38 Amendments of Lara COMI related to 2011/0439(COD)
Amendment 149 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) It is appropriate to exclude procurement relating to postal services and other services than postal services since that sector has systematically been shown to be subject to such competitive pressure as to render superfluous the application of European procurement rules.
Amendment 150 #
Proposal for a directive
Recital 12
Recital 12
(12) Even if they do not necessarily lead to corrupt conduct, actual, potential or perceived conflicts of interest have a high potential to improperly influence public procurement decisions with the effect of distorting competition and jeopardising equal treatment of tenderers. Effective mechanisms should therefore be set up to prevent, identify and remedy conflicts of interest. Given the differences in the decision-making processes of respectively contracting authorities and undertakings, it is appropriate to limit such provisions to procurement carried out by the former. Effective mechanisms should therefore be set up to prevent, identify and remedy conflicts of interest. Given the differences in the decision-making processes of respectively contracting authorities and undertakings, it is appropriate to limit such provisions to procurement carried out by the former.
Amendment 168 #
Proposal for a directive
Recital 22
Recital 22
(22) This Directive should apply neither to contracts intended to permit the performance of an activity referred to in Articles 5 to 11 nor to design contests organised for the pursuit of such an activity if, in the Member State in which this activity is carried out, it is directly exposed, in whole or in part, including as regards individual sectors or segments, to competition on markets to which access is not limited. It is therefore appropriate to maintain the procedure, applicable to all sectors covered by this Directive that will enable the effects of current or future opening up to competition to be taken into account. Such a procedure should provide legal certainty for the entities concerned, as well as an appropriate decision-making process, ensuring, within short time limits, uniform application of Union law in this area.
Amendment 170 #
Proposal for a directive
Recital 23
Recital 23
(23) Direct exposure to competition should be assessed on the basis of objective criteria, taking account of the specific characteristics of the sector, or part of the sector, concerned. This assessment is, however, limited by the applicable short deadlines and by having to be based on the information available to the Commission – either from already available sources or from the information obtained in the context of the application pursuant to Article 28 -– which can not be supplemented by more time consuming methods, including notably public inquiries of economic operators concerned. The assessment of direct exposure to competition that can be carried out in the context of this directive is consequently without prejudice to the full-fledged application of competition law.
Amendment 250 #
Proposal for a directive
Article 2 – point 4 – point a
Article 2 – point 4 – point a
(a) It is established for or has the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; for that purpose, a body which operates in normal market conditions, aims to make a profit, and bears the losses resulting from the exercise of its activitynd involves itself in economic activity, providing goods and services on the market, does not have the purpose of meeting needs in the general interest, not having an industrial or commercial character;
Amendment 254 #
Proposal for a directive
Article 2 – point 4 – point c
Article 2 – point 4 – point c
(c) it is financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or has an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law; For the purposes of this Directive, the definition of a ‘public body’ does not include companies listed on the stock market or companies which they control directly or indirectly or with which they are directly or indirectly linked;
Amendment 258 #
Proposal for a directive
Article 2 – point 10
Article 2 – point 10
(10) "supply contracts" means contracts having as their object the purchase, lease, rental or hire-purchase, with or without an option to buy, of products, including via agencies. A supply contract may include, as an incidental matter, siting and installation operations;
Amendment 273 #
Proposal for a directive
Article 4 – paragraph 3 – point a
Article 4 – paragraph 3 – point a
(a) which are contracting authorities or public undertakings, except in the cases referred to in paragraph 4, and which pursue one of the activities referred to in Articles 5 to 11;
Amendment 274 #
Proposal for a directive
Article 4 – paragraph 3 a (new)
Article 4 – paragraph 3 a (new)
3a. This Directive shall not apply to public undertakings carrying on the activities referred to in articles 5 to 11 by virtue of rights granted in accordance with paragraph 2 of this article.
Amendment 286 #
Proposal for a directive
Article 8 a (new)
Article 8 a (new)
Article 8a Postal services This Directive shall not apply to public procurement whose main aim is to enable contracting authorities to ensure the provision of postal services and of other services than postal services. For the purposes of this article, the following definitions shall apply: (a) "postal services": means services consisting of the clearance, sorting, routing and delivery of postal items. This shall include both services falling within as well as services falling outside the scope of the universal service set up in conformity with Directive 97/67/EC; (b) "other services than postal services": means services provided in the following areas: (i) mail service management services (services both preceding and subsequent to despatch, including "mailroom management services"); (ii) added-value services linked to and provided entirely by electronic means (including the secure transmission of coded documents by electronic means, address management services and transmission of registered electronic mail); (iii) services concerning postal items not referred to in Article 10(2)(a) of this Directive such as direct mail bearing no address; (iv) financial services, as defined in the CPV under the reference numbers from 66100000-1 to 66720000-3 and in Article 19(c) and including in particular postal money orders and postal giro transfers; (v) philatelic services; (vi) logistics services (services combining physical delivery and/or warehousing with other non-postal functions).
