BETA

40 Amendments of Jolanta Emilia HIBNER related to 2011/0437(COD)

Amendment 57 #
Proposal for a directive
Article 1 – paragraph 1
1. This Directive establishes rules on the procedures for procurement by contracting authorities and by contracting entities with respect to concessions whose value is estimated to be not less than the thresholds laid down in Article 5.(Does not affect English version.)
2012/09/25
Committee: ITRE
Amendment 59 #
Proposal for a directive
Article 2 – paragraph 1 – point 7
(7) 'services concession' means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities or contracting entities and having as their object the provision of services other than those referred to in points 2 and 4e execution of works within the meaning of point 5 where the consideration for the services to be provided consists either solely in the right to exploit the services that are subject of the contract or in that right together with payment.
2012/09/25
Committee: ITRE
Amendment 60 #
Proposal for a directive
Article 2 – paragraph 1 – point 8
(8) 'candidate’ means an economic operator that has sought an invitation or has been invited to take part in a concession award procedure ;
2012/09/25
Committee: ITRE
Amendment 61 #
Proposal for a directive
Article 2 – paragraph 2 – subparagraph 1
The right to exploit the works or services as referred to in points 2, 4 and 7 of the first paragraphaward of a concession shall impliy the transfer to the concessionaire of the substantial operating risk. The concessionaire shall be deemed to assume the substantial operating risk where it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject-matter of the concession.
2012/09/25
Committee: ITRE
Amendment 63 #
Proposal for a directive
Article 2 – paragraph 2 – subparagraph 2 – introductory part
That economic risk may, in particular, consist in either of the following:
2012/09/25
Committee: ITRE
Amendment 64 #
Proposal for a directive
Article 2 – paragraph 2 – subparagraph 2 – point b
(b) the risk related to the availability of the infrastructure provided by the concessionaire or used for the provision of services to userof insolvency of the users of the services or construction works.
2012/09/25
Committee: ITRE
Amendment 69 #
Proposal for a directive
Article 5 – paragraph 2
2. Services concessions the value of which is equal to or greater than EUR 2 54 000 000 but lower than EUR 5 000 000 other than social services and other specific services shall be subject to the obligation to publish a concession award notice in accordance with Articles 27 and 28.
2012/09/25
Committee: ITRE
Amendment 71 #
Proposal for a directive
Article 6 – paragraph 1
1. The cvalculation of the estimated value of a concession shall be based on the total amount payable, net of VAT, as estimated by the contracting authority or the contracting entity, including any form of option and any extension of the duration of the concessionue of concessions shall include both the estimated revenue to be received from third parties and the amounts to be paid by the contracting authority or the contracting entity.
2012/09/25
Committee: ITRE
Amendment 72 #
Proposal for a directive
Article 6 – paragraph 2 – subparagraph 1
The calculation of the estimated value of a concession shall be calculated as the value of an entirety of works or services, even if purchased through different contracts, where the contracts are part of one single project. Indications for the existence of one single project consist in overall prior planning and conceptionbased on the total amount payable, net of VAT, as estimated by the contracting authority or the contracting entity, the fact that the different elements purchased fulfil a single economic and technical function or that they are otherwise logically interlinkedincluding any form of option and any extension of the duration of the concession.
2012/09/25
Committee: ITRE
Amendment 73 #
Proposal for a directive
Article 6 – paragraph 3
3. The choice of the method used to calculate the estimated value of a concession shall not be made with the intention of excluding it from the scope of this Directive. A works project or an entirety of services shall not be subdivided with the effect of preventing it from falling within the scope of this Directive, unless justified by objective reasestimated value of a concession shall be calculated as the value of an entirety of works or services, even if purchased through different contracts, where the contracts are part of one single project. Indications for the existence of one single project consist in overall prior planning and conception by the contracting authority or contracting entity, the fact that the different elements purchased fulfil a single economic and technical function or that they are otherwise logically interlinked. Where the contracting authority or the contracting entity provides for prizes or payments to candidates or tenderers it shall take them into account when calculating the estimated value of the concessions.
2012/09/25
Committee: ITRE
Amendment 74 #
Proposal for a directive
Article 6 – paragraph 4
4. This estimate shall be valid e choice of the method used to calculate the moment at which the concession notice is sent, or, in cases where such notice is not foreseen, at the moment at which the contracting authority or the contractingestimated value of a concession shall not be made with the intention of excluding it from the scope of this Directive. A works project or an entirety commences the concession award procedure, in particular by defining the essential characteristics of the intended concessiof services shall not be subdivided with the effect of preventing it from falling within the scope of this Directive, unless justified by objective reasons.
