35 Amendments of Emilie TURUNEN related to 2011/0439(COD)
Amendment 36 #
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) and Article 62 and Article 114 as well as Protocol 26 thereof,
Amendment 38 #
Proposal for a directive
Recital 2
Recital 2
(2) In order to guarantee the opening up to competition of procurement by entities operating in the water, energy, transport and postal services sectors, provisions should be drawn up coordinating procurement procedures in respect of contracts above a certain value. Such coordination is needed to ensure the effect of the principles of the Treaty on the Functioning of the European Union and in particular the free movement of goods, the 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. In view of the nature of the sectors affected by such coordination, the latter should, while safeguarding the application of those principles, establish a framework for sound commercial practice and should allow maximum flexibility. Public procurement rules have to respect the distribution of competences as enshrined in Article 14 TFEU and Protocol No 26. The application of those rules should not interfere with the freedom of public authorities to decide how they carry out their public service tasks.
Amendment 41 #
Proposal for a directive
Recital 4
Recital 4
(4) Public procurement plays a key role in the Europe 2020 strategy16 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 sectors17 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 contracts18 have to be revised and modernised in order to increase the efficiency of public spending,enable procurers to make better use of public procurement in support of sustainable development and other common societal goals, thereby increasing the efficiency of public spending, ensuring best value for money and 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 entities may set demands that are stricter or go further than current EU-Legislation in order to reach the common objectives.
Amendment 43 #
Proposal for a directive
Recital 5
Recital 5
(5) Under Article 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 entities 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 54 #
Proposal for a directive
Recital 40
Recital 40
(40) 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. Given that contracting entities, which are not contracting authorities, might not have access to indisputable proof on the matter, it is appropriate to leave the choice of whether or not to apply the exclusion criteria listed in Directive [2004/18] to such contracting entities. The obligation to apply Article 55(1) and (2) of Directive [2004/18] should therefore be limited to contracting entities that are contracting authorities. Furthermore, contracting entities 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 64 #
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 entities from economic operators chosen by those contracting entities, provided that the works, supplies or services are intended for the pursuit of one of the activities referred to in Articles 5 to 11. This directive does thus not cover procurement which is not connected to utility activities.
Amendment 65 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 2
Article 1 – paragraph 2 – subparagraph 2
Amendment 70 #
Proposal for a directive
Article 19 a (new)
Article 19 a (new)
Amendment 71 #
Proposal for a directive
Article 19 b (new)
Article 19 b (new)
Article 19b 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 72 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 1 – point b
Article 21 – paragraph 1 – subparagraph 1 – point b
(b) at least 90 80% of the activities of that legal person, subject to the contract, are carried out for the controlling contracting authority or for other legal persons controlled by that contracting authority;
Amendment 73 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 1 – point c
Article 21 – paragraph 1 – subparagraph 1 – point c
(c) there is no private participation in the controlled legal person, with the exception of legally enforced forms or private participation.
Amendment 74 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 2
Article 21 – paragraph 1 – subparagraph 2
Amendment 75 #
Proposal for a directive
Article 21 – paragraph 2
Article 21 – 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 or private participation.
Amendment 76 #
Proposal for a directive
Article 21 – paragraph 3 – subparagraph 1 – introductory part
Article 21 – 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 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 77 #
Proposal for a directive
Article 21 – paragraph 3 – subparagraph 1 – point b
Article 21 – paragraph 3 – subparagraph 1 – point b
(b) at least 980 % of the activities of that legal person, subject to the contract, are carried out for the controlling contracting authorities or other legal persons controlled by the same contracting authorities;
Amendment 78 #
Proposal for a directive
Article 21 – paragraph 3 – subparagraph 1 – point c
Article 21 – paragraph 3 – subparagraph 1 – point c
(c) there is no private participation in the controlled legal person, with the exception of legally enforced forms or private participation.
