Activities of Emilie TURUNEN related to 2011/0438(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on Public procurement
Amendments (43)
Amendment 84 #
Proposal for a directive
Recital 1
Recital 1
(1) The award of public contracts by or on behalf of Member States authorities has to comply with the principles of the Treaty on the Functioningies of the European Union, and in particular the free movement of goods, freedom of establishment and the freedom to provide services as well as the principles deriving therefrom, such as equal treatment, non- discrimination, mutual recognition, proportionality and transparency and with the distribution of competencies as enshrined in Article 14 (1) TFEU and the Protocol No 26. The European regulation of public procurement should respect the wide discretion of public authorities in carrying out their public service tasks. However, for public contracts above a certain value, provisions should be drawn up coordinating national procurement procedures so as to ensure that these principles are given practical effect and public procurement is opened up to competition.
Amendment 85 #
Proposal for a directive
Recital 2
Recital 2
(2) Public procurement plays a key role in the Europe 2020 strategy as one of the market-based instruments to be used to achieve a smart, sustainable and inclusive growth while ensuring the most efficient use of public funds. For that purpose, the current public procurement rules adopted pursuant to Directive 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 sectors and Directive 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 contracts have to be revised and modernised in order to increaseenable procurer to make better use of public procurement in support of sustainable development, innovation, social inclusion and other common societal goals, thereby increasing the efficiency of public spending, ensuring best value for money, facilitating in particular the participation of small and medium-sized enterprises in public procurement and to enable procurers to make better use of public procurement in support of common societal goals. There is also a need to simplify the Directives and to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well- established case-law of the Court of Justice of the European Union. This Directive provides legislation on how to buy. Contracting authorities may set demands that are stricter or go further than current EU-Legislation in order to reach the common objectives.
Amendment 88 #
Proposal for a directive
Recital 5
Recital 5
(5) Under Articles 9, 10 and 11 of the Treaty on the Functioning of the European Union, environmental protection requirements and social considerations must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development. This Directive clarifies how the contracting authorities may contribute to the protection of the environment and the promotion of sustainable development, whilst ensuring that and how they can use their discretionary power to select technical specifications and award criteria with the aim of achieving sustainable public procurement, whilst ensuring the link to the subject matter of they contract and obtaining the best value for money for their contracts.
Amendment 103 #
Proposal for a directive
Recital 34
Recital 34
(34) Public contracts should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption, fraud to the detriment of the Union's financial interests or money laundering. Non- payment of taxes or social security contributions should also be sanctioned by mandatory exclusion at the level of the Union. Furthermore, contracting authorities should be given the possibility to exclude candidates or tenderers for violations of environmental, labour or social obligations, including rules on working conditions, collective agreements and accessibility for disabled persons or other forms of grave professional misconduct, such as violations of competition rules or of intellectual property rights.
Amendment 121 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 1
Article 1 – paragraph 2 – subparagraph 1
Procurement within the meaning of this Directive is the purchase or other forms of acquisition of works, supplies or services via public contracts by one or more contracting authorities from economic operators chosen by those contracting authorities, whether or not the works, supplies or services are intended for a public purpose.
Amendment 122 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 2
Article 1 – paragraph 2 – subparagraph 2
Amendment 131 #
Proposal for a directive
Article 10 a (new)
Article 10 a (new)
Article 10 a Specific Regimes to deliver SGI This directive shall not apply to tried and tested Member State procedures that are based on the user's free choice of service providers (i.e. voucher system, free choice model, triangular relationship) as well as the principle that all providers which are able to comply with the conditions previously laid down by law should, irrespective of their legal form, be permitted to provide services, provided that account is taken of the general principles of equal treatment, transparency and non-discrimination.
Amendment 136 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – point b
Article 11 – paragraph 1 – subparagraph 1 – point b
(b) at least 980 % of the activities of that legal person are carried out for the controlling contracting authority or for other legal persons controlled by that contracting authority;
Amendment 139 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – point c
Article 11 – 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 140 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 2
Article 11 – paragraph 1 – subparagraph 2
Amendment 145 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Paragraph 1 also applies where a controlled entity which is a contracting authority awards a contract 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 contract, with the exception of legally enforced forms of private participation.
