2007/0280(COD) | [ParlTrack]

Proposal for a directive
Article 3

Contracting authorities shall treat economic operators equally and non- discriminatorily and shall act in a transparent way. It shall be borne in mind that the Member States’ foreign policy should not be conditioned or restricted in respect of third countries by the principle of alignment. Similarly, the extension or, if appropriate, amendment of the lists of weapons must be undertaken in accordance with the subsidiarity principle.

Amendment 11 #

Proposal for a directive
Article 4 – paragraph 1 − subparagraph 2

However, the Member States shall be entitled to determine all conditions governing licences and, in the case of public service and public works contracts as well as public supply contracts covering in addition services and/or siting and installation operations, legal persons may be required to indicate in the tender or the request to participate, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question.

Amendment 12 #

Proposal for a directive
Article 4 – paragraph 1 a (new)

1a. Close study should be given to the administrative burden placed on the Member States as regards the certification procedure or the monitoring, control and , where appropriate, liability deriving from the granting of licences.

Amendment 13 #

Proposal for a directive
Article 8

This Directive shall not apply to public contracts governed by different procedural rules and awarded: a) pursuant to an international agreement ~~concluded in conformity with the Treaty~~or arrangement concluded between a Member State and one or more third countries ~~and covering supplies or works intended for the joint implement~~; b) pursuant to the particular procedure of an international or exploitation of a work by the signatory States or services intended for the joint implementation or exploitation of a project by the signatory States. All agreements shall be communicated to the Commission which, with the agreement of the Member State(s) concerned, may consult the Advisory Committee for Public Contracts referred to in Article 41; b) pursuant to the particular procedure of an international organisationganisation; c) pursuant to a concluded international agreement relating to the stationing of troops and concerning the undertakings of a Member State or a third country.

Amendment 14 #

Proposal for a directive
Article 9 a (new)

Article 9a This Directive shall not apply to public contracts when they are declared to be secret, when their performance must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned, or when the protection of the essential interests of that Member State (which can include security of information and security of supply) so requires. It shall be for a Member State alone to determine what constitutes appropriate national security clearance for the purposes of the above.

Amendment 15 #

Proposal for a directive
Article 14 − paragraph 2 – introductory wording

To this end, the contracting authority may require of the tenderer that the tender submitted contain inter alia the following particulars:

Amendment 16 #

Proposal for a directive
Article 15

Provided that they are in conformity with Community law, the contracting authority may specify requirements to guarantee security of supply. To this end, the contracting authority may require of the tenderer that the tender submitted contain inter alia the following: a) evidence that it will be able to honour its obligations regarding the export, transfer and transit of goods associated with the contract, ~~including by means of a commitment from the Member State(s) concerned,~~ b) evidence that the organisation and location of its supply chain will allow it to comply with the contracting authority's requirements concerning the security of supply set out in the specifications, c) a commitment to meet additional needs required by the contracting authority as a result of an emergency, crisis or armed conflict, d) ~~a commitment from its national authorities not to obstruct the fulfilment of~~evidence of its ability to fulfil any additional needs required by the contracting authority as the result of an emergency, crisis or armed conflict, e) a commitment to carry out the maintenance, modernisation or adaptation of the supplies covered by this contract, f) a commitment to inform the contracting authority in due time of any change in its organisation or its industrial strategy that may affect its obligations to that authority. The requirements shall be explained in the specifications or contract documents.

Amendment 17 #

Proposal for a directive
Article 20 – paragraph 5 – subparagraph 2

However, the aggregate value of contracts awarded for additional works or services may not exceed 530% of the amount of the original contract.

Amendment 18 #

Proposal for a directive
Article 30 – paragraph 1 – subparagraph 3

~~They may provide for a derogation from the requirement referred to in the first subparagraph for overriding requirements in the general interest.~~deleted

Amendment 19 #

Ana GOMES

Proposal for a directive
Article 37 – paragraph 1 – point a

a) when the award is made to the most economically advantageous tender from the point of view of the contracting authority, various criteria linked to the subject matter of the public contract in question: for example, quality, price, technical merit, functional characteristics, environmental characteristics, running costs, lifecycle costs, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery period or period of completion, security of supply, ~~and~~ interoperability, the needs of autonomy and operational sovereignty from a European perspective, and the need to sustain European industrial and technological pre-eminence where this is economically valuable; or

Amendment 5 #

Proposal for a directive
Recital 15

(15) In addition, provision should be made for cases where the Directive does not apply because specific rules on the awarding of contracts which derive from international agreements or which are specific to international organisations are applicable. International agreements should include international arrangements including memoranda of understanding.

