Progress: Procedure completed
Role | Committee | Rapporteur | Shadows |
---|---|---|---|
Lead | IMCO | JUVIN Philippe ( PPE) | PANZERI Pier Antonio ( S&D), BUŞOI Cristian-Silviu ( ALDE), RÜHLE Heide ( Verts/ALE), HARBOUR Malcolm ( ECR), KOŽUŠNÍK Edvard ( ECR), SALVINI Matteo ( EFD) |
Committee Opinion | CULT | ||
Committee Opinion | AFET | ||
Committee Opinion | ENVI | ||
Committee Opinion | EMPL | ||
Committee Opinion | ITRE | LANGEN Werner ( PPE) | |
Committee Opinion | REGI | RÜHLE Heide ( Verts/ALE) | |
Committee Opinion | ECON | ||
Committee Opinion | LIBE | ||
Committee Opinion | INTA | SUSTA Gianluca ( S&D) | |
Committee Opinion | TRAN | Knut FLECKENSTEIN ( S&D) | |
Committee Opinion | JURI | BALDASSARRE Raffaele ( PPE) | Sajjad KARIM ( ECR), Jiří MAŠTÁLKA ( GUE/NGL) |
Lead committee dossier:
Legal Basis:
TFEU 053-p1, TFEU 062, TFEU 114-p1
Legal Basis:
TFEU 053-p1, TFEU 062, TFEU 114-p1Subjects
Events
Corrigendum to Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (Official Journal of the European Union L94 of 28 March 2014.)
Article 31(5) point (a) of the third subparagraph (concession notices):
instead of: where the applicant concerned shall or may be excluded pursuant to Article 38(5) to (9) or does not meet the selection criteria set out by the contracting authority or the contracting entity pursuant to Article 38(1);’ read: where the applicant concerned shall or may be excluded pursuant to Article 38(4) to (9) or does not meet the selection criteria set out by the contracting authority or the contracting entity pursuant to Article 38(1).’
Article 33(1), first subparagraph (form and manner of publication of notices):
instead of: ‘1. Concession notices, concession award notices and the notice referred to in the second subparagraph of Article 43(1) shall include the information set out in Annexes V, VII and VIII and in the format of standard forms, including standard forms for corrigenda.’ read: ‘1. Concession notices, concession award notices and the notice referred to in the second subparagraph of Article 43(1) shall include the information set out in Annexes V, VI, VII, VIII and XI and in the format of standard forms, including standard forms for corrigenda.’
Annex II, (Activities exercised by contracting entities), the introductory wording of the second subparagraph of paragraph 1:
instead of : ‘The supply by a contracting entity referred to in points (b) and (c) of Article 7(1) of gas or heat to fixed networks which provide a service to the public shall not be considered to be a relevant activity within the meaning of paragraph 1 where all of the following conditions are met:’ read : ‘The supply by a contracting entity referred to in points (b) and (c) of Article 7(1) of gas or heat to fixed networks which provide a service to the public shall not be considered to be a relevant activity within the meaning of the first subparagraph of this paragraph where all of the following conditions are met:’
Annex II, (Activities exercised by contracting entities), the introductory wording of the third subparagraph of paragraph 2:
instead of: ‘The supply by a contracting entity referred to in points (b) and (c) of Article 7(1) of electricity to networks which provide a service to the public shall not be considered to be a relevant activity within the meaning of paragraph 1 where all of the following conditions are met:’ read: ‘The supply by a contracting entity referred to in points (b) and (c) of Article 7(1) of electricity to networks which provide a service to the public shall not be considered to be a relevant activity within the meaning of the first subparagraph of this paragraph where all of the following conditions are met:’.
The European Parliament adopted by 598 votes to 60 with 18 abstentions, a legislative resolution on the proposal for a directive of the European Parliament and of the Council on the award of concession contracts.
Parliament adopted its position in first reading following the ordinary legislative procedure. The amendments adopted in plenary are the result of an agreement between Parliament and Council. They amend the proposal as follows:
A clear legislative framework applicable to the award of concessions : Parliament states that such a framework afford greater legal certainty to economic operators and could be a basis for and means of further opening up international public procurement markets and boosting world trade.
The rules of the legislative framework applicable to the award of concessions should be clear and simple. They should duly reflect the specificity of concessions as compared to public contracts and should not create an excessive amount of bureaucracy.
Principle of free administration by public authorities: the Directive should not in any way affect the freedom of Member States and public authorities to perform works or provide services directly to the public or to outsource such provision by delegating it to third parties.
It does not affect the freedom of Member States to define, what they consider to be services of general economic interest. Non-economic services of general interest shall fall outside the scope of this Directive.
Specificity of concessions : Parliament clarified the definition of concession and its specificity in relation to public procurement. It means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the execution of works or the provision and the management of services to one or more economic operators the consideration for which consists either solely in the right to exploit the works or services that are the subject of the contract or in that right together with payment.
The award of a works or services concession shall involve the transfer to the concessionaire of an operating risk in exploiting those works or services. The part of the risk transferred to the concessionaire shall involve real exposure to the vagaries of the market, such that any potential estimated loss incurred by the concessionaire shall not be merely nominal or negligible.
Threshold and methods for calculating the estimated value of concessions : the Directive shall apply to concessions the value of which is equal to or greater than EUR 5 186 000.
Every two years from 30 June 2013, the Commission shall verify that the threshold corresponds to the threshold established in the World Trade Organisation Agreement on Government Procurement (the ‘GPA’) for works concessions and shall, where necessary, revise that threshold.
The value of a concession shall be the total turnover of the concessionaire generated over the duration of the contract, net of VAT, as estimated by the contracting authority or the contracting entity, in consideration for the works and services being the object of the concession, as well as for the supplies incidental to such works and services.
Duration of the concession: the duration of concessions shall be limited. The contracting authority or contracting entity shall estimate the duration on the basis of the works or services requested. For concessions lasting more than five years, the maximum duration of the concession shall not exceed the time that a concessionaire could reasonably be expected to take to recoup the investments made in operating the works or services together with a return on invested capital.
Exclusions: the Directive will not apply to:
· concessions which the contracting authority or contracting entity awards in accordance with procurement rules provided by an international organisation or international financing institution, where the concessions concerned are fully financed by that organisation or institution;
· concessions in the fields of defence and security as referred to in Directive 2009/81/EC which are governed by specific procedural rules pursuant to an international agreement or arrangement concluded between one or more Member States and one or more third countries;
· service concessions for:
i. the acquisition, development, production or co-production of programme material intended for audiovisual media services or radio media services that are awarded by audiovisual or radio media service providers, or concessions for broadcasting time or programme provision , that are awarded to audiovisual or radio media service providers;
ii. civil defence , civil protection, and danger prevention services that are provided by non-profit organisations or associations
iii. political campaign services
· service concessions for lottery services, which are covered by CPV code 92351100-7, awarded by a Member State to an economic operator on the basis of an exclusive right.
Specific exclusions in the field of water: the Directive shall not apply to concessions awarded to: (a) provide or operate fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water ; (b) supply drinking water to such networks.
Concessions for the disposal or treatment of sewage and for hydraulic engineering projects, irrigation or land drainage (provided that the volume of water to be used for the supply of drinking water represents more than 20 % of the total volume of water made available by such projects or irrigation or drainage installations) should also be excluded in so far as they are connected with an excluded activity.
General principles : the contracting authority or contracting entity shall have the freedom to organise the procedure leading to the choice of concessionaire subject to compliance with the Directive. The award procedure shall respect the principles of equal treatment, non-discrimination and transparency. Award criteria may include inter alia environmental, social or innovation-related criteria.
In the performance of concession contracts economic operators must comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X.
Combating corruption and preventing conflicts of interest : contracting authorities must take appropriate measures to combat fraud, favouritism and corruption and to effectively prevent, identify and remedy conflicts of interest arising in the conduct of concession award procedures.
Subcontracting: the observance by subcontractors of applicable obligations in the fields of environmental, social and labour law, must be ensured through appropriate actions by the competent national authorities within the scope of their responsibilities and remit, such as labour inspection agencies or environmental protection agencies.
The amended text stipulates that the conditions relating to the enforcement of observance of applicable obligations in the fields of environmental, social and labour law, must be applied whenever the national law of a Member State provides for a mechanism of joint liability between subcontractors and the concessionaire.
The Committee on the Internal Market and Consumer Protection adopted the report by Philippe JUVIN (EPP, FR) on the proposal for a directive of the European Parliament and of the Council on the award of concession contracts.
The parliamentary committee recommended that the European Parliament’s position adopted at first reading under the ordinary legislative procedure should amend the Commission’s proposal as follows:
Simplification of the legal framework: in Members’ view, the award of concession contracts should be clear, simple and not create an excessive amount of bureaucracy. A number of amendments were introduced with this in view.
Principle of free administration by public authorities: Members reaffirmed the principle that public authorities should be completely independent when it comes to choosing the legal framework for their action, organising themselves to perform their tasks, and laying down quality criteria for service concessions. This Directive should be without prejudice to the Member States’ power to award, define and organise the provision of a public service task.
Specific nature of concessions: given the specific nature of concessions, Members considered that concession award provisions should not be simply equated with the rules for the awarding of public contracts.
The report clarified the definition of a concession and its special nature as compared with a public contract: (i) transfer of a mission for which the grantor is responsible to a third economic operator; (ii) transfer of risk from the grantor to the concessionaire; (iii) transfer to the concessionaire of a right to exploit the works or services concerned by the concession; (iv) payment of concessionaire on the basis of exploitation of the works or services; (v) the existence of an economic risk in regard to the operation of works or services by the concessionaire.
The term ‘ grantor ’ was introduced to simplify the text where it refers to the contracting authority and contracting entity in the same way.
Thresholds: to simplify the text, the report removed the intermediate threshold of EUR 2.5 – 5 million specifying the obligation to publish a concession award notice.
Calculation of the value of a concession: Members judged it to be preferable to have a simple calculating method which is the same whatever the subject of the concession, as the same rules apply to works concessions as to services concessions and the mixed nature of most contracts (works and services) would make it difficult to determine the threshold applicable. The proposed new calculation method would be based on the pre-tax turnover of the concession for the whole of the contractual period.
Duration of the concession : the provisions concerning the duration of the concession have been amended so as to stress the point that concessions are limited in time and to cover cases in which there is no investment to be financed by the concessionaire. The duration of a concession should, in that event, be determined according to criteria other than the time taken to recoup the investment outlay (e.g. achieving the aims laid down in the contract).
Exclusions: Members proposed that the exclusion applying to concessions awarded on the basis of an exclusive right should be widened to encompass the activities falling under Annex III if these are subject to a tariff regulated at national level at the time of entry into force of the proposed directive. This provision should not be confined solely to network infrastructure management for the purposes of the activities listed in Annex III.
The gaming sector has also been excluded because of the very specific nature of its activities, as have civil defence, civil protection, and hazard prevention .
The report clarified the exclusions relating to affiliated undertakings stipulating that the calculation of 80% of its average turnover should take into account all services provided by that undertaking.
An amendment was also proposed with a view to excluding agreements relating to transfers of powers between public authorities .
Water sector: Members accepted the exclusion of the water sector from the scope of the Directive. They did, however, propose a new provision introducing a transitional period , applicable until 2020 , for affiliated undertakings operating in the water sector to allow them a reasonable period of time to adapt their internal organisation to the rules in force.
Award procedure: this has been clarified in order to improve understanding of the articles on the conduct of the procedure, transparency and the procedural guarantees. The provisions on the confidentiality of the information supplied by candidates or tenderers to the grantor during the award procedure were strengthened.
Taking public policy aims into account: for the public policy objectives laid down by contracting authorities or entities to be taken into account, Members have provided for the possibility for the concession provider to award a concession on the basis of environmental, social, or innovation-related criteria .
Electronic communications: the report has simplified the provisions regarding electronic communications so as to take into account the specific nature of concessions for which, unlike with public contracts, widespread use is not necessarily made of electronic procedures given the significant element of negotiation involved in this type of contract.
The Council held an orientation debate on the modernisation of the public procurement policy in the EU. The outcome of the debate provides political guidance for future work.
The Council also took note of a Presidency report on the progress achieved concerning the reform of the public procurement legal framework. The report outlines a number of possible solutions to pave the way for a political agreement in the coming months.
This was the second ministerial debate since the presentation by the Commission, on 20 December 2011, of legislative proposals for a major overhaul of public procurement rules across the EU. The Package consists of three legislative proposals for (i) a Directive on public procurement (classical directive), (ii) a Directive on procurement by entities operating in the water, energy, transport and postal services sectors and (iii) a Directive on award of concession contracts .
The report outlines a number of possible solutions to pave the way for a political agreement in the coming months. The debate focused on two key subjects:
(1) The use of electronic systems in public procurement (e-procurement) : many delegations pointed out the considerable savings that would be achieved through increased use of digitisation and electronic procurement procedures. However, it was also noted that important technical challenges would need to be addressed as regards the adaptation of public purchasing bodies, and a certain degree of interoperability would need to be ensure, before use of this technology is standard.
