Activities of Philippe JUVIN related to 2011/0437(COD)
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 (29)
Amendment 305 #
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 enjoysenjoys an exclusive right under published national law, regulation or administrative act and which has been granted in accordance with the Treaty and Union sectoral legislation, since such exclusive right makes it impossible to follow a competitive procedure for the award. The concessions referred to are those concerning the management of networks infrastructure related to the activities set out in aAnnex III, since such exclusive right makes it impossible to follow a competitive procedure for the awardor those concerning an activity set out in Annex III which, when this Directive is adopted, is the subject of a nationally regulated tariff laid down in law or regulation. By way of derogation and without prejudice to the legal consequences of the general exclusion from the scope of this Directive, concessions as defined concerning the management of network infrastructure related to the activities set out in Annex III, or those concerning article 8 (1)n activity set out in Annex III which, when this Directive is adopted, is the subject of a nationally regulated tariff, 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 311 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) It is appropriate to exclude from the scope of this Directive concessions relating to gambling activities involving a financial risk through investing a sum of money in games of chance (lotteries, betting), run at national level by a single body, which, in accordance with the Treaties, has been awarded exclusive rights by one or more Member States pursuant to applicable and published national laws, regulations or administrative provisions. That exclusion is justified by the granting of exclusive rights to a single body at national level, making a competitive procedure inapplicable, as well as by the need to retain the possibility for Member States to regulate the gambling sector at national level in view of their obligations in terms of protecting public and social order.
Amendment 314 #
Proposal for a directive
Recital 14
Recital 14
(14) It is appropriate to exclude certain service and works concessions awarded to an undertakings affiliated to contracting entities, with or without private participation, and having as itstheir principal activity the provision of such services or works to the group of which it isthey are part, rather than offering them on the market. It is also appropriate to exclude certain service and works concessions awarded by a contracting entity to a joint venture which is formed by a number of contracting entities for the purpose of carrying out activities covered by this Directive and of which that entity is part. However, it is appropriate to ensure that this exclusion does not give rise to distortions of competition to the benefit of the undertakings or joint ventures that are affiliated with the contracting entities; it is appropriate to provide a suitable set of rules, in particular as regards the maximum limits within which the undertakings may obtain a part of their turnover from the market and above which they would lose the possibility of being awarded concessions without calls for competition, the composition of joint ventures and the stability of links between those joint ventures and the contracting entities of which they are composed.
Amendment 336 #
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 to exclude 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 such as certain social, health 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 ofor any concession with a value equal to or greater than the 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 ensuringensure compliance with the principles of transparency and equal treatment of economic operators while allowing contracting authorities and contracting entitieswhile allowing the grantor to take into account the specificities of the services in question. Member States should ensure that contracting authorities and contracting entitiesthe grantor 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 innovationinnovation and, in accordance with Protocol 26 to the Treaty on the Functioning of the European Union, a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of users’ rights.
Amendment 340 #
Proposal for a directive
Recital 21 a (new)
Recital 21 a (new)
(21a) This Directive is without prejudice to the freedom of national, regional and local authorities, in compliance with the Treaties, to define services of general economic interest. It is also without prejudice to the power of national, regional and local authorities to provide, commission and finance services of general economic interest in accordance with Article 14 of the Treaty on the Functioning of the European Union and Protocol 26 annexed to that Treaty.
Amendment 345 #
Proposal for a directive
Recital 22 a (new)
Recital 22 a (new)
(22a) The procedure for awarding concession contracts should comprise several stages, including the publication of a concession notice allowing the grantor wishing to award a concession to make known its intention; the presentation by interested economic operators of their application in response to that notice; verification of the conditions of participation for candidates; the submission of a tender by the candidates; the grantor's right to negotiate with the tenderer on the basis of objective award criteria; the decision on the award by the grantor of the concession contract to the concessionaire and the publication of an award notice. Intermediate stages must be possible, including the selection of certain candidates authorised to submit a tender and the sending of an invitation to tender to the candidates thus selected. The grantor should also be able to approach economic operators who have not responded to the concession notice. In addition, and subject to compliance with the principles of transparency and non- discrimination, it must be possible to reverse the order of certain stages, including, for example, analysing submitted tenders before verifying compliance with the selection criteria. Subject to compliance with the provisions of this Directive, the grantor should be allowed considerable flexibility to define the procedure leading to the choice of concessionaire, the only two mandatory stages being the publication of a concession notice at the beginning of the procedure, except where this is not required under this Directive, and the publication of an award notice at the end of the procedure. This freedom should be balanced against a requirement for transparency and equal treatment of candidates and tenderers.