Amendment 150 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – introductory part
Article 11 – paragraph 3 – subparagraph 1 – introductory part
A contracting authority, which does not exercise over a legal person control within the meaning of paragraph 1, may nevertheless award a public contract without applyingoutside the scope of this Directive to a legal person which it controls jointly with other contracting authorities, where the following conditions are fulfilled:
Amendment 155 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point b
Article 11 – 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 other legal persons controlled by the same contracting authorities;
Amendment 158 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point c
Article 11 – 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 160 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 2 – introductory part
Article 11 – paragraph 3 – subparagraph 2 – introductory part
Amendment 163 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 2 – point a
Article 11 – paragraph 3 – subparagraph 2 – point a
Amendment 167 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 2 – point b
Article 11 – paragraph 3 – subparagraph 2 – point b
Amendment 170 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 2 – point c
Article 11 – paragraph 3 – subparagraph 2 – point c
Amendment 174 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 2 – point d
Article 11 – paragraph 3 – subparagraph 2 – point d
Amendment 179 #
Proposal for a directive
Article 11 – paragraph 4 – introductory part
Article 11 – paragraph 4 – introductory part
4. An agreement concluded between two or more contracting authorities shall not be deemed to be a public contract within the meaning of Article 2(6) of this Directive and thus fall outside the scope of this Directive where the following cumulative conditions are fulfilled:
Amendment 181 #
Proposal for a directive
Article 11 – paragraph 4 – point a
Article 11 – paragraph 4 – point a
(a) the agreement establishes a genuine cooperation between the participating contracting authorities 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 182 #
Proposal for a directive
Article 11 – paragraph 4 – point b
Article 11 – paragraph 4 – point b
Amendment 185 #
Proposal for a directive
Article 11 – paragraph 4 – point c
Article 11 – paragraph 4 – point c
(c) the participating contractingpublic authorities do not perform on the open market more than 120 % in terms of turnover of the activities which are relevant in the context of the agreement;
Amendment 186 #
Proposal for a directive
Article 11 – paragraph 4 – point d
Article 11 – paragraph 4 – point d
Amendment 189 #
Proposal for a directive
Article 11 – paragraph 4 – point e
Article 11 – paragraph 4 – point e
(e) the task is carried out solely by the public authorities concerned there is no private participation in any of the contracting authorities involved with the exception of forms of legally enforced private participation.
Amendment 194 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 2
Article 11 – paragraph 5 – subparagraph 2
The exclusions provided for in paragraphs 1 to 4 shall cease to apply from the moment any private participation takes place, with the effect that ongoing contracts need to be opened to competition through regular procurement procedures, unless the private participation is legally enforced and/or the private participation was not foreseeable at the time of the initial contracting.
Amendment 196 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 2 a (new)
Article 11 – paragraph 5 – subparagraph 2 a (new)
However transferring tasks between public sector organisations is a matter for the Member States' internal administrative organisation and is not subject to procurement rules.
Amendment 197 #
Proposal for a directive
Article 11 a (new)
Article 11 a (new)
Article 11 a Service contracts awarded on the basis of exclusive rights This Directive shall not apply to public service contacts awarded by a contracting authority to another contracting authority or to an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a published law, regulation or administrative provision which is compatible with the Treaty.
Amendment 210 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
Member States may reserve the right to participate in public procurement procedures to sheltered workshops and economic operators whose main aim is the social and professional integration of disabled and disadvantaged workers or provide for such contracts to be performed in the context of sheltered employment programmes, provided that more than 30% of the employees of those workshops, economic operators or programmes are disabled and/or disadvantaged workers. persons. 'Disadvantaged persons' includes amongst others: the unemployed, people experiencing particular difficulty in achieving integration, people at risk of exclusion, members of vulnerable groups and members of disadvantaged minorities. The call for competition may make reference to this provision.
