BETA

Activities of Reinhard BÜTIKOFER related to 2012/0060(COD)

Shadow reports (1)

SECOND REPORT on the proposal for a regulation of the European Parliament and of the Council on the access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries
2021/12/06
Committee: INTA
Dossiers: 2012/0060(COD)
Documents: PDF(404 KB) DOC(194 KB)
Authors: [{'name': 'Daniel CASPARY', 'mepid': 28219}]

Amendments (87)

Amendment 123 #
Proposal for a regulation
Recital 9
(9) Article 86 of Directive 2014/25/EU of the European Parliament and of the Council16 contains only a few provisions concerning the external dimension of the public procurement policy of the Union, in particular Articles 85 and 86 . These provisions have a limited scope and should be replaced. _________________ 16Directive 2014/25/EU of the European Parliament and of the Council, of February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors (OJ L 94, 28.3.2014, p. 243)acknowledges that EU economic operators being bound by international labour standards may encounter difficulties when attempting to secure the award of contracts in third countries due to the non-observance of international labour conventions. This can lead the Commission to propose the suspension or the restriction of the award of service contracts to economic operators originating in third countries. The same should apply in relations to all the labour and environmental conventions annexed to EU procurement Directives, as well as to the Paris Agreement.
2021/10/18
Committee: INTA
Amendment 124 #
Proposal for a regulation
Recital 9 a (new)
(9a) Regulation 2018/46/EU of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union provides that procurement rules and principles applicable to public contracts awarded by Union institutions on their own account should be based on the rules set out in Directives 2014/23/EU and 2014/24/EU of the European Parliament and of the Council. It is therefore appropriate to also apply this Regulation and IPI measures to procurement procedures covered by Regulation 2018/46/EU.
2021/10/18
Committee: INTA
Amendment 128 #
Proposal for a regulation
Recital 11
(11) In the interest of legal certainty for Union and third-countryternational market access commitments undertaken by the Union towards third countries in the field of procurement and concessions require, among other things, equal treatment of economic operators, from those countracting authorities and contracting entiies. Consequently, measures adopted under this Regulation can only apply to economic operators, goods or services from countries that are not Parties, to the international market access commitments undertaken by the Union towards third countries in the field of public procurement and conceplurilateral WTO Agreement on Government Procurement or to bilateral or multilateral trade agreements with the Union that include commitments on access to procurement and concessions markets, or from countries that are Parties to such agreements but only with respect to procurement procedures for goods, services or concessions that are not covered by those agreements. Irrespective of the application of measures adopted under this Regulation and in accordance with the European Commission's should be reflected in the legal order of the EU, thereby ensuring effective application thereof. Communication “Guidance on the participation of third-country bidders and goods in the EU procurement market” of 24 July 20191a and Directives 2014/23/EU, 2014/24/EU and 2014/25/EU of the European Parliament and of the Council, economic operators from third countries, which do not have any agreement providing for the opening of the EU procurement market or whose goods, services and works are not covered by such an agreement do not have secured access to procurement procedures in the EU and could be excluded. _________________ 1a C(2019) 5494 final
2021/10/18
Committee: INTA
Amendment 143 #
Proposal for a regulation
Recital 15
(15) In the light of the overall policy objective of the Union to support the economic growth of developing countries and their integration into the global value chain, which is the basis for the establishment by the Union of a generalised system of preferences as outlined in Regulation (EU) No 978/2012 of the European Parliament and of the Council19 , this Regulation should not apply to tenders where more than 50% of the total value of the tender is made up of goods and services originating, in accordance with the Union’s non- preferential rules of, and unless there are reasonable indications of circumvention of any adopted IPI measures, this Regulation should not apply to tenders that have been submitted by an economic operator origin,ating in least- developed countries benefitting from the "Everything But Arms" arrangement or in developing countries considered to be vulnerable due to a lack of diversification and insufficient integration within the international trading system as defined respectively in Annexes IV and VII to Regulation (EU) No 978/2012. This Regulation should also not be applied to tenders submitted by an economic operator originating in developing countries that are beneficiaries of the general arrangement referred to in point (a) of Article 1(2) of Regulation (EU) No 978/2012, when the subject matter of those tenders is related to the green and digital transformation, development and cooperation priorities or other priorities in the framework of the EU's Global Gateway initiative. _________________ 19Regulation (EU) No 978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008 (OJ L 303, 31.10.2012, p. 1).
2021/10/18
Committee: INTA
Amendment 148 #
Proposal for a regulation
Recital 16
(16) In the light of the overall policy objective of the Union to support small and medium-sized enterprises, this Regulation should also not apply to tenders submitted by SMEs established in the Union and in engaged in substantive business operations entailing a direct and effective link with the economy of at least one Member State.deleted
2021/10/18
Committee: INTA
Amendment 156 #
Proposal for a regulation
Recital 17
(17) When assessing whether restrictive and/or discriminatory procurement measures or practimeasures or practices exist in a third country, that may result in the impairment of access exist in a third countryof Union goods, services or economic operators to the procurement or concession markets, the Commission should examine to what degree laws on publicrules or other measures on procurement and concessions of the country concerned ensure transparency in line with international standards in the field of public procurementand do not result in serious and preclude any discriminaurrent restrictions against Union goods, services andor economic operators. In addition, it should examine to what degree individual contracting authorities or contracting entities maintain or adopt discriminatory practices againstrestrictive practices impairing access to Union goods, services and economic operators in a significant and recurrent manner, by taking into account the economic values concerned, the sectors where the practices occur or the kinds or discriminatory actions put in place by contracting authorities or entities, also based on relevant international guidance.
