21 Amendments of Lara COMI related to 2011/0437(COD)
Amendment 247 #
Proposal for a directive
Recital 1
Recital 1
(1) The absence of clear rules at Union level governing the award of concession contracts gives rise to legal uncertainty and to obstacles to the free provision of services and causes distortions in the functioning of the Internal Market. As a result, economic operators, in particular Ssmall and Mmedium E-sized enterprises (SMEs), are being deprived of their rights within the Internal Market and miss out on important business opportunities, while public authorities may not find the best use of public money so that EU citizens benefit from quality services at best prices. An adequate legal framework for the award of concessions would ensure effective and non-discriminatory access to the market to all Union economic operators and legal certainty, favouring public investments in infrastructures and strategic services to the citizen. A general principle should be established at European level whereby the award of concessions would be open to SMEs so as to improve their access opportunities on the concession market.
Amendment 287 #
Proposal for a directive
Recital 8
Recital 8
(8) Where sector -specific regulation provides for a guarantee not less than 50% of the value of the contract to the concessionaire on breaking even on investments and costs incurred for operating the contract, such a contract should not qualify as a concession within the meaning of this Directive.
Amendment 307 #
Proposal for a directive
Recital 13
Recital 13
(13) It is appropriate to exclude from the scope of this Directive certain services concessions awarded to an economic operator which is itself a contracting authority or a contracting entity on the basis of an exclusive right which that operator enjoys under published national law or an administrative act, as in the case of public-domain maritime concessions for recreational tourist purposes, and which has been granted in accordance with the Treaty and Union sectoral legislation concerning the management of networks infrastructure related to the activities set out in aAnnex III, since such an exclusive right makes it impossible to follow a competitive procedure for the award. By way of derogation and without prejudice to the legal consequences of the general exclusion from the scope of this Directive, concessions as defined in aArticle 8(1) should be subject to the obligation to publish a concession award notice in view of ensuring basic transparency unless the conditions of such transparency are provided for in sectoral legislation.
Amendment 324 #
Proposal for a directive
Recital 19
Recital 19
(19) In view of the detrimental effects on competition, awarding concessions without prior publication should only be permitted in very exceptional circumstances. This exception should be limited to cases where it is clear from the outset that a publication would not trigger more competition, notably because there is objectively only one economic operator who can perform the concession, as is the case with owners of seaside businesses set up on property under concession. Only situations of objective exclusivity can justify the award of a concession without publication to an economic operator, where the situation of exclusivity has not been created by the contracting authority or contracting entity itself in view of the future award procedure, and where there are no adequate substitutes, the availability of which should be assessed thoroughly.
Amendment 373 #
Proposal for a directive
Recital 37 a (new)
Recital 37 a (new)
(37a) In keeping with the case law of the Court of Justice of the European Union, this Directive should apply to concessions awarded after its entry into force.
Amendment 393 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. This Directive shall apply to concessions awarded after its entry into force.
Amendment 435 #
Proposal for a directive
Article 2 – paragraph 2 – subparagraph 2 – point b
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 users, including contracting authorities.
Amendment 436 #
Proposal for a directive
Article 2 – paragraph 2 – subparagraph 2 a (new)
Article 2 – paragraph 2 – subparagraph 2 a (new)
The substantial operating risk shall be determined taking into account the Eurostat criteria required in order to establish whether the investment should be entered in the budget of the public authority or of the private operator in such a way as to trigger an excessive deficit procedure.
Amendment 466 #
Proposal for a directive
Article 6 – paragraph 5
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 that are made available to the contractor by the contracting authorities or entities provided that they are necessary for executing the works. In the case of public- domain concessions for the provision of services to the public, the threshold shall be estimated and calculated on an annual basis.
Amendment 485 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. This Directive shall not apply to services concessions awarded by a contracting authority or by a contracting entity to an economic operator which is a contracting entity or an association of thereof, on the basis of an special or exclusive right that economic operator enjoys pursuant to applicable and published national law, regulations or administrative provisions, and which has been granted in accordance with the Treaty and Union sectoral legislation concerning the management of networks infrastructure related to the activities set out in aAnnex III. This Directive shall not apply where the service under concession has already been made subject to sector-specific legislation.
Amendment 681 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
The duration of the concession shall be limited to the time estimated to be necessary for the concessionaire to recoup the initial and later investments made in operating the works or services together with a reasonable return on invested capital.
Amendment 718 #
Proposal for a directive
Article 22 – paragraph 2 a (new)
Article 22 – paragraph 2 a (new)
2a. Concession award procedures must include arrangements for the participation and involvement of small and medium-sized enterprises.
Amendment 748 #
Proposal for a directive
Article 26 – paragraph 5 – subparagraph 1 – point c a (new)
Article 26 – paragraph 5 – subparagraph 1 – point c a (new)
(ca) where the public property under concession has been assigned for the provision of seaside tourism services on the initiative and at the request of an economic operator and become a prerequisite for the operator’s business to the extent that, were the operator to lose the concession, it would forfeit the right of ownership of the business.
Amendment 866 #
Proposal for a directive
Article 39 – paragraph 4 – introductory part
Article 39 – paragraph 4 – introductory part
4. Member States mayshall provide that contracting authorities and contracting entities shall base the award of concessions on the criterion of the most economically advantageous tender, in compliance with paragraph 2. Those criteria may include, in addition to price or costs, any of the following criteria
Amendment 873 #
Proposal for a directive
Article 39 – paragraph 4 – point d a (new)
Article 39 – paragraph 4 – point d a (new)
(da) safety and the technical and financial capacity of the bidder.
Amendment 887 #
Proposal for a directive
Article 41 – paragraph 1
Article 41 – paragraph 1
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 subcontractor. The list of subcontractors shall be updated during the life of the concession contract to take account of substitutions or changes.
Amendment 895 #
Proposal for a directive
Article 42 – title
Article 42 – title
Modification of concessions during their termawarded after the entry into force of this Directive
Amendment 897 #
Proposal for a directive
Article 42 – paragraph 1
Article 42 – paragraph 1
1. A substantial modification of the provisions of a concession during its termduring the term of a concession awarded after the entry into force of this Directive 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.
Amendment 910 #
Proposal for a directive
Article 42 – paragraph 4
Article 42 – paragraph 4
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/or where it is below 520% 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.
Amendment 914 #
Proposal for a directive
Article 42 – paragraph 5
Article 42 – paragraph 5
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 and made pursuant to the law. 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.
Amendment 925 #
Proposal for a directive
Article 43 – paragraph 1 – point c
Article 43 – paragraph 1 – point c