Amendment 256 #
Proposal for a directive
Article 41 – paragraph 1 – subparagraph 1 – point c
Article 41 – paragraph 1 – subparagraph 1 – point c
(c) the labels are established in an open and transparent procedure in which all stakeholders, including government bodies, consumers, manufacturers, trade unions, distributors and environmental and social organisations, may participate,
Amendment 260 #
Proposal for a directive
Article 41 – paragraph 1 – subparagraph 1 – point e
Article 41 – paragraph 1 – subparagraph 1 – point e
(e) the criteriaattribution and verification of the label are setundertaken by a third party which is independent from the economic operator applying for the label.
Amendment 261 #
Proposal for a directive
Article 41 – paragraph 1 – subparagraph 2
Article 41 – paragraph 1 – subparagraph 2
Contracting authorities requiring a specific label shall accept all equivalent labels that fulfil the requirements of the label indicated by the contracting authorities. For products that do not bear the label, contracting authorities shallmay also accept a technical dossier of the manufacturer or other appropriate means of proof of equivalence. However in order not to discriminate those tenderers who invest time and money for certificates, the burden for providing equivalence with a specific label should be placed on the tenderer claiming equivalence.
Amendment 268 #
Proposal for a directive
Article 54 – paragraph 2
Article 54 – paragraph 2
2. Contracting authorities may decide not to award a contract to the tenderer submitting the best tender where they have established that the tender does not comply, at least in an equivalent manner, with obligations established by Union or national legislation in the field of social and labour law or environmental law or ofcollective agreements which apply in the place where the work, service or supply is performed or by the international social and environmental law provisions listed in Annex XI and provided they are linked to the subject matter of the contract.
Amendment 287 #
Proposal for a directive
Article 60 – paragraph 3 a (new)
Article 60 – paragraph 3 a (new)
3a. Proof of the tenderer of candidates have taken into account, when drawing up their tender, of the obligations relating to employment protection provisions and the working conditions which are in force in the place where the works are to be carried out or the service is to be provided.
Amendment 310 #
Proposal for a directive
Article 67 – paragraph 1 – point b
Article 67 – paragraph 1 – point b
(b) external costs such as social and/or environmental costs, directly linked to the life cycle, provided their monetary value can be determined and verified, which may include the cost of emissions of greenhouse gases and of other pollutant emissions and other climate change mitigation costs.
Amendment 314 #
Proposal for a directive
Article 67 – paragraph 2 – subparagraph 1 – point b
Article 67 – paragraph 2 – subparagraph 1 – point b
Amendment 316 #
Proposal for a directive
Article 67 – paragraph 2 – subparagraph 2
Article 67 – paragraph 2 – subparagraph 2
Contracting authorities shall allow economic operators, including economic operators from third countries, to apply a different methodology for establishing the life-cycle costs of their offer, provided that they prove that this methodology complies with the requirements set out in points a, b and c and is equivalent to the methodology indicated by the contracting authority. However in order not to discriminate those tenderers who invest time and money to comply with the methodology indicated by the contracting authority, contracting authorities may ask for a third party certified document as proof for the fulfilment of the equivalence.
Amendment 317 #
Proposal for a directive
Article 67 – paragraph 3 – subparagraph 1
Article 67 – paragraph 3 – subparagraph 1
Amendment 350 #
Proposal for a directive
Article 75 – paragraph 1
Article 75 – paragraph 1
Amendment 351 #
Proposal for a directive
Article 75 – paragraph 3 – subparagraph 1
Article 75 – paragraph 3 – subparagraph 1
The notices referred to in paragraphs 1 and 2 shall contain the information referred to in Annexes VI Part H and I, in accordance with the standard formsI.
Amendment 352 #
Proposal for a directive
Article 75 – paragraph 4
Article 75 – paragraph 4
4. The notices referred to in paragraphs 1 and 2 shall be published in accordance with Article 49.
Amendment 353 #
Proposal for a directive
Article 76 – paragraph 1
Article 76 – paragraph 1
Amendment 356 #
Proposal for a directive
Article 76 – paragraph 2
Article 76 – paragraph 2
2. Member States shall ensure that contracting authorities 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. Member States may also provide that the choice of the service provider shall not be made solely on the basis of the price for the provision of the service.