2021/10/18
Committee: INTA
Amendment 161 #
Proposal for a regulation
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 and their contracting authorities and contracting entities should not be able to restrict the access of third country goods or services to their tendering procedures by any other measure than those provided for in this Regulation.deleted
2021/10/18
Committee: INTA
Amendment 171 #
Proposal for a regulation
Recital 19
(19) 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 investigation into restrictive procurement measures or practices allegedly adopted or maintained by a third country. . Such invesThe European Parliament, at the initigative procedures should be without prejudice to Regulation (EU) No 654/2014 of the European Parliament and of the Council of its International Trade Committee, may request that the Commission initiate an investigation.
2021/10/18
Committee: INTA
Amendment 173 #
Proposal for a regulation
Recital 19 a (new)
(19a) In the determination of whether the adoption of an IPI measure is in the interest of the Union, the general objective of opening third-country markets and improving market access opportunities for Union economic operators should be given special consideration. When addressing serious and recurrent impairment to market access opportunities, the Commission should apply the principle of reciprocity by taking into account the presence of third country bidders on the EU procurement market at a given moment. IPI measures may not be applied where the Commission, on the basis of all information submitted, can clearly conclude that it is not in the Union interest to apply such measures. The Commission should pay particular attention to sectors that are considered strategic in respect of EU public procurement.
2021/10/18
Committee: INTA
Amendment 182 #
Proposal for a regulation
Recital 20
(20) If the existence of a restrictive and/or discriminatory procurement measure or practice in a third country is confirmedWhen conducting the investigation, the Commission should invite the third country concerned to enter into consultations with a view to eliminating and remedying any restrictive measures or practices and improving the tendering opportunities for Union economic operators, goods and services in respect of public procurement and concessions markets in that country.
2021/10/18
Committee: INTA
Amendment 188 #
Proposal for a regulation
Recital 22
(22) If the consultations with the country concerned do not lead to sufficient improvements to the tendering opportunities for Union economic operators, goods and services within a reasonable timeframe, the Commission should be able to adopt, where appropriate, price adjustment measure applying to tenders submitted by economic operators originating in that country and/or including goods and services originating in that countryinvestigation confirms the existence of the restrictive measures or practices and the consultations with the country concerned do not lead to satisfactory corrective action(s) that result in remedying the serious and recurrent impairment of access for Union economic operators, goods and services within a reasonable timeframe, the Commission should be able to adopt, where appropriate under this Regulation, measures (IPI measures) in the form of a score adjustment or of exclusion of tenders.
2021/10/18
Committee: INTA
Amendment 199 #
Proposal for a regulation
Recital 23 a (new)
(23a) In the light of the overall policy objective of the Union to support small and medium-sized enterprises (SMEs), the Commission and contracting authorities and contracting entities should duly support the application of the instrument to SMEs. The Commission in cooperation with the Member States should make available guidelines providing for best practices to support SMEs and in order to ensure the efficiency of this Regulation and the consistency of its implementation.
2021/10/18
Committee: INTA
Amendment 206 #
Proposal for a regulation
Recital 24
(24) Price adjustment measures should not have a negative impact on on-going trade negotiations with the country concerned. Therefore, where a country is engaging in substantive negotiations with the Union concerning market access in the field of public procurement, the Commission may suspend the measures during the negotiations.deleted
2021/10/18
Committee: INTA
Amendment 218 #
Proposal for a regulation
Recital 26
(26) Member States are best placed to identify the contracting authorities or contracting entities, or categories of contracting authorities or contracting entities, which should apply the price adjustment measure. To ensure that an appropriate level of action is taken and that a fair distribution of the burden among Member States is achieved, the Commission should take the final decision, based on a list submitted by each Member State. Where necessary, the Commission may establish a list on its own initiative.deleted
2021/10/18
Committee: INTA
Amendment 223 #
Proposal for a regulation
Recital 27
(27) It is imperative that contracting authorities and contracting entities have access to a range of high-quality products meeting their purchasing requirements at a competitive price. Therefore contracting authorities and contracting entities should be able not to apply price adjustment, on an exceptional basis, not to apply IPI measures limiting access of non- covered goods and services in case there are no Union and/or covered goods or services available which meet the requirements of tas necessary for the safeguard of essential public policy needs in relation to public security, public health emergencies, or such environmental considerations as environmental footprint. The application of any exception should require the consultation of the Commission. The contracting authority ories and contracting entity to safeguard essential public needs, for example in the fieldsies should notify the Commission and enter in consultation with it in due time before the award of thealth and public safety, or where the application of the measure would lead to a disproportionate increase in the price or costs of the contract contract. National review bodies and other procedures as foreseen by Council Directive 89/665/EEC and Council Directive 92/13/EEC should also apply to the application of exceptions from IPI measures.
2021/10/18
Committee: INTA
Amendment 228 #
Proposal for a regulation
Recital 28
(28) In case of misapplication by contracting authorities or contracting entities of exceptions to price adjustment measures limiting access of non-covered goods and services, the Commission should be able to apply the corrective mechanism of Article 3 ofof IPI measures, including of exclusion from IPI measures, by contracting authorities or contracting entities, which negatively affects the chances to participate in the procurement procedure of economic operators having such a right, Council Directives 89/665/EEC20 or Article 8 of Council Directive 92/13/EEC21 . In addition, contracts concluded with an economic operator by contracting authorities or contracting entities in violation of price adjustment measures limiting access of non-covered goods and services should be ineffective. _________________ 20Council Directive 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ L 395, 30.12.1989, p. 33). 21Council Directive 92/13/EEC coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 76, 23.3.1992, p. 14). and 92/13/EEC should be applicable. The affected economic operator could therefore initiate a review procedure according to the national law implementing these Directives, if, for example, a competing economic operator should have been excluded. The Commission should also be able to apply the corrective mechanism according to Article 3 of Council Directive89/665/EEC19 or Article 8 of Council Directive 92/13/EEC20
2021/10/18
Committee: INTA
Amendment 236 #
Proposal for a regulation
Recital 32
(32) Regular reporting by the Commission should make it possible to monitor the application and efficiency of the procedures established by this Regulation. In line with the inter-institutional agreement on better law making and with the view, among others, to ease administrative burdens, the Commission should review the scope, functioning and efficiency of this Regulation. Such review will address, inter alia, the possibility of making use of any means available for facilitating the exchange of information, including electronic procurement facilities such as the standard forms for the publication of notices in the field of public procurement10, the effectiveness of value thresholds above which this Regulation applies, the effectiveness of the score adjustment as an IPI measure, the use of exceptions from IPI measures. The Commission should report on its assessment to the European Parliament and the Council. The review may be followed up by appropriate legislative proposals.
