50 Amendments of Philippe JUVIN related to 2011/0439(COD)
Amendment 175 #
Proposal for a directive
Recital 27
Recital 27
(27) Electronic means of information and communication can greatly simplify the publication of contracts and increase the efficiency and transparency of procurement processes covered by 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 182 #
Proposal for a directive
Recital 33
Recital 33
(33) 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 involving amounts below the thresholds set in this Directive.
Amendment 332 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 1 – point a
Article 21 – paragraph 1 – subparagraph 1 – point a
(a) the contracting authority exercises over the legal person concerned a control which is similar 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, specifications relating thereto in the articles of association or the ownership arrangements;
Amendment 333 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 1 – point b
Article 21 – 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 351 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 2
Article 21 – paragraph 1 – subparagraph 2
Amendment 359 #
Proposal for a directive
Article 21 – paragraph 3 – subparagraph 1 – point a
Article 21 – paragraph 3 – subparagraph 1 – point a
(a) the contracting authorities exercise jointly over the legal person a control which is similar 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 363 #
Proposal for a directive
Article 21 – paragraph 3 – subparagraph 1 – point b
Article 21 – 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 382 #
Proposal for a directive
Article 21 – paragraph 4 – point a
Article 21 – paragraph 4 – point a
(a) the agreement establishes a genuine co- operation between the participating contracting authorities aimed at carrying out jointly their public service tasks and involving mutual rights and obligations of the parties;Does not affect English version.)
Amendment 387 #
Proposal for a directive
Article 21 – paragraph 4 a (new)
Article 21 – 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 413 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
1. For the purposes of this Article, "affiliated undertaking" means any undertaking the annual accounts of which aArticle 21 notwithstanding and provided that the conditions in paragraphs 2 and 4 are met, this Directive shall not apply to contracts awarded: (a) by a contracting entity to an affiliated undertaking, or (b) by a joint venture, consolidated with those of the contracting entity in accordancemprised exclusively of a number of contracting entities for the purpose of carrying out activities within the requirements of the Seventh Council Directive 83/349/EEC40. meaning of Articles 5 to 11, to an undertaking which is affiliated with one of those contracting entities.
Amendment 415 #
Proposal for a directive
Article 22 – paragraph 2
Article 22 – paragraph 2
2. InFor the capurposes of entities not subject to that Directive, "affiliated undertaking" shall meanthis Article, "affiliated undertaking" means: (a) any undertaking the annual accounts of which are consolidated with those of the contracting entity in accordance with the requirements of the Seventh Council Directive 83/349/EEC; or (b) any undertaking that meets any of the following conditions: (i) any undertaking that: (a)which may be, directly or indirectly, subject to a dominant influence by the contracting entity within the meaning of point (5) of Article 2 and Article 4(1) of this Directive; (b)ii) an undertaking which may exercise a dominant influence over the contracting entity; (c)iii) an undertaking which, in common with the contracting entity, is subject to the dominant influence of another undertaking by virtue of ownership, financial participation, or the rules which govern it. The notion of dominant influence is defined in Article 4(1) of this Directive.
Amendment 416 #
Proposal for a directive
Article 22 – paragraph 2 – point a
Article 22 – paragraph 2 – point a
Amendment 417 #
Proposal for a directive
Article 22 – paragraph 2 – point b
Article 22 – paragraph 2 – point b
Amendment 418 #
Proposal for a directive
Article 22 – paragraph 2 – point c
Article 22 – paragraph 2 – point c
Amendment 419 #
Proposal for a directive
Article 22 – paragraph 3
Article 22 – paragraph 3
Amendment 421 #
Proposal for a directive
Article 22 – paragraph 4 – introductory part
Article 22 – paragraph 4 – introductory part
4. Paragraph 31 shall apply:
Amendment 423 #
Proposal for a directive
Article 22 – paragraph 4 – point a
Article 22 – paragraph 4 – point a
(a) to service contracts provided that at least 80% of the average total turnover of the affiliated undertaking with respect to services in general, taking into account all services provided by that undertaking, for the preceding three years derives from the provision of services to the contracting entity with which it is affiliated, or to the contracting entity which is itself subject to the dominant influence of another undertakings with which ithe contractual partner is affiliated;
Amendment 425 #
Proposal for a directive
Article 22 – paragraph 4 – point b
Article 22 – paragraph 4 – point b
(b) to supply contracts provided that at least 80% of the average total turnover of the affiliated undertaking with respect to supplies in general, taking into account all supplies provided by that undertaking, for the preceding three years derives from the provision of those supplies to the contracting entity with which it is affiliated, or to the contracting entity which is itself subject to the dominant influence of another undertakings with which ithe contractual partner is affiliated;
Amendment 427 #
Proposal for a directive
Article 22 – paragraph 4 – point c
Article 22 – paragraph 4 – point c
(c) to works contracts provided that at least 80% of the average total turnover of the affiliated undertaking with respect to works in general, taking into account all works provided by that undertaking, for the preceding three years derives from the provision of works to the contracting entity with which it is affiliated, or to the contracting entity which is itself subject to the dominant influence of another undertakings with which ithe contractual partner is affiliated.
