Activities of Thomas HÄNDEL related to 2011/0437(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on the award of concession contracts PDF (1 MB) DOC (2 MB)
Amendments (35)
Amendment 5 #
Proposal for a directive
Recital 5
Recital 5
Amendment 6 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Pursuant to Article 9 TFEU, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health when defining and implementing its policies and activities. The provisions of Articles 2, 3 and 4 as well as Article 14 TFEU and, in particular, Article 36 of the Charter of Fundamental Rights and Protocol 26 to the TFEU on services of general interest must be observed. This Directive contributes to attaining these objectives by encouraging the sustainable award of services concessions, the integration of social criteria in all stages of the procurement procedure and the respect of obligations relating to social and employment conditions, workplace health and safety, social security and working conditions as set out by EU and national laws, regulations or administrative provisions, arbitration awards, collective agreements and contracts, as well as the international labour law provisions listed in Annex XI, that apply in the place where the work, service or supply is performed; these obligations shall also apply in cross- border situations, where workers from one Member State provide services in another Member State.
Amendment 7 #
Proposal for a directive
Recital 5 b (new)
Recital 5 b (new)
Amendment 8 #
Proposal for a directive
Recital 6
Recital 6
(6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services areis subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or licences whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies to certain agreements having as their object the right of an economic operatorwhereby the State or contracting authority or entity grants an economic operator, for remuneration, the right to exploit certain public domains or resources, (such as tenancy or land lease contracts whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or servicesfor land at maritime and inland ports) and in which, as a rule, only general conditions for their use are established without the contracting authority becoming the recipient of specific services performed by the contract partner.
Amendment 10 #
Proposal for a directive
Recital 7
Recital 7
(7) Difficulties related to the interpretation of the concepts of concession and public contract have been source of continued legal uncertainty among stakeholders and have given rise to numerous judgments of the Court of Justice of the European Union on this subject. Therefore, the definition of concession should be clarified, in particular by referring to the concept of substantial share of operating risk. The main feature of a concession, the right to exploit the works or services, always implies the transfer to the concessionaire of an economic risk involving the possibility that it will not recoup the investments made and the costs incurred in operating the works or services awarded. The application of specific rules governing the award of concessions would not be justified if the contracting authority or entity relieved the contractor of any potential loss, by guaranteeing a minimal revenue, equal or higher to the costs that the contractor has to incur in relation with the performance of the contract. At the same time it should be made clear that certain arrangements which are fully paid by a contracting authority or a contracting entity should qualify as concessions where the recoupement of the investements and costs incurred by the operator for execution the work or provididng the service depends on the actual demand for or the availability of the service or asset.
Amendment 11 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) In accordance with Article 14 TFEU in association with Protocol 26 thereto, national, regional and local authorities shall have wide discretion in deciding whether to award contracts for services of general interest.
Amendment 12 #
Proposal for a directive
Recital 20
Recital 20
Amendment 14 #
Proposal for a directive
Recital 21
Recital 21
(21) In the light of the results of the evaluation conducted by the Commission on the reform of public procurement rules it is appropriate toThose services of general interest that address people’s basic needs shall be excluded from the full application of this Directive only those services which have a limited cross-border dimension, namely the so-called services to the person: for example, municipal water supply and wastewater disposal services, refuse handling services and services such as certain social, health, cultural and educational services. These services are provided within a particular context that varies widely amongst Member States, due to different cultural traditions. A specific regime should therefore be established for concession for these services which takes into account the fact that they are newly regulated. An obligation to publish a prior information notice and a concession award notice of any concession with a value equal to or greater than thresholds established in this Directive is an adequate way to provide information on business opportunities to potential tenderers as well as on the number and type of contracts awarded to all interested parties. Furthermore, Member States should put in place appropriate measures with reference to the award of concession contracts for these services aimed at ensuring compliance with the principles of transparency and equal treatment of economic operators while allowing contracting authorities and contracting entities to take into account the specificities of the services in question. Member States should ensure that contracting authorities and contracting entities may take into account the need to ensure quality, continuity, accessibility, availability and comprehensiveness of the services, the specific needs of different categories of users, the involvement and empowerment of users and innovation.