Amendment 79 #
Proposal for a directive
Article 21 – paragraph 3 – subparagraph 2
Article 21 – paragraph 3 – subparagraph 2
Amendment 80 #
Proposal for a directive
Article 21 – paragraph 4 – introductory part
Article 21 – paragraph 4 – introductory part
4. An agreement concluded between two or more contracting authorities shall not be deemed to be a ‘'works, supply or service contract’' within the meaning of point 7 of Article 2 of this Directive and thus falls outside this Directive, where the following cumulative conditions are met:
Amendment 81 #
Proposal for a directive
Article 21 – paragraph 4 – point a
Article 21 – paragraph 4 – point a
(a) the agreement establishes a genuine co-operation between thepurpose of the partnership is the provision of a public-service task conferred on all participating contractingpublic authorities aimed at carrying out jointly, or the provision of an ancillary task necessary to deliver their public service tasks and involving mutual rights and obligations of the par conferred on all the public authorities;
Amendment 82 #
Proposal for a directive
Article 21 – paragraph 4 – point b
Article 21 – paragraph 4 – point b
Amendment 83 #
Proposal for a directive
Article 21 – paragraph 4 – point c
Article 21 – 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 agreemensubject of the contract;
Amendment 84 #
Proposal for a directive
Article 21 – paragraph 4 – point d
Article 21 – paragraph 4 – point d
Amendment 85 #
Proposal for a directive
Article 21 – paragraph 4 – point e
Article 21 – paragraph 4 – point e
(e) there is no private participation in any of the contracting authorities involved. task is carried out solely by the public authorities concerned, with no participation of a private party with the exception of contracting authorities participating in the cooperation as a public law body in the sense of Article 2(4)
Amendment 86 #
Proposal for a directive
Article 21 – paragraph 5 – subparagraph 2
Article 21 – 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 87 #
Proposal for a directive
Article 21 – paragraph 5 – subparagraph 2 a (new)
Article 21 – paragraph 5 – subparagraph 2 a (new)
However transferring tasks between public sector organisations is a matter for the Member States' internal administrative organisation and not subject to procurement law.
Amendment 92 #
Proposal for a directive
Article 31 – paragraph 1
Article 31 – paragraph 1
Member States may reserve the right to participate in 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 workerpersons. '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.
Amendment 97 #
Proposal for a directive
Article 55 – paragraph 1 – subparagraph 1 – point c
Article 55 – paragraph 1 – subparagraph 1 – point c
(c) the labels are established in an open and transparent procedure in which all relevant stakeholders, including government bodies, consumers, manufacturers, trade unions, distributors and environmental and social organisations may participate,have a substantial role. Government bodies may participate but are not obligatory;
Amendment 99 #
Proposal for a directive
Article 55 – paragraph 1 – subparagraph 1 – point e
Article 55 – paragraph 1 – subparagraph 1 – point e
(e) the criteria ofrequirements to be met in order to obtain the label are set by a third party which is independent from the economic operator applying for the label.
Amendment 100 #
Proposal for a directive
Article 55 – paragraph 1 – subparagraph 2
Article 55 – paragraph 1 – subparagraph 2
Contracting entities requiring a specific label shall accept all equivalent labels that fulfil the requirements of the specific label indicated by the contracting entities. For products that do not bear the label, contracting eContracting entities shall accept other appropriate means of proving such requirements, which may include a technical dossier of the manufacturer where the economic operator concerned has no access to the label, or no possibility of obtaining it within the relevanti ties shall also accept a technical dossier of the manufacturer or other appropriate means of proof. me limits, provided that the lack of access is not attributable to the economic operator concerned. 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 103 #
Proposal for a directive
Article 70 – paragraph 5
Article 70 – paragraph 5
5. Contracting entities 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 XIV and provided they are linked to the subject matter of the contract.
Amendment 115 #
Proposal for a directive
Article 77 – paragraph 1 – point b
Article 77 – 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 116 #
Proposal for a directive
Article 77 – paragraph 2 – subparagraph 1 – introductory part
Article 77 – paragraph 2 – subparagraph 1 – introductory part
Where contracting entities assess the costs using a life-cycle costing approach, they shall indicate in the procurement documents the methodology used for the calculation of the life-cycle costs. The methodology useddata to be provided by the tenderers and the method which the contracting authority will use to determine the life-cycle costs. The method used for the assessment of those life-cycle costs must fulfil all of the following conditions:
Amendment 117 #
Proposal for a directive
Article 77 – paragraph 2 – subparagraph 1 – point a
Article 77 – paragraph 2 – subparagraph 1 – point a
(a) it has been drawn up on the basis of scientific information or is based on other objectively verifiable and non- discriminatory criteria;
Amendment 118 #
Proposal for a directive
Article 77 – paragraph 2 – subparagraph 1 – point b
Article 77 – paragraph 2 – subparagraph 1 – point b
Amendment 119 #
Proposal for a directive
Article 77 – paragraph 2 – subparagraph 2
Article 77 – paragraph 2 – subparagraph 2