Amendment 429 #
Proposal for a directive
Article 22 – paragraph 5 – subparagraph 1
Article 22 – paragraph 5 – subparagraph 1
Amendment 458 #
Proposal for a directive
Article 32 – paragraph 2
Article 32 – paragraph 2
2. 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 64 and 69 of this directive, the contracting entity 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 entity liable.
Amendment 488 #
Proposal for a directive
Article 37 – paragraph 1 – point a
Article 37 – paragraph 1 – point a
(a) unduly influence the decision-making process of the contracting entity via illicit means or obtain confidential information that may confer upon them undue advantages in the procurement procedure;
Amendment 587 #
Proposal for a directive
Article 53 – paragraph 2 – subparagraph 2
Article 53 – paragraph 2 – subparagraph 2
Such measures shall include the communication to the other candidates and tenderers of any relevant information exchangedprovided by the contracting entity 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 603 #
Proposal for a directive
Article 54 – paragraph 3 – point a
Article 54 – paragraph 3 – point a
(a) in terms of performance or functional requirements, including environmental and safety characteristics, provided that the parameters are sufficiently precise to allow tenderers to determine the subject-matter of the contract and to allow contracting entities to award the contract;
Amendment 609 #
Proposal for a directive
Article 54 – paragraph 4
Article 54 – paragraph 4
4. Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or to 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 626 #
Proposal for a directive
Article 55 – paragraph 1 – subparagraph 2
Article 55 – paragraph 1 – subparagraph 2
Contracting entities requiring a specific label shall accept all equivalent labels that fulfil the requirements of the label indicated by the contracting entities. For products that do not bear the label, contracting entities shall also accept a technical dossier of the manufacturer or other appropriate means of proof. In requiring a specific label, the contracting entity shall not seek to discriminate against tenderers in the procurement procedure.
Amendment 700 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – introductory part
Article 76 – paragraph 1 – subparagraph 1 – introductory part
Without prejudice to national laws, regulations or administrative provisions on the remuneration of certain services, the criteriaon on which contracting entauthorities shall base the award of public contracts shall be one of the following:the most economically advantageous tender.
Amendment 715 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 2
Article 76 – paragraph 1 – subparagraph 2
Amendment 719 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 1
Article 76 – paragraph 2 – subparagraph 1
The most economically advantageous tender referred to in point (a) of paragraph 1) from the point of view of the contracting entity shall be identified on the basis of criteria linked to the subject-matter of the contract in question. Those criteria may include, in addition to the price or costs, other criteria linked to the subject-matter of the contract in question. Costs shall be assessed using a cost- effectiveness approach, such as a life- cycle costing approach, under the conditions set out in Article 77. Price shall be the decisive award criterion in the case of highly standardised products and services. Other criteria may include:
Amendment 723 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – introductory part
Article 76 – paragraph 2 – subparagraph 2 – introductory part
Amendment 745 #
Proposal for a directive
Article 76 – paragraph 3
Article 76 – paragraph 3
Amendment 805 #
Proposal for a directive
Article 79 – paragraph 5
Article 79 – paragraph 5
5. When submitting a tender, tenderers must provide a declaration on their honour attesting that they have not received for the purposes of their tender State aid which would be incompatible with Article 107 of the Treaty on the Functioning of the European Union, or which would be incompatible with the aforementioned Article if the State granting that aid were an EU Member State, and furnish any substantiating documents requested by the contracting entity. Where a contracting entity establishes that a tender is abnormally low because the tenderer has obtained State aid, the tender may be rejected on that ground alone only after consultation with the tenderer where the latter is unable to prove, within a sufficient time limit fixed by the contracting entity, that the aid in question was compatible with the internal market within the meaning of Article 107 of the Treaty. Where the contracting entity rejects a tender in thoese circumstances, it shall inform the Commission thereof. of that fact. If it is established that the selected tenderer has received unlawful State aid, the call-for-tender procedure shall be cancelled.