2021/10/18
Committee: INTA
Amendment 243 #
Proposal for a regulation
Article 1 – paragraph 1 – subparagraph 1
This Regulation establishes measures intended to improve the access of Union economic operators, goods and services to the public procurement and concessions markets of third countries, regarding non-covered procurement. It lays down procedures for the Commission to undertake investigations into alleged restrictive and discriminatory procurement measures or practices adopted or maintained by third countrithird country measures or practices against Union economic operators, goods and services, and to enter into consultations with the third countries concerned.
2021/10/18
Committee: INTA
Amendment 247 #
Proposal for a regulation
Article 1 – paragraph 1 – subparagraph 2
ItThis Regulation provides for the possibility of applying price adjustment measures to certain tenders for contracts for the execution of works or a work, for the supply of goods and/or the provision of services and for concessions, on the basis of the origin of the economic operators, goods or services concerned. for the Commission to impose IPI measures, by means of implementing acts, in relation to such third country measures or practices to restrict the access of economic operators, goods or services from third countries to Union procurement procedures.
2021/10/18
Committee: INTA
Amendment 250 #
Proposal for a regulation
Article 1 – paragraph 2 – introductory part
2. This Regulation shall apply to contractprocurement procedures covered by the following acts:
2021/10/18
Committee: INTA
Amendment 251 #
Proposal for a regulation
Article 1 – paragraph 2 – point c a (new)
(ca) Regulation 2018/1046/EU1a _________________ 1aRegulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union
2021/10/18
Committee: INTA
Amendment 253 #
Proposal for a regulation
Article 1 – paragraph 3
3. This Regulation shall apply to the award of contracts for the supply of goods and/or services and to the award of works and services concessions. It shall only apply where the goods or services are procured for governmental purposes. It shall not apply where the goods are purchased with a view to commercial resale or with a view to use in the production of goods for commercial sale. It shall not apply where the services are purchased with a view to commercial resale or with a view to use in the supply of services for commercial sale.deleted
2021/10/18
Committee: INTA
Amendment 255 #
Proposal for a regulation
Article 1 – paragraph 4
4. This Regulation shall apply only with regard to restrictive and/or discriminatory procurement measures or practices implemented by a third country in respect of purchases of non-covered goods and services. The application of this Regulation shall be without prejudice to any international obligations of the Union.deleted
2021/10/18
Committee: INTA
Amendment 261 #
Proposal for a regulation
Article 1 – paragraph 4 a (new)
4a. This Regulation shall be without prejudice to any international obligations of the Union or measures that Member States and their contracting authorities and contracting entities may take in accordance with the acts referred to in paragraph 2.
2021/10/18
Committee: INTA
Amendment 264 #
Proposal for a regulation
Article 1 – paragraph 5
5. Member States and their contracting authorities and contracting entities shall not apply restrictive measures in respect of third country economic operators, goods and services beyond those provided for in this Regulation.deleted
2021/10/18
Committee: INTA
Amendment 267 #
Proposal for a regulation
Article 1 – paragraph 5 a (new)
5a. This Regulation shall only apply to procurement procedures launched after its entry into force. An IPI measure shall only apply to procurement procedures which are covered by the IPI measure and have been launched at any moment between the entry into force of that IPI measure and its expiry, withdrawal or suspension. A reference to the application of this Regulation and any applicable IPI measure shall be included by contracting authorities and contracting entities in the procurement documents for procedures falling within the scope of an IPI measure.
2021/10/18
Committee: INTA
Amendment 271 #
Proposal for a regulation
Article 2 – paragraph 1 – point a
(a) 'economic operator' means any natural or legal person or public entity or group of such persons and/or entities, including any temporary association of undertakings, which submits a tender for the ex economic operator as defined in Direcution of works and/or a work, the supply of goods or the provision of services on the marketves 2014/23/EU, 2014/24/EU and 2014/25/EU respectively;
2021/10/18
Committee: INTA
Amendment 275 #
Proposal for a regulation
Article 2 – paragraph 1 – point a a (new)
(aa) 'goods' means goods referred to in the object of the public procurement tender and in the specifications of the contract, but does not cover any input, material or ingredient incorporated in the supplied goods;
2021/10/18
Committee: INTA
Amendment 276 #
Proposal for a regulation
Article 2 – paragraph 1 – point a b (new)
(ab) ‘estimated value’ means the estimated value of a contract as calculated in accordance with Directives 2014/23/EU, 2014/24/EU and 2014/25/EU respectively;
2021/10/18
Committee: INTA
Amendment 279 #
Proposal for a regulation
Article 2 – paragraph 1 – point a c (new)
(ac) ‘evidence’ means any information, certificate, supporting document, statement and other means of proof aimed at proving compliance with the obligations set out in Article 9a(1)(c),such as: (i) certificates of origin, supplier declarations or import declarations for goods originating in third countries; (ii) description of manufacturing processes (including samples, descriptions or photographs) for goods to be supplied; (iii) extract of relevant registers or of financial statements for the origin of services, including a VAT identification number;
2021/10/18
Committee: INTA
Amendment 280 #
Proposal for a regulation
Article 2 – paragraph 1 – point b
(b) ‘contracting authority’ means a contracting authority as defined in Article 2(1) of Directive 2014/24/EUDirectives 2014/23/EU, 2014/24/EU and 2014/25/EU respectively;
2021/10/18
Committee: INTA
Amendment 283 #
Proposal for a regulation
Article 2 – paragraph 1 – point c a (new)
(ca) 'interested party' means any Member State and any person, undertaking or association of undertakings, trade unions or civil society organisations, such as consumers organisations whose interest might be affected by a third country measure;