Ministers are invited to comment on whether they support the Commission proposal to fully switch to electronic communication within 2 years after transposition, i.e. mid-2016 in the case of adoption of the directive in 2012, or if they would prefer a different time frame. They were also asked how the transition can best be supported.
(2) The governance and monitoring of the procurement procedures : on governance, a large majority of delegations favoured the "light" approach outlined in the Presidency compromise, with Member States having the option of organising their administrative structures without the need to create new structures.
Ministers are invited to comment on whether they agree with the Presidency approach, which would leave organisational decisions to Member States and simply identify the tasks to be carried out, including: monitoring, reporting and guidance. They are also asked to specify which other tasks should be included or should the list be reduced further.
On the basis of the negotiations and positions expressed in the Council Working Party, along with the political guidance provided by the Competitiveness Council on 20 February 2012 (refer to the summary dated from the same day), the Presidency points out a number of elements below to be included in the final political agreement :
Flexibilisation of procedures : the Presidency proposes to: (i) substantially widen access to the competitive procedure with negotiation and the competitive dialogue compared to the Commission proposal; (ii) fully support the new procedure targeted at promoting structured innovation partnerships in order to further the development and subsequent purchase of innovative supplies, services and works; (iii) reduce the minimum time limits set out in the Commission proposal in order to make public procurement more efficient.
Strategic use of public procurement : the Presidency proposes to: (i) promote the development of life-cycle costing and clarify how it can be integrated in the award criteria for public contracts; (ii) state that public procurement rules should continue to focus on "how to buy" and not "what to buy"; (iii) refine the scope and conditions for a light regime for certain services, including social, health, cultural, educational and hotel/restaurant services, while promoting transparency and competition.
Reducing documentation requirements : the Presidency proposes to: (i) fully support making obligatory the acceptance of economic operators’ self-declarations instead of certificates and other official documents as preliminary means of proof that they are not subject to grounds for exclusion and that they fulfil the selection criteria; (ii) provide contracting authorities with a possibility to ask economic operators to supplement, clarify or complete information or documentation submitted where it is or appears to be incomplete or erroneous, while respecting the principles of transparency and equal treatment.
SME Access : the Presidency proposes to: (i) fully support the proposal of introducing a turnover cap, according to which contracting authorities should not be allowed to require economic operators to have a minimum turnover exceeding three times the estimated contract value ; (ii) fully support the involvement of SMEs in public procurement markets, by encouraging contracting authorities to duly consider dividing contracts into lots.
Aggregation of demand : the Presidency proposes to: (i) clarify the conditions for use of framework agreements; (ii) clarify the rules attributing liability for the observance of the procurement rules among the central purchasing body and the contracting authorities procuring from or through the body; (iii) make it easier for contracting authorities from different Member States to perform joint procurement across borders, thus providing an important tool for procurement of innovative solutions.
It should be recalled Member States have all affirmed the importance of giving a high priority to the negotiations on the proposal in order to reach agreement with the European Parliament by the end of 2012.
The Council held an orientation debate on the modernisation of public procurement policy. It was the first ministerial debate since the presentation by the Commission, in December 2011, of the proposals for a major overhaul of public procurement rules across the EU.
The outcome of the debate provides guidance for the continuation of technical work. The intermediate target is to reach an agreement on the main principles of the reform at the Competitiveness Council in May, with the final purpose of getting the reform approved in co legislation with the European Parliament before the end of 2012 .
The three proposals for modernising public procurement are:
a draft directive setting up the new legislative framework (replacing directive 2004/18/EC); a draft directive on procurement by entities operating in the water, energy, transport and postal services (replacing directive 2004/17/EC); a draft directive on the award of concession contracts .
The debate focused on the new general legal framework. More specifically, it concentrated on two aspects put forward by the Presidency:
1. The degree of flexibility that should apply in the use of competitive procedures with negotiation : compared to the current rules, the Commission proposes to increase the list of cases in which member states may allow for the competitive procedure with negotiation, but not so as to allow unrestricted access to this procedure.
Ministers are invited to comment on the following questions :
Does the Commission’s proposal provide procuring entities sufficient access to the competitive procedure with negotiation? If not, should access be as unrestricted as possible? How can it be secured that more flexibility does not lead to unequal treatment?
A majority of delegations stated that a wider use of negotiated procedures in public contracts should be possible and that certain safeguards should also be put in place to ensure equal treatment for tenders. Some other delegations would prefer a limited use for this procedure, in line with the Commission proposal.
2. Rules for certain categories of services: social, cultural, health, etc : the Commission proposes abolishing the current distinction applying to certain services that can be externalised under simpler regimes (social, cultural, health, education, etc.), so that standard rules would apply to all services unless explicitly exempted.
Ministers are invited to comment on the following questions :
Is the Commission right in proposing a lighter regime for certain social, cultural, educational and health services? Should other services also benefit from the special regime? Has the Commission struck the right balance between promoting efficiency through competition and delivering on the objective of lighter public procurement rules?
Many delegations emphasised that the new system should strike the right balance between promoting efficiency through competition in contract awards and delivering on the objective of lighter public procurement rules for certain services.
PURPOSE: to guarantee transparency, fairness and legal certainty in the award of concession contracts.
PROPOSED ACT: Directive of the European Parliament and of the Council.
BACKGROUND: public procurement plays a key role in the Europe 2020 strategy. The award of works concessions is presently subject to basic rules of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts while the award of services concessions with a cross-border interest is subject to the principles of the Treaty, and in particular the principle of free movement of goods, freedom of establishment and freedom to provide services as well as to the principles deriving therefrom such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency.
There is a risk of legal uncertainty related to different interpretations of the principles of the Treaty by national legislators and of wide disparities among the legislations of different Member States. Such risk has been confirmed by the extensive case law of the Court of Justice of the European Union but which has only partially addressed certain aspects of the award of concession contracts.
The absence of clear rules at Union level governing the award of concession contracts gives rise to legal uncertainty and to obstacles to the free provision of services and causes distortions in the functioning of the Internal Market. As a result, economic operators, in particular Small and Medium Enterprises (SMEs), are being deprived of their rights within the Internal Market and miss out on important business opportunities, An adequate legal framework for the award of concessions would ensure effective and non-discriminatory access to the market to all Union economic operators and legal certainty, favouring public investments in infrastructures and strategic services to the citizen. Hence, a u niform concretisation of the Treaty principles across all Member States and the elimination of discrepancies in their understanding following therefrom is necessary at the Union level in order to eliminate persisting distortions of the Internal Market.
The Commission announced the intention to adopt a legislative initiative on concessions in its communication “ The Single Market Act Twelve levers to boost growth and strengthen confidence ” of 13 April 2011.
This draft is being put forward in tandem with the revision of Public Procurement Directives ( COD/2011/0438 and COD/2011/0439 ). It will result in the adoption of a separate legal instrument regulating the award of concessions which, together with the two proposals to revise Public Procurement Directives (2004/17/EC and 2004/18/EC), aims at creating a modern public procurement legislative framework.
IMPACT ASSESSMENT: the final impact assessment report confirmed the need for new legislation. It found that economic operators are faced with an unlevel playing field, which often leads to missed business opportunities. The optimal solution identified was legislation based on the current provisions on public works concessions, adequately adjusted and supplemented with certain specific provisions. A more restrictive approach, would be to extend to concessions the provisions that apply to public contracts. This approach was considered counter-productive in that it could potentially discourage contracting authorities from using concessions.
LEGAL BASIS: Article 53 (1), Article 62 and Article 114 of the TFEU.
CONTENT: the proposed Directive is expected to guarantee transparency, fairness and legal certainty in the award of concession contracts , and thereby contribute to improved investment opportunities and ultimately to more and better quality of works and services. It will apply to concessions awarded after its entry into force. This provision is in line with rulings by the Court of Justice of the European Union on modifying contracts.
(1) Legal certainty : the main objective of the Directive is to provide for clarity on the legal framework applicable to the award of concessions, but another is to clearly delimit the scope of application of this framework.
Definition : the present proposal for a Directive on the award of concession contracts provides for a more precise definition of concession contracts with reference to the notion of operational risk. It makes clear what types of risk are to be considered operational and how to define significant risk. It also provides references as to the maximum duration of concessions. Incorporation of Treaty obligations into secondary law : the proposal extends the majority of the obligations which currently apply to the award of public works concessions to all services concessions. . It also lays down a number of concrete and more precise requirements, applicable at different stages of the award process on the basis of the Treaty principles, as interpreted in the case law of the Court of Justice of the European Union. Moreover, it extends the application of secondary law to the award of concession contracts in the utilities sector, which is currently exempt from such legislation. Public-public cooperation : 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 differently between Member States and even between contracting authorities. Hence the present proposal clarifies the cases in which contracts concluded between contracting authorities are not subject to the application of concession award rules. Such clarification is guided by the principles set out in the relevant case law of the Court of Justice. Modifications : a specific provision on modifying concessions incorporates the basic solutions developed in the case law and provides a pragmatic solution for dealing with unforeseen circumstances requiring an a concession to be modified during its term.
( 2) Better access to the concessions markets : the proposal provides for a fundamental improvement economic operators' access to the concessions markets. The provisions are primarily designed to increase the transparency and fairness of award procedures by restricting the arbitrariness of contracting authorities and contracting entities' decisions on such issues as prior and post-publication, procedural safeguard, selection and award criteria and the deadlines imposed on tenderers. Furthermore, they provide for a better access to justice in order to prevent or to address violations of those provisions.
Publication in the Official Journal : in order to ensure transparency and equal treatment to all economic operators, the present proposal provides for compulsory publication of concession contracts with a value equal to or greater than EUR 5 000 000. Deadlines : this proposal also sets a minimum deadline for the submission of interest in any concession award procedure, amounting to 52 days, as this is currently the case for public works concessions. It has been decided to provide for concessions a longer deadline than in case of public contracts, given that concession contracts are usually more complex. Selection and exclusion criteria : the rules are less restrictive than similar provisions currently applicable to public contracts. However, they restrict the selection criteria to those related to the economic, financial and technical capacity of the bidder and limit the scope of the acceptable exclusion criteria. Award criteria : the proposal provides for an obligation to apply objective criteria linked to the subject matter of the concession, ensuring compliance with the principles of transparency, non-discrimination and equal treatment, guaranteeing that tenders are assessed in conditions of effective competition allowing an overall economic advantage for the contracting authority or the contracting entity to be determined. These criteria should prevent arbitrary decisions by contracting authorities and contracting entities and must be published in advance and listed in descending order of importance. Member States or contracting authorities or contracting entities which so wish, may also provide for or apply the ‘most economically advantageous tender’ criterion for the award of concessions. Procedural guarantees : unlike the Public Procurement Directives, the proposed rules do not contain a fixed catalogue of award procedures. This solution allows contracting authorities and contracting entities to follow more flexible procedures when awarding concessions notably reflecting national legal traditions and permitting the award process to be organised in the most efficient way. However, the proposal establishes a number of clear procedural safeguards to be applied to the award of concessions notably during negotiations. These safeguards aim at ensuring that the process is fair and transparent. Remedies : this proposal provides for an extension of the scope of application of the Remedies Directives (Directives 89/665/EEC and 92/13/EC, as amended by Directive 2007/66/EC) to all concession contracts above the threshold in order to guarantee effective channels for challenging the award decision in court and provide minimal judicial standards which have to be observed by contracting authorities or entities.
BUDGETARY IMPLICATION: the proposal has no budgetary implications for the EU.
DELEGATED ACTS: the Commission shall be empowered to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU).