Amendment 6 #

Ana GOMES

Proposal for a directive
Recital 37

(37) Verification of the suitability and the selection of candidates should be carried out in transparent conditions. For this purpose, non-discriminatory criteria should be indicated which the contracting authorities may use when selecting competitors and the means which economic operators may use to prove they have satisfied those criteria. In the same spirit of transparency, the contracting authority should be required, as soon as a contract is put out to competition, to indicate the selection criteria it will use and the level of specific competence it may or may not demand of the economic operators before admitting them to the procurement procedure. In the selection of candidates, contracting authorities should take into account the needs of autonomy and operational sovereignty from a European perspective, and the need to sustain European industrial and technological pre-eminence where this is economically valuable.

Amendment 7 #

Proposal for a directive
Article 1 – paragraph 1 – point d

d) works, supplies and/or services involving, entailing and/or containing sensitive information, and which are necessary for safeguarding the security interests of the EU and its Member States, in the fields of protection against terrorism or organised crime, border protection and crisis management operations.

Amendment 8 #

Proposal for a directive
Article 1 – paragraph 2

This Directive shall apply without prejudice to Articles 30, 45, 46, 55 and 296 of the Treaty, with no justification being necessary in the case of defence equipment.

Amendment 9 #

Ana GOMES

Proposal for a directive
Article 3

Contracting authorities shall treat economic operators equally and non- discriminatorily and shall act in a transparent way. When dealing with contracting economic operators, co ntracting authorities shall take into account the need to sustain European industrial and technological pre-eminence where this is economically valuable and strategically important.

source: PE-409.361

2008/08/29 IMCO 90 amendments...

Amendment 100 #

Proposal for a directive
Article 15 - paragraph 3

The requirements shall be explained in the specifications ofr contract documents. The contract shall provide for compensation to the contractor where any requirements which, when fulfilled, give rise to direct losses or damages incurred by the contractor as a result of precedence being given by the contractor in order to meet an urgent requirement of the contracting authority.

Amendment 101 #

Proposal for a directive
Article 15 - paragraph 3

The requirements shall be explained in the specifications or contract documents. A tenderer may not be required to obtain a commitment from a Member State that would restrict that Member State’s freedom to apply only its national export licensing criteria in the circumstances prevailing at the time of an export transfer or transit licensing decision.

Amendment 102 #

Proposal for a directive
Article 19 - paragraph 1

1. When a contract iss are particularly complex, Member States may decide that, where the contracting authorit~~y, should it~~ies consider that recourse to the restricted procedure or the negotiated procedure with publication of a contract notice will not enable ithem to award the contract, the contracting authorities may make use of the competitive dialogue in accordance with this Article..

Amendment 103 #

Proposal for a directive
Article 20 - paragraph 1

1. Contracting authorities may award public contracts by a negotiated procedure without prior publication of a contract notice in the cases set out in paragraphs 2 to 6 below. The provision of the first subparagraph shall also apply when these contracts are awarded as part of a cooperative programme between two or more Member States.deleted

Amendment 104 #

Proposal for a directive
Article 20 - paragraph 1 - subparagraph 1

1. Contracting authorities may award public contracts by a negotiated procedure without prior publication of a contract notice in the cases set out in paragraphs 2 to 6 below. Contracting authorities shall explicitly justify the use of this procedure by referring to the cases mentioned in paragraphs 2 to 6 below.

Amendment 105 #

Proposal for a directive
Article 20 - paragraph 2

2. For public works contracts, public supply contracts and public service contracts, the negotiated procedure without prior publication of a contract notice may be applied ~~in the following circumstances: a)~~ when the periods laid down for the restricted procedure and negotiated procedure with publication of a contract notice are incompatible with the urgency of a crisis or armed conflict~~; b) when, for technical reasons, or for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator~~.