2012/09/25
Committee: ITRE
Amendment 75 #
Proposal for a directive
Article 6 – paragraph 5
5. With regard to public works concessions and works concessions, calculation of the estimated value shall take account of both the cost of the works and the total estimated value of the supplies and services thThis estimate shall be valid at the moment at which the concession notice is sent, or, in cases where such notice is not foreseen, at arthe made available to the contractor by the contracting authorities or entities provided that they are necessary for executing the worksoment at which the contracting authority or the contracting entity commences the concession award procedure, in particular by defining the essential characteristics of the intended concession.
2012/09/25
Committee: ITRE
Amendment 77 #
Proposal for a directive
Article 6 – paragraph 6
6. Where a proposed work or purchase of services may result in concessions being awarded at the same time in the form of separatith regard to public works concessions and works concessions, calculation of the estimated value shall take account of both the cost of the works and the ltots, account shall be taken of the total estimated value of all such lotal estimated value of the supplies and services that are made available to the contractor by the contracting authorities or entities provided that they are necessary for executing the works.
2012/09/25
Committee: ITRE
Amendment 78 #
Proposal for a directive
Article 6 – paragraph 7
7. Where the aggregate value of the lots is equal to or exceeds the threshold laid down in Article 5, this Directive shall apply to the awarding of eaa proposed work or purchase of services may result in concessions being awarded at the same time in the form of separate lots, account shall be taken of the total estimated value of all such lots.
2012/09/25
Committee: ITRE
Amendment 79 #
Proposal for a directive
Article 6 – paragraph 8
8. Contracting authorities or contracting entities may award concessions for individual lots without applying the provisions on the award provided for under this Directive, providWhere the aggregate value of the lots is equal to or exceeds thate the estimated value net of VAT of the lot concerned is less than EUR 1 million. However, the aggregate value of the lots thus awarded without applying this Directive shall not exceed 20% of the aggregate value of all the lots into which the proposed work or the proposed purchase of services has been dividedreshold laid down in Article 5, this Directive shall apply to the awarding of each lot.
2012/09/25
Committee: ITRE
Amendment 80 #
Proposal for a directive
Article 6 – paragraph 9 – subparagraph 1
The value of services concessions shall be the estimated total value of services to beContracting authorities or contracting entities may award concessions for individual lots without applying the provisions on the award provided for under this Directive, provided bythat the concessionaire during the whole durationestimated value net of VAT of the lot concession, calculated in accordance with an objective methodology which shall be specified in the concession notice or in the concession documents. rned is less than EUR 1 million. However, the aggregate value of the lots thus awarded without applying this Directive shall not exceed 20% of the aggregate value of all the lots into which the proposed work or the proposed purchase of services has been divided.
2012/09/25
Committee: ITRE
Amendment 81 #
Proposal for a directive
Article 6 – paragraph 10
10. The value of services concessions shall include bothbe the estimated revenue to be received from third parties and total value of services to be provided by the concessionaire during the whole duration of the concession, calculated in accordance withe amounts to be paid by the contracting authorityn objective methodology which shall be specified in the concession notice or in the contracting entitycession documents.
2012/09/25
Committee: ITRE
Amendment 84 #
Proposal for a directive
Article 8 – paragraph 3 – subparagraph 1 – point d
(d) where the concessions are fully financed by an international organisation or international financing institution.deleted
2012/09/25
Committee: ITRE
Amendment 85 #
Proposal for a directive
Article 8 – paragraph 3 – subparagraph 3
For the purposes of point (d) of the first subparagraph, where a concession is co- financed for a considerable part by an international organisation or international financing institution the parties decide on applicable concession award procedures which shall be in conformity with the provisions of the Treaty on the Functioning of the European Union.deleted
2012/09/25
Committee: ITRE
Amendment 88 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point a
(a) the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon; however financial service concessions awarded at the same time as, before or after the contract of acquisition or rental, in whatever form, shall be subject to this Directive;deleted
2012/09/25
Committee: ITRE
Amendment 89 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point b
(b) the acquisition, development, production or co-production of programme material intended for broadcasting, defined as transmission and distribution using any form of electronic network, that are awarded by broadcasters, nor to concessions for broadcasting time, that are awarded to broadcasters;deleted
2012/09/25
Committee: ITRE
Amendment 90 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point c
(c) arbitration and conciliation services;deleted
2012/09/25
Committee: ITRE
Amendment 91 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point d
(d) financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council, central bank services and operations conducted with the European Financial Stability Facility (EFSF);deleted
2012/09/25
Committee: ITRE
Amendment 93 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point e
(e) employment contracts;deleted
2012/09/25
Committee: ITRE
Amendment 97 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 2
The broadcasting referred to in point (b) of the first paragraph shall include any transmission and distribution using any form of electronic network.deleted
2012/09/25
Committee: ITRE
Amendment 98 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point b
(b) at least 90%The bulk of the activities of that legal person are carried out for the controlling contracting authority or entity or for other legal persons controlled by that contracting authority or entity.