Amendment 18 #
Proposal for a directive
Recital 29
Recital 29
(29) In technical specifications and in award criteria, contracting authorities and contracting entities should be allowed to refer to a specific production process, a specific mode of provision of services, or a specific process for any other stage of the life cycle of a product or service, provided that they are linked to the subject-matter of the concession. In order to better integrate social considerations in the award of concessions, procurers may also be allowed to include, in the award criteria, characteristics related to the working conditions. However, where the contracting authorities or contracting entities use the most economically advantageous tender, such criteria may only relate to the working conditions of the persons directly participating in the process of production or provision in question. Those characteristics may only concern the protection of health of the staff involved in the production process or the favouring of social integration of disadvantaged persons or members of vulnerable groups amongst the persons assigned to performing the contract, including accessibility for persons with disabilities. In this case, any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff members in their working environment. They should be applied in accordance with Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services1 and in a way that does not discriminate directly or indirectly against economic operators from other Member States or from third countries parties to the Agreement or to Free Trade Agreements to which the Union is party, the protection of health or the favouring of social integration of disadvantaged persons or members of vulnerable groups amongst the persons assigned to performing the contract, including accessibility for persons with disabilities. Contracting authorities and contracting entities should, also where they use the criterion of the most economically advantageous tender, be allowed to use as an award criterion the organisation, qualification and experience of the staff assigned to performing the concession in question, as this may affect the quality of concession performance and, as a result, the economic value of the tender.
Amendment 21 #
Proposal for a directive
Recital 32
Recital 32
(32) The laws, regulations and representative collective agreements, at both national and European Unionall level,s which are in force in the areas of employment conditions and safety at work should apply during performance of a concession, providnationally, ing that such rules, and their application, comply with Union law. In cross-border situations, where workers from one Member State provide services in another Member State for the purpose of performing a concession, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services lays down the minimum conditions which must be observed by the host country in respect of such posted workerse European Union and internationally should apply during performance of a concession. The principle of equal pay for equal work in a comparable job shall apply.
Amendment 23 #
Proposal for a directive
Recital 32 a (new)
Recital 32 a (new)
(32a) If, when a concession is awarded, workers are taken over by the new concession holder from an authority, a public contracting body or the previous concession holder, the legal consequences of Directive 2001/23/EC in terms of safeguarding employment and working conditions shall apply in respect of the workers.
Amendment 24 #
Proposal for a directive
Recital 33
Recital 33
(33) Concessions should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption, fraud to the detriment of the Union’s financial interests or money laundering. Non-payment of taxes or social security contributions should also be sanctioned by mandatory exclusion at the level of the Union. In order to enable prosecutions for past breaches of the law and to provide, in future concessions, for the clear and transparent apportionment of responsibility between the principal economic operator and subcontractors, both the principal economic operator and the subcontractors should be independently as well as jointly and severally liable. Furthermore, contracting authorities and contracting entities should be given the possibility to exclude candidates or tenderers for serious violations of Union or national law aimed at the protection of public interests compatible with the Treaty or where the economic operator has shown significant or persistent deficiencies in the performance of a prior concession or concessions of a similar nature with the same contracting authority or contracting entity.
Amendment 25 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
This Directive shall not affect the right of authorities at every level to decide whether, how and to what extent they shall perform public functions themselves. Authorities may perform public tasks using their own resources without being compelled to award concessions to other (external) economic operators. They may also perform such tasks jointly with other authorities.
Amendment 30 #
Proposal for a directive
Article 2 – paragraph 2 – subparagraph 1
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 paragraph shall imply the transfer to the concessionaire of the substantial share of the operating risk. The concessionaire shall be deemed to assume the substantial share of the 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.
Amendment 31 #
Proposal for a directive
Article 2 – paragraph 2 – subparagraph 2 – introductory part
Article 2 – paragraph 2 – subparagraph 2 – introductory part
That economic risk may consist in either of the followe operating risk may, in particular, consist ing:
Amendment 33 #
Proposal for a directive
Article 2 – paragraph 2 – subparagraph 2 – point a
Article 2 – paragraph 2 – subparagraph 2 – point a
(a) the risk related to the use of the works or the demand for the provision of the service, including where such risk is substantially limited, for example by framework provisions under public law in a given Member State; or
Amendment 34 #
Proposal for a directive
Article 2 – paragraph 2 – subparagraph 2 – point b a (new)
Article 2 – paragraph 2 – subparagraph 2 – point b a (new)
(ba) Permits, authorisations or licences which merely stipulate the conditions for the exercise of an economic activity shall not be deemed concessions. The same applies to agreements between a contracting authority or entity concerning the right of an economic operator to exploit public domains or resources (simple tenancy or land lease contracts, for example) and in which, as a rule, only general conditions for their use are established without the contracting authority becoming the recipient of specific services performed by the contract partner.