Amendment 851 #
Proposal for a directive
Article 82 – paragraph 2 – introductory part and (-a) and (-aa) (new)
Article 82 – paragraph 2 – introductory part and (-a) and (-aa) (new)
2. A modification of a contract during its term shall be considered substantial within the meaning of paragraph 1, where it renders the contract substantially different from the one initially concluded. In any case, without prejudice to paragraph 3 and 4, a modification shall be considered substantial where one of the following conditions is met: (-a) the modification changes the nature of the contract; (-aa) the modification entails the replacement of the contractual partner;
Amendment 852 #
Proposal for a directive
Article 82 – paragraph 2 – point a
Article 82 – paragraph 2 – point a
Amendment 853 #
Proposal for a directive
Article 82 – paragraph 2 – point b
Article 82 – paragraph 2 – point b
Amendment 855 #
Proposal for a directive
Article 82 – paragraph 2 – point c
Article 82 – paragraph 2 – point c
Amendment 858 #
Proposal for a directive
Article 82 – paragraph 3 – subparagraph 1
Article 82 – paragraph 3 – subparagraph 1
Amendment 859 #
Proposal for a directive
Article 82 – paragraph 3 – subparagraph 2
Article 82 – paragraph 3 – subparagraph 2
Amendment 873 #
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 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 879 #
Proposal for a directive
Article 82 – paragraph 7 – introductory part
Article 82 – paragraph 7 – introductory part
7. Contracting entities shall not have recourse tomay not invoke the provisions of this article concerning modifications of the contract in the following cases:
Amendment 885 #
Proposal for a directive
Article 83 – paragraph 1 – point a
Article 83 – paragraph 1 – point a
(a) the exceptions provided for in Article 21 cease to apply following a private participation in the legal person awarded the contract pursuant to Article 21(4);
Amendment 936 #
Proposal for a directive
Article 93 – paragraph 1 – subparagraph 1
Article 93 – 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 937 #
Proposal for a directive
Article 93 – paragraph 3 – subparagraph 1 – introductory part
Article 93 – paragraph 3 – subparagraph 1 – introductory part
3. The oversight bodycompetent authorities shall be responsible for the following tasks:
Amendment 942 #
Proposal for a directive
Article 93 – paragraph 3 – subparagraph 3
Article 93 – paragraph 3 – subparagraph 3
Amendment 943 #
Proposal for a directive
Article 93 – paragraph 4 – subparagraph 1
Article 93 – 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 944 #
Proposal for a directive
Article 93 – paragraph 4 – subparagraph 2
Article 93 – paragraph 4 – subparagraph 2
Amendment 945 #
Proposal for a directive
Article 93 – paragraph 4 – subparagraph 3
Article 93 – paragraph 4 – subparagraph 3
Amendment 946 #
Proposal for a directive
Article 93 – paragraph 5
Article 93 – paragraph 5
5. The investigation and enforcement activities carried out by the oversight bodycompetent authorities to ensure that contracting entities’ decisions comply with this Directive and the general principles of the Treaty on the Functioning of the European Union 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, it shall also retain the right to intervene in accordance with the powers conferred to it by the Treaty.
Amendment 948 #
Proposal for a directive
Article 93 – paragraph 6 – introductory part
Article 93 – paragraph 6 – introductory part
6. Contracting authorities shall transmit to the national oversight bodycompetent authorities the full text of all concluded contracts with a value equal to or greater than
Amendment 950 #
Proposal for a directive
Article 93 – paragraph 7 – subparagraph 1
Article 93 – 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.