Amendment 106 #

Proposal for a directive
Article 20 - paragraph 2 - point b

b) when, ~~for technical reasons, or~~ for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator.

Amendment 107 #

Proposal for a directive
Article 20 - paragraph 2 - point b a (new)

(ba) when, following a restricted procedure, a negotiated procedure without prior publication of a contract notice or a competitive dialogue, no tender has been submitted or none of the tenders submitted are suitable, or when there is no candidate, provided the original terms of the contract have not been substantially altered and that a report thereon is forwarded to the Commission at its request.

Amendment 108 #

Proposal for a directive
Article 20 - paragraph 2 - point b a (new)

(ba) when the protection of the essential interests of the Member State so requires and when it is deemed necessary and proportionate to the legitimate public security objective pursued.

Amendment 109 #

Proposal for a directive
Article 20 - paragraph 3

3. For public service contracts and public supply contracts, the negotiated procedure without prior publication of a contract notice may be applied: a) for research and development services and for products manufactured purely for the purpose of research, experiment, study or development, with the exception of quantity production to establish commercial viability or to recover research and development costs; or b) for the combined development and production of equipment where either: (i) the production phase immediately follows the development phase; or (ii) the contracted development and production phases overlap on one or more occasions in the process of finalising the design of the equipment, when in the opinion of the contracting authority the development and production must be combined for demonstrable reasons, provided that those contracts are intended to fulfil national defence requirements, either directly or through cooperative projects.

Amendment 110 #

Proposal for a directive
Article 20 - paragraph 3

3. For public service contracts and public supply contracts, the negotiated procedure without prior publication of a contract notice may be applied: a) for research and development services and for products manufactured purely for the purpose of research, experiment, study or development, with the exception of quantity production to establish commercial viability or to recover research and development costs. ; or b) for the combined development and production of equipment where either:, (i) the production phase immediately follows the development phase; or (ii) the contracted development and production phases overlap on one or more occasions in the process of finalising the design of the equipment, when in the opinion of the contracting authority the development and production must be combined for demonstrable reasons, provided that those contracts are intended to fulfil national defence requirements, either directly or through cooperative projects; or c) where a contract to produce or implement the results arising from an earlier research and development contract is required; when in the opinion of the contracting authority and for demonstrable reasons, the developing contractor should be appointed for this purpose, provided that the contract is intended to fulfil national defence requirements, either directly or through cooperative projects.

Amendment 111 #

Proposal for a directive
Article 20 - paragraph 5 - subparagraph 2

However, the aggregate value of contracts awarded for additional works or services may not exceed 530% of the amount of the original contract.

Amendment 112 #

Proposal for a directive
Article 21 - paragraph 2 - subparagraph 4

The term of a framework agreement may not exceed ~~five~~ten years, save in exceptional cases duly justified, in particular, by the subject of the framework agreement.

Amendment 113 #

Proposal for a directive
Article 21 - paragraph 2 - subparagraph 4

The term of a framework agreement may not exceed fiseven years, save in exceptional cases duly justified, in particular, by the subject of the framework agreement.

Amendment 114 #

Proposal for a directive
Article 22 - paragraph 4 - subparagraph 3

Certain information on the contract award or the conclusion of the framework agreement may be withheld from publication where release of such information would impede law enforcement or otherwise be contrary to the public interest, would be detrimental to defence and security interests, would harm the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them.

Amendment 115 #

Proposal for a directive
Article 26 - paragraph 3

3. Contracting authorities may decide to withhold certain information on the contract award or the conclusion of the framework agreements, referred to in subparagraph 1, where release of such information would impede law enforcement or otherwise be contrary to the public interest, would be detrimental to defence and security interests or would prejudice the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them.