Documents
- Follow-up document: COM(2023)0460
- Follow-up document: EUR-Lex
- Follow-up document: EUR-Lex
- Follow-up document: SWD(2023)0267
- Follow-up document: COM(2021)0245
- Follow-up document: EUR-Lex
- Final act published in Official Journal: Directive 2014/23
- Final act published in Official Journal: OJ L 094 28.03.2014, p. 0001
- Final act published in Official Journal: Corrigendum to final act 32014L0023R(01)
- Final act published in Official Journal: OJ L 114 05.05.2015, p. 0024
- Final act published in Official Journal: Corrigendum to final act 32014L0023R(03)
- Final act published in Official Journal: OJ L 082 26.03.2017, p. 0017
- Draft final act: 00073/2013/LEX
- Commission response to text adopted in plenary: SP(2014)167
- Results of vote in Parliament: Results of vote in Parliament
- Decision by Parliament, 1st reading: T7-0024/2014
- Debate in Parliament: Debate in Parliament
- Committee report tabled for plenary, 1st reading: A7-0030/2013
- Debate in Council: 3208
- Committee opinion: PE494.668
- Committee opinion: PE496.425
- Committee opinion: PE492.848
- Committee opinion: PE492.572
- Committee opinion: PE492.632
- Amendments tabled in committee: PE496.581
- Amendments tabled in committee: PE497.782
- Amendments tabled in committee: PE497.783
- Committee opinion: PE486.119
- Committee of the Regions: opinion: CDR0100/2012
- Committee draft report: PE492.669
- Contribution: COM(2011)0897
- Debate in Council: 3169
- Contribution: COM(2011)0897
- Contribution: COM(2011)0897
- Contribution: COM(2011)0897
- Debate in Council: 3147
- Contribution: COM(2011)0897
- Document attached to the procedure: SEC(2011)1588
- Document attached to the procedure: EUR-Lex
- Document attached to the procedure: SEC(2011)1589
- Document attached to the procedure: EUR-Lex
- Legislative proposal published: COM(2011)0897
- Legislative proposal published: EUR-Lex
- Document attached to the procedure: SEC(2011)1588 EUR-Lex
- Document attached to the procedure: SEC(2011)1589 EUR-Lex
- Committee draft report: PE492.669
- Committee of the Regions: opinion: CDR0100/2012
- Committee opinion: PE486.119
- Amendments tabled in committee: PE496.581
- Amendments tabled in committee: PE497.782
- Amendments tabled in committee: PE497.783
- Committee opinion: PE492.572
- Committee opinion: PE492.632
- Committee opinion: PE492.848
- Committee opinion: PE496.425
- Committee opinion: PE494.668
- Commission response to text adopted in plenary: SP(2014)167
- Draft final act: 00073/2013/LEX
- Follow-up document: COM(2021)0245 EUR-Lex
- Follow-up document: COM(2023)0460 EUR-Lex
- Follow-up document: EUR-Lex SWD(2023)0267
- Contribution: COM(2011)0897
- Contribution: COM(2011)0897
- Contribution: COM(2011)0897
- Contribution: COM(2011)0897
- Contribution: COM(2011)0897
Votes
A7-0030/2013 - Philippe Juvin - Résolution législative #
Amendments | Dossier |
1182 |
2011/0437(COD)
2012/07/19
EMPL
80 amendments...
Amendment 1 #
Proposal for a directive Recital 2 a (new) (2a) Under Article 9 of the Treaty on the Functioning of the European Union, the Union must take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health in defining and implementing its policies and activities. This Directive contributes to attaining these objectives by encouraging sustainable concession contracts, the integration of social criteria in all stages of concession procedure and the respect of obligations relating to social and employment conditions, health and safety at workplace, social security and working conditions as set out by EU, national laws and international labour law provisions listed in Annex XIII a (new).
Amendment 10 #
Proposal for a directive Recital 7 (7) Difficulties related to the interpretation of the concepts of concession and public contract have been source of continued legal uncertainty among stakeholders and have given rise to numerous judgments of the Court of Justice of the European Union on this subject. Therefore, the definition of concession should be clarified, in particular by referring to the concept of substantial share of operating risk. The main feature of a concession, the right to exploit the works or services, always implies the transfer to the concessionaire of an economic risk involving the possibility that it will not recoup the investments made and the costs incurred in operating the works or services awarded. The application of specific rules governing the award of concessions would not be justified if the contracting authority or entity relieved the contractor of any potential loss, by guaranteeing a minimal revenue, equal or higher to the costs that the contractor has to incur in relation with the performance of the contract. At the same time it should be made clear that certain arrangements which are fully paid by a contracting authority or a contracting entity should qualify as concessions where the recoupement of the invest
Amendment 11 #
Proposal for a directive Recital 11 a (new) (11a) In accordance with Article 14 TFEU in association with Protocol 26 thereto, national, regional and local authorities shall have wide discretion in deciding whether to award contracts for services of general interest.
Amendment 12 #
Proposal for a directive Recital 20 Amendment 13 #
Proposal for a directive Recital 21 (21) In the light of the results of the evaluation conducted by the Commission on the reform of public procurement rules it is appropriate to exclude from the full application of this Directive only those services which have a limited cross-border dimension, namely the so-called services to
Amendment 14 #
Proposal for a directive Recital 21 (21)
Amendment 15 #
Proposal for a directive Recital 25 (25) In order to ensure transparency and equal treatment, criteria for the award of concessions should always comply with some general standards. These should be disclosed in advance to all potential tenderers, be related to the subject matter of the contract and should not offer to the contracting authority or contracting entity an unrestricted freedom of choice. They should ensure the possibility of effective competition and be accompanied by requirements that allow the information provided by the tenderers to be effectively verified. In order to comply with these standards while improving legal certainty, Member States may provide for the use of the criterion of the most economically advantageous and sustainable tender.
Amendment 16 #
Proposal for a directive Recital 26 (26) Where contracting authorities and contracting entities choose to award a concession to the most economically advantageous and sustainable tender, they should determine the economic and quality criteria
Amendment 17 #
Proposal for a directive Recital 28 (28) The technical specifications drawn up by contracting authorities and contracting entities need to allow concession award to be opened up to competition. To that end, it must be possible to submit tenders that reflect the diversity of technical solutions so as to obtain a sufficient level of competition. Consequently, technical specifications should be drafted and applied in conformity with the principles of transparency and non-discrimination and in such a way to avoid artificially narrowing down competition through requirements that favour a specific economic operator by mirroring key characteristics of the supplies, services or works habitually offered by that economic operator. Drawing up the technical specifications in terms of functional and performance requirements generally allows this objective to be achieved in the best way possible and favours innovation. Where reference is made to a European standard or, in the absence thereof, to a national standard, tenders based on equivalent arrangements should be considered by
Amendment 18 #
Proposal for a directive Recital 29 (29) In technical specifications and in award criteria, contracting authorities and contracting entities should be allowed to refer to a specific production process, a specific mode of provision of services, or a specific process for any other stage of the life cycle of a product or service, provided that they are linked to the subject-matter of the concession. In order to better integrate social considerations in the award of concessions, procurers may also be allowed to include, in the award criteria, characteristics related to
Amendment 19 #
Proposal for a directive Recital 29 (29) In technical specifications and in award criteria, contracting authorities and contracting entities should be allowed to refer to a specific production process, a specific mode of provision of services, or a specific process for any other stage of the life cycle of a product or service, provided that they are linked to the subject-matter of the concession. In order to better integrate social considerations in the award of concessions, procurers may also be allowed to include, in the award criteria, characteristics related to the working conditions. However, where the contracting authorities or contracting entities use the most economically advantageous and sustainable tender, such criteria may only relate to the working conditions of the persons directly participating in the process of production or provision in question. Those characteristics may only concern the protection of health of the staff involved in the production process or the favouring of social integration of disadvantaged persons or members of vulnerable groups amongst the persons assigned to performing the contract, including accessibility for persons with disabilities. In this case, any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff members in their working environment. They should be applied in accordance with Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services and in a way that does not discriminate directly or indirectly against economic operators from other Member States or from third countries parties to the Agreement or to Free Trade Agreements to which the Union is party. Contracting authorities and contracting entities should, also where they
Amendment 2 #
Proposal for a directive Recital 3 a (new) (3a) This Directive is without prejudice to the right of public authorities at all levels to decide whether, how, and to what extent they want to perform public functions themselves. Public authorities may perform public interest tasks using their own resources, without being obliged to call on outside economic operators. They may do so in cooperation with other public authorities.
Amendment 20 #
Proposal for a directive Recital 29 a (new) (29a) This Directive ensures the application of Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of workers' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses in order to ensure the respect of the rules of equal competition and the protection of workers in the context of the transfer of an undertaking.
Amendment 21 #
Proposal for a directive Recital 32 (32) The laws, regulations and representative collective agreements
Amendment 22 #
Proposal for a directive Recital 32 a (new) (32a) The national legislation and collective agreements that apply in the place where the work, service or supply is performed, as regards obligations relating to social and employment protection, and working conditions also apply during the performance of a concession. Non- compliance with those obligations shall be considered to be a grave misconduct on the part of the economic operator concerned, liable to lead to the exclusion of that economic operator from the procedure for the award of a concession contract.
Amendment 23 #
Proposal for a directive Recital 32 a (new) (32a) If, when a concession is awarded, workers are taken over by the new concession holder from an authority, a public contracting body or the previous concession holder, the legal consequences of Directive 2001/23/EC in terms of safeguarding employment and working conditions shall apply in respect of the workers.
Amendment 24 #
Proposal for a directive Recital 33 (33) Concessions should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption, fraud to the detriment of the Union’s financial interests or money laundering. Non-payment of taxes or social security contributions should also be sanctioned by mandatory exclusion at the level of the Union. In order to enable prosecutions for past breaches of the law and to provide, in future concessions, for the clear and transparent apportionment of responsibility between the principal economic operator and subcontractors, both the principal economic operator and the subcontractors should be independently as well as jointly and severally liable. Furthermore, contracting authorities and contracting entities should be given the possibility to exclude candidates or tenderers for serious violations of Union or national law aimed at the protection of public interests compatible with the Treaty or where the economic operator has shown significant or persistent deficiencies in the performance of a prior concession or concessions of a similar nature with the same contracting authority or contracting
Amendment 25 #
Proposal for a directive Article 1 – paragraph 2 a (new) This Directive shall not affect the right of authorities at every level to decide whether, how and to what extent they shall perform public functions themselves. Authorities may perform public tasks using their own resources without being compelled to award concessions to other (external) economic operators. They may also perform such tasks jointly with other authorities.
Amendment 26 #
Proposal for a directive Article 2 – paragraph 1 – point 5 a (new) (5a) 'contract for pecuniary interest' means a contract the cause of which is based on an exchange of benefits. This implies that each party may profit from the transaction and that such profit does not necessarily have to be of an economic nature;
Amendment 27 #
Proposal for a directive Article 2 – paragraph 1 – point 14 a (new) (14a) 'construction risk' means the risk inherent in delays in delivery, additional costs or inadequate standards;
Amendment 28 #
Proposal for a directive Article 2 – paragraph 1 – point 14 b (new) (14b) 'availability risk' means the risk inherent in the performance of the services that the private partner has to provide;
Amendment 29 #
Proposal for a directive Article 2 – paragraph 1 – point 14 c (new) (14c) 'demand risk' means the risk inherent in the different volumes of demand for the service which the private partner has to meet;
Amendment 3 #
Proposal for a directive Recital 3 b (new) (3b) The essential role and wide discretion of national, regional and local authorities in providing, commissioning and organizing services of general interest as closely as possible to the needs of the users is also in line with Protocol 26 on Services of General Interest, Article 14 of the Treaty on the Functioning of the European Union and Article 36 of the Charter of Fundamental Rights of the European Union.
Amendment 30 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 1 The right to exploit the works or services as referred to in points 2, 4 and 7 of the first paragraph shall imply the transfer to the concessionaire of the substantial share of the operating risk. The concessionaire shall be deemed to assume the substantial share of the operating risk where it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject-matter of the concession.
Amendment 31 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 2 – introductory part Th
Amendment 32 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 2 – introductory part That
Amendment 33 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 2 – point a (a) the risk related to the use of the works or the demand for the provision of the service, including where such risk is substantially limited, for example by framework provisions under public law in a given Member State; or
Amendment 34 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 2 – point b a (new) (ba) Permits, authorisations or licences which merely stipulate the conditions for the exercise of an economic activity shall not be deemed concessions. The same applies to agreements between a contracting authority or entity concerning the right of an economic operator to exploit public domains or resources (simple tenancy or land lease contracts, for example) and in which, as a rule, only general conditions for their use are established without the contracting authority becoming the recipient of specific services performed by the contract partner.
Amendment 35 #
Proposal for a directive Article 5 – paragraph 2 a (new) 2a. Concessions the value of which is below the thresholds laid down in Article 5 may be granted directly without the need to issue an invitation to tender.
Amendment 36 #
Proposal for a directive Article 6 – paragraph 2 – subparagraph 1 The estimated value of a concession shall be calculated
Amendment 37 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point a (a) the acquisition
Amendment 38 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point e (e) employment contracts or collective agreements which contribute to the improvement of conditions of work;
Amendment 39 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 2 a (new) This Directive shall not apply to service concessions relating to services of general economic interest and services of general interest, such as: (a) water services; (b) wastewater services; (c) refuse services; (d) energy services; (e) social services, on the basis of the voluntary European quality framework for social services adopted by the Social Protection Committee, in particular in the fields of health and social provision, statutory social insurance, emergency and disaster response services, benefit services and services furnished by trade unions.
Amendment 4 #
Proposal for a directive Recital 3 c (new) (3c) Contracting authorities have broad discretion to use both technical specifications and award criteria to achieve their objectives, including sustainability objectives. Provided that the link to the subject matter rule is satisfied, this Directive is not intended to further constrain the types of concerns that a contracting authority can address through technical specifications or award criteria.
Amendment 40 #
Proposal for a directive Article 16 – paragraph 1 Amendment 41 #
Proposal for a directive Article 16 – paragraph 1 The duration of the concession shall be limited to the time estimated to be necessary for the concessionaire to recoup the investments made in operating the works or services together with a reasonable return on invested capital and also to the time estimated to reach the performance objectives set by the contracting authority.