2021/10/18
Committee: INTA
Amendment 285 #
Proposal for a regulation
Article 2 – paragraph 1 – point d
(d) ‘covered goods or services’ means goods or services originating in a country with which the Union has concluded an international agreement in the field of public procurement and/or concessions including market access commitments and in respect of which the relevant agreement applies;deleted
2021/10/18
Committee: INTA
Amendment 287 #
Proposal for a regulation
Article 2 – paragraph 1 – point e
(e) ‘non-covered goods or services’ means goods or services originating in a country with which the Union has not concluded an international agreement in the field of public procurement or concessions including market access commitments, as well as goods or services originating in a country with which the Union has concluded such an agreement but in respect of which the relevant agreement does not applydeleted
2021/10/18
Committee: INTA
Amendment 288 #
Proposal for a regulation
Article 2 – paragraph 1 – point f
(f) ‘restrictive and/or discriminatory procurementthird country measure or practice’ means any legislative, regulatory or administrative measure, procedure or practice, or combination thereof, of a general nature, stemming from a national or sub-national policy, adopted or maintained by public authorities or individual contracting authorities or contracting entities in a third country, that result in a serious and recurrent impairment of access of Union goods, services and/or economic operators to the public procurement or concession market of that country. A serious and recurrent impairment shall also be presumed where the non-observance of the international conventions listed in Annex X of EU Directive 2014/23/EU, Annex X of Directive 2014/24/EU and Annex XIV of Directive 2014/25/EU in the third country, as well as the non-observance of commitments undertaken under the Paris Agreement, have led to difficulties encountered by European economic operators and reported to the Commission, when those European economic operators have tried to secure the award of contracts and concessions in third countries;
2021/10/18
Committee: INTA
Amendment 292 #
Proposal for a regulation
Article 2 – paragraph 1 – point f a (new)
(fa) ‘IPI measure’ means a measure adopted by the Commission under this Regulation limiting the access of economic operators and/or goods and services originating in third countries to the Union procurement or concessions market in the area of non-covered procurement;
2021/10/18
Committee: INTA
Amendment 294 #
Proposal for a regulation
Article 2 – paragraph 1 – point f b (new)
(fb) ‘non-covered procurement’ means procurement procedures for goods, services or concessions regarding which the Union has not undertaken market access commitments in an international agreement in the field of procurement or concessions;
2021/10/18
Committee: INTA
Amendment 295 #
Proposal for a regulation
Article 2 – paragraph 1 – point f c (new)
(fc) ‘contracts’ means ‘public contracts’ as defined in Directive2014/24/EU, ‘concessions’ as defined in Directive 2014/23/EU and ‘supply, works and service contracts’ as defined in Directive 2014/25/EU;
2021/10/18
Committee: INTA
Amendment 298 #
Proposal for a regulation
Article 2 – paragraph 1 – point f d (new)
(fd) ‘tenderer’ means a tenderer as defined in Directives 2014/23/EU, 2014/24/EU and 2014/25/EU respectively;
2021/10/18
Committee: INTA
Amendment 300 #
Proposal for a regulation
Article 2 – paragraph 1 – point g a (new)
(ga) ‘subcontracting’ means arranging the part execution of a contract by a third party; the simple delivery of goods or parts necessary for the provision of a service is not considered to be subcontracting.
2021/10/18
Committee: INTA
Amendment 302 #
Proposal for a regulation
Article 2 – paragraph 1 – point h
(h) SME means SME as defined in Commission Recommendation 2003/361/EC25 . _________________ 25Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).deleted
2021/10/18
Committee: INTA
Amendment 307 #
Proposal for a regulation
Article 2 – paragraph 2
2. For the purpose of this Regulation, except for Articles 8a(3) and 8a(6) thereof, the execution of works and/or a work within the meaning of Directives 2014/253/EU, 2014/24/EU and Directive 2014/235/EU shall be considered as the provision of a service.
2021/10/18
Committee: INTA
Amendment 309 #
Proposal for a regulation
Article 3 – title
RulesDetermination of origin
2021/10/18
Committee: INTA
Amendment 311 #
Proposal for a regulation
Article 3 – paragraph 1
1. The origin of a good shall be determined in accordance with Article 22 to 26 of Council Regulation (EEC) No 2913/199226 . _________________ 26Council Regulation (EEC) No 2913/1992 of 12 October 1992 establishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1).deleted
2021/10/18
Committee: INTA
Amendment 313 #
Proposal for a regulation
Article 3 – paragraph 2
2. The origin of a service shall be determined on the basis of the origin of the economic operator providing it.deleted
2021/10/18
Committee: INTA
Amendment 316 #
Proposal for a regulation
Article 3 – paragraph 3 – point a
(a) in the case of a natural person, the country of which the person is a national or where hethat person has a right of permanent residence;
2021/10/18
Committee: INTA
Amendment 319 #
Proposal for a regulation
Article 3 – paragraph 3 – point b – point i
(i) if the service is not provided through a commercial presence within the Union, the country under the laws of which the legal person is constituted or otherwise organised and in the territory of which the legal person is engaged in substantive business operations, entailing a direct and effective link with the economy of the country concerned;
2021/10/18
Committee: INTA
Amendment 321 #
Proposal for a regulation
Article 3 – paragraph 3 – point b – point ii
ii) the Member State whereif the legal person is established andnot engaged in substantive business operations entailing a direct and effective link with the economy of the Member State concernedin the territory of the country in which it is constituted or otherwise engaged, the origin of the legal person shall be that of the person or persons which may exercise, directly or indirectly, a dominant influence on the legal person by virtue of their ownership of it, their financial participation therein, or the rules which govern it.
