47 Amendments of Philippe JUVIN related to 2011/0438(COD)
Amendment 211 #
Proposal for a directive
Recital 14
Recital 14
(14) There is considerable legal uncertainty as to how far cooperation between public authorities should be covered by public procurement rules. The relevant case-law of the Court of Justice of the European Union is interpreted divergently between Member States and even between contracting authorities. It is therefore necessary to clarify in what cases contracts concluded between contracting authorities are not subject to the application of public procurement rules. Such clarification should be guided by the principles set out in the relevant case-law of the Court of Justice. The sole fact that both parties to an agreement are themselves contracting authorities does not as such rule out the application of procurement rules. However, tThe application of public procurement rules shouldmust not interfere with the freedomright of public authorities to decide freely how to organise the way they carry out their public service tasks. Contracts awarded to controlled entities or cooperation for the joint execution of the public service tasks of the participating contracting authorities should therefore be exempted from the application of the rules if the conditions set out in this directive are fulfilled. This directive should aim to ensure that any exempted public-public cooperation does not cause a distortion of competition in relation to private economic operators. Neither should the participation of a contracting authority as a tenderer in a procedure for the award of a public contract cause any distortion of competition.
Amendment 216 #
Proposal for a directive
Recital 14 a (new)
Recital 14 a (new)
(14a) Cooperation between local public authorities, or between local public authorities and groups composed exclusively of local public authorities, with a view to jointly carrying out public service tasks in the public interest, as part of the internal organisation of Member States, should be exempted from the application of the rules laid down in this Directive. Similarly, transfers of powers relating to public service tasks involving a global transfer of responsibility between local public authorities, or between local public authorities and groups composed exclusively of local public authorities, as part of the internal organisation of Member States, should be exempted from the rules laid down in this Directive.
Amendment 233 #
Proposal for a directive
Recital 19
Recital 19
(19) Electronic means of information and communication can greatly simplify the publication of contracts and increase the efficiency and transparency of procurement processes under this directive. They should become the standard means of communication and information exchange in procurement procedures. The use of electronic means also leads to time savings. As a result, provision should be made for reducing the minimum periods where electronic means are used, subject, however, to the condition that they are compatible with the specific mode of transmission envisaged at Union level. Moreover, electronic means of information and communication including adequate functionalities can enable contracting authorities to prevent, detect and correct errors that occur during procurement procedures.
Amendment 241 #
Proposal for a directive
Recital 25
Recital 25
(25) Electronic means of communication are particularly well suited to support centralised purchasing practices and tools because of the possibility they offer to re- use and automatically process data and to minimise information and transaction costs. The use of such electronic means of communication should therefore, as a first step, be rendered compulsory for central purchasing bodies, while also facilitating converging practices across the Union. This should be followed by a general obligation to use electronic means of communication in all procurement procedures after a transition period of two years. So as to ensure continued legal certainty, these provisions shall not affect existing arrangements at national level for publishing information on public procurement contracts for amounts below the thresholds set in this directive.
Amendment 418 #
Proposal for a directive
Article 10 – paragraph 1 – point b
Article 10 – paragraph 1 – point b
(b) the acquisition, development, production or co-production of programme material and related preparatory services intended for audiovisual media services, that are awarded by broadcasters, or contracts for broadcasting time that are awarded to audiovisual media service providers; media services being defined as including all transmission and distribution using any form of electronic network;
Amendment 451 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
Amendment 457 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – point a
Article 11 – paragraph 1 – subparagraph 1 – point a
(a) the contracting authority exercises over the legal person concerned a control which is similarequivalent to that which it exercises over its own departments, i.e. it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person. With a view to determining whether such control is being exercised, account may also be taken of factors such as the level of representation on administrative, management or supervisory bodies, the relevant provisions of the articles of association or the ownership arrangements.