Amendment 116 #

Proposal for a directive
Article 28 − paragraph 1 − point e

e) i~~f appropriate, sensitive technical specifications which can only be communicated to the successful tenderer and the reasons for this restriction~~n the case of a competitive dialogue, the circumstances which justify this procedure;

Amendment 117 #

Proposal for a directive
Article 28 − paragraph 1 − point i

i) the name of the successful tenderer and the reasons why his tender was selected and, if known, the share of the contract or framework agreement which the successful tenderer intends, or will have, to subcontract to third parties; and confirmation that the selection procedure was undertaken in a transparent and non discriminatory manner;

Amendment 118 #

Proposal for a directive
Article 28 - paragraph 3

3. The report, or the main features of it, shall be communicated to the Commission ~~if it so requests~~.

Amendment 119 #

Proposal for a directive
Article 30 - paragraph 1 - subparagraph 3

~~They may provide for derogation from the requirement referred to in the first subparagraph for overriding requirements in the general interest.~~deleted

Amendment 120 #

Proposal for a directive
Article 30 - paragraph 1 - subparagraph (3 a) (new)

Candidates or tenderers may avoid exclusion despite being the subject of a conviction by final judgment if they provide evidence that specific technical, organisational and personnel-related measures have been taken to eliminate the reasons for committing criminal acts in the future.

Amendment 121 #

Proposal for a directive
Article 30 - paragraph 2 - point c

c) has been convicted by a judgment which has the force of res judicata in accordance with the legal provisions of the country of any offence concerning his professional conduct;, such as the infringement of current legislation on the export of sensitive defence equipment.

Amendment 122 #

Proposal for a directive
Article 30 - paragraph 2 - point d

d) has been guilty of grave professional misconduct proven by any means which the contracting authority can justify such as, for example, the breach of his obligations regarding security of information or security of supply during a previous public contract;

Amendment 123 #

Proposal for a directive
Article 30 - paragraph 2 - point d

Amendment 124 #

Benoît HAMON

Proposal for a directive
Article 37 - paragraph 1 - point a

a) when the award is made to the most economically advantageous tender from the point of view of the contracting authority, various criteria linked to the subject matter of the public contract in question: for example, quality, price, technical merit, functional characteristics, environmental characteristics, running costs, lifecycle costs, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery period or period of completion, security of supply, and interoperability, ~~; or~~the need for autonomy and operational sovereignty from a European perspective, and the need to shore up the supremacy or industrial and technological independence of the European Union insofar as an economic or strategic advantage is to be gained therefrom.

Amendment 125 #

Proposal for a directive
Article 37 a (new)

Article 37a Use of electronic auctions 1. Member States may enable contracting authorities to use electronic auctions. 2. In open, restricted or negotiated procedures in the case referred to in Article 30(1)(a), the contracting authorities may decide that the award of a public contract shall be preceded by an electronic auction when the contract specifications can be established with precision. In the same circumstances, an electronic auction may be held on the reopening of competition among the parties to a framework agreement as provided for in the second indent of the second subparagraph of Article 32(4) and on the opening for competition of contracts to be awarded under the dynamic purchasing system referred to in Article 33. The electronic auction shall be based: - either solely on prices when the contract is awarded to the lowest price, - or on prices and/or on the new values of the features of the tenders indicated in the specification when the contract is awarded to the most economically advantageous tender. 3. Contracting authorities which decide to hold an electronic auction shall state that fact in the contract notice. The specifications shall include, inter alia, the followingdetails: (a) the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages; (b) any limits on the values which may be submitted, as they result from the specifications relating to the subject of the contract; (c) the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them; (d) the relevant information concerning the electronic auction process; (e) the conditions under which the tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding; (f) the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection. 4. Before proceeding with an electronic auction, contracting authorities shall make a full initial evaluation of the tenders in accordance with the award criterion/criteria set and with the weighting fixed for them. All tenderers who have submitted admissible tenders shall be invited simultaneously by electronic means to submit new prices and/or new values. The invitation shall contain all relevant information concerning individual connection to the electronic equipment being used and shall state the date and time of the start of the electronic auction. The electronic auction may take place in a number of successive phases. The electronic auction may not start sooner than two working days after the date on which invitations are sent out. 5. When the contract is to be awarded on the basis of the most economically advantageous tender, the invitation shall be accompanied by the outcome of a full evaluation of the relevant tenderer, carried out in accordance with the weighting provided for in the first subparagraph of Article 53(2). The invitation shall also state the mathematical formula to be used in the electronic auction to determine automatic rerankings on the basis of the new prices and/or new values submitted. That formula shall incorporate the weighting of all the criteria fixed to determine the most economically advantageous tender, as indicated in the contract notice or in the specifications; for that purpose, any ranges shall, however, be reduced beforehand to a specified value. Where variants are authorised, a separate formula shall be provided for each variant. 6. Throughout each phase of an electronic auction the contracting authorities shall instantaneously communicate to all tenderers at least sufficient information to enable them to ascertain their relative rankings at any moment. They may also communicate other information concerning other prices or values submitted, provided that that is stated in the specifications. They may also at any time announce the number of participants in that phase of the auction. In no case, however, may they disclose the identities of the tenderers during any phase of an electronic auction. 7. Contracting authorities shall close an electronic auction in one or more of the following manners: (a) in the invitation to take part in the auction they shall indicate the date and time fixed in advance; (b) when they receive no more new prices or new values which meet the requirements concerning minimum differences. In that event, the contracting authorities shall state in the invitation to take part in the auction the time which they will allow to elapse after receiving the last submission before they close the electronic auction; (c) when the number of phases in the auction, fixed in the invitation to take part in the auction, has been completed. When the contracting authorities have decided to close an electronic auction in accordance with subparagraph (c), possibly in combination with the arrangements laid down in subparagraph (b), the invitation to take part in the auction shall indicate the timetable for each phase of the auction. 8. After closing an electronic auction contracting authorities shall award the contract in accordance with Article 53 on the basis of the results of the electronic auction. Contracting authorities may not have improper recourse to electronic auctions nor may they use them in such a way as to prevent, restrict or distort competition or to change the subject-matter of the contract, as put up for tender in the published contract notice and defined in the specification.