Amendment 37 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point a
Article 8 – paragraph 5 – subparagraph 1 – point a
(a) the acquisition or rental, rental or leasing by the contracting authority or contracting entity, 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;
Amendment 39 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 2 a (new)
Article 8 – paragraph 5 – subparagraph 2 a (new)
This Directive shall not apply to service concessions relating to services of general economic interest and services of general interest, such as: (a) water services; (b) wastewater services; (c) refuse services; (d) energy services; (e) social services, on the basis of the voluntary European quality framework for social services adopted by the Social Protection Committee, in particular in the fields of health and social provision, statutory social insurance, emergency and disaster response services, benefit services and services furnished by trade unions.
Amendment 40 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
Amendment 42 #
Proposal for a directive
Article 17
Article 17
Amendment 54 #
Proposal for a directive
Article 34 – paragraph 2 (new)
Article 34 – paragraph 2 (new)
If, when a concession is awarded, workers are taken over by the new concession holder from an authority, a public contracting body or the previous concession holder, the legal consequences of Directive 2001/23/EC in terms of safeguarding employment and working conditions shall apply in respect of the workers.
Amendment 57 #
Proposal for a directive
Article 36 – paragraph 5 – subparagraph 1 – point e a (new)
Article 36 – paragraph 5 – subparagraph 1 – point e a (new)
(ea) repeated and/or serious breaches of employment, social security or environmental law, established by judgments having the force of res judicata.
Amendment 58 #
Proposal for a directive
Article 36 – paragraph 6
Article 36 – paragraph 6
6. Any economic operator shall be excluded from participation in a concession where the contracting authority or contracting entity is aware of a decision having the force of res judicata, or of a legally binding administrative decision, establishing that it has not fulfilled obligations relating to the payment of taxes or social security contributions in accordance with the legal provisions of the country in which it is established or with those of the Member State of the contracting authority or entity, or if such an operator has been the subject on more than one occasion of an unfavourable ruling or penalty under employment law.
Amendment 59 #
Proposal for a directive
Article 36 – paragraph 7 – subparagraph 1 – introductory part
Article 36 – paragraph 7 – subparagraph 1 – introductory part
Member States mayshall provide that contracting authorities or contracting entities exclude from participation in a concession award any economic operator if one of the following conditions is fulfilled:
Amendment 60 #
Proposal for a directive
Article 36 – paragraph 7 – subparagraph 1 – point c a (new)
Article 36 – paragraph 7 – subparagraph 1 – point c a (new)
(ca) breaches of social security, employment, tax or environmental law.
Amendment 61 #
Proposal for a directive
Article 36 – paragraph 9
Article 36 – paragraph 9
9. Member States shall specify the implementing conditions for this article. They shall make available to other Member States, upon request, any information related to the exclusion grounds listed in this Article. The competent authorities of the Member State of establishment shall provide this information in accordance with the provisions of Article 88 of Directive [replacing Directive 2004/18/EC]. The Member States and the Commission shall also develop a procedure for gathering information about breaches of the law and making it available to contracting entities.
Amendment 62 #
Proposal for a directive
Article 39 – paragraph 3
Article 39 – paragraph 3
Amendment 63 #
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 mayshall include, in addition to price or costs, any of the following criteria
Amendment 69 #
Proposal for a directive
Article 39 – paragraph 4 – point d a (new)
Article 39 – paragraph 4 – point d a (new)
(da) The contracting authorities or entities shall apply additional social and environmental criteria for the provision of the works and services, which shall be indicated in the notice of the concession. These shall include the employment conditions provided for under national, European Union and international laws and administrative provisions, representative wage agreements at all levels and arbitration awards. The principle of equal pay for equal work in a comparable job shall also apply.
Amendment 70 #
Proposal for a directive
Article 39 – paragraph 4 – point d b (new)
Article 39 – paragraph 4 – point d b (new)
(db) Further social and employment policy criteria may be included, such as the promotion of gender equality and the integration in the labour market of particularly disadvantaged groups including younger and older workers, young people and trainees, the long-term unemployed, people from a migration background and people with disabilities.
Amendment 75 #
Proposal for a directive
Article 41 – paragraph 2
Article 41 – paragraph 2
2. Paragraph 1 shall be without prejudice to the question of the principal economic operator’s liability and subcontractor liability.
Amendment 76 #
Proposal for a directive
Article 41 – paragraph 2 a (new)
Article 41 – paragraph 2 a (new)
2a. Without prejudice to liability in accordance with paragraph 2, the principal economic operator and the subcontractor(s) shall be jointly and severally liable.
Amendment 77 #
Proposal for a directive
Annex 3 – paragraph 1 – point 5
Annex 3 – paragraph 1 – point 5
5. Activities relating to the exploitation of a geographical area for the purpose of the provision of airports and maritime or inland ports or other terminal facilitiesgeneral infrastructure to carriers by air, sea or inland waterway.
Amendment 79 #
Proposal for a directive
Annex 10
Annex 10