the explanations of tenderers it is appropriate to provide for an increased transparency in the treatment of abnormally low tenders. In addition to the rules provided by Article 69 of the Directive on public procurement and Article 79 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors the contracting authority/entity that intends to accept such an abnormally low tender, should inform the other tenderers of this in writing including the reasons for the abnormally low character of the price or costs charged, including information regarding environmental, labour and wage conditions involved, in order to prevent social or environmental dumping. This allows these tenderers to contribute to a more accurate assessment as to whether the successful tenderer will be able to fully perform the contract under the conditions spelled out in the tender documentation. Therefore, this additional information would achieve a more level playing field on the EU public procurement market.
Amendment 86 #
Proposal for a regulation
Recital 20
Recital 20
(20) The Commission should be able, on its own initiative or at the application of interested parties or a Member State, to initiate at any time an external procurement investigation into illegitimate restrictive procurement practices allegedly maintained by a third country. In particular it shall take into account the fact that the Commission has approved a number of intended exclusions concerning a third country pursuant to Article 6(2) of this Regulation. Such investigative procedures should be without prejudice to Council Regulation (EC) No 3286/94 of 22 December 1994 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community's rights under international trade rules, in particular those established under the auspices of the World Trade Organization14 . __________________ 14 OJ L 349, 31.12.1994
Amendment 88 #
Proposal for a regulation
Recital 21
Recital 21
(21) Where the Commission has, on the basis of information available to it, reason to believe that a third country has adopted or maintains an illegitimate restrictive procurement practice, it should be able to start an investigation. If the existence of an illegitimate restrictive procurement practice in a third country is confirmed the Commission should invite the country concerned to enter into consultations with a view to improving the tendering opportunities for economic operators, goods and services in public procurement in that country.
Amendment 90 #
Proposal for a regulation
Recital 22
Recital 22
(22) If the consultations with the country concerned do not lead to sufficient improvement in the tendering opportunities for EU economic operators, goods and services, the Commission should suggest to take appropriate restrictive measureaction, including multilateral mechanisms.
Amendment 91 #
Proposal for a regulation
Recital 23
Recital 23
(23) SIf cases of social or environmental dumping have been established, such measures may entail the mandatory exclusion of certain third- country company goods and services from public procurement procedures in the European Union, or may subject tenders made up of goods or services originating inf that countrmpany to a mandatory price penalty. To avoid circumvention of these measures, it may also be necessary to exclude certain foreign-controlled or owned juridical persons established in the European Union, that are not engaged in substantive business operations such that it has a direct and effective link with the economy of a Member State concerned. Appropriate measures should not be disproportionate to the restrictive procurement practices to which they respond.
Amendment 96 #
Proposal for a regulation
Recital 25
Recital 25
Amendment 149 #
Proposal for a regulation
Article 6 – paragraph 4 – subparagraph 1 – point b
Article 6 – paragraph 4 – subparagraph 1 – point b
(b) where an agreement referred to in point (a) does not exist and the third country maintains illegitimate restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned.
Amendment 152 #
Proposal for a regulation
Article 6 – paragraph 4 – subparagraph 2
Article 6 – paragraph 4 – subparagraph 2
Amendment 159 #
Proposal for a regulation
Article 6 – paragraph 5 – introductory part
Article 6 – paragraph 5 – introductory part
5. When assessing whether a lthe legitimacky of substantial reciprocity existapplied public procurement restrictions, the Commission shall examine the following:
Amendment 162 #
Proposal for a regulation
Article 6 – paragraph 5 – point a
Article 6 – paragraph 5 – point a
(a) to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against particularly Union goods, services and economic operators;
Amendment 165 #
Proposal for a regulation
Article 6 – paragraph 5 – point b
Article 6 – paragraph 5 – point b
(b) to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practicespractices considered illegitimate against Union goods, services and economic operators.
Amendment 177 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
Where the contracting authority/entity intends, under Article 69 of the Directive on public procurement or under Article 79 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors, after verifying the explanations of the tenderer, to accept an abnormally low tender comprising goods and/or services originating outside the Union, in which the value of the non- covered goods or services exceeds 50 % of the total value of the goods or services constituting the tender, it shall inform the other tenderers of this in writing, including the reasons for the abnormally low character of the price or costs charged, including information regarding environmental, labour and wage conditions involved, in order to prevent social or environmental dumping.
Amendment 181 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
A contracting authority/entity may withhold any information release of it would impede law enforcement, or would otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of economic operators, whether public or private, or might prejudice fair competition between them.
Amendment 188 #
Proposal for a regulation
Article 8 – paragraph 1 – subparagraph 1
Article 8 – paragraph 1 – subparagraph 1
Where the Commission considers it to be in the interest of the Union, it may at any time, on its own initiative or upon application of interested parties or a Member State, may initiate an external procurement investigation into allegedly illegitimate restrictive procurement measures.