Amendment 126 #

Alexander Graf LAMBSDORFF

Proposal for a directive
Article 38 a (new) [in Title II a]

Article 38a Scope and availability of review procedures (1) The Member States shall take the measures necessary to ensure that, as regards contracts – including framework contracts – falling within the scope of this Directive, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles [38a] to [38h], on the grounds that such decisions have infringed Community law in the field of public procurement or national rules transposing that law. (2) Member States shall ensure that there is no discrimination between undertakings claiming harm in the context of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing Community law and other national rules. (3) Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement. A Member State may, in justified cases, refuse a review procedure, if carrying out such a procedure, even where the confidentiality requirement is observed during proceedings, is contrary to its vital security interests. In such cases, the Member State must set out the reasons why a review procedure is inconsistent with its vital security interests. (4) Member States may require that the person wishing to use a review procedure has notified the contracting authority of the alleged infringement and of his intention to seek review, provided that this does not affect the standstill period in accordance with Article [38c](2) or any other time limits for applying for review in accordance with Article [38e]. (5) Member States may require that the person concerned first seek review with the contracting authority. In that case, the Member States shall ensure that the submission of such an application for review results in immediate suspension of the possibility to conclude the contract. Member States shall decide on the appropriate means of communication, including fax or electronic means, to be used for the application for review provided for in the first subparagraph. The suspension referred to in the first subparagraph shall not end before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contracting authority has sent a reply if fax or electronic means are used, or, if other means of communication are used, before the expiry of either at least 15 calendar days with effect from the day following the date on which the contracting authority has sent a reply, or at least 10 calendar days with effect from the day following the date of the receipt of a reply.

Amendment 127 #

Proposal for a directive
Article 38 b (new)

Article 38b Requirements for review procedures (1) Member States shall ensure that the measures taken concerning the review procedures specified in Article [38a] include provision for the powers to: a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority; b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure; c) award damages to persons harmed by an infringement. (2) The powers specified in paragraph 1 and Articles [38f] and [38g] may be conferred on separate bodies responsible for different aspects of the review procedure. (3) When a body of first instance, which is independent of the contracting authority, reviews a contract award decision, Member States shall ensure that the contracting authority cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period referred to in Articles [38c](2) and [38f](4) and (5). (4) Except where provided for in paragraph 3 and Article [38a](5), review procedures need not necessarily have an automatic suspensive effect on the contract award procedures to which they relate. (5) Member States may provide that the body responsible for review procedures may take into account the probable consequences of interim measures for the interests of defence and security, and may decide not to grant such measures when their negative consequences could exceed their benefits. A decision not to grant interim measures shall not prejudice any other claim of the person seeking such measures. (6) Member States may provide that where damages are claimed on the grounds that a decision was taken unlawfully, the contested decision must first be set aside by a body having the necessary powers. (7) Except where provided for in Articles [38f] to [38h], the effects of the exercise of the powers referred to in paragraph 1 of this Article on a contract concluded subsequent to its award shall be determined by national law. Except where a decision must be set aside before damages are awarded, a Member State may also provide that, after a contract has been concluded, in accordance with Article [38a] paragraph 5, paragraph 3 of this Article or Articles [38c] to [38h], the powers of the review body shall be restricted to awarding damages to a person harmed by an infringement. (8) Member States shall ensure that decisions taken by bodies responsible for review procedures can be effectively enforced. (9) Where bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 234 of the EC Treaty and independent of both the contracting authority and the review body. The members of such an independent body shall be appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal. At least the President of this independent body shall have the same legal and professional qualifications as members of the judiciary. In addition, Member States may ensure that the members of review bodies at all instances are individually authorised to handle sensitive information. Member States may establish or designate a special review body to take sole responsibility for reviews in the fields of security and defence. The independent body shall take its decisions in a procedure in which both sides are heard; its decisions shall be legally binding in the manner to be determined by the individual Member States.

