31 Amendments of Philippe JUVIN related to 2012/0060(COD)
Amendment 17 #
Proposal for a regulation
Title 1
Title 1
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the access of third-country goods and services to the Union’s internal market in public procurement and concessions and procedures supporting negotiations on access of Union goods and services to the public procurement markets and to the concessions of third countries (Text with EEA relevance)
Amendment 20 #
Proposal for a regulation
Recital 5
Recital 5
(5) Within the context of the World Trade Organisation and throughwithin the framework of its bilateral relations, the Union advocatesupports an ambitious opening of international opening of the public procurement and concessions markets of the Union and of its tradinge partners, in a spirit of reciprocity and mutual benefit.
Amendment 23 #
Proposal for a regulation
Recital 6
Recital 6
(6) Many third countries are reluctant to open their public procurement markets and their concessions to international competition, or to open those markets further than what they have already done. As a result, Union economic operators face restrictive procurement and concessions practices in many of the trading partners of the Union. Those restrictive procurement practices result in the loss of substantial trading opportunities.
Amendment 25 #
Proposal for a regulation
Recital 8
Recital 8
(8) In accordance with Article 207 TFEU the common commercial policy in the field of public procurement and concessions is to be based on uniform principles.
Amendment 26 #
Proposal for a regulation
Recital 9
Recital 9
(9) In the interest of legal certainty for Union and third-country economic operators and contracting authorities/entities, the international market access commitments undertaken by the Union vis-à-vis third countries in the field of public procurement and concessions should be reflected in the legal order of the EU, thereby ensuring effective application thereof. The Commission should issue guidance on the application of the existing international market access commitments of the European Union. This guidance should be updated on a regular basis and provide easy to use information.
Amendment 28 #
Proposal for a regulation
Recital 10
Recital 10
(10) The objectives of improving the access of EUnion economic operators to the public procurement markets and the concessions of certain third countries protected by restrictive procurement measures and preserving equal conditions of competition within the European Single Market require that the treatment of third- country goodsupplies and services not covered by the international commitments of the Union be harmonised throughout the European Union.
Amendment 30 #
Proposal for a regulation
Recital 12
Recital 12
(12) The Commission should assess whether to approve that contracting authorities/entities within the meaning of Directives [2004/17/EC, 2004/18/EC and Directive [….] of the European Parliament and the Council of [….]….on the award of concession contracts] exclude, for contractprocedures for the award of contracts or concessions with an estimated value equal or above EUR 5.000.000 from procedures for the award of contracts goods and services not covered by the international commitments undertaken by the European Union.
Amendment 32 #
Proposal for a regulation
Recital 13
Recital 13
(13) For the sake of transparency, contracting authorities/entities intending to make use of their power in accordance with this Regulation to exclude tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services from procedures for the award of contracts or concessions should inform economic operators thereof in the contract notice published in the Official Journal of the European Union.
Amendment 34 #
Proposal for a regulation
Recital 15
Recital 15
(15) For contracts and concessions with an estimated value equal or above EUR 5.000.000 the Commission should approve the intended exclusion if the international agreement concerning market access in the field of public procurement or concessions between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union. Where such an agreement does not exist, the Commission should approve the exclusion where the third country maintains restrictive procurement measuremeasures in the field of procurement or the award of concessions leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. A lack of substantial reciprocity should be presumed where restrictive procurement measuremeasures in the field of procurement or the award of concessions result in serious and recurring discriminations of EU economic operators, goods and services.
Amendment 36 #
Proposal for a regulation
Recital 16
Recital 16
(16) When assessing whether a lack of substantial reciprocity exists, the Commission should examine to what degree the laws on public procurement lawand concessions of the country concerned ensure transparency in line with international standards in the field of public procurement and concessions and preclude any discrimination against Union goods, services and economic operators. In addition, it should examine to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operators.
Amendment 38 #
Proposal for a regulation
Recital 17
Recital 17
(17) The Commission should be able to prevent the possible negative impact of an intended exclusion on on-going trade negotiations with the country concerned. Therefore, the Commission may, where a country is engaging in substantive negotiations with the Union concerning market access in the field of public procurement or concessions and the Commission considers that there is a reasonable prospect of removing the restrictive procurement or concessions practices in the near future, it should be able to adopt an implementing act providing that goods and services from that country should not be excluded from procedures for the award of contracts for a period of one year.