Amendment 193 #
Proposal for a regulation
Article 8 – paragraph 1 – subparagraph 2
Article 8 – paragraph 1 – subparagraph 2
Amendment 206 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
3. The assessment by the Commission of whether illegitimate restrictive procurement measures are maintained by the third country concerned shall be made on the basis of the information supplied by interested parties and Member States and/or facts collected by the Commission during its investigation, and shall be concluded within a period of nine months after the initiation of the investigation. In duly justified cases this period may be extended by three months.
Amendment 209 #
Proposal for a regulation
Article 8 – paragraph 4
Article 8 – paragraph 4
4. When the Commission concludes as a result of the external procurement investigation that the allegedly illegitimate restrictive procurement measures are not maintained by the third country concerned, the Commission shall adopt a decision terminating the investigation. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17 (2).
Amendment 213 #
Proposal for a regulation
Article 9 – paragraph 1 – subparagraph 1
Article 9 – paragraph 1 – subparagraph 1
When it is found as a result of an investigation that illegitimate restrictive procurement measures are maintained by a third country and the Commission considers it to be justified by the EU interest, the Commission shall invite it to enter into consultations with a view to ensuring thatimproving Union economic operators, goods and services canopportunities to participate in tendering procedures for the award of public procurement contracts in that country on the conditions no less favourable than those accorded to national economic operators, goods and services of that country, and also with a view also to ensuring the application of the principles of transparency and equal treatment.
Amendment 215 #
Proposal for a regulation
Article 9 – paragraph 1 – subparagraph 2
Article 9 – paragraph 1 – subparagraph 2
In the event that the country concerned declines the invitation to enter into consultation, the Commission shall, when adopting implementing acts under Article 10 to limit the access of goods and services originating in that third country, decide suggest to take action on the basis of the facts available.
Amendment 216 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. If the country concerned is a Party to the WTO Agreement on Government Procurement or has concluded a trade agreement with the EU that includes provisions on public procurement, the Commission shall follow the consultation mechanisms and/or dispute settlement procedures set out in that agreement when the restrictive practices considered illegitimate relate to procurement covered by market access commitments undertaken by the country concerned towards the Union.
Amendment 218 #
Proposal for a regulation
Article 9 – paragraph 3 – subparagraph 1
Article 9 – paragraph 3 – subparagraph 1
When, after the initiation of a consultation, the country concerned takes satisfactory remedial/corrective measures, but without undertaking new market access commitments, the Commission mayshall suspend or terminate the consultinvestigation:;
Amendment 228 #
Proposal for a regulation
Article 9 – paragraph 3 – subparagraph 3 – point ii
Article 9 – paragraph 3 – subparagraph 3 – point ii
(ii) act under Article 10 to adopt implementing acts to limit the access of goods and services originating in a third country, or in established cases of social or environmental dumping are offered by a certain company;
Amendment 234 #
Proposal for a regulation
Article 9 – paragraph 5 – subparagraph 1 – point c
Article 9 – paragraph 5 – subparagraph 1 – point c
(c) Expansion of its market access commitments undertaken under the WTO Agreement on Government Procurement or under a bilateral agreement concluded with the Union in that framework,
Amendment 237 #
Proposal for a regulation
Article 9 – paragraph 5 – subparagraph 2
Article 9 – paragraph 5 – subparagraph 2
The consultation may also be terminated in cases where the illegitimate restrictive procurement measures are still in place at the time these commitments are undertaken, as long as they include detailed provisions relating to the phasing-out of those practices.
Amendment 248 #
Proposal for a regulation
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Where it is found in an investigation pursuant to Article 8, and after following the procedure foreseen in Article 9, that restrictive procurement measures adopted or maintained by that third country leads to an lack of substantial reciprocity in market opening between the Union and the third country as referred to in Article 6are illegitimate, the Commission may adopt implementing acts to temporarily limit the access of non-covered goods and services originating in a third country. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17(2).
Amendment 252 #
Proposal for a regulation
Article 10 – paragraph 2 – point b
Article 10 – paragraph 2 – point b
(b) in established cases of environmental or social dumping, a mandatory price penalty on that part of the tender consisting of non-covered goods or services which originate in the country adopting or maintaining a restrictive procurement practiceor the respective tenderer.
Amendment 255 #
Proposal for a regulation
Article 13 – paragraph 1 – point b
Article 13 – paragraph 1 – point b
(b) application of the measure would lead to a disproportionate increase in the price or costs of the contract.
Amendment 256 #
Proposal for a regulation
Article 13 – paragraph 2 – subparagraph 3 – point d a (new)
Article 13 – paragraph 2 – subparagraph 3 – point d a (new)
(d a) information regarding environmental, labour and wage conditions involved in the offer, in order to prevent social or environmental dumping,
Amendment 258 #
Proposal for a regulation
Article 13 – paragraph 3 – subparagraph 2 – point d a (new)
Article 13 – paragraph 3 – subparagraph 2 – point d a (new)
(da) information regarding environmental, labour and wage conditions involved, in order to prevent social or environmental dumping,