Amendment 465 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – point b
Article 11 – paragraph 1 – subparagraph 1 – point b
(b) at least 90 % of the activitiesverage total turnover of that legal person areis generated by means of activities carried out for the controlling contracting authority or for other legal persons controlled by that contracting authority;
Amendment 485 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 2
Article 11 – paragraph 1 – subparagraph 2
Amendment 505 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point a
Article 11 – paragraph 3 – subparagraph 1 – point a
(a) the contracting authorities exercise jointly over the legal person a control which is similarequivalent to that which they exercise over their own departments, i.e. they exercise a decisive influence over both strategic objectives and significant decisions of the controlled legal person. With a view to determining whether such control is being exercised, account may also be taken of factors such as the level of representation on administrative, management or supervisory bodies, specifications relating thereto in the articles of association or the ownership arrangements;
Amendment 513 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point b
Article 11 – paragraph 3 – subparagraph 1 – point b
(b) at least 90 % of the activitiesverage total turnover of that legal person areis generated by means of activities carried out for the controlling contracting authorities or other legal persons controlled by the same contracting authorities;
Amendment 533 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 2 – point c
Article 11 – paragraph 3 – subparagraph 2 – point c
(c) the controlled legal person does not pursue any interests which are distinct fromin conflict with that of the public authorities affiliated to it;
Amendment 543 #
Proposal for a directive
Article 11 – paragraph 4 – point a
Article 11 – paragraph 4 – point a
Amendment 572 #
Proposal for a directive
Article 11 – paragraph 4 a (new)
Article 11 – paragraph 4 a (new)
4a. This Directive shall not apply to agreements concluded between several contracting authorities or groupings of contracting authorities which make provision, in the context of the internal organisation of a Member State, for the transfer of powers between the parties with a view to the performance of a public service task. There shall be no private participation in any of the contracting authorities involved.
Amendment 608 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Unless otherwise provided in this Directive or in the national law concerning access to information, and without prejudice to the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out in Articles 48 and 53 of this Directive, the contracting authority shall not disclose information forwarded to it by economic operators which they have designated as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders, in particular technical or trade secrets and the confidential aspects of tenders. Non-compliance with this obligation shall render the contracting authority liable.
Amendment 628 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 2
Article 21 – paragraph 1 – subparagraph 2
The notion of conflict of interests shall at least cover any situation where the categories of persons referred to in paragraph 2 have, directly or indirectly, a privatecommon interest in the outcome of the procurement procedure, which may be perceived to impair the impartial and objective performance of their duties.
Amendment 631 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 3
Article 21 – paragraph 1 – subparagraph 3
For the purposes of this Article, ‘private "common interests’' means any family, emotional life, economic, political or other shared interestseconomic interest or family ties, shared with the candidates or the tenderers, including conflicting professional interests.
Amendment 647 #
Proposal for a directive
Article 22 – paragraph 1 – point a
Article 22 – paragraph 1 – point a
(a) unduly influence the decision-making process of the contracting authority by illicit means or obtain confidential information that may confer upon them undue advantages in the procurement procedure;
Amendment 893 #
Proposal for a directive
Article 39 – paragraph 2 – subparagraph 2
Article 39 – paragraph 2 – subparagraph 2
Such measures shall include the communication to the other candidates and tenderers of any relevant information exchangedsupplied by the contracting authority in the context of or resulting from the involvement of the candidate or tenderer in the preparation of the procurement procedure and the fixing of adequate time limits for the receipt of tenders. The candidate or tenderer concerned shall only be excluded from the procedure where there are no other means to ensure compliance with the duty to observe the principle of equal treatment.
Amendment 925 #
Proposal for a directive
Article 40 – paragraph 4
Article 40 – paragraph 4
4. Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or a particular process, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted on an exceptional basis,: (a) where a sufficiently precise and intelligible description of the subject- matter of the contract pursuant to paragraph 3 is not possible. Such reference shall be accompanied by the words "‘or equivalent"’; (b) where this is warranted by the contract and the reference relates to the production or process location on European Union territory.
Amendment 964 #
Proposal for a directive
Article 41 – paragraph 1 – subparagraph 2 a (new)
Article 41 – paragraph 1 – subparagraph 2 a (new)
In requiring a specific label, the contracting authority shall not seek to discriminate against tenderers in a procurement procedure.
Amendment 991 #
Proposal for a directive
Article 44 – paragraph 1 – subparagraph 1
Article 44 – paragraph 1 – subparagraph 1
Public contracts may be subdivided into homogenous or heterogeneous lots. For contracts with a value equal to or greater than the thresholds provided for in Article 4 but not less than EUR 500 000, determined in accordance with Article 5, where the contracting authority does not deem it appropriate to split into lots, it shall provide in the contract notice or in the invitation to confirm interest a specific explanation of its reasonan explanation of its reasons for its decision to subdivide or not to subdivide into lots.
Amendment 1123 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – introductory part
Article 66 – paragraph 1 – subparagraph 1 – introductory part
1. Without prejudice to national laws, regulations or administrative provisions concerning the remuneration of certain services, the criteriaon on which contracting authorities shall base the award of public contracts shall be one of the following:the most economically advantageous tender.