2012/09/25
Committee: ITRE
Amendment 110 #
Proposal for a directive
Article 15 – paragraph 4 – point c
(c) the participating contracting authorities or entities shall do not perform on the open market more than 10% in terms of turnover of the activities which are relevant in the context of the agreement;deleted
2012/09/25
Committee: ITRE
Amendment 117 #
Proposal for a directive
Article 18 – title
Mixed concessiontracts
2012/09/25
Committee: ITRE
Amendment 118 #
Proposal for a directive
Article 18 – paragraph 1
1. Contracts which have as their object both services and supplies shall be awarded in accordance with this DirectiveThis Directive shall apply with regard to contracts for both services and supplies where the main object of the contract in question are services and where they are concessions within the meaning of point (1) of the first paragraph of Article 2.
2012/09/25
Committee: ITRE
Amendment 119 #
Proposal for a directive
Article 18 – paragraph 3
3. In the case of mixed contracts referred to in paragraphs 1 and 2, the main object shall be determined by a comparison of the values of the respective services or supplies.(Does not affect English version.)
2012/09/25
Committee: ITRE
Amendment 120 #
Proposal for a directive
Article 18 – paragraph 4
4. Where contracts have as their object concessions covered by this Directive as well as procurement or other elements not covered by it nor by Directives [replacing 2004/17/EC and Directive 2004/18] or 2009/81/EC, the part of the contract which constitutes a concession covered by this Directive shall be awarded in accordance with this Directive. However, when the different parts of the contract are objectively not separable, the application of this Directive shall be determined on the basis of the main subject of that contract.(Does not affect English version.)
2012/09/25
Committee: ITRE
Amendment 122 #
Proposal for a directive
Article 21
Article 21 Research and development services 1. This Directive shall apply to service concessions for research and development services with CPV reference numbers 73000000-2 to 73436000-7, except 73200000-4, 73210000-7 or 73220000-0, provided that the following conditions are both fulfilled: a) the benefits accrue exclusively to the contracting authority or contracting entity for use in the conduct of its own affairs, b) the service provided is wholly remunerated by the contracting authority or contracting entity 2. This Directive shall not apply to public service concessions for research and development services with CPV reference numbers 73000000-2 to 73436000-7, except 73200000-4, 73210000-7 or 73220000-0 where one of the above conditions is not met. 3. The Commission shall be empowered to adopt delegated acts in accordance with Article 46 concerning the reference numbers of this Article, whenever changes in the CPV nomenclature must be reflected in this Directive and they do not imply a modification of the scope of this Directive.deleted
2012/09/25
Committee: ITRE
Amendment 126 #
Proposal for a directive
Article 35 – paragraph 2
2. During the concession award, contracting authorities and contracting entities shall ensure the equal treatment of all tendereeconomic operators. In particular, they shall not provide information in a discriminatory manner which may give some tendereeconomic operators an advantage over others.
2012/09/25
Committee: ITRE
Amendment 127 #
Proposal for a directive
Article 35 – paragraph 3
3. Whenever the contracting authority or contracting entity limits the number of applicanteconomic operators to an appropriate level, this shall be done in a transparent manner and on the basis of objective criteria which are available to all interested economic operators.
2012/09/25
Committee: ITRE
Amendment 129 #
Proposal for a directive
Article 37 – paragraph 1
1. When fixing the time limits for the submission of applications for the concession and submission of tenders, contracting authorities or contracting entities shall take account in particular of the complexity of the concession and the time required for drawing up tenders, without prejudice to the minimum time limits set out in Article 378.