2021/10/18
Committee: INTA
Amendment 323 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 2
For the purposes of point (b) (ii) of the first subparagraph if the legal person is not engaged in substantive business operations entail, that person or persons shall be presumed as having a dominant influence on the legal person ing a direct and effective lny of the following cases ink withich the economy of a Member State , the origin of the legal person shall be that of the person or persons which own or control the legal person y, directly or indirectly: (a) hold the majority of the legal person’s subscribed capital; (b) control the majority of the votes attaching to shares issued by the legal person; (c) can appoint more than half of the legal person’s administrative, management or supervisory body.
2021/10/18
Committee: INTA
Amendment 325 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 3
A legal person shall be considered to be "owned" by persons of a given country where more than 50 % of the equity interest in it is beneficially owned by persons of that country.deleted
2021/10/18
Committee: INTA
Amendment 329 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 4
A legal person shall be considered to be "controlled" by persons of a given country where such persons have the power to appoint a majority of its directors or otherwise to legally direct its actions.deleted
2021/10/18
Committee: INTA
Amendment 331 #
Proposal for a regulation
Article 3 – paragraph 3 a (new)
3a. Where an economic operator is a group of natural or legal persons and/or public entities, and at least one of such persons or entities originates from the third country whose economic operators and goods and services are subject to the IPI measure, the IPI measure shall equally apply to tenders submitted by that group. This shall not apply in cases in which such persons' or entities' participation in a group amounts to less than 10% of the value of the tender in question, but the IPI measure should still apply if that person or entity is necessary for fulfilling the majority of at least one of the selection criteria in a procurement procedure.
2021/10/18
Committee: INTA
Amendment 332 #
Proposal for a regulation
Article 3 – paragraph 3 b (new)
3b. Contracting authorities or contracting entities may at any time during the procurement procedure request the economic operator to submit, supplement, clarify or complete the information or documentation related to the verification of the economic operator's origin within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency. Tenders from economic operators that fail to provide such information or documentation shall be rejected in accordance with the rules applicable to the award procedure.
2021/10/18
Committee: INTA
Amendment 336 #
Proposal for a regulation
Article 4 – paragraph 1
Tenders shall be exempted from this Regulation where more than 50% of the total value of the tender is made up of goods and/or servicesthey have been submitted by an economic operator originating in least- developed countries listed in Annex IV to Regulation (EU) No 978/201227 , and in developing countries considered to be vulnerable due to a lack of diversification and insufficient integration within the international trading system as defined in Annex VII to Regulation (EU) No 978/2012. The Commission, by adopting an implementing act in accordance with Article 14(5), shall exempt tenders submitted by an economic operator originating in developing countries that are beneficiaries of the general arrangement referred to in point (a) of Article 1(2) of Regulation (EU) No 978/2012, when the subject matter of those tenders is related to the green and digital transformation, development and cooperation priorities or other priorities in the framework of the EU's Global Gateway initiative. _________________ 27Regulation (EU) No 978/2012 of the European Parliament and of the Council applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008 (OJ L 303, 31.10.2012, p. 1).
2021/10/18
Committee: INTA
Amendment 339 #
Proposal for a regulation
Article 5
Exemption for tenders submitted by SMEs Tenders submitted by SMEs28 established in the Union and engaged in substantive business operations entailing a direct and effective link with the economy of at least one Member State, shall be exempted from this Regulation. _________________ 28As defined in the Commission recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).Article 5 deleted
2021/10/18
Committee: INTA
Amendment 345 #
Proposal for a regulation
Chapter 3 – title
Investigations, consultations and price adjustment measurecontractual obligations
2021/10/18
Committee: INTA
Amendment 348 #
Proposal for a regulation
Article 6 – title
Investigations and consultations
2021/10/18
Committee: INTA
Amendment 351 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 1
Where tThe Commission considers it to be in the interest of the Unshall, upon a substantiated complaint of an EU interested party or a Member State, initiate an investigation, it may at any time, on its own initiative or upon applicatnto an alleged third- country measure by publishing a notice in the Official Journal of the European Union. The European Parliament may request the Commission tof interested parties or a Member State, initiate an investigation into alleged restrictive and/or discriminatory procurement measures or practicesitiate an investigation. The Commission may also initiate an investigation on its own initiative. The notice of the initiation shall include the Commission’s preliminary assessment of the third country measure or practice and may invite interested parties and Member States to provide information to the Commission within a specified period of time.
2021/10/18
Committee: INTA
Amendment 357 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 2
If an investigation is initiated, the Commission shall publish a notice in the Official Journal of the European Union, invitingThe Commission shall make available on its website the form which the interested parties andor Member States to provide all relevanthave to complete inf ormation to the Commission within a specified period of timeder to submit a substantiated complaint.
2021/10/18
Committee: INTA
Amendment 358 #
Proposal for a regulation
Article 6 – paragraph 1 a (new)
1a. Upon publication of the notice, the Commission shall invite the third country concerned to submit its views, provide information and enter into consultations with the Commission in order to remove the alleged third country measure or practice. The Commission shall regularly inform Member States within the Committee set up by Article 7 of the Council Regulation (EU) 2015/1843 (Trade Barriers Regulation)1a and consequently the European Parliament; _________________ 1aRegulation (EU) 2015/1843 of the European Parliament and of the Council of 6 October 2015 laying down Union procedures in the field of the common commercial policy in order to ensure the exercise of the Union’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization (Trade Barriers Regulation), (OJ L 272, 16.10.2015, p. 1).
2021/10/18
Committee: INTA
Amendment 359 #
Proposal for a regulation
Article 6 – paragraph 2
2. The assessment by the Commission of whether the alleged restrictive and/or discriminatory procurement measures or practiceinvestigation and consultations shavell been adopted or are maintained by the third country concerned shall be made on the basis of the information supplied by interested parties and Member States, of facts collected by the Commission during its investigation, or both. The assessment shall be concluded within a period of eight months after the initiation of the investigation. In duly justified cases, this period may be extended by four months concluded within a period of nine months after the date of initiation of the investigation. In duly justified cases, the Commission may extend this period by five months by publishing a notice in the Official Journal of the European Union and informing the third country, all interested parties, the Member States and the European Parliament.