Amendment 128 #

Proposal for a directive − amending act
Article 44

Directive 2004/18/EC
Article 10

Subject to Article 296 of the Treaty, Article 10 of Directive 2004/18/EC is amended as follows: "Article 10 "Article 10 Contracts in the fields of defence and security security This Directive shall apply to public contracts awarded in the fields of defence and security with the exception of contracts to which Directive XXXX/X/EC applies. It shall not apply to public contracts excluded from the scope of Directive XXXX/X/EC pursuant to Articles 8 and 9 thereof and Article 296 of the Treaty."

Amendment 129 #

Proposal for a directive − amending act
Article 44

Directive 2004/18/EC
Article 10

TBy invoking Article 296 of the Treaty, this Directive shall apply to public contracts awarded in the fields of defence and security with the exception of contracts to which Directive XXXX/X/EC12 applies. It shall not apply to public contracts excluded from the scope of Directive XXXX/X/EC pursuant to Articles 8 and 9 thereof."

Amendment 130 #

Charlotte CEDERSCHIÖLD, Andreas SCHWAB

Proposal for a directive
Article 45 a (new)

~~1 2~~ Artikel 45a Reporting 1. The Commission shall report to the European Parliament by ...* at the latest on the measures taken by Member States to transpose this Directive, in particular Articles 39 and 40 thereof. The references of this Directive. The references of this Directive. 2. The Commission shall, beginning not later than ...**, submit regularly a report to the European Parliament and the Council on the implementation of the directive and its impact on developments of the European defence equipment market and the European defence technological and industrial base. ________ * Twelve months after the date for the transposition of this Directive. ** Five years after the date of entry into force of this Directive.

Amendment 131 #

Proposal for a directive
ANNEX I - Row 4 a (new)

Category Descrip- CPV tion of Reference Nos services (4a) Rail 60200000-0, transport 60220000-6 services

Amendment 132 #

Charlotte CEDERSCHIÖLD, Andreas SCHWAB

Proposal for a directive
ANNEX I - Row 4 b (new)

.Category Descrip- CPV Reference tion of Nos services (4b) Water 60600000-4, trans- 60620000-0, from port 60640000-6 to services 60651200-8, 60651600-2

Amendment 43 #

Proposal for a directive
Recital 1

(1) The gradual establishment of a European defence equipment market is essential for strengthening the defence industrial and technological base in Europe and developing the military capabilities required to implement the European Security and Defence Policy (ESDP). The reasons for this assessment and the considerations underlying the bases for Community law - further to the Commission's Green Paper of 23 September 2004 on defence procurement (COM(2004)0608) - are set out in more detail in the Commission Communication of 6 December 2005 on the results of the consultation on that Green Paper (COM(2005)0626) and in the Commission's Interpretative Communication of 7 December 2006 on the application of Article 296 of the Treaty in the field of defence procurement (COM2006)0779) and the Commission Communication of 5 December 2007 on a Strategy for a stronger and more competitive European defence industry (COM(2007)0764).