Amendment 363 #
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. Furthermore, contracting authorities and contracting entitieFurthermore, grantors 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 contractgrantor, or where an economic operator, or its parent company, are established ing au thority or contracting entityird country which, in the award of concession contracts, applies restrictive measures against economic operators established in the European Union, where such measures lead to serious and persistent discrimination against economic operators established in the European Union.
Amendment 366 #
Proposal for a directive
Recital 34
Recital 34
(34) It is necessary to clarify the conditions under which modifications of a concession during its execution require a new award procedure, taking into account the relevant case-law of the Court of Justice of the European Union. Any concession in progress may be modified by means of a supplementary agreement, subject to the provisions of this Directive. A new award procedure is required in, however, in the case of material changes to the initial concession, demonstrating the intention of the parties to renegotiate essential terms or conditions of that concession. This is notably the case if the amended conditions would have had an influence on the outcome of the procedure, had they been part of the initial procedure. An exceptional and temporary extension of the term of the concession strictly aimed at ensuring the continuity of the provision of the service pending the award of a new concession should not normally qualify as a material change to the initial concession.
Amendment 368 #
Proposal for a directive
Recital 34
Recital 34
(34) It is necessary to clarify the conditions under which modifications of a concession during its execution require a new award procedure, taking into account the relevant case-law of the Court of Justice of the European Union. Any concession in force may be modified by means of a supplementary agreement. A new award procedure is required in, however, in the case of material changes to the initial concession, demonstrating the intention of the parties to renegotiate essential terms or conditions of that concession. This is notably the case if the amended conditions would have had an influence on the outcome of the procedure, had they been part of the initial procedure. An exceptional and temporary extension of the term of the concession strictly aimed at ensuring the continuity of the provision of the service pending the award of a new concession should not normally qualify as a material change to the initial concession. Nevertheless, where a contract has reached its term the grantor and the concessionaire shall refrain from extensions for purposes of investments not essential to the performance of the concession and which would be implemented solely with a view to extending the duration thereof.
Amendment 403 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) a 'public (a) a 'works concession' means a contract for pecuniary interest concluded in writing between one or more economic operators any means of which one or more contracting authorities or entities awards the execution of works to one or more economic operators, where the consideration for that award cone or more contracting authorities and having as their object the executisists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment; (b) a ‘services concession’ means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or entities award the management of a service to one of wr more economic operatorks, where the consideration for the the works to be carried out consists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment. at award consists either solely in the right to exploit the service that is the subject of the contract or in that right together with payment; The right to exploit the works or services referred to in points (a) and (b) of this paragraph shall imply the transfer to the concessionaire of the substantial economic risk in exploiting these works or services, defined as the risk of exposure to the vagaries of the market. The concessionaire shall be deemed to assume the substantial operating risk where, under normal conditions of exploitation, it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject of the concession.
Amendment 455 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
1. The calculation 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 concessionits aggregate turnover net of tax, over the duration of the contract, as estimated by the grantor, to which shall be added any public investment subsidies received by the concessionaire. This estimate shall be valid at the moment the concession notice is sent or, in cases where such notice is not provided for, at the moment the grantor commences the concession award procedure. Where the value is modified following negotiations during the award procedure, the valid estimate shall be that indicated when the contract is signed.
Amendment 486 #
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 thereofconcerning the management of network infrastructure related to the activities set out in Annex III or to services concessions for an activity set out in Annex III which, when this Directive is adopted, are the subject of a nationally regulated tariff laid down in law or regulation where such concessions are awarded to an economic operator, on the basis of an exclusive right that economic operatothe latter enjoys pursuant to applicable and published national law, regulation or administrative provision, and which has been granted in accordance with the Treaty and in application of Union sectoral legislation concerning the management of networks infrastructure related to the activities set out in annex III. . By way of derogation from the first subparagraph, where sectoral legislation referred to in the first subparagraph does not provide for sector-specific transparency obligations, the requirements of Article 27 (1) and (3) shall apply.
Amendment 510 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point c a (new)
Article 8 – paragraph 5 – subparagraph 1 – point c a (new)
(ca) gambling activities involving a financial risk through investing a sum of money in games of chance (lotteries, betting), run at national level by a single body, which, in accordance with the Treaties, has been awarded exclusive rights by one or more Member States pursuant to applicable and published national laws, regulations or administrative provisions;
Amendment 684 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. The duration of the concessions shall be limited to the time estimated to be necessary for the concessionaire to recoup the investments made in operating the works or services toge. The grantor shall estimate the duration on the basis of the works or services requested. When the cost of investments must be met by the concessionaire, the duration of a concession shall reflect the nature and amount of the investments involved and may not, under these circumstances, exceed the normal amortisation period. If the concessionaire is not required to make investments, the duration of the concession shall reflect the amount of time deemed necessary to meet the objectives set in the contract, in particular as regards the provision of the service in question. 2. The normal amortisation period shall correspond to the time that concessionaires could reasonably be expected to take to recoup their withinvestment costs and secure a reasonable return on invested capital.