Amendment 42 #
Proposal for a directive Article 17 Amendment 43 #
Proposal for a directive Article 20 – paragraph 1 Member States may reserve the right to participate in concession award procedures
Amendment 44 #
Proposal for a directive Article 20 – paragraph 1 a (new) (a) sheltered workshops, or provide for such contracts to be performed in the context of sheltered employment programmes, provided that the majority of the employees concerned are disabled persons who, by reason of the nature or the seriousness of their disabilities, cannot carry on occupations under normal conditions or easily find employment on the ordinary market;
Amendment 45 #
Proposal for a directive Article 20 – paragraph 1 b (new) (b) the enterprises and programmes whose main aim is social and professional integration of disadvantaged workers, provided that more than 30% of the employees of those economic operators or programmes are disabled or disadvantaged workers.
Amendment 46 #
Proposal for a directive Article 22 – paragraph 2 2. However, legal persons may be required to indicate in the tender or the application, the
Amendment 47 #
Proposal for a directive Article 22 – paragraph 3 3. Groups of economic operators may submit tenders or put themselves forward as candidates. Groups of economic operators, particularly small and medium- sized enterprises (SMEs), may take the form of a consortium of enterprises.
Amendment 48 #
Proposal for a directive Article 22 – paragraph 4 a (new) 4a. Contracting authorities shall aim for "best value" in concession award. This is achieved through the most broadly advantageous combination of cost, quality and sustainability considerations.
Amendment 49 #
Proposal for a directive Article 22 – paragraph 4 b (new) 4b. Contracting authorities shall respect the delay of payment as established in Directive 2001/7/EU.
Amendment 5 #
Proposal for a directive Recital 5 Amendment 50 #
Proposal for a directive Article 22 – paragraph 4 c (new) 4c. Economic operators shall comply with obligations relating to social and employment protection and the working conditions which apply in the place where the work, service or supply is to be performed as set out by national legislation and/or collective agreements or international labour law provisions listed in Annex XIII a (new).
Amendment 51 #
Proposal for a directive Article 22 – paragraph 4 d (new) 4d. The details of contract concessions shall be made public and open to scrutiny.
Amendment 52 #
Proposal for a directive Article 25 – paragraph 8 8. Contracting authorities may use the data processed electronically for
Amendment 53 #
Proposal for a directive Article 32 – paragraph 1 – subparagraph 1 The technical specifications as defined in point 1 of Annex VIII shall be set out in the concession documents. They shall define the characteristics required of a work
Amendment 54 #
Proposal for a directive Article 34 – paragraph 2 (new) If, when a concession is awarded, workers are taken over by the new concession holder from an authority, a public contracting body or the previous concession holder, the legal consequences of Directive 2001/23/EC in terms of safeguarding employment and working conditions shall apply in respect of the workers.
Amendment 55 #
Proposal for a directive Article 36 – paragraph 1 – subparagraph 1 – introductory part Contracting authorities shall specify, in the concession notice or document the conditions for participation relating to:
Amendment 56 #
Proposal for a directive Article 36 – paragraph 1 – subparagraph 2 Contracting authorities shall limit any conditions for participation to those that are appropriate to ensure that a candidate or tenderer has the legal and financial capacities and the commercial and technical abilities to perform the concession to be awarded. All requirements shall be related and strictly proportionate to the subject-matter of the contract
Amendment 57 #
Proposal for a directive Article 36 – paragraph 5 – subparagraph 1 – point e a (new) (ea) repeated and/or serious breaches of employment, social security or environmental law, established by judgments having the force of res judicata.
Amendment 58 #
Proposal for a directive Article 36 – paragraph 6 6. Any economic operator shall be excluded from participation in a concession where the contracting authority or contracting entity is aware of a decision having the force of res judicata, or of a legally binding administrative decision, establishing that it has not fulfilled obligations relating to the payment of taxes or social security contributions in accordance with the legal provisions of the country in which it is established or with those of the Member State of the contracting authority or entity, or if such an operator has been the subject on more than one occasion of an unfavourable ruling or penalty under employment law.
Amendment 59 #
Proposal for a directive Article 36 – paragraph 7 – subparagraph 1 – introductory part Member States
Amendment 6 #
Proposal for a directive Recital 5 a (new) (5a) Pursuant to Article 9 TFEU, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health when defining and implementing its policies and activities. The provisions of Articles 2, 3 and 4 as well as Article 14 TFEU and, in particular, Article 36 of the Charter of Fundamental Rights and Protocol 26 to the TFEU on services of general interest must be observed. This Directive contributes to attaining these objectives by encouraging the sustainable award of services concessions, the integration of social criteria in all stages of the procurement procedure and the respect of obligations relating to social and employment conditions, workplace health and safety, social security and working conditions as set out by EU and national laws, regulations or administrative provisions, arbitration awards, collective agreements and contracts, as well as the international labour law provisions listed in Annex XI, that apply in the place where the work, service or supply is performed; these obligations shall also apply in cross- border situations, where workers from one Member State provide services in another Member State.
Amendment 60 #
Proposal for a directive Article 36 – paragraph 7 – subparagraph 1 – point c a (new) (ca) breaches of social security, employment, tax or environmental law.
Amendment 61 #
Proposal for a directive Article 36 – paragraph 9 9. Member States shall specify the implementing conditions for this article. They shall make available to other Member States, upon request, any information related to the exclusion grounds listed in this Article. The competent authorities of the Member State of establishment shall
Amendment 62 #
Proposal for a directive Article 39 – paragraph 3 Amendment 63 #
Proposal for a directive Article 39 – paragraph 4 – introductory part 4. Member States
Amendment 64 #
Proposal for a directive Article 39 – paragraph 4 – introductory part 4. Member States may provide that contracting authorities and contracting entities shall base the award of concessions on the criterion of the most economically advantageous and sustainable tender, in compliance with paragraph 2. Those criteria may include, in addition to price or costs, any of the following criteria
Amendment 65 #
Proposal for a directive Article 39 – paragraph 4 – introductory part 4. Member States may provide that contracting authorities and contracting entities shall base the award of concessions on the criterion of the most economically advantageous tender, in compliance with paragraph 2. Those criteria may, in any case, include, in addition to price or costs, any of the following criteria:
Amendment 66 #
Proposal for a directive Article 39 – paragraph 4 – point a (a) quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, social interest, environmental characteristics and innovative character.
Amendment 67 #
Proposal for a directive Article 39 – paragraph 4 – point a a (new) (aa) social criteria, such as respect of: social and employment protection, working conditions, health and safety regulation; employment opportunities, including promotion of: youth employment, gender balance, employment opportunities for the long-term unemployed and for older workers, for persons from disadvantaged groups, people with disabilities; decent work standards; social inclusion; ethical trade; access to on-site vocational training; human rights.
Amendment 68 #
Proposal for a directive Article 39 – paragraph 4 – point b (b) for service concessions and concessions involving the design of works, the organisation, qualification and experience of the staff assigned to performing the concession in question
Amendment 69 #
Proposal for a directive Article 39 – paragraph 4 – point d a (new) (da) The contracting authorities or entities shall apply additional social and environmental criteria for the provision of the works and services, which shall be indicated in the notice of the concession. These shall include the employment conditions provided for under national, European Union and international laws and administrative provisions, representative wage agreements at all levels and arbitration awards. The principle of equal pay for equal work in a comparable job shall also apply.
Amendment 7 #
Proposal for a directive Recital 5 b (new) Amendment 70 #
Proposal for a directive Article 39 – paragraph 4 – point d b (new) (db) Further social and employment policy criteria may be included, such as the promotion of gender equality and the integration in the labour market of particularly disadvantaged groups including younger and older workers, young people and trainees, the long-term unemployed, people from a migration background and people with disabilities.
Amendment 71 #
Proposal for a directive Article 39 – paragraph 5 – subparagraph 1 In the case referred to in paragraph 4, the contracting authority or entity shall specify in the contract notice, in the invitation to submit a tender, or in the concession documents, the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous and sustainable tender.
Amendment 72 #
Proposal for a directive Article 40 – paragraph 1 – point b a (new) (ba) external social costs directly linked to the life cycle, which may include precarious work, long working hours, poor health and safety compliance and lack of vocational training.
Amendment 73 #
Proposal for a directive Article 40 – paragraph 2 – subparagraph 1 – introductory part Where contracting authorities assess the costs using a life-cycle costing approach, they shall indicate in the concession award documents the methodology used for the calculation of the life-cycle costs. The methodology used must be simplified in order to be accessible for SMEs and it must fulfil all of the following conditions:
Amendment 74 #
Proposal for a directive Article 41 – paragraph 1 1. In the concession documents, the
Amendment 75 #
Proposal for a directive Article 41 – paragraph 2 2. Paragraph 1 shall be without prejudice to the question of the principal economic operator’s liability and subcontractor liability.
Amendment 76 #
Proposal for a directive Article 41 – paragraph 2 a (new) 2a. Without prejudice to liability in accordance with paragraph 2, the principal economic operator and the subcontractor(s) shall be jointly and severally liable.
Amendment 77 #
Proposal for a directive Annex 3 – paragraph 1 – point 5 5. Activities relating to the exploitation of a geographical area for the purpose of the provision of airports and maritime or inland ports or other
Amendment 78 #
Proposal for a directive Annex 4 – heading 1 INFORMATION TO BE INCLUDED IN CONCESSION NOTICES OR IN THE CONCESSION DOCUMENT
Amendment 79 #
Proposal for a directive Annex 10 Amendment 8 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services
Amendment 80 #
Proposal for a directive Annex 13 a (new) Amendment 9 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the
source: PE-492.772
2012/09/24
JURI
114 amendments...
Amendment 100 #
Proposal for a directive Article 4 – paragraph 1 – point 3 Amendment 101 #
Proposal for a directive Article 4 – paragraph 1 – subparagraph 1 Amendment 102 #
Proposal for a directive Article 4 – paragraph 3 Amendment 103 #
Proposal for a directive Article 5 Amendment 104 #
Proposal for a directive Article 6 – title Amendment 105 #
Proposal for a directive Article 6 – paragraph 1 1. The calculation of the estimated value of a concession shall be based on
Amendment 106 #
Proposal for a directive Article 6 – paragraph 1 1. The calculation of the estimated value of
Amendment 107 #
Proposal for a directive Article 6 – paragraph 1 a (new) 1a. This Directive shall apply to concessions the value of which is equal to or greater than EUR 10 000 000.
Amendment 108 #
Proposal for a directive Article 6 – paragraph 2 – subparagraph 1 The estimated value of a concession shall be calculated as the value of an entirety of works and/or services
Amendment 109 #
Proposal for a directive Article 6 – paragraph 3 3. The
Amendment 110 #
Proposal for a directive Article 6 – paragraph 3 a (new) 3a. The estimated value of the concession shall be calculated in accordance with an objective method specified in the concession notice.
Amendment 111 #
Proposal for a directive Article 6 – paragraph 4 Amendment 112 #
Proposal for a directive Article 6 – paragraph 5 Amendment 113 #
Proposal for a directive Article 6 – paragraph 6 Amendment 114 #
Proposal for a directive Article 6 – paragraph 7 Amendment 115 #
Proposal for a directive Article 6 – paragraph 8 Amendment 116 #
Proposal for a directive Article 6 – paragraph 9 Amendment 117 #
Proposal for a directive Article 6 – paragraph 9 – subparagraph 1 Amendment 118 #
Proposal for a directive Article 6 – paragraph 9 – subparagraph 2 Amendment 119 #
Proposal for a directive Article 6 – paragraph 10 Amendment 120 #
Proposal for a directive Article 7 Amendment 121 #
Proposal for a directive Article 8 – paragraph 1 1. This Directive shall not apply to services concessions
Amendment 122 #
Proposal for a directive Article 8 – paragraph 2 Amendment 123 #
Proposal for a directive Article 8 – paragraph 2 a (new) 2a. This Directive shall not apply to services concessions awarded in the area of air transport services based on the granting of an operating licence within the meaning of Regulation (EC) No 1008/2008 of the European Parliament and of the Council, or relating to public passenger transport service within the meaning of Regulation (EC) No 1370/2007 of the European Parliament and of the Council.
Amendment 124 #
Proposal for a directive Article 8 – paragraph 3 – subparagraph 1 – introductory part This Directive shall not apply to concessions which the
Amendment 125 #
Proposal for a directive Article 8 – paragraph 3 – subparagraph 1 – point a (a) an international agreement concluded in conformity with the Treaty between a Member State and one or more third countries and covering works
Amendment 126 #
Proposal for a directive Article 8 – paragraph 3 – subparagraph 2 Amendment 127 #
Proposal for a directive Article 8 – paragraph 3 – subparagraph 3 Amendment 128 #
Proposal for a directive Article 8 – paragraph 4 a (new) 4a. This Directive shall not apply to the award of service concessions relating to services of general economic interest and services of general interest, such as: (a) water services; (b) waste water services; (c) refuse services; (d) energy services; (e) social services, as defined in the voluntary European quality framework for social services adopted by the Social Protection Committee, in particular in the fields of health and social provision, statutory social insurance, emergency and disaster response services, benefit services and services furnished by trade unions.