Amendment 288 #
Proposal for a directive
Article 10
Article 10
Amendment 312 #
Proposal for a directive
Article 19 – paragraph 1 – point b bis (new)
Article 19 – paragraph 1 – point b bis (new)
(ba) legal services;
Amendment 432 #
Proposal for a directive
Article 27 – paragraph 1
Article 27 – paragraph 1
1. Contracts intended to enable an activity mentioned in Articles 5 to 11 to be carried out shall not be subject to this Directive if the Member State or the contracting entities having introduced the request pursuant to Article 28 can demonstrate that, in the Member State or relevant sectors or segments in which it is performed, the activity is directly exposed to competition on markets to which access is not restricted; nor shall design contests that are organised for the pursuit of such an activity in that geographic area be subject to this Directive. Such competition assessment, which will be made in the light of the information available to the Commission and for the purposes of this Directive, is without prejudice to the application of competition law.
Amendment 434 #
Proposal for a directive
Article 27 – paragraph 2 – subparagraph 1
Article 27 – paragraph 2 – subparagraph 1
2. For the purposes of paragraph 1, the question of whether an activity is directly exposed to competition requires that the relevant product market and the relevant geographic market be defined. The relevant product market shall be decided on the basis of criteria that are in conformity with the provisions on competition of the Treaty; those may include the characteristics of the goods or services concerned, the existence of alternative goods or services considered to be substitutable on the supply side or demand side, the prices and the actual or potential presence of more than one supplier of the goods or provider of the services in question. The relevant geographic market, on the basis of which exposure to competition is assessed, shall consist of the area in which the undertakings concerned are involved in the supply and demand of products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because, in particular, conditions of competition are appreciably different in those areas.. This assessment shall take account in particular of the nature and characteristics of the products or services concerned, of the existence of entry barriers or of consumer preferences, of appreciable differences of the undertakings' market shares between the area concerned and neighbouring areas or of substantial price differences.
Amendment 437 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 1
Article 28 – paragraph 1 – subparagraph 1
1. Where a Member State or, where the legislation of the Member State concerned provides for it, a contracting entity considers that, on the basis of the criteria set out in Article 27(2) and (3), a given activity is directly exposed, in whole or in part, including as regards individual sectors or segments, to competition on markets to which access is not restricted, it may submit a request to establish that this Directive does not apply to the award of contracts or the organisation of design contests for the pursuit of that activity, or the individual sector or segment thereof.
Amendment 439 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 2
Article 28 – paragraph 1 – subparagraph 2
Requests shall be accompanied by a reasoned and substantiated position adopted by an independent national authority that is competent in relation to the activity concerned, or the individual sector or segment thereof. This position shall thoroughly analyse the conditions for the possible applicability of Article 27(1) to the activity concerned in accordance with its paragraphs 2 and 3. Or.
Amendment 441 #
Proposal for a directive
Article 28 – paragraph 2 – subparagraph 1
Article 28 – paragraph 2 – subparagraph 1
Upon request submitted in accordance with paragraph 1 of this Article, the Commission may, by way of an implementing decision adopted within the periods set out in paragraph 4 of this Article, establish whether an activity referred to in Articles 5 to 11,or the individual sector or segment thereof, is directly exposed to competition on the basis of the criteria set out in Article 27. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 100(2).
Amendment 443 #
Proposal for a directive
Article 28 – paragraph 2 – subparagraph 2 – introductory part
Article 28 – paragraph 2 – subparagraph 2 – introductory part
Contracts intended to enable the activity concerned, or the individual sector or segment thereof, to be carried out and design contests that are organised for the pursuit of such an activity, or the individual sector or segment, shall cease to be subject to this Directive in any of the following cases:
Amendment 444 #
Proposal for a directive
Article 28 – paragraph 4
Article 28 – paragraph 4
4. Where an activity, or an individual sector or segment thereof, in a given Member State is already the subject of a procedure under paragraphs 1, 2 and 3, further requests concerning the same activity, or individual sector or segment thereof, in the same Member State before the expiry of the period opened in respect of the first request shall not be considered as new procedures and shall be treated in the context of the first request.
Amendment 468 #
Proposal for a directive
Article 36 – paragraph 1 – subparagraph 1
Article 36 – paragraph 1 – subparagraph 1
Member States shall, in respect of contracting authorities within the meaning of point 1 of Article 2, provide for rules to effectively prevent, identify and immediately remedy conflicts of interests arising in the conduct of procurement procedures that are subject to this Directive, including the design and preparation of the procedure, the drawing- up of the procurement documents, the selection of candidates and tenderers and the award of the contract, so as to avoid any distortion of competition and ensure equal treatment of all tenderers.
Amendment 474 #
Proposal for a directive
Article 36 – paragraph 1 – subparagraph 3
Article 36 – paragraph 1 – subparagraph 3
For the purposes of this Article, "private interests" means any family, emotional life, economic, or political or other shared interests with the candidates or the tenderers, including conflicting professional interests.