Amendment 1128 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point a
Article 66 – paragraph 1 – subparagraph 1 – point a
Amendment 1135 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point b
Article 66 – paragraph 1 – subparagraph 1 – point b
Amendment 1145 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 2
Article 66 – paragraph 1 – subparagraph 2
Amendment 1152 #
Proposal for a directive
Article 66 – paragraph 2 – introductory part
Article 66 – paragraph 2 – introductory part
2. The most economically advantageous tender referred to in point (a) of paragraph 1 from the point of view of the contracting authority shall be identified on the basis of criteria linked to the subject-matter of the public contract in question. Those criteria shallmay include, in addition to the price or costs referred to in point (b) of paragraph 1, other criteria linked to the subject-matter of the public contract in question, such as. Costs shall be assessed using a cost- effectiveness approach, such as a life- cycle costing approach, under the conditions set out in Article 67. Price shall be the decisive award criterion in the case of highly standardised products and services. Other criteria may include:
Amendment 1196 #
Proposal for a directive
Article 66 – paragraph 3
Article 66 – paragraph 3
Amendment 1299 #
Proposal for a directive
Article 69 a (new)
Article 69 a (new)
Article 69a Tenders comprising products originating in third countries 1. This Article shall apply to tenders covering products originating in third countries with which the Union has not concluded, whether multilaterally or bilaterally, an agreement ensuring comparable and effective access for Union undertakings to the markets of those third countries. It shall be without prejudice to the obligations of the Union or its Member States in respect of third countries. 2. Any tender submitted for the award of a supply contract may be rejected where the proportion of the products originating in third countries, as determined in accordance with Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code[1], exceeds 50 % of the total value of the products constituting the tender. For the purposes of this Article, software used in telecommunications network equipment shall be regarded as products. 3. Subject to the second subparagraph, where two or more tenders are equivalent in the light of the contract award criteria defined in Article 66, preference shall be given to those tenders which may not be rejected pursuant to paragraph 2. The prices of those tenders shall be considered equivalent for the purposes of this Article, if the price difference does not exceed 3 %. However, a tender shall not be preferred to another pursuant to the first subparagraph where its acceptance would oblige the contracting entity to acquire equipment having technical characteristics different from those of existing equipment, resulting in incompatibility, technical difficulties in operation and maintenance, or disproportionate costs. 4. For the purposes of this Article, those third countries to which the benefit of the provisions of this Directive has been extended by a Council Decision in accordance with paragraph 1 shall not be taken into account for determining the proportion, referred to in paragraph 2, of products originating in third countries. 5. The Commission shall submit an annual report to the European Parliament and to the Council, commencing in the second half of the first year following the entry into force of this Directive, on progress made in multilateral or bilateral negotiations regarding access for Union undertakings to the markets of third countries in the fields covered by this Directive, on any result which such negotiations may have achieved, and on the implementation in practice of all the agreements which have been concluded. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may amend the provisions of this Article in the light of such developments. [1] OJ L 302, 19.10.1992, p. 1.
Amendment 1302 #
Proposal for a directive
Article 69 b (new)
Article 69 b (new)
Article 69b Relations with third countries as regards works, supplies and service contracts 1. Member States shall inform the Commission of any general difficulties, in law or in fact, encountered and reported by their undertakings in securing the award of service contracts in third countries. 2. The Commission shall report to the European Parliament and to the Council before 31 December 2014, and periodically thereafter, on the opening up of service contracts in third countries and on progress in negotiations with these countries on this subject, particularly within the framework of the WTO. 3. The Commission shall endeavour, by approaching the third country concerned, to remedy any situation whereby it finds, on the basis either of the reports referred to in paragraph 2 or of other information, that, in the context of the award of service contracts, a third country: (a) does not grant Union undertakings effective access comparable to that granted by the Union to undertakings from that country; or (b) does not grant Union undertakings national treatment or the same competitive opportunities as are available to national undertakings; or (c) grants undertakings from other third countries more favourable treatment than Union undertakings. 4. Member States shall inform the Commission of any difficulties, in law or in fact, encountered and reported by their undertakings and which are due to the non-observance of the international social and environmental law provisions listed in Annex XI when these undertakings have tried to secure the award of contracts in third countries. 5. In the circumstances referred to in paragraphs 3 and 4, the Commission may at any time propose that the Council decide to suspend or restrict, over a period to be laid down in the decision, the award of service contracts to: (a) undertakings governed by the law of the third country in question; (b) undertakings affiliated to the undertakings specified in point (a) and having their registered office in the Union but having no direct and effective link with the economy of a Member State; (c) undertakings submitting tenders which have as their subject-matter services originating in the third country in question. The Council shall act, by qualified majority, as soon as possible. The Commission may propose these measures on its own initiative or at the request of a Member State. 6. This Article shall be without prejudice to the commitments of the Union in relation to third countries ensuing from international agreements on public procurement, particularly within the framework of the WTO.