Amendment 129 #
Proposal for a directive Article 11 – paragraph 1 Amendment 130 #
Proposal for a directive Article 11 – paragraph 2 Amendment 131 #
Proposal for a directive Article 11 – paragraph 3 – point a Amendment 132 #
Proposal for a directive Article 11 – paragraph 4 Amendment 133 #
Proposal for a directive Article 13 – paragraph 1 Amendment 134 #
Proposal for a directive Article 14 Amendment 135 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 1 – point a Amendment 136 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 1 – point b Amendment 137 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 1 – point b (b) a
Amendment 138 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 1 – point c Amendment 139 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 2 Amendment 140 #
Proposal for a directive Article 15 – paragraph 2 Amendment 141 #
Proposal for a directive Article 15 – paragraph 2 Amendment 142 #
Proposal for a directive Article 15 – paragraph 2 Amendment 143 #
Proposal for a directive Article 15 – paragraph 2 Amendment 145 #
Proposal for a directive Article 15 – paragraph 3 – subparagraph 1 – point b (b) a
Amendment 146 #
Proposal for a directive Article 15 – paragraph 4 Amendment 147 #
Proposal for a directive Article 15 – paragraph 4 – point a (a) the agreement establishes a genuine co- operation between the participating contracting authorities or entities a
Amendment 148 #
Proposal for a directive Article 15 – paragraph 4 – point b (b) the agreement is governed only by considerations relating to the public interest and has no market orientation;
Amendment 149 #
Proposal for a directive Article 15 – paragraph 4 – point c (c) the participating contracting authorities or entities shall do not perform on the open market
Amendment 150 #
Proposal for a directive Article 15 – paragraph 5 Amendment 151 #
Proposal for a directive Article 15 – paragraph 5 – subparagraph 1 The absence of private participation and all other conditions referred to in paragraphs 1 to 4 shall be verified at the time of the award of the concession or of the conclusion of the agreement.
Amendment 152 #
Proposal for a directive Article 15 – paragraph 5 – subparagraph 2 The exceptions provided for in this Article shall cease to apply from the moment any
Amendment 153 #
Proposal for a directive Article 16 – paragraph 1 The duration of the concession shall be
Amendment 154 #
Proposal for a directive Article 17 – title Social
Amendment 155 #
Proposal for a directive Article 17 – paragraph 1 Concessions for social and other specific services listed in Annex X falling within the scope of this Directive, and services of general economic interest shall be subject to the obligation of paragraph 3 of Art. 26 and of paragraph 1 of Article 27.
Amendment 156 #
Proposal for a directive Article 17 – paragraph 1 a (new) In accordance with Protocol No 26 annexed to the Treaty on the Functioning of the European Union, public authorities have wide discretion to define services of general economic interest and services relating to particular public service tasks and to lay down the organisational arrangements for carrying out those particular tasks. The precise activity or activities, objectives, special public service tasks and duration and area concerned shall be clearly laid down in specifications or in a mandating act in accordance with each Member State’s legislation. On this basis, public authorities shall be free to select concessionaires and to select concessions and the award criteria for them, and shall comply with the obligations laid down in Articles 26(3) and 27(1).
Amendment 157 #
Proposal for a directive Article 25 Amendment 158 #
Proposal for a directive Article 27 – paragraph 2 2. The obligation referred to in paragraph 1 shall also apply to those services concessions the estimated value of which, as calculated according to the method referred to in Article 6 (5), is equal to or higher than
Amendment 159 #
Proposal for a directive Article 39 – paragraph 1 1. Concessions shall be awarded on the basis of objective criteria which ensure compliance with the principles of transparency, non-discrimination and equal treatment and which ensure that tenders are assessed
Amendment 160 #
Proposal for a directive Article 39 – paragraph 1 a (new) 1a. For concessions for services of general economic interest, the objectives of a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights shall also be taken into consideration.
Amendment 161 #
Proposal for a directive Article 39 – paragraph 2 – subparagraph 2 Amendment 162 #
Proposal for a directive Article 39 – paragraph 4 – introductory part 4. Member States may provide that contracting authorities and contracting entities shall base the award of concessions on the criterion of the most
Amendment 49 #
Proposal for a directive – The Committee on Legal Affairs calls on the Committee on the Internal Market and Consumer Protection, as the committee responsible, to propose rejection of the Commission proposal.
Amendment 50 #
Proposal for a directive Citation 1 Having regard to the Treaty on the Functioning of the European Union, and in particular Article 14, Article 53
Amendment 51 #
Proposal for a directive Recital 1 (1) The absence of clear rules at Union level governing the award of concession contracts gives rise to legal uncertainty and to obstacles to the free provision of services and causes distortions in the functioning of the Internal Market. As a result, economic operators, in particular Small and Medium Enterprises (SMEs), are being deprived of their rights within the Internal Market and miss out on important business opportunities, while public authorities may not find the best use of public money so that EU citizens benefit from quality services at best prices. An adequate legal framework for the award of concessions would ensure effective and non-discriminatory access to the market to all Union economic operators and legal certainty, favouring public investments in infrastructures and s
Amendment 52 #
Proposal for a directive Recital 3 (3) This Directive
Amendment 53 #
Proposal for a directive Recital 3 a (new) (3a) This Directive is without prejudice to the right of public authorities at all levels to decide whether, how and to what extent they want to perform public functions themselves. Public authorities may perform public interest tasks using their own resources, without being obliged to call on external economic operators.
Amendment 54 #
Proposal for a directive Recital 3 b (new) (3b) As with other services, local, regional and national authorities have a wide discretion in providing, commissioning and organising services of general interest as closely as possible to the needs of the users; in primary law this is enshrined in Protocol 26 on Services of General Interest, Article 14 of the Treaty on the Functioning of the European Union and Article 36 of the Charter of Fundamental Rights of the European Union.
Amendment 55 #
Proposal for a directive Recital 5 Amendment 56 #
Proposal for a directive Recital 5 (5)
Amendment 57 #
Proposal for a directive Recital 6 (6) Concessions
Amendment 58 #
Proposal for a directive Recital 7 (7) Difficulties related to the interpretation of the concepts of concession and public contract have been source of continued legal uncertainty among stakeholders and have given rise to numerous judgments of the Court of Justice of the European Union on this subject. Therefore, the definition of concession should be clarified, in particular by referring to the concept of substantial operating risk.
Amendment 59 #
Proposal for a directive Recital 7 (7) Difficulties related to the interpretation of the concepts of concession and public contract have been source of continued legal uncertainty among stakeholders and have given rise to numerous judgments of the Court of Justice of the European Union on this subject. Therefore, the definition of concession should be clarified, in particular by referring to the concept of substantial operating risk. The main feature of a concession, the right to exploit the works or services, always implies the transfer to
Amendment 60 #
Proposal for a directive Recital 9 (9) The notion of special or exclusive rights is central to the definition of the scope of this Directive, since entities which are neither contracting entities pursuant to Article 4 (1) (1) nor public undertakings are subject to its provisions only to the extent that they exercise one of the activities covered on the basis of such rights. It is therefore appropriate to clarify
Amendment 61 #
Proposal for a directive Recital 11 Amendment 62 #
Proposal for a directive Recital 11 (11) To ensure a real opening up of the market and a fair balance in the application of concession award rules in the water, energy, transport and postal services
Amendment 63 #
Proposal for a directive Recital 15 Amendment 64 #
Proposal for a directive Recital 17 Amendment 65 #
Proposal for a directive Recital 20 Amendment 66 #
Proposal for a directive Recital 20 Amendment 67 #
Proposal for a directive Recital 22 (22) Given the importance of the cultural context and the sensitivity of these services, Member States sh
Amendment 68 #
Proposal for a directive Recital 23 (23) In order to make it possible for all interested operators to submit their applications
Amendment 69 #
Proposal for a directive Recital 24 (24) The choice and application of proportional, non-discriminatory and fair selection criteria to economic operators is crucial for their effective access to the economic opportunities related to concessions. In particular, the possibility for a candidate to rely on the capacities of other entities can be decisive to enable the participation of small and medium sized enterprises. Therefore, it is appropriate to provide that the selection criteria should relate
Amendment 70 #
Proposal for a directive Recital 29 (29) In technical specifications and in award criteria, contracting authorities and contracting entities should be allowed to refer to a specific production process, a specific mode of provision of services, or a specific process for any other stage of the life cycle of a product or service, provided that they are linked to the subject-matter of the concession. In order to better integrate social considerations in the award of concessions,
Amendment 71 #
Proposal for a directive Recital 34 (34) It is necessary to clarify the conditions under which modifications of a concession during its execution require a new award procedure, taking into account the relevant case-law of the Court of Justice of the European Union. Any concession in force may be modified by means of an additional agreement. A new award procedure is required, however, in case of material changes to the initial concession, demonstrating the
Amendment 72 #
Proposal for a directive Recital 35 Amendment 73 #
Proposal for a directive Recital 36 (36) In line with the principles of equal treatment and transparency, the successful tenderer should not be replaced by another economic operator without reopening the concession to competition. However, the successful tenderer performing the concession may undergo certain structural changes during the performance of the concession
Amendment 74 #
Proposal for a directive Recital 37 (37)
Amendment 75 #
Proposal for a directive Recital 38 (38) In order to adapt to rapid technical and economic developments, the power to adopt implementing acts in accordance with Article 29
Amendment 76 #
Proposal for a directive Recital 41 Amendment 77 #
Proposal for a directive Recital 42 Amendment 78 #
Proposal for a directive Article 1 – paragraph 1 1. This Directive establishes rules on the procedures for
Amendment 79 #
Proposal for a directive Article 1 – paragraph 2 – introductory part 2. This Directive applies to the acquisition of works or services, including supplies which are incidental to the subject matter of a concession, from economic operators
Amendment 80 #
Proposal for a directive Article 1 – paragraph 2 – point a Amendment 81 #
Proposal for a directive Article 1 – paragraph 2 – point b Amendment 82 #
Proposal for a directive Article 1 a (new) Article 1a Principle of free administration by public authorities This Directive recognises the principle of free administration by contracting authorities and contracting entities in accordance with national legislation in force and Protocol No 26 annexed to the Treaty on the Functioning of the European Union. They shall be free to decide on the management method they deem to be the most appropriate in order to execute the works and provide the services for which they are responsible, in accordance with the legal and procedural arrangements they deem to be the most effective.
Amendment 83 #
Proposal for a directive Article 2 – paragraph 1 – point 1 (1) ‘concessions’ means
Amendment 84 #
Proposal for a directive Article 2 – paragraph 1 – point 1 (1) 'concessions' means
Amendment 85 #
Proposal for a directive Article 2 – paragraph 1 – point 2 (2)
Amendment 86 #
Proposal for a directive Article 2 – paragraph 1 – point 2 (2)
Amendment 87 #
Proposal for a directive Article 2 – paragraph 1 – point 4 Amendment 88 #
Proposal for a directive Article 2 – paragraph 1 – point 4 Amendment 89 #
Proposal for a directive Article 2 – paragraph 1 – point 7 Amendment 90 #
Proposal for a directive Article 2 – paragraph 1 – point 7 a (new) (7a) ‘concession for a service of general economic interest’ means a contract on the initiative of a contracting authority which involves delegation of management to a third economic operator whose object is to provide a service of general economic interest for a fixed period of time, for a specific activity and in a defined area, consideration for which being the right to exploit the service that is the subject of the contract and generate revenue from users.
Amendment 91 #
Proposal for a directive Article 2 – paragraph 1 – point 8 Amendment 92 #
Proposal for a directive Article 2 – paragraph 1 – point 9 Amendment 93 #
Proposal for a directive Article 2 – paragraph 1 – point 10 Amendment 94 #
Proposal for a directive Article 2 – paragraph 1 – point 11 Amendment 95 #
Proposal for a directive Article 2 – paragraph 1 – point 13 Amendment 96 #
Proposal for a directive Article 2 – paragraph 1 – point 14 Amendment 97 #
Proposal for a directive Article 2 – paragraph 2 Amendment 98 #
Proposal for a directive Article 4 – paragraph 1 – introductory part 1. For the purposes of this Directive , "Contracting entities" are entities which award a concession for the purpose of pursuing one of the activities as referred to in Annex III and which are one of the following:
Amendment 99 #
Proposal for a directive Article 4 – paragraph 1 – point 2 source: PE-496.494
2012/09/25
ITRE
89 amendments...
Amendment 100 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 1 – point b (b) at least
Amendment 101 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 2 Amendment 102 #
Proposal for a directive Article 15 – paragraph 3 – subparagraph 1 – point b (b)
Amendment 103 #
Proposal for a directive Article 15 – paragraph 3 – subparagraph 1 – point b (b) at least
Amendment 104 #
Proposal for a directive Article 15 – paragraph 3 – subparagraph 1 – point c (c) there is no active private participation in the controlled legal person.