Amendment 44 #

Proposal for a directive
Recital 1 a (new)

(1a) Public service contracts as logistics services have the potential to reduce costs in the defence sector. Further developed supply chains can significantly lower the environmental impact of the sector, especially with regard to energy efficiency and greenhouse gas emission reduction;

Amendment 45 #

Proposal for a directive
Recital 1 a (new)

(1a) Public service contracts, such as logistics services, have the potential to reduce costs in the defence sector. Further developed supply chains can significantly lower the environmental impact of the sector, especially with regard to energy efficiency and greenhouse gas emission reduction;

Amendment 46 #

Proposal for a directive
Recital 1 a (new)

Amendment 47 #

Proposal for a directive
Recital 6 a (new)

(6a) In the interest of legal certainty, the scope of this Directive should be defined in accordance with the list of arms, munitions and war material, set out in the Council Decision of 15 April 1958, which sets out the list of products to which Article 296 of the Treaty applies. Given the evolving nature of technology and procurement policy in defence markets, the list contained in this Decision must be interpreted in a manner consistent with both modern technologies and procurement methods.

Amendment 48 #

Proposal for a directive
Recital 7

(7) Articles 30, 45, 46, 55 and 296 of the Treaty make provision for specific exceptions to the application of the principles set out in the Treaty and, consequently, to the application of law derived from these principles. It therefore follows that none of the provisions in this directive should prevent the imposition or application of any measures considered necessary to safeguard interests recognised as legitimate by these provisions of the Treaty. It is the sole responsibility of a Member State to determine whether a measure is necessary for its national security. Nevertheless, in accordance with ECJ case-law, the possibility of recourse to such exceptions should be interpreted in such a way that their effects do not extend beyond that which is strictly necessary for the protection of the legitimate interests that these Articles of the Treaty help safeguard. This means that non-application of the Directive should be proportionate to the aims pursued and cause as little disturbance as possible to the free movement of goods and/or the provision of services.

Amendment 49 #

Nickolay MLADENOV, Andreas SCHWAB

Proposal for a directive
Recital 7 a (new)

(7a) In order to limit the Member States' use of Article 296 of the EC Treaty to substantiated and justified exceptional cases, the Commission requires an administrative instrument which enables it to take pre-emptive action before an irreversible stage of the procurement procedure has been reached, without making necessary a procedure pursuant to Article 226 of the EC Treaty.

Amendment 50 #

Proposal for a directive
Recital 8

(8) Contracts relating to arms, munitions and war material awarded by contracting authorities operating in the field of defence are excluded from the scope of the Government Procurement Agreement (hereinafter "the Agreement") concluded at the World Trade Organization. With respect to the other contracts covered by this Directive, these may be exempted from the application of this agreement on the basis of Article XXIII thereof. Should contracting authorities wish to invite non- EU bidders in such an absence of a regulated international trade environment, this should be done on the basis of reciprocal equitable and fair market access.

Amendment 51 #

Proposal for a directive
Recital 8

(8) Contracts relating to arms, munitions and war material awarded by contracting authorities operating in the field of defence are excluded from the scope of the Government Procurement Agreement (hereinafter “the Agreement”) concluded at the World Trade Organization. With respect to the other contracts covered by this Directive, these may be exempted from the application of this agreement on the basis of Article XXIII thereof. In their relations with third parties outside EU, Member States retain the power to decide whether or not to invite non-European bidders.

Amendment 52 #

Proposal for a directive
Recital 10

(10) Public defence and security contracts often contain sensitive information which, for security reasons, needs to be protected from unauthorised access. In the military field, the Member States have systems for classifying this information. The picture is more varied, however, when it comes to non-military security matters. The recommendation is, therefore, to make use of a concept which takes into account the diversity of practices in the Member States and can encompass both the military and non-military fields. At any rate, public procurement in these fields should not, where appropriate, affect the obligations arising from Commission Decision 2001/844/EC of 29 November 2001 amending its internal Rules of Procedure or Council Decision 2001/264/EC adopting the Council’s security regulations. In addition, Article 296(1)(a) of the Treaty allows any Member State, in substantiated and justified exceptional cases, to exclude public defence and security procurement from the scope of this Directive.