Amendment 1352 #
Proposal for a directive
Article 72 – paragraph 2 – points -a and -a a (new)
Article 72 – paragraph 2 – points -a and -a a (new)
(-a) it alters the nature of the contract; (-a a) it entails replacement of the contractual partner;
Amendment 1355 #
Proposal for a directive
Article 72 – paragraph 3 – subparagraph 1
Article 72 – paragraph 3 – subparagraph 1
Amendment 1357 #
Proposal for a directive
Article 72 – paragraph 3 – subparagraph 2
Article 72 – paragraph 3 – subparagraph 2
Amendment 1365 #
Proposal for a directive
Article 72 – paragraph 4
Article 72 – 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 4 and where it is below 5 % of the updated 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 1373 #
Proposal for a directive
Article 72 – paragraph 6 – subparagraph 1 – point c
Article 72 – paragraph 6 – subparagraph 1 – point c
(c) any increase in price is not higher than 50 % of the updated value of the original contract.
Amendment 1375 #
Proposal for a directive
Article 72 – paragraph 7 – introductory part
Article 72 – paragraph 7 – introductory part
7. Contracting authorities shall not have recourse tomay not invoke the provisions of this article concerning modifications of the contract in the following cases:
Amendment 1379 #
Proposal for a directive
Article 73 – paragraph 1 – point a
Article 73 – paragraph 1 – point a
(a) the exceptions provided for in Article 11 cease to apply following a private participation in the legal person awarded the contract pursuant to Article 11(4);
Amendment 1466 #
Proposal for a directive
Article 84 – paragraph 1 – subparagraph 1
Article 84 – paragraph 1 – subparagraph 1
1. Member States shall appoint a single independent body responsible forensure the oversight and coordination of implementation activities (hereinafter 'the oversight body'). Member States shall inform the Commission of their designation.
Amendment 1474 #
Proposal for a directive
Article 84 – paragraph 3 – subparagraph 1 – introductory part
Article 84 – paragraph 3 – subparagraph 1 – introductory part
3. The oversight bodycompetent authorities shall be responsible for the following tasks:
Amendment 1488 #
Proposal for a directive
Article 84 – paragraph 3 – subparagraph 3
Article 84 – paragraph 3 – subparagraph 3
Amendment 1490 #
Proposal for a directive
Article 84 – paragraph 4 – subparagraph 1
Article 84 – paragraph 4 – subparagraph 1
4. Without prejudice to the general procedures and working methods established by the Commission for its communications and contacts with Member States, the oversight bodycompetent authorities shall act as a specific contact point for the Commission when it monitors the application of Union law and the implementation of the budget from the Union on the basis of Article 17 of the Treaty on the European Union and Article 317 of the Treaty on the Functioning of the European Union. It shall report to the Commission any violation of this Directive in procurement procedures for the award of contracts directly or indirectly funded by the Union.
Amendment 1491 #
Proposal for a directive
Article 84 – paragraph 4 – subparagraph 2
Article 84 – paragraph 4 – subparagraph 2
Amendment 1492 #
Proposal for a directive
Article 84 – paragraph 4 – subparagraph 3
Article 84 – paragraph 4 – subparagraph 3
Amendment 1493 #
Proposal for a directive
Article 84 – paragraph 5
Article 84 – paragraph 5
5. The investigation and enforcement activities carried out by the oversight bodycompetent authorities to ensure that contracting authorities’ decisions comply with this Directive and the principles of the Treaty shall not replace or prejudge the institutional role of the Commission as guardian of the Treaty. When the Commission decides to refer the treatment of an individual case pursuant to paragraph 4, it shall also retain the right to intervene in accordance with the powers conferred to it by the Treaty.
Amendment 1495 #
Proposal for a directive
Article 84 – paragraph 6 – introductory part
Article 84 – paragraph 6 – introductory part
6. Contracting authorities shall transmit to the national oversight bodycompetent authorities the full text of all concluded contracts with a a value equal to or greater than
Amendment 1502 #
Proposal for a directive
Article 84 – paragraph 7 – subparagraph 1
Article 84 – paragraph 7 – subparagraph 1
7. Without prejudice to the national law concerning access to information, and in accordance with national and EU legislation on data protection, the oversight bodycompetent authorities shall, upon written request, give unrestricted and full direct access, free of charge, to the concluded contracts referred to in paragraph 6. Access to certain parts of the contracts may be refused where their disclosure would impede law enforcement or otherwise be contrary to the public interest, would harm the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them.
Amendment 1504 #
Proposal for a directive
Article 84 – paragraph 8
Article 84 – paragraph 8
8. A summary of all the activities carried out by the oversight bodycompetent authorities in accordance with paragraphs 1 to 7 shall be included in the annual report referred to in paragraph 2.