Amendment 105 #
Proposal for a directive Article 15 – paragraph 3 – subparagraph 2 Amendment 106 #
Proposal for a directive Article 15 – paragraph 4 – point a Amendment 107 #
Proposal for a directive Article 15 – paragraph 4 – point a (a) the
Amendment 108 #
Proposal for a directive Article 15 – paragraph 4 – point b Amendment 109 #
Proposal for a directive Article 15 – paragraph 4 – point b (b) the
Amendment 110 #
Proposal for a directive Article 15 – paragraph 4 – point c Amendment 111 #
Proposal for a directive Article 15 – paragraph 4 – point c Amendment 112 #
Proposal for a directive Article 15 – paragraph 4 – point d Amendment 113 #
Proposal for a directive Article 15 – paragraph 4 – point e Amendment 114 #
Proposal for a directive Article 15 – paragraph 5 Amendment 115 #
Proposal for a directive Article 16 The duration of the concession shall be limited to the time estimated to be necessary for the concessionaire to recoup the initial and subsequent investments made in operating the works or services together with a reasonable return on invested capital.
Amendment 116 #
Proposal for a directive Article 16 The duration of the concession shall only be limited to the time estimated to be necessary for the concessionaire to recoup the investments made in operating the works or services together with a reasonable return on invested capital.
Amendment 118 #
Proposal for a directive Article 18 – paragraph 1 1.
Amendment 119 #
Proposal for a directive Article 18 – paragraph 3 3.
Amendment 120 #
Proposal for a directive Article 18 – paragraph 4 4.
Amendment 121 #
Proposal for a directive Article 19 – paragraph 1 – subparagraph 2 However, the choice between awarding a single concession and awarding a number of separate concessions
Amendment 122 #
Proposal for a directive Article 21 Amendment 123 #
Proposal for a directive Article 26 – paragraph 6 – subparagraph 1 – indent 2 – it is
Amendment 124 #
Proposal for a directive Article 27 – paragraph 2 Amendment 125 #
Proposal for a directive Article 35 – paragraph 1 1. Contracting authorities and contracting entities shall indicate in the contract notice, in the invitation to submit tenders or in the concession documents a description of the concession, the award criteria and the minimum requirements to be met. This information must allow to identify the nature and scope of the concession, enabling economic operators to decide whether they request to participate in the concession award procedure.
Amendment 126 #
Proposal for a directive Article 35 – paragraph 2 2. During the concession award, contracting authorities and contracting entities shall ensure the equal treatment of all
Amendment 127 #
Proposal for a directive Article 35 – paragraph 3 3. Whenever the contracting authority or contracting entity limits the number of
Amendment 128 #
Proposal for a directive Article 35 – paragraph 5 – point e (e) they shall establish a
Amendment 129 #
Proposal for a directive Article 37 – paragraph 1 1. When fixing the time limits for the submission of applications for the concession and submission of tenders, contracting authorities or contracting entities shall take account in particular of the complexity of the concession and the time required for drawing up tenders, without prejudice to the minimum time limits set out in Article 3
Amendment 130 #
Proposal for a directive Article 37 – paragraph 2 Amendment 131 #
Proposal for a directive Article 38 – paragraph 2 2.
Amendment 132 #
Proposal for a directive Article 39 – paragraph 3 Amendment 133 #
Proposal for a directive Article 39 – paragraph 3 3. The contracting authority or the contracting entity shall, if it deems it necessary, indicate in the concession notice or documents the relative weighting which it gives to each of the criteria set out in paragraph 1 or list those criteria in descending order of importance.
Amendment 134 #
Proposal for a directive Article 39 – paragraph 3 a (new) 3a. The contracting authority or the contracting entity shall exclude an economic operator established in a non- EU country from participating in a concession if, by virtue of legislation in the country in which it is established, economic operators established in the EU are prohibited from or restricted in applying for similar concessions.
Amendment 135 #
Proposal for a directive Article 39 – paragraph 3 b (new) 3a. The contracting authority or the contracting entity may, on condition that it indicates it is doing so in the concession notice or documents, exclude an economic operator established in a non- EU country from participating in a concession if, by virtue of legislation in the country in which it is established, economic operators established in the EU are prohibited from or restricted in applying for similar concessions.
Amendment 136 #
Proposal for a directive Article 39 – paragraph 4 – point a (a) quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, social criteria, environmental characteristics and innovative character.
Amendment 137 #
Proposal for a directive Article 39 – paragraph 5 – subparagraph 1 In the case referred to in paragraph 4, the contracting authority or entity shall, where appropriate, specify in the contract notice, in the invitation to submit a tender, or in the concession documents, the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender.
Amendment 138 #
Proposal for a directive Article 41 Amendment 139 #
Proposal for a directive Article 41 – paragraph 1 1. In the concession documents, the contracting authority or contracting entity may ask or may be required by a Member State to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors. Member States shall ensure there is no discrimination, in terms of working conditions and wages, between persons employed by subcontractors and persons employed by tenderers.
Amendment 140 #
Proposal for a directive Article 42 Amendment 141 #
Proposal for a directive Article 42 – paragraph 2 – point b (b) the modification changes the economic balance of the concession in favour of the concessionaire except if this results from the recovery of the economical and financial equilibrium of the concession after having been upset by the contracting authorities' actions or
Amendment 142 #
Proposal for a directive Article 43 Amendment 143 #
Proposal for a directive Article 43 – point b a (new) (ba) failure to meet the obligations arising from the concession contract;
Amendment 144 #
Proposal for a directive Article 50 – paragraph 1 a (new) The modifications to Directives 89/665/EEC and 92/13/EEC shall be inserted into those texts at the latest by the time this Directive enters into force.
Amendment 56 #
Proposal for a directive Recital 1 (1) The absence of clear rules at Union level governing the award of concession contracts gives rise to legal uncertainty and to obstacles to the free provision of services and causes distortions in the functioning of the Internal Market. As a result, economic operators, in particular Small and Medium Enterprises (SMEs), are being deprived of their rights within the Internal Market and miss out on important business opportunities, while public authorities may not find the best use of public money so that EU citizens benefit from quality services at best prices. An adequate, balanced and flexible legal framework for the award of concessions would ensure effective and non- discriminatory access to the market to all Union economic operators and legal certainty, favouring public investments in infrastructures and strategic services to the citizen.
Amendment 57 #
Proposal for a directive Article 1 – paragraph 1 1.
Amendment 58 #
Proposal for a directive Article 1 – paragraph 2 a (new) 2a. Concessions below the threshold value may be awarded by mutual agreement.
Amendment 59 #
Proposal for a directive Article 2 – paragraph 1 – point 7 (7) 'services concession' means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities or contracting entities and having as their object the provision of services other than th
Amendment 60 #
Proposal for a directive Article 2 – paragraph 1 – point 8 (8)
Amendment 61 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 1 The
Amendment 62 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 1 The right to exploit the works or services as referred to in points 2, 4 and 7 of the first paragraph shall imply the transfer to the concessionaire of the substantial operating risk. The concessionaire shall be deemed to assume the substantial operating risk where it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject-matter of the concession, except when this lack of return is directly attributable to the contracting authority.
Amendment 63 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 2 – introductory part That economic risk may, in particular, consist in either of the following:
Amendment 64 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 2 – point b (b) the risk
Amendment 65 #
Proposal for a directive Article 5 – paragraph 1 – introductory part 1. This Directive shall apply to the following concessions the value of which is equal to or greater than EUR 5 000 000 for concessions lasting up to five years:
Amendment 66 #
Proposal for a directive Article 5 – paragraph 1 – introductory part 1. This Directive shall apply to the following concessions the value of which is equal to or greater than EUR
Amendment 67 #
Proposal for a directive Article 5 – paragraph 1 a (new) 1a. This Directive shall apply to the following concessions, the value of which is equal to or greater than EUR 10 000 000 for concessions lasting more than five years: (a) concessions concluded by contracting entities for the pursuit of one of the activities referred to in Annex III; (b) concessions concluded by contracting authorities.
Amendment 68 #
Proposal for a directive Article 5 – paragraph 2 Amendment 69 #
Proposal for a directive Article 5 – paragraph 2 2. Services concessions the value of which is equal to or greater than EUR
Amendment 70 #
Proposal for a directive Article 5 – paragraph 2 2. Services concessions lasting for up to five years the value of which is equal to or greater than EUR 2 500 000 but lower than EUR 5 000 000 other than social services and other specific services shall be subject to the obligation to publish a concession award notice in accordance with Articles 27 and 28. Services concessions lasting more than five years, the value of which is equal to or greater than EUR 5 000 000 but lower than EUR 10 000 000, other than social services and other specific services, shall be subject to the obligation to publish a concession award notice in accordance with Articles 27 and 28.
Amendment 71 #
Proposal for a directive Article 6 – paragraph 1 1. The
Amendment 72 #
Proposal for a directive Article 6 – paragraph 2 – subparagraph 1 The calculation of the estimated value of a concession shall be
Amendment 73 #
Proposal for a directive Article 6 – paragraph 3 3. The
Amendment 74 #
Proposal for a directive Article 6 – paragraph 4 4. Th
Amendment 75 #
Proposal for a directive Article 6 – paragraph 5 5.
Amendment 76 #
Proposal for a directive Article 6 – paragraph 5 5. With regard to
Amendment 77 #
Proposal for a directive Article 6 – paragraph 6 6. W
Amendment 78 #
Proposal for a directive Article 6 – paragraph 7 7. Where
Amendment 79 #
Proposal for a directive Article 6 – paragraph 8 8.
Amendment 80 #
Proposal for a directive Article 6 – paragraph 9 – subparagraph 1 Amendment 81 #
Proposal for a directive Article 6 – paragraph 10 10. The value of services concessions shall
Amendment 82 #
Proposal for a directive Article 8 – paragraph 1 1. This Directive shall not apply to services concessions awarded by a contracting authority or by a contracting entity to an economic operator
Amendment 83 #
Proposal for a directive Article 8 – paragraph 1 1. This Directive shall not apply to services concessions awarded by a contracting authority or by a contracting entity to an economic operator which is a contracting entity or an association of thereof, on the basis of an exclusive right that economic operator enjoys pursuant to applicable and published national law
Amendment 84 #
Proposal for a directive Article 8 – paragraph 3 – subparagraph 1 – point d Amendment 85 #
Proposal for a directive Article 8 – paragraph 3 – subparagraph 3 Amendment 86 #
Proposal for a directive Article 8 – paragraph 3 a (new) 3a. This Directive shall not apply to agreements through which the State or the contracting authority or entity awards an economic operator the right to exploit certain public domains or resources, when the State or contracting authority or entity establishes only general conditions for their use without becoming a beneficiary of the specific works or services provided by the economic operator.
Amendment 87 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – introductory part This Directive shall not apply to service concessions
Amendment 88 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point a Amendment 89 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point b Amendment 90 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point c Amendment 91 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point d Amendment 92 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point d (d) financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council, transactions by the contracting authorities to raise money or capital, central bank services and operations conducted with the European Financial Stability Facility (EFSF);
Amendment 93 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point e Amendment 94 #
Proposal for a directive Article 8 – paragraph 5 – point g a (new) (ga) services in relation to water supply, hydraulic engineering projects and sewage disposal and treatment;
Amendment 95 #
Proposal for a directive Article 8 – paragraph 5 – point g b (new) (gb) emergency services and civil protection;
Amendment 96 #
Proposal for a directive Article 8 – paragraph 5 – point g c (new) (gc) civic participation models in the energy field.
Amendment 97 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 2 Amendment 98 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 1 – point b (b)
Amendment 99 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 1 – point b (b)
source: PE-494.715
2012/10/01
TRAN
51 amendments...
Amendment 1 #
Proposal for a directive – The Committee on Transport and Tourism calls on the Committee on the Internal Market and Consumer Protection, as the committee responsible, to propose the rejection of the Commission proposal.
Amendment 10 #
Proposal for a directive Recital 8 a (new) (8a) Given that concessionaires bear a substantial operating risk, they must be free to select what they consider to be the best ways of performing the contract, that is to say directly by them, or in collaboration with sister companies, or by subcontracting freely to third parties.
Amendment 11 #
Proposal for a directive Recital 11 (11)
Amendment 12 #
Proposal for a directive Recital 11 a (new) (11a) In accordance with Article 14 of the Treaty on the Functioning of the European Union in conjunction with Protocol 26 on services of general interest, national, regional or local competent authorities should have wide discretion in deciding whether to award contracts for services of general interest.