2021/10/18
Committee: INTA
Amendment 365 #
Proposal for a regulation
Article 6 – paragraph 2 a (new)
2a. Upon conclusion of the investigation and consultations, the Commission shall make publicly available a report recording the main findings of the investigation and a proposed course of action.
2021/10/18
Committee: INTA
Amendment 367 #
Proposal for a regulation
Article 6 – paragraph 3
3. Where the Commission concludes as a result offinds, following its investigation, that the alleged restrictive and/or discriminatory procurementthird-country measures or practices are is not maintained or that ithey does not result in restrictions toa serious and recurrent impairment of access byof Union economic operators or Union goods andor services to the public procurement or concession markets of the third country concerned, the Commission shall terminate the investigation. , and publish a notice of termination in the Official Journal of the European Union.
2021/10/18
Committee: INTA
Amendment 369 #
Proposal for a regulation
Article 6 – paragraph 4
4. When the Commission has concluded its investigation, it shall make publicly available a report recording its main findings.deleted
2021/10/18
Committee: INTA
Amendment 373 #
Proposal for a regulation
Article 6 – paragraph 4 a (new)
4a. The Commission may suspend the investigation and consultations at any time if the third country: (a) takes corrective measures remedying the serious and recurrent impairment of access of Union economic operators or Union goods or services, or (b) undertakes commitments towards the Union to end or phase out the third country measure or practice within a reasonable period of time and no later than three months. The Commission may resume the investigation and consultations at any time if it concludes that the reasons for the suspension referred to in points (a) and (b) are no longer valid. The Commission shall publish a notice in the Official Journal of the European Union in case of suspension or resumption of the investigation and consultations.
2021/10/18
Committee: INTA
Amendment 376 #
Proposal for a regulation
Article 7
[...]deleted
2021/10/18
Committee: INTA
Amendment 388 #
Proposal for a regulation
Article 8
1. Tenders more than 50 % of the total value of which is made of goods and/or services originating in a third country, may be subject to a price adjustment measure where the third country concerned adopts or maintains restrictive and/or discriminatory procurement measures or practices. Price adjustment measures shall only apply to contracts with an estimated value equal to or above EUR 5.000.000 exclusive of value-added tax. 2. The price adjustment measure shall specify the penalty of up to 20% to be calculated on the price of the tenders concerned. It shall also specify any restrictions to the scope of application of the measure, such as those related to: (a) public procurement of specific categories of contracting authorities or contracting entities; (b) public procurement of specific categories of goods or services or tenders submitted by specific categories of economic operators; (c) public procurement above or within certain thresholds; (d) tenders submitted for specific categories of concessions; (e) the territories of certain subcentral levels of government. 3. Contracting authorities and contracting entities on the list adopted pursuant to Article 9 shall apply the price adjustment measure to the following: (a) to tenders submitted by economic operators originating in the third country concerned, unless these economic operators can demonstrate that less than 50 % of the total value of their tender is made up of goods or services originating in the third country concerned; and (b) to any tenders offering goods and services originating in the country concerned, where the value of these goods and services accounts for more than 50 % of the total value of the tender.Article 8 deleted Price adjustment measures
2021/10/18
Committee: INTA
Amendment 427 #
Proposal for a regulation
Article 8 a (new)
Article 8a IPI measures 1. Where the Commission finds, following an investigation and consultations pursuant to Article 4, that a third country measure or practice exists, it may, if it considers it to be in the interest of the Union, adopt an implementing act to impose an IPI measure as provided in paragraph 5 of this article. An IPI measure shall only apply if the main subject of the procurement procedure falls within the scope of the implementing act as defined in accordance with paragraph 7(a). The design of the procurement procedure shall not be made with the intention of excluding it from the scope of this Regulation. 2. In the determination of whether the adoption of an IPI measure is in the interest of the Union, the general objective of opening third-country markets and improving market access opportunities for Union economic operators shall be given special consideration. When addressing serious and recurrent impairment to market access opportunities, the Commission shall apply the principle of reciprocity by taking into account the presence of third country bidders on the EU procurement market at a given moment. IPI measures may not be applied where the Commission, on the basis of all information submitted, can clearly conclude that it is not in the Union interest to apply such measures. The Commission shall pay particular attention to sectors that are considered strategic in respect of EU public procurement. 3. The IPI measure shall be determined on the basis of the following criteria, in light of available information and the Union’s interest: (a) proportionality of the IPI measure with regard to the third country measure or practice, based on the level of impairment of access of Union economic operators or Union goods or services to the third country procurement or concession markets; (b) availability of alternative sources of supply for the goods and services concerned. 4. The IPI measure shall only apply to procurement procedures with an estimated value equal to or above EUR 15 000 000 net of value-added tax for works and concessions, and equal to or above EUR 5 000 000 net of value-added tax for goods and services. 5. The IPI measure shall also apply in the case of specific contracts awarded under a dynamic purchasing system, when those dynamic purchasing systems were subject to the IPI measure, with the exception of specific contracts the estimated value of which is below the respective values set out in Article 8 of Directive 2014/23/EU, Article 4 of Directive 2014/24/EU and Article 15 of Directive 2014/25/EU. The IPI measure shall not apply to procedures for the award of contracts based on a framework agreement if it has already been applied at the stage of concluding such framework agreement. The IPI measure shall also not apply to individual lots to be awarded according to Article 5 (10) of Directive2014/24/EU or Article 16 (10) of Directive 2014/25/EU, provided those are below the thresholds pursuant to paragraph 3 and with a view to avoiding any double application of a measure. 