2012/09/25
Committee: ITRE
Amendment 130 #
Proposal for a directive
Article 37 – paragraph 2
2. Where applications or tenders can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the concession award documents, the time limits for the submission of applications for the concession shall be extended so that all economic operators concerned may be aware of all the information needed to produce applications or tenders.deleted
2012/09/25
Committee: ITRE
Amendment 131 #
Proposal for a directive
Article 38 – paragraph 2
2. The time limit for receipt of tenders may be reduced by five days where the contracting entity accepts that tenders may be submitted by electronic means in conformity with Article 25.(Does not affect English version.)
2012/09/25
Committee: ITRE
Amendment 138 #
Proposal for a directive
Article 41
Article 41 Subcontracting 1. In the concession documents, the contracting authority or contracting entity may ask or may be required by a Member State to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors. 2. Paragraph 1 shall be without prejudice to the question of the principal economic operator’s liability.deleted
2012/09/25
Committee: ITRE
Amendment 140 #
Proposal for a directive
Article 42
Article 42 Modification of concessions during their term 1. A substantial modification of the provisions of a concession during its term shall be considered as a new award for the purposes of this Directive and shall require a new concession award procedure in accordance with this Directive. 2. A modification of a concession during its term shall be considered substantial within the meaning of paragraph 1, where it renders the concession substantially different from the one initially concluded. In any case, without prejudice to paragraph 3 and 4, a modification shall be considered substantial where one of the following conditions is met: a) the modification introduces conditions which, had they been part of the initial concession award procedure, would have allowed for the selection of other applicants than those initially selected, or would have allowed for awarding the concession to another applicant or tenderer; b) the modification changes the economic balance of the concession in favour of the concessionaire or c) the modification extends the scope of the concession considerably to encompass supplies, services or works not initially covered. 3. The replacement of the concessionaire shall be considered a substantial modification within the meaning of paragraph 1. However, the first subparagraph shall not apply in the event of universal or partial succession into the position of the initial contractor, following corporate restructuring operations, insolvency or on the basis of a contractual clause of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the concession and is not aimed at circumventing the application of this Directive. 4. Where the value of a modification can be expressed in monetary terms, the modification shall not be considered to be substantial within the meaning of paragraph 1, where its value does not exceed the thresholds set out in Article 5 and where it is below 5 % of the price of the initial contract, provided that the modification does not alter the overall nature of the contract. Where several successive modifications are made, the value shall be assessed on the basis of the cumulative value of the successive modifications. 5. Concession modifications shall not be considered substantial within the meaning of paragraph 1, where they have been provided for in the concession documents in clear, precise and unequivocal review clauses or options. Such clauses shall state the scope and nature of possible modifications or options as well as the conditions under which they may be used. They shall not provide for modifications or options that would alter the overall nature of the concession. 6. By way of derogation from paragraph 1, a substantial modification shall not require a new concession award procedure where the following cumulative conditions are fulfilled: a) the need for modification has been brought about by circumstances which a diligent contracting authority or entity could not foresee b) the modification does not alter the overall nature of the concession c) in case of concessions awarded by contracting authorities where any increase in price is not higher than 50% of the value of the original concession. Contracting authorities or contracting entities shall publish in the Official Journal of the European Union a notice on such modifications. Such notices shall contain the information set out in Annex VII and be published in accordance with the provisions of Article 28. 7. Contracting authorities and contracting entities shall not have recourse to modifications of the concession in the following cases: a) where the modification would aim at remedying deficiencies in the performance of the concessionaire or the consequences thereof, which can be remedied through the enforcement of contractual obligations; b) where the modification would aim at compensating risks of price increases that are the result of price fluctuations that could substantially impact the performance of a contract and that have been hedged by the concessionaire.deleted
2012/09/25
Committee: ITRE
Amendment 142 #
Proposal for a directive
Article 43
Article 43 Termination of concessions Member States shall ensure that contracting authorities and contracting entities have the possibility, under the conditions determined by the applicable national contract law, to terminate a concession during its term, where one of the following conditions is fulfilled: a) the exceptions provided for in Article 15 cease to apply following a private participation in the legal person awarded the contract pursuant to Article 15 (4); b) a modification of the concession constitutes a new award within the meaning of Article 42; c) the Court of Justice of the European Union finds, in a procedure pursuant to Article 258 of the Treaty, that a Member State has failed to fulfil its obligations under the Treaties by the fact that a contracting authority or entity belonging to that Member State has awarded the concession in question without complying with its obligations under the Treaties and this Directive.deleted
2012/09/25
Committee: ITRE