Amendment 13 #
Proposal for a directive Recital 17 (17)
Amendment 14 #
Proposal for a directive Recital 20 Amendment 15 #
Proposal for a directive Recital 21 (21)
Amendment 16 #
Proposal for a directive Recital 23 (23) In order to make it possible for all interested operators to submit applications and tenders, contracting authorities and contracting entities should be obliged to respect a
Amendment 17 #
Proposal for a directive Recital 27 (27) Concessions are usually long term, complex arrangements where the contractor assumes responsibilities and risks traditionally born by the contracting authorities and normally falling within their remit and contracting entities. For this reason, contracting authorities or entities should maintain a margin of flexibility in organising the awarding process, involving also a possibility to negotiate the content of the contract with the candidates. However, in order to ensure equal treatment, mutual benefit and transparency throughout the awarding procedure, it is appropriate to provide for certain requirements as to the structure of the awarding process, including negotiations, the dissemination of information and the availability of written records. It is also necessary to provide that the initial terms of the concession notice should not be deviated from, in order to prevent unfair treatment of any potential candidates.
Amendment 18 #
Proposal for a directive Recital 37 a (new) (37a) In line with the case law established by the Court of Justice of the Union, this directive applies to concessions awarded after its entry into force.
Amendment 19 #
Proposal for a directive Article 1 – paragraph 2 a (new) 2 a. This Directive shall not affect the right of public authorities at any level to decide whether they shall perform public functions themselves, by using their own internal resources without being obliged to award concessions to other external economic operators. These tasks may be performed in cooperation with other public contracting authorities.
Amendment 2 #
Proposal for a directive Recital 1 (1)
Amendment 20 #
Proposal for a directive Article 2 – paragraph 1 – point 1 a (new) (1 a) ‘procurement’ means the purchase or other forms of acquisition of works, supplies or services by one or more contracting authorities from economic operators chosen by those contracting authorities, whether or not the works, supplies or services are intended for a public purpose;
Amendment 21 #
Proposal for a directive Article 2 – paragraph 1 – point 2 (2)
Amendment 22 #
Proposal for a directive Article 2 – paragraph 1 – point 2 (2) a 'public works concession' means a contract for pecuniary interest concluded in writing between
Amendment 23 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 1 The right to exploit the works or services as referred to in points 2, 4 and 7 of the first paragraph shall imply the transfer to the concessionaire of the substantial share of the operating risk. The concessionaire shall be deemed to assume the substantial share of the operating risk where it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject-matter of the concession.
Amendment 24 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 2 – introductory part That
Amendment 27 #
Proposal for a directive Article 8 – paragraph 2 a (new) 2 a. This Directive shall not apply to concessions for transport services to the extent that they are governed by other legal acts of the Union.
Amendment 28 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point a (a) the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property, including maritime areas, or concerning rights thereon; however financial service concessions awarded at the same time as, before or after the contract of acquisition or rental, in whatever form, shall be subject to
Amendment 29 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point a a) the acquisition
Amendment 3 #
Proposal for a directive Recital 2 (2) Public procurement plays a key role in the Europe 2020 strategy4 as one of the market-based instruments to be used to achieve a smart, sustainable and inclusive growth while ensuring the most efficient use of public funds. The award of works concessions is presently subject to basic rules of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts while the award of services concessions with a cross-border interest is subject to the principles of the Treaty, and in particular the principle of free movement of goods, freedom of establishment and freedom to provide services as well as to the principles deriving therefrom such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency.
Amendment 30 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 a (new) This Directive shall not apply to contracts for public domain and private land lease contracts whereby the State or contracting authority or entity only establishes general conditions and/or specific binding and legally enforceable obligations that relate to the use of the land, without acquiring specific works or services.
Amendment 31 #
Proposal for a directive Article 8 – paragraph 5 a (new) 5 a. This Directive shall not apply to service concessions relating to services of general economic interest and services of general interest such as: (a) water services; (b) wastewater services; (c) refuse collection services; (d) energy services; (e) social services according to the voluntary European quality framework for social services adopted by the Social Protection Committee in the sectors of health and social protection, statutory social insurance, emergency and disaster response services.
Amendment 32 #
Proposal for a directive Article 16 The duration of the concession shall be limited to the time estimated, among other factors, to be
Amendment 33 #
Proposal for a directive Article 16 The duration of the concession shall be limited to the time – specified precisely in the concession – estimated to be necessary for the concessionaire to recoup the investments made in operating the works or services together with a resonable return on invested capital.
Amendment 34 #
Proposal for a directive Article 17 Amendment 35 #
Proposal for a directive Article 20 Amendment 36 #
Proposal for a directive Article 21 Amendment 37 #
Proposal for a directive Article 36 – paragraph 1 – subparagraph 3 a (new) The contracting authority shall be obliged, in publishing the concession notice, to honour all commitments arising from the conditions set out in this article.
Amendment 38 #
Proposal for a directive Article 36 – paragraph 7 – subparagraph 1 – introductory part Member States
Amendment 39 #
Proposal for a directive Article 36 – paragraph 7 – subparagraph 1 – point c a (new) (c a) Breaches of social security provisions, employment, tax or environmental law.
Amendment 4 #
Proposal for a directive Recital 5 Amendment 40 #
Proposal for a directive Article 39 – paragraph 1 1. Concessions shall be awarded on the basis of objective criteria, precisely defined by the concession provider, which ensure compliance with the principles of transparency, non-discrimination and equal treatment and which ensure that tenders are assessed in conditions of effective
Amendment 41 #
Proposal for a directive Article 39 – paragraph 3 Amendment 42 #
Proposal for a directive Article 39 – paragraph 4 – introductory part 4. Member States
Amendment 43 #
Proposal for a directive Article 41 – paragraph 1 1. In the concession documents, the
Amendment 44 #
Proposal for a directive Article 41 – paragraph 1 1. In the concession documents, the contracting authority or contracting entity may ask or may be required by a Member State to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors. Member States shall ensure that workers employed by subcontractors will not suffer any discrimination in terms of working conditions and pay compared with those employed by the tenderer.
Amendment 45 #
Proposal for a directive Article 41 – paragraph 1 1. In the concession documents, the contracting authority or contracting entity may ask or may be required by a Member State to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors providing all relevant information concerning subcontractors' names and legal representatives.
Amendment 46 #
Proposal for a directive Article 41 – paragraph 2 2. Paragraph 1 shall be without prejudice to the question of the principal economic operator's liability and the subcontractor's liability. Without prejudice to this provision, the principal economic operator and the subcontractor(s) shall be jointly and severally liable.
Amendment 47 #
Proposal for a directive Article 42 – title 2. A modification of the provisions of a concession during its term
Amendment 49 #
Proposal for a directive Article 42 – paragraph 2 a (new) Amendment 5 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more
Amendment 50 #
Proposal for a directive Article 43 – point b a (new) (ba) obligations laid down in the concession contract are not being fulfilled;
Amendment 51 #
Proposal for a directive Annex III – paragraph 1 – point 6 6. Activities relating to the exploitation of a geographical area for the purpose of the provision of airports and maritime or inland ports or other
Amendment 6 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services is subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or licences whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies
Amendment 7 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary
Amendment 8 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding
Amendment 9 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services is subject to specific binding obligations defined by the contracting
source: PE-496.564
2012/10/02
INTA
17 amendments...
Amendment 10 #
Proposal for a directive Recital 16 (16) This Directive does not apply to the concession award carried out by international organisations on their own behalf and for their own account. There is, however, a need to
Amendment 11 #
Proposal for a directive Recital 33 (33) Concessions should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption, fraud to the detriment of the Union’s financial interests or money laundering. Non-payment of taxes or social security contributions and other serious violations of Union or national law aimed at the protection of public interests compatible with the Treaty should also be sanctioned by mandatory exclusion at the level of the Union. Furthermore, contracting authorities and contracting entities should be given the possibility to exclude candidates or tenderers
Amendment 12 #
Proposal for a directive Article 8 – paragraph 3 – subparagraph 1 – point d Amendment 13 #
Proposal for a directive Article 8 – paragraph 3 – subparagraph 3 Amendment 14 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 1 – point b (b)
Amendment 15 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 1 – point b (b) at least
Amendment 16 #
Proposal for a directive Article 15 – paragraph 3 – subparagraph 1 – point b (b)
Amendment 17 #
Proposal for a directive Article 15 – paragraph 4 – point c Amendment 18 #
Proposal for a directive Article 36 – paragraph 1 – subparagraph 1 – point c a (new) (ca) compliance with social and environmental legislation.
Amendment 19 #
Proposal for a directive Article 36 – paragraph 5 – subparagraph 1 – point e a (new) (ea) other serious violations of Union or national law aimed at the protection of public interests compatible with the Treaty;
Amendment 20 #
Proposal for a directive Article 36 – paragraph 7 – subparagraph 1 – point a Amendment 21 #
Proposal for a directive Article 36 a (new) Amendment 22 #
Proposal for a directive Article 38 – paragraph 2 2. The time limit for receipt of
Amendment 23 #
Proposal for a directive Article 39 – paragraph 4 – point d a (new) (da) compliance with EU or international labour, social security and environmental law.
Amendment 7 #
Proposal for a directive Recital 1 (1) The absence of clear rules at Union level governing the award of concession contracts gives rise to legal uncertainty and to obstacles to the free provision of services and causes distortions in the functioning of the Internal Market. As a result, economic operators, in particular Small and Medium Enterprises (SMEs), are being deprived of their rights within the Internal Market and miss out on important business opportunities, while public authorities may not find the best use of public money so that EU citizens benefit from quality services at best prices. An adequate legal framework for the award of concessions would ensure effective and non-discriminatory access to the market to all Union economic operators and legal certainty, favouring public investments in infrastructures and strategic services to the citizen. Such a legal framework would also afford greater legal certainty to economic operators and could be a base for further eventual opening up international public procurement market.
Amendment 8 #
Proposal for a directive Recital 14 a (new) (14a) It is also appropriate to exclude certain services and work concessions from a third country if the third country concerned apply certain restrictions to its domestic concession markets resulting in a lack of substantial reciprocity in terms of market openness between the EU and the third country concerned.
Amendment 9 #
Proposal for a directive Recital 16 (16) This Directive does not apply to the concession award carried out by international organisations on their own behalf and for their own account. There is, however, a need to clarify to which extent it is appropriate to apply this Directive to concession award governed by specific international rules. Given that the internal market and international markets are increasingly closely interlinked, public procurement policy should be used as a means of promoting EU principles such as transparency, an uncompromising stance on corruption, the reciprocity rule and progress on social and human rights.
source: PE-496.593
2012/10/19
REGI
77 amendments...
Amendment 1 #
Amendment 10 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or licences whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources, such as land lease contracts, including maritime areas, whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services.
Amendment 11 #
Proposal for a directive Recital 11 (11) To ensure a real opening up of the market and a fair balance in the application of concession award rules in the
Amendment 12 #
Proposal for a directive Recital 13 (13) It is appropriate to exclude from the scope of this Directive certain services concessions awarded to an economic operator which is itself a contracting authority or a contracting entity on the basis of an exclusive right which that operator enjoys under published national law or administrative act, as is the case with concessions on State-owned maritime property for tourism and leisure use, and which has been granted in accordance with the Treaty and Union sectoral legislation concerning the management of networks infrastructure related to the activities set out in annex III, since such exclusive right makes it impossible to follow a competitive procedure for the award. By way of
Amendment 13 #
Proposal for a directive Recital 13 a (new) Amendment 14 #
Proposal for a directive Recital 17 a (new) (17a) Cooperation between local public authorities, or between local public authorities and groups composed exclusively of local public authorities, aimed at jointly carrying out public service missions for a public interest, within a Member State, should be exempted from the application of the rules laid down in this Directive.
Amendment 15 #
Proposal for a directive Recital 19 (19) In view of the detrimental effects on competition, awarding concessions without prior publication should only be permitted in very exceptional circumstances. This exception should be limited to cases where it is clear from the outset that a publication would not trigger more competition, notably because there is objectively only one economic operator who can perform the concession, as is the case with owners of seaside businesses set up on property under concession. Only situations of objective exclusivity can justify the award of a concession without publication to an economic operator, where the situation of exclusivity has not been created by the
Amendment 16 #
Proposal for a directive Recital 20 Amendment 17 #
Proposal for a directive Recital 21 (21) In the light of the results of the evaluation conducted by the Commission on the reform of public procurement rules it is appropriate to exclude from the full application of this Directive
Amendment 18 #
Proposal for a directive Article 1 – paragraph 2 – point b a (new) ba) Contracting authorities and contracting entities, following the principle of free administration and in conformity with the EU Treaties, should be free to decide how best to provide, organise and manage the execution of work and the provision of services for which they are responsible, in accordance with the legislative arrangements and the methods which they judge to be the most effective manner to ensure a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights in public services.
Amendment 19 #
Proposal for a directive Article 1 – paragraph 2 a (new) 2a. This Directive shall not affect the freedom of Member States to define, in conformity with the Union law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with the State aid rules, and what specific obligations they should be subject to.
Amendment 2 #
Proposal for a directive Citation 1 Having regard to the Treaty on the Functioning of the European Union, and in particular Article 14, 53 (1), Article 62 and Article 114 as well as Protocol 26 thereof,
Amendment 20 #
Proposal for a directive Article 1 – paragraph 2 b (new) 2b. This Directive constitutes the rules for the award of concessions. In consequence both Directives on public procurement and on procurement by entities operating in the water, energy, transport and postal services sectors do not apply to concessions as defined in this directive.