6. In its implementing act, the Commission may decide, within the scope defined in paragraph 6 of this Article, to restrict the access of operators, goods or services from third countries to procurement procedures by requiring contracting authorities or contracting entities to: (a) impose a score adjustment measure on tenders submitted by economic operators originating in the that third country; or (b) exclude tenders submitted by economic operators originating in that third country; or (c) impose a combination of (a) and (b), if different sectors or categories of goods and services are subject to IPI measures. 7. The score adjustment measure referred to in paragraph 5(a) shall apply only for the purpose of the evaluation and ranking of the tenders. It shall not affect the price due to be paid under the contract to be concluded with the successful tenderer. 8. The implementing act, adopted in accordance with Article 14(2), shall specify the scope of application of the IPI measure, including: (a) the sectors or the categories of goods, services and concessions based on the Common Procurement Vocabulary1aas well as any applicable exceptions, (b) specific categories of contracting authorities or contracting entities; (c) specific categories of economic operators; (d) as regards the score adjustment measure referred to in paragraph 5(a), the percentage value of the adjustment shall be set up to 60% of the evaluation score of the tender depending on the third country and sector of goods, services, works or concessions envisaged. 9. When determining the proportionality of the IPI measure according to paragraph 2(a), the Commission shall in particular consider the percentage value according to paragraph 7(d). The Commission shall impose an IPI measure in the form of exclusion according to paragraph 5(b) in case of a severe level of impairment of access of Union goods, services and/or economic operators to the procurement or concession markets of a third country, while also taking into account the presence of bidders originating from the third countries in question on the EU procurement and concession markets, as well as whether in the third country the sector in question is majorly represented by state-owned enterprises. 10. The Commission may withdraw the IPI measure or suspend its application if the third country takes satisfactory corrective actions, that remedy impairment of access of Union goods, services and/or economic operators to its procurement or concession markets. If the Commission considers that the corrective actions or commitments undertaken have been rescinded, suspended or improperly implemented, it shall make publicly available its findings and may reinstate the application of the IPI measure at any time. The Commission may withdraw, suspend or reinstate an IPI measure in accordance with the examination procedure referred to in Article 14(2) and followed by the publication of a notice in the Official Journal of the European Union. 11. An IPI measure shall expire five years from its entry into force or its extension, unless a review shows a need for continued application of an IPI measure. Such a review shall be initiated, by a publication of a notice in the Official Journal of the European Union, on the initiative of the Commission nine months before the date of the expiry, and shall be concluded within six months. Following the review, the Commission may extend the duration of an IPI measure for a period of another five years in accordance with the examination procedure referred to in Article 14(2). _________________ 1aRegulation (EC) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (CPV).
2021/10/18
Committee: INTA
Amendment 434 #
Proposal for a regulation
Article 9
The Commission shall determine the contracting authorities or entities or categories of contracting authorities or entities, listed by Member State, whose procurement is concerned by the measure. To provide the basis for this determination, each Member State shall submit a list of appropriate contracting authorities or entities or categories of contracting authorities or entities. The Commission shall ensure that an appropriate level of action is taken and that a fair distribution of the burden among Member States is achieved.Article 9 deleted Authorities or entities concerned
2021/10/18
Committee: INTA
Amendment 436 #
Proposal for a regulation
Article 9 a (new)
Article 9a Additional contractual obligations upon the successful tenderer 1. In the case of procurement procedures to which an IPI measure is applicable, as well as in the case of contracts awarded based on a framework agreement where the estimated value of those contracts is equal or above the respective values set out in Article 8 of Directive 2014/23/EU, Article 4 of Directive 2014/24/EU and Article 15 of Directive 2014/25/EU and when those framework agreements were subject to the IPI measure, contracting authorities and contracting entities shall also include, among the conditions of the contract with the successful tenderer: (a) a commitment not to subcontract more than 30% of the total value of the contract to economic operators originating in a third country which is subject to an IPI measure; (b) for contracts whose subject matter covers the supply of goods, a commitment that, for the duration of the contract, goods and/or services supplied or provided in the execution of the contract and originating in the third country which is subject to the IPI measure represent no more than 30% of the total value of the contract, whether such goods and/or services are supplied or provided directly by the tenderer or by a subcontractor; (c) an obligation to provide upon request adequate evidence corresponding to points (a) and/or (b) to the contracting authority or the contracting entity at the latest upon completion of the execution of the contract; (d) a proportionate charge, in case of non-observance of the commitments referred in points (a) or (b) between 10% and 30% of the total value of the contract. 2. For the purposes of paragraph 1(c) it is sufficient to provide evidence that more than 70% of the total value of the contract originates in countries other than the third country subject to the IPI measure. The contracting authority or contracting entity shall request evidence in case of reasonable indications of in compliance with paragraph 1(a) and/or 1(b) or if the contract is awarded to a group of economic operators comprising a legal person originating in the country subject to an IPI measure. 3. With a view to dealing with tenders submitted by autonomous SMEs as defined in the Commission recommendation 2003/361/EC originating in the Union or in a third country with which the Union has concluded an international agreement in the field of procurement, the guidelines that the Commission will provide specifically for SMEs shall also address how additional contractual obligations should be applied to SMEs, in order to ensure the efficiency of this Regulation and the consistency of its implementation. Those guidelines shall also take into account the information needs of SMEs. 4. A reference to the additional conditions laid down in this Article shall be included by contracting authorities and contracting entities in the documents for procurement procedures to which an IPI measure is applicable.