Amendment 478 #
Proposal for a directive
Article 36 – paragraph 3 – subparagraph 1 – point b
Article 36 – paragraph 3 – subparagraph 1 – point b
(b) that candidates and tenderers are required to submit, also in accordance with the code of ethics drawn up by the contracting entity, at the beginning of the procurement procedure a declaration on the existence of any privileged links with the persons referred to in paragraph 2(b), which are likely to place those persons in a situation of conflict of interests; the contracting authorentity shall indicate in the individual report referred to in Article 94 whether any candidate or tenderer has submitted a declaration.
Amendment 480 #
Proposal for a directive
Article 36 – paragraph 3 – subparagraph 2
Article 36 – paragraph 3 – subparagraph 2
In the event of a conflict of interests, the contracting authorentity shall take appropriate measures. Those measures may include the recusal of the staff member in question from involvement in the affected procurement procedure or the re- assignment of the staff member’s duties and responsibilities. Where a conflict of interests cannot be effectively remedied by other means, the candidate or tenderer concerned shall be excluded from the procedure.
Amendment 483 #
Proposal for a directive
Article 36 – paragraph 3 – subparagraph 3
Article 36 – paragraph 3 – subparagraph 3
Where privileged links are identified, the contracting authorentity shall immediately inform the oversight body designated in accordance with Article 93 and take appropriate measures to avoid any undue influence on the award process and ensure equal treatment of candidates and tenderers. If the conflict of interests cannot be effectively remedied by other means, the candidate or tenderer concerned shall be excluded from the procedure.
Amendment 539 #
Proposal for a directive
Article 45 – paragraph 1 – subparagraph 3
Article 45 – paragraph 1 – subparagraph 3
The term of a framework agreement shall not exceed four years, save in exceptional cases duly justified, in particular by the subject of the framework agreementunless, due to the specific nature of the subject of the agreement, a longer term needs to be established.
Amendment 564 #
Proposal for a directive
Article 47 – paragraph 1 – subparagraph 2 a (new)
Article 47 – paragraph 1 – subparagraph 2 a (new)
This article does not apply to public works contracts.
Amendment 566 #
Proposal for a directive
Article 48 – paragraph 1 – subparagraph 2
Article 48 – paragraph 1 – subparagraph 2
Member States may rendeprovide for the use of electronic catalogues mandatory in connection with certain types of procurementservice and supply contracts. This article does not apply to public works contracts.
Amendment 652 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 1
Article 59 – paragraph 1 – subparagraph 1
Contracts may be subdivided into homogenous or heterogeneous lots. For contracts the value of which is equal to or exceeds the thresholds laid down in Article 12, the contracting entity shall provide, in the contract notice or in the invitation to confirm interest, specific clarification of its reasons relating to the decision on whether or not to divide the contract into lots. Article 13(7) applies.
Amendment 670 #
Proposal for a directive
Article 65 – paragraph 3
Article 65 – paragraph 3
3. Calls for competition within the meaning of Article 39(2) shall be published in full in an official language of the Union as chosen by the contracting entity. That language version shall constitute the sole authentic text. A summary of the important elements of each notice shall be published in the at least one other official languages of the European Union, to be chosen by the contracting entity.
Amendment 676 #
Proposal for a directive
Article 69 – paragraph 2 – point d
Article 69 – paragraph 2 – point d
Amendment 713 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – point b
Article 76 – paragraph 1 – subparagraph 1 – point b
(b) the lowest costprice.
Amendment 779 #
Proposal for a directive
Article 79 – paragraph 1 – introductory part
Article 79 – paragraph 1 – introductory part
1. The contracting entity shall request economic operators to explain the price or costs charged, where allt least five tenders have been submitted and one of the following conditions areis fulfilled:
Amendment 782 #
Proposal for a directive
Article 79 – paragraph 1 – point a
Article 79 – paragraph 1 – point a
(a) the price or cost charged is more than 50% lower than the average price or costs of the remaining tenders;
Amendment 806 #
Proposal for a directive
Article 79 – paragraph 5 a (new)
Article 79 – paragraph 5 a (new)
5a. The contracting authorities shall automatically exclude any tenders which quote a price more than 50% lower than the mean price quoted in all the tenders submitted.
Amendment 820 #
Proposal for a directive
Article 80
Article 80
1. Contracting entities may lay down special conditions relating to the performance of a contract, provided that they are indicated in the call for competition or in the specifications. Those conditions may, in particular, concern social and environmental considerations. They may also include the requirement that economic operators foresee compensations for risks of price increases that are the result of price fluctuations (hedging) and that could substantially impact the performance of a contract2. Member States may provide for forms of compensation for economic operators in the event of price increases which are impossible to foresee when the tender is submitted.
Amendment 869 #
Proposal for a directive
Article 82 – paragraph 4
Article 82 – 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 12 andor, where it does exceed them, 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 986 #
Proposal for a directive
Annex 2 – paragraph 1 – point e a (new)
Annex 2 – paragraph 1 – point e a (new)
(ea) procedures for the award of railway infrastructure capacity, railway licences or safety certification as referred to in Directives 95/18/EC, 2011/14/EC and 2004/49/EC.
Amendment 988 #
Proposal for a directive
Annex 3 – point D – paragraph 1
Annex 3 – point D – paragraph 1
Rail Freight transport