Amendment 21 #
Proposal for a directive Article 1 – paragraph 2 c (new) 2c. This Directive does not apply to nor indirectly affect services of general economic interest, as defined by the Member States. The provisions of this directive shall in all cases preserve the role of services of general economic interest, in particular in promoting social and territorial cohesion.
Amendment 22 #
Proposal for a directive Article 2 – paragraph 1 – point 7 (7)
Amendment 23 #
Proposal for a directive Article 2 – paragraph 1 – point 7 (7) 'services concession' means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities or contracting entities and having as their object the provision of services other than those referred to in points 2 and 4 where the consideration for the services to be provided consists either solely in the right to exploit the services that are subject of the contract or in that right together with payment
Amendment 24 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 1 The right to exploit the works or services
Amendment 25 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 1 The right to exploit the works or services as referred to in points 2, 4 and 7 of the first paragraph shall imply the transfer to the concessionaire of the substantial operating risk. The concessionaire shall be deemed to assume the substantial operating risk where it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject-matter of the concession; an operating risk which is limited from the outset shall have no effect on this principle.
Amendment 26 #
Proposal for a directive Article 5 – paragraph 1 – introductory part 1. This Directive shall apply to the following concessions the value of which is equal to or greater than EUR 5 000 000 for concessions lasting up to five years:
Amendment 27 #
Proposal for a directive Article 5 – paragraph 1 a (new) 1a. This directive shall apply to the following concessions, the value of which is equal to or greater than EUR 10 000 000 for concessions lasting more than five years: a) concessions concluded by contracting entities for the pursuit of one of the activities referred to in Annex III; b) concessions concluded by contracting authorities.
Amendment 28 #
Proposal for a directive Article 5 – paragraph 2 2. Services concessions lasting for up to five years the value of which is equal to or greater than EUR 2 500 000 but lower than EUR 5 000 000 other than social services and other specific services shall be subject to the obligation to publish a concession award notice in accordance with Articles 27 and 28. Services concessions lasting more than five years, the value of which is equal to or greater than EUR 5 000 000 but lower than EUR 10 000 000, other than social services and other specific services, shall be subject to the obligation to publish a concession award notice in accordance with Articles 27 and 28.
Amendment 29 #
Proposal for a directive Article 6 – paragraph 5 5. With regard to public works concessions and works concessions, calculation of the estimated value shall take account of both the cost of the works and the total estimated value of the supplies and services that are made available to the contractor by the contracting authorities or entities provided that they are necessary for executing the works. In the case of public property concessions for the provision of services to the public, the threshold shall be estimated and calculated on an annual basis.
Amendment 3 #
Proposal for a directive Recital 3 (3) This Directive should not in any way affect the freedom of Member States or public authorities to decide on the direct provision of works or services to the public or on the outsourcing of such provision to third parties.
Amendment 30 #
Proposal for a directive Article 7 Contracting authorities and contracting entities shall treat economic operators equally and shall act in a transparent
Amendment 31 #
Proposal for a directive Article 8 – paragraph 1 1. This Directive shall not apply to services concessions
Amendment 32 #
Proposal for a directive Article 8 – paragraph 1 – point a (new) (a) awarded by a contracting authority or by a contracting entity to an economic operator on the basis of an exclusive right that the latter enjoys pursuant to applicable and published national law, regulation or administrative provision, and which has been granted in accordance with the Treaty and Union sectoral legislation,
Amendment 33 #
Proposal for a directive Article 8 – paragraph 1 – point b (new) (b) or to service concessions for activities which, when this Directive enters into force, are the subject of a nationally regulated tariff laid down in law or regulation.
Amendment 34 #
Proposal for a directive Article 8 – paragraph 2 Amendment 35 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point a (a) the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property, including maritime areas, or concerning rights thereon; however financial service concessions awarded at the same time as, before or after the contract of acquisition or rental, in whatever form, shall be subject to this Directive;
Amendment 36 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point a a (new) (aa) services of general economic interest;
Amendment 37 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point b a (new) (ba) civil protection, disaster prevention and everyday hazard prevention services;
Amendment 38 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point c (c) arbitration and conciliation services, legal services and notarial services;
Amendment 39 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point d (d) financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council, central bank services and
Amendment 4 #
Proposal for a directive Recital 3 a (new) (3a) This Directive should not introduce any prejudice towards the right of public authorities at national, regional or local levels to decide whether, how and to what extent they want to perform public functions themselves. Public authorities at all levels may perform public interest tasks using their own resources, without being obliged to call on outside economic operators. They may do so in cooperation with other public authorities.
Amendment 40 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point d (d) financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council, central bank services and operations conducted with the European Financial Stability Facility (EFSF) as well as operations to raise money or capital for the contracting authority;
Amendment 41 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point d (d) financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council, central bank services and operations conducted with the European Financial Stability Facility (EFSF) as well as transactions to raise money or capital for the contracting authority;
Amendment 42 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point e (e) employment contracts and mandatory social protection arrangements;
Amendment 43 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point g (g)
Amendment 44 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point g a (new) (ga) civil protection, emergency preparedness and response and every day hazard prevention;
Amendment 45 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point g b (new) (gb) services relating to abstraction, distribution and supply of drinking water, and waste water management;
Amendment 46 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point g c (new) (gc) social services and health services;
Amendment 47 #
Proposal for a directive Article 8 – paragraph 5 – subparagraph 1 – point g d (new) (gd) non-economic services of general interest.
Amendment 48 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 1 – point a (a) such an authority or entity exercises over the legal person concerned a control which is similar to that which it exercises over its own departments; this shall be deemed to be the case where 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; it is not a mandatory requirement that the controlled legal person be wholly owned by the contracting authority or entity;
Amendment 49 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 1 – point b (b) at least 90% of the activities of that legal person which are covered by the contract are carried out for the controlling contracting authority or entity or for other legal persons controlled by that contracting authority or entity;
Amendment 5 #
Proposal for a directive Recital 3 b (new) (3b) This Directive should not deal with the funding of services of general economic interest or with systems of aid granted by Member States, in particular in the social field, in accordance with Community rules on competition. National, regional and local authorities should maintain their essential role and wide discretion in providing, commissioning and organizing services of general interest as closely as possible to the needs of the users and in line with pursuing their public policy objectives.
Amendment 50 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 1 – point c Amendment 51 #
Proposal for a directive Article 15 – paragraph 1 – subparagraph 2 Amendment 52 #
Proposal for a directive Article 15 – paragraph 2 2. Paragraph 1 also applies where a controlled entity which is a contracting authority or contracting entity as referred to in paragraph 1 subparagraph 1 of Article 4 awards a concession to its controlling
Amendment 53 #
Proposal for a directive Article 15 – paragraph 3 – subparagraph 1 – point a (a) the contracting authorities or entities as referred to in paragraph 1 subparagraph 1 of Article 4 exercise jointly over the legal person a control which is similar to that which it exercises over its own departments; this shall be deemed to be the case where 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; it is not a mandatory requirement that the controlled legal person be wholly owned by the contracting authority or entity;
Amendment 54 #
Proposal for a directive Article 15 – paragraph 3 – subparagraph 1 – point b (b) at least 90% of the activities of that legal person which are covered by the contract are carried out for the controlling contracting authorities or entities as referred to in paragraph 1 subparagraph 1 of Article 4 or other legal persons controlled by the same contracting authority or entity;
Amendment 55 #
Proposal for a directive Article 15 – paragraph 3 – subparagraph 1 – point c Amendment 56 #
Proposal for a directive Article 15 – paragraph 3 – subparagraph 2 Amendment 57 #
Proposal for a directive Article 15 – paragraph 4 – point a Amendment 58 #
Proposal for a directive Article 15 – paragraph 4 – point b (b) the agreement is governed
Amendment 59 #
Proposal for a directive Article 15 – paragraph 4 – point c Amendment 6 #
Proposal for a directive Recital 3 c (new) (3c) This Directive should not affect terms and conditions of employment nor relations between social partners. Contracting authorities have broad discretion to apply both technical specifications and award criteria to achieve their public policy objectives. Provided that the link to the subject matter rule is satisfied, this Directive should not be intended to further constrain the types of concerns that a contracting authority can address through technical specifications or award criteria. Member States may provide that contracting authorities and contracting entities should base the award of concessions inter alia on the criterion of the most economically advantageous tender.
Amendment 60 #
Proposal for a directive Article 15 – paragraph 4 – point d Amendment 61 #
Proposal for a directive Article 15 – paragraph 4 – point d d
Amendment 62 #
Proposal for a directive Article 15 – paragraph 5 Amendment 63 #
Proposal for a directive Article 26 – paragraph 5 – subparagraph 1 – point c a (new) Amendment 64 #
Proposal for a directive Article 35 – paragraph 1 1. Contracting authorities and contracting entities shall indicate in the contract notice, in the invitation to submit tenders or in the concession documents a description of the concession, the award criteria and the minimum requirements to be met. This information must allow to identify the nature and scope of the concession, enabling economic operators to decide whether they request to participate in the concession award procedure.
Amendment 65 #
Proposal for a directive Article 36 – paragraph 1 – subparagraph 1 – introductory part Contracting authorities shall specify, in the concession notice
Amendment 66 #
Proposal for a directive Article 36 – paragraph 1 – subparagraph 1 – point c a (new) (ca) environmental, health and safety, social and labour law, rules and standards, defined by Union and national legislation and collective agreements, which apply where the provision of works, services and supplies takes place.
Amendment 67 #
Proposal for a directive Article 36 – paragraph 1 – subparagraph 2 Contracting authorities shall limit any conditions for participation to those that are appropriate to ensure that a candidate or tenderer has the legal and financial capacities and the commercial and technical abilities to perform the concession to be awarded. All
Amendment 68 #
Proposal for a directive Article 36 – paragraph 4 – subparagraph 1 Member States shall adopt rules combating fraud, favouritism
Amendment 69 #
Proposal for a directive Article 36 – paragraph 5 – subparagraph 1 – point e a (new) (ea) participation in exploitation of human trafficking and child labour covered by Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims.
Amendment 7 #
Proposal for a directive Recital 5 (5)
Amendment 70 #
Proposal for a directive Article 36 – paragraph 7 – subparagraph 1 – point c a (new) (ca) where it is aware of any serious violation of environmental, health and safety, social and labour laws, rues and standards defined by Union, national legislations and collective agreements, which apply where the provision of works, services and supplies takes place.
Amendment 71 #
Proposal for a directive Article 39 – paragraph 1 1. Concessions shall be awarded on the basis of objective criteria which ensure compliance with the principles of transparency, non-discrimination and equal treatment and which
Amendment 72 #
Proposal for a directive Article 39 – paragraph 2 – subparagraph 2 Those criteria shall
Amendment 73 #
Proposal for a directive Article 39 – paragraph 4 – point a (a) quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, social interest, environmental characteristics and innovative character.
Amendment 75 #
Proposal for a directive Article 44 a (new) Article 44a Member States shall ensure that suitable procedures are available to verify the impartiality of the award decision.
Amendment 77 #
Proposal for a directive Annex III – paragraph 1 – point 4 Amendment 8 #
Proposal for a directive Recital 5 (5) Certain coordination provisions should also be introduced for the award of works and services concessions awarded in the
Amendment 9 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. They provide for mutually binding obligations where the execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or limited- issue licences whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources, such as land lease contracts whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services.
source: PE-498.004
2012/10/23
IMCO
754 amendments...
Amendment 237 #
The European Parliament rejects the proposal for a directive on the award of concession contracts
Amendment 241 #
Proposal for a directive Citation 1 Having regard to the Treaty on the Functioning of the European Union, and in particular Article 14, Article 53
Amendment 242 #
Proposal for a directive Citation 1 a (new) Having regard to Article 14 of the Treaty on the Functioning of the European Union and to Protocol 26 to the Treaty,
Amendment 243 #
Proposal for a directive Citation 1 b (new) Having regard to Article 4(2) of the Treaty on the Functioning of the European Union,
Amendment 244 #
Proposal for a directive Citation 1 Having regard to the Treaty on the Functioning of the European Union, and in particular Article 14, 53 (1), Article 62 and Article 114 as well as Protocol 26 thereof,
Amendment 245 #
Proposal for a directive Recital 1 Amendment 246 #
Proposal for a directive Recital 1 Amendment 247 #
Proposal for a directive Recital 1 (1) The absence of clear rules at Union level governing the award of concession contracts gives rise to legal uncertainty and to obstacles to the free provision of services and causes distortions in the functioning of the Internal Market. As a result, economic operators, in particular
Amendment 248 #
Proposal for a directive Recital 1 (1) The absence of clear rules at Union level governing the award of concession
Amendment 249 #
Proposal for a directive Recital 2 (2) Public procurement