2021/10/18
Committee: INTA
Amendment 441 #
Proposal for a regulation
Article 10
1. The Commission may decide, by implementing act, to withdraw the price adjustment measure or suspend its application for a period of time if the country concerned takes satisfactory remedial or corrective actions. Where the remedial or corrective actions taken by the third country concerned are rescinded, suspended or improperly implemented, the Commission may reinstate the application of the price adjustment measure, at any time, by means of an implementing act. 2. The Commission shall make publicly available its findings regarding the remedial or corrective actions taken by the third country concerned. 3. The implementing acts referred to in this Article shall be adopted in accordance with the examination procedure referred to in Article 14(2).Article 10 deleted Withdrawal or suspension of price adjustment measures
2021/10/18
Committee: INTA
Amendment 448 #
Proposal for a regulation
Article 11
[...]deleted
2021/10/18
Committee: INTA
Amendment 467 #
Proposal for a regulation
Article 12 – paragraph 1 – introductory part
1. Contracting authorities and contracting entities may, on an exceptional basis, decide not to apply the price adjustmentIPI measure with respect to a procurement or a concession procedure if:
2021/10/18
Committee: INTA
Amendment 471 #
Proposal for a regulation
Article 12 – paragraph 1 – point a
(a) there are no Union and/or covered goods or services available which meet the requirements of the contracting authority or contracting entity; ordeleted
2021/10/18
Committee: INTA
Amendment 477 #
Proposal for a regulation
Article 12 – paragraph 1 – point a a (new)
(aa) there is only one tender received from an economic operator originating in the country subject to an IPI measure; or
2021/10/18
Committee: INTA
Amendment 479 #
Proposal for a regulation
Article 12 – paragraph 1 – point a b (new)
(ab) this is justified in case of emergency situations, in relation to objectively verifiable public security situations, public health emergencies or in case the best environmental footprint is to be taken into account.
2021/10/18
Committee: INTA
Amendment 482 #
(b) the application of the measure would lead to a disproportionate increase in the price or costs of the contract.deleted
2021/10/18
Committee: INTA
Amendment 489 #
Proposal for a regulation
Article 12 – paragraph 2
2. Where a contracting authority or contracting entity intends not to apply a price adjustmentn IPI measure , it shall indicate its intention in the contract notice that it publishes pursuant to Article 49 of Directive 2014/24/EU or Article 69 of Directive 2014/25/EU or in the concession notice pursuant to Article 31 of Directive 2014/23/EU. It shall notify the Commission no later than ten calendar days after the publication of notify and consult with the Commission in due time before the award of the contract. The Commission shall inform the contracting authority or contracting entity of its position within 20 days and in duly justified cases may request additional ten days for further contract noticesultations.
2021/10/18
Committee: INTA
Amendment 493 #
Proposal for a regulation
Article 12 – paragraph 3 – introductory part
3. The notification by a contracting authority or contracting entity to the Commission shall contain the following information:
2021/10/18
Committee: INTA
Amendment 497 #
Proposal for a regulation
Article 12 – paragraph 3 – point b
(b) a description of the object of the contractn exact reference to the publication of the relevant tender in the Official Journal of the European Union (Tenders Electronic Daily);
2021/10/18
Committee: INTA
Amendment 501 #
Proposal for a regulation
Article 12 – paragraph 3 – point d
(d) the ground on which the decisintention not to apply the price adjustmentIPI measure is based, and a detailed justification for the use of the exception;
2021/10/18
Committee: INTA
Amendment 513 #
Proposal for a regulation
Article 13 – title
ImplementationRemedies
2021/10/18
Committee: INTA
Amendment 519 #
Proposal for a regulation
Article 13 a (new)
Article 13a Resources The Commission shall make sure that an adequate amount of resources is allocated to the implementation and enforcement of this Regulation.
2021/10/18
Committee: INTA
Amendment 520 #
Proposal for a regulation
Article 15
1. Information received pursuant to this Regulation shall be used only for the purpose for which it was requested. 2. Neither the Commission nor the Council, nor the European Parliament nor Member States, nor their officials shall reveal any information of a confidential nature received pursuant to this Regulation, without specific permission from the supplier of such information. 3. The supplier of information may request to treat information submitted as confidential. The request for confidentiality shall be accompanied by a non-confidential summary of the information or a statement of the reasons why the information cannot be summarised. 4. If a request for confidentiality is not justified and if the supplier is unwilling either to make the information public or to authorise its disclosure in generalised or summary form, the information in question may be disregarded. 5. Paragraphs 1 to 4 shall not preclude the disclosure of general information by the Union authorities. Such disclosure must take into account the legitimate interest of the parties concerned in not having their business secrets divulged.Article 15 deleted Confidentiality
2021/10/18
Committee: INTA
Amendment 524 #
Proposal for a regulation
Article 16 – paragraph 1
By 31 December 2018 and at leasTwo years after the date of entry into force of this Regulation and at every threewo years thereafter , the Commission shall submit a report to the European Parliament and the Council on the application of this Regulation and on progress made in international negotiations regarding access for Union economic operators to public contract or concession award procedures inprocurement and concession markets in of third countries undertaken under this Regulation. To this effect, Member States shall upon request provide the Commission with appropriate information on the application of measures under this Regulation, including as regards the number of procurement procedures at central and sub-central level in which a given IPI measure was applied, the number of tenders received from third countries subject to that IPI measure. The report shall be made public.
2021/10/18
Committee: INTA
Amendment 527 #
Proposal for a regulation
Article 17
Amendment of Directive 2014/25/EU Articles 85 and 86 of Directive 2014/25/EU shall be deleted with effect from the entry into force of this Regulation.rticle 17 deleted
2021/10/18
Committee: INTA
Amendment 530 #
Proposal for a regulation
Article 17 a (new)
Article 17a Evaluation and Review No later than three years after the date of entry into force of this Regulation, and every five years thereafter, the Commission shall evaluate and review the scope, functioning and efficiency of this Regulation, with special consideration being given to the thresholds referred to in Article 8a paragraph 3 and with a view to aligning them with the EU procurement Directives, the score adjustment referred to in Article 2 paragraph 1(ac), the exceptions referred to in article 12, and shall report its findings to the European Parliament and the Council. Where the report recommends amendments to this Regulation, it may be accompanied by an appropriate legislative proposal.
2021/10/18
Committee: INTA