Amendment 39 #
Proposal for a regulation
Recital 18
Recital 18
(18) In view of the fact that the access of third country goods and services to the public procurement market of the Union and to its concessions falls within the scope of the common commercial policy, Member States or their contracting authorities/entities should not be able to restrict the access of third country goods or services to their tendering procedures by any other measure than the ones provided for in this Regulation.
Amendment 41 #
Proposal for a regulation
Recital 20
Recital 20
(20) The Commission should be able, on its own initiative or at the application of interested parties or a Member State, to initiate at any time an external procurement investigation into restrictive procurement and concessions practices allegedly maintained by a third country. In particular it shall take into account the fact that the Commission has approved a number of intended exclusions concerning a third country pursuant to Article 6(2) of this Regulation. Such investigative procedures should be without prejudice to Council Regulation (EC) No 3286/94 of 22 December 1994 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community’s rights under international trade rules, in particular those established under the auspices of the World Trade Organisation.
Amendment 42 #
Proposal for a regulation
Recital 21
Recital 21
(21) Where the Commission has, on the basis of information available to it, reason to believe that a third country has adopted or maintains a restrictive procurement or concessions practice, it should be able to start an investigation. If the existence of a restrictive procurement practice in a third country is confirmed the Commission should invite the country concerned to enter into consultations with a view to improving the tendering opportunities for economic operators, goods and services in public procurement in that country.
Amendment 43 #
Proposal for a regulation
Recital 23
Recital 23
(23) Such measures may entail the mandatory exclusion of certain third- country goods and services from public procurement procedures or procedures for the award of concessions in the European Union, or may subject tenders made up of goods or services originating in that country to a mandatory price penalty. To avoid circumvention of these measures, it may also be necessary to exclude certain foreign-controlled or owned juridical persons established in the European Union, that are not engaged in substantive business operations such that it has a direct and effective link with the economy of a Member State concerned. Appropriate measures should not be disproportionate to the restrictive procurement practices to which they respond.
Amendment 44 #
Proposal for a regulation
Recital 27
Recital 27
(27) In order to reflect in the legal order of the European Union the international market access commitments undertaken in the field of public procurement and concessions after the adoption of this Regulation, the Commission should be empowered to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union amendments to the list of international agreements annexed to this Regulation. It is of particular importance that the Commission should carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.
Amendment 45 #
Proposal for a regulation
Recital 31
Recital 31
(31) In accordance with the principle of proportionality, it is necessary and appropriate for achievement of the basic objective of establishing a common external policy in the field of public procurement and concessions to lay down rules on the treatment of goods and services not covered by the international commitments of the European Union. This Regulation on the access of third-country economic operators, goods and services does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with the third paragraph of Article 5 of the Treaty on European Union,
Amendment 46 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation lays down rules on the access of third-country goods and services to the award of contracts and concessions for the execution of works or a work, the supply of goods and the provision of services, depending on the kind of contract in question, by Union contracting authorities/entities, and establishes procedures supporting negotiations on access of Union goods and services to the public procurement markets and the concessions of third countries.
Amendment 49 #
Proposal for a regulation
Article 1 – paragraph 2 – subparagraph 2
Article 1 – paragraph 2 – subparagraph 2
This Regulation shall apply to the award of contracts where the goods or services are procured for governmental purposes and to the award of concessions for services provided for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods or in the provision of services for commercial sale.
Amendment 50 #
Proposal for a regulation
Article 2 – paragraph 1 – point -a (new)
Article 2 – paragraph 1 – point -a (new)
(-a) 'economic operator' means any natural or legal person or public entity or group of such persons and/or entities, including temporary associations of undertakings, which offers the execution of works and/or a work, the supply of products or the provision of services on the market;
Amendment 52 #
Proposal for a regulation
Article 2 – paragraph 1 – point d
Article 2 – paragraph 1 – point d
(d) ‘covered goods or services’ means a good or service originating in a country with which the Union has concluded an international agreement in the field of public procurement and concessions including market access commitments and in respect of which the relevant agreement applies. Annex I to this Regulation contains a list of relevant agreements; (This amendment applies to the whole of the legislative text (addition of the reference to concessions whenever public procurement is mentioned); adoption of the regulation will entail technical changes throughout the text).