Amendment 754 #
Proposal for a directive
Article 26 – paragraph 6 – subparagraph 1 – introductory part
Article 26 – paragraph 6 – subparagraph 1 – introductory part
For the purposes of point (a) of the first subparagraph 5(a), a tender shall be considered not to be suitable where: it is completely irrelevant to the concession, being incapable of meeting the grantor's needs as specified in the concession documents.
Amendment 755 #
Proposal for a directive
Article 26 – paragraph 6 – subparagraph 1 – indent 1
Article 26 – paragraph 6 – subparagraph 1 – indent 1
Amendment 756 #
Proposal for a directive
Article 26 – paragraph 6 – subparagraph 1 – indent 2
Article 26 – paragraph 6 – subparagraph 1 – indent 2
Amendment 757 #
Proposal for a directive
Article 26 – paragraph 6 – subparagraph 2
Article 26 – paragraph 6 – subparagraph 2
Amendment 758 #
Proposal for a directive
Article 26 – paragraph 6 – subparagraph 3
Article 26 – paragraph 6 – subparagraph 3
Amendment 791 #
Proposal for a directive
Article 36 – title
Article 36 – title
Selection of and qualitative assessment of candidates and tenderers and grounds for exclusion
Amendment 792 #
Proposal for a directive
Article 36 – paragraph -1 (new)
Article 36 – paragraph -1 (new)
-1. The grantor shall provide: (a) in the concession notice, a description of the concession and of the conditions of participation; (b) in the concession notice, in the invitation to submit a tender or in the concession documents, a description of the award criteria.
Amendment 809 #
Proposal for a directive
Article 36 – paragraph 3 a (new)
Article 36 – paragraph 3 a (new)
3a. The grantor may limit the number of candidates or tenderers to an appropriate level, on condition that this is done in a transparent manner and on the basis of objective criteria. The number of candidates or tenderers invited must be sufficient to ensure genuine competition.
Amendment 810 #
Proposal for a directive
Article 36 – paragraph 3 b (new)
Article 36 – paragraph 3 b (new)
3b. In accordance with Article 38a, the grantor may hold negotiations with candidates and tenderers. It shall provide for appropriate recording of the main stages of the procedure using the means it judges appropriate, subject to compliance with Article 24(1) of this Directive.
Amendment 839 #
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) the economic operator or its parent company are established in a third country which, in the award of concession contracts, applies restrictive measures against economic operators established in the European Union, where such measures lead to serious and persistent discrimination against economic operators established in the European Union.
Amendment 904 #
Proposal for a directive
Article 42 – paragraph 2 a (new)
Article 42 – paragraph 2 a (new)
2a. Provided the overall nature of the concession remains the same, modification of the concession shall not be considered substantial where: (a) the modification has been provided for in the original concession contract in clear, precise and unequivocal review clauses or options which state the scope and nature of possible modifications as well as the conditions under which they may be used; or (b) the value thereof does not exceed the threshold laid down in Article 6 and is below 5% of the updated value of the original contract. Where several successive modifications are made, the value shall be assessed on the basis of the updated cumulative value of the successive modifications.
Amendment 908 #
Proposal for a directive
Article 42 – paragraph 4
Article 42 – paragraph 4
Amendment 920 #
Proposal for a directive
Article 42 – paragraph 6 – subparagraph 1 – point c
Article 42 – paragraph 6 – subparagraph 1 – point c
(fc) in case of concessions awarded by contracting authorities where any increase in price is not higher than 50% of thethe value of the intended modification does not exceed 50% of the updated initial value of the original concession.;
Amendment 939 #
Proposal for a directive
Article 50 – paragraph 1
Article 50 – paragraph 1
1. References to paragraph 3(a) and (b) of Article 1 of Directive 2004/17/EC and paragraphs 3 and 4 of Article 1 and Title III of Directive 2004/18/EC Directive shall be construed as references to this Directive.
Amendment 941 #
Proposal for a directive
Article 50 – paragraph 1 a (new)
Article 50 – paragraph 1 a (new)
2. Services concessions for the purpose of pursuing the activity referred to in paragraph 3 of Annex III which are presently operated by affiliated undertakings, as defined in Article 11, can be extended without the provisions of this Directive being applicable, provided that 100 % of the total turnover of the affiliated undertaking with respect to services concerning the activity referred to in paragraph 3 of Annex III for the preceding three years derives from the provision of services to undertakings with which it is affiliated. Such extensions may take place within 3 years from the date referred to in paragraph 1 of Article 49. The resulting contracts will be valid as long as the aforementioned conditions are met and will come to end, at the latest, 5 years after the date referred to in paragraph 1 of Article 49.