Amendment 53 #

Proposal for a directive
Recital 19 a (new)

(19a) Subcontracting widens the participation of economic operators in the performance of public contracts and is favourable to the development of small and medium enterprises. It may be appropriate to complement the tenderer's right to subcontract with the possibility of the awarding authority, or of the Member State, requiring that a certain share of the public contract be subcontracted to third parties. When contracting authorities or Member State require a share to be sub- contracted, the successful tenderer should award the subcontracts which form part of this share following aCommunity-wide competition, so that all interested undertakings have the same opportunity to benefit from the advantages of subcontracting. In other cases, it is appropriate to allow contracting authorities or Member States to require competition between sub-contractors when they are selected during the performance of the contract, for instance when this is justified by the structure of the market. At the same time, the proper functioning of the successful tenderer's supply chain should not be jeopardised. An appropriate limit should therefore be set on the percentage that can be subcontracted to third parties at the awarding authority's request.

Amendment 54 #

Proposal for a directive
Recital 23

~~(23) In any case, no performance conditions may pertain to requirements other than those relating to the performance of the contract itself.~~deleted

Amendment 55 #

Charlotte CEDERSCHIÖLD, Andreas SCHWAB

Proposal for a directive
Article 1 - paragraph 1 - introductory wording

This Directive shall apply to public contracts ~~awarded in the fields of defence and security for~~relating to the supply of goods and services which are used in order to guarantee the security and defence of the European Union or its Member States and entailing, requiring or containing sensitive information, and public works and services contracts related to these supplies. These comprise:

Amendment 56 #

Proposal for a directive
Article 1 - paragraph 1

This Directive shall apply to public contracts ~~awarded in the fields of defence and security for~~relating to the supply of goods and services which are used for the purpose of guaranteeing the security and defence of the Union or its Member States and public works and services contracts related to such supplies. These comprise:

Amendment 57 #

Gary TITLEY

Proposal for a directive
Article 1 - paragraph 1 - introductory wording

TSubject to Articles 30, 45, 46, 55 and 296 of the Treaty, this Directive shall apply to public contracts awarded in the fields of defence ~~and security~~ for:

Amendment 58 #

Proposal for a directive
Article 1 - paragraph 1 - introductory wording

TSubject to Article 296 of the Treaty, this Directive shall apply to public contracts awarded in the fields of defence and security for:

Amendment 59 #

Gary TITLEY

Proposal for a directive
Article 1 - paragraph 1 - point a

a) the supply of ~~arms, munitions and/or war material, referred to in the Council Decision of 15 April 1958 and, where necessary, public works and services contracts strictly related to these supplies~~military equipment, as well as any parts, components and/or subassemblies thereof;

Amendment 60 #

Proposal for a directive
Article 1 - paragraph 1 - point a

a) the supply of arms, munitions and/or war material, referred to in the Council Decision of 15 April 1958 ~~and, where necessary, public works and services contracts strictly related to these supplies~~;

Amendment 61 #

Proposal for a directive
Article 1 - paragraph 1 - point a

a) the supply of arms, munitions and/or war material, referred to in the Council Decision of 15 April 1958 and~~, where necessary,~~ public works and services contracts ~~strictly~~ related to ~~these~~such supplies;

Amendment 62 #

Proposal for a directive
Article 1 - paragraph 1 - point a

Amendment 63 #

Proposal for a directive
Article 1 - paragraph 1 - point b

b) ~~the supply of parts, components and/or subassemblies for incorporation in or fitting to the goods referred to under a), or for the repair, refurbishment or maintenance of such good~~works, supplies and/or services involving, entailing and/or containing sensitive information, and which are necessary for the security of the EU and its Member States, in the fields of protection against terrorism or organised crime, border protection and crisis management operations;

Amendment 64 #

Gary TITLEY

Proposal for a directive
Article 1 - paragraph 1 - point b

b) the supply of ~~parts, components and/or subassemblies for incorporation in or fitting to the goods referred to under a), or for the repair, refurbishment or maintenance of such goods~~works, supplies and services directly related to the equipment referred to in point (a);

Amendment 65 #

Proposal for a directive
Article 1 - paragraph 1 - point b

b) the supply of parts, components and/or subassemblies for incorporation in or fitting to the goods referred to under a), or for the repair, refurbishment or maintenance of such goods and public works and services contracts related to such supplies;

Amendment 66 #

Proposal for a directive
Article 1 - paragraph 1 - point b

Amendment 67 #