Amendment 53 #
Proposal for a regulation
Article 2 – paragraph 1 – point g a (new)
Article 2 – paragraph 1 – point g a (new)
(ga) ‘lack of substantial reciprocity’ means the existence of restrictive measures in the field of procurement or the award of concessions resulting in serious and recurring discrimination against EU economic operators, goods and services. This lack of substantial reciprocity may result, for example, in: (a) a lack of international commitment on the part of the third country regarding procurement and concessions to ensure transparency and prohibit any kind of discrimination against EU economic operators, goods or services; (b) laws or regulations – whether or not concerning public procurement or concessions – adopted by the third country which lead, deliberately or otherwise, to a lack of transparency or to discrimination against EU economic operators, goods or services; (c) the adoption or implementation of discriminatory practices by public authorities or individual procuring entities in the third country aimed at EU economic operators, goods or services.
Amendment 61 #
Proposal for a regulation
Article 2 – paragraph 2 – point e
Article 2 – paragraph 2 – point e
(e) a ‘mandatory price penalty’ shall refer to an obligation for contracting entities to increase, subject to certain exceptions, the price of services and/or goods originating in certain third countries that have been offered in contract award procedures or concession award procedures. (This amendment applies to the whole of the legislative text (addition of the reference to ‘concession award procedures’ whenever there is mention of ‘contract award procedures’, in the singular or the plural); adoption of the regulation will entail technical changes throughout the text).
Amendment 64 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
When awarding contracts for the execution of works and/or a work, the supply of goods or the provision of services, or when awarding concessions for the execution of work or the provision of services, contracting authorities/entities shall treat covered goods and services equally to goods and services originating in the European Union.
Amendment 80 #
Proposal for a regulation
Article 6 – paragraph 2 – subparagraph 4 – point b
Article 6 – paragraph 2 – subparagraph 4 – point b
(b) a description of the object of the contract; or concession; (This amendment applies to the whole of the legislative text (addition of the term ‘concession’ to the term ‘contract’, in the singular or the plural); adoption of the regulation will entail technical changes throughout the text).
Amendment 90 #
Proposal for a regulation
Article 6 – paragraph 4 – subparagraph 1 – point b
Article 6 – paragraph 4 – subparagraph 1 – point b
(b) where an agreement referred to in point (a) does not exist and the third country maintains restrictive procurement or concession award measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. (This amendment applies to the whole of the legislative text (addition of ‘concession award’ whenever there is a reference to ‘procurement’); adoption of the regulation will entail technical changes throughout the text).
Amendment 93 #
Proposal for a regulation
Article 6 – paragraph 4 – subparagraph 2
Article 6 – paragraph 4 – subparagraph 2
Amendment 97 #
Proposal for a regulation
Article 6 – paragraph 5 – introductory part
Article 6 – paragraph 5 – introductory part
5. When assessing whether a lack of substantial reciprocity as defined in Article 2(1)(ga) exists, the Commission shall examine the following:
Amendment 99 #
Proposal for a regulation
Article 6 – paragraph 5 – point a
Article 6 – paragraph 5 – point a
(a) to what degree public procurement laws of the country concernedlaws or regulatory measures of the country concerned on public procurement or concessions ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union goods, services and economic operators;
Amendment 100 #
Proposal for a regulation
Article 6 – paragraph 5 – point a a (new)
Article 6 – paragraph 5 – point a a (new)
(aa) to what degree the laws or regulatory measures of the country concerned, other than those referred to in point (a) of this paragraph, lead, deliberately or otherwise, to a lack of transparency or to discrimination against EU economic operators, goods and services;
Amendment 126 #
Proposal for a regulation
Article 20 – paragraph 1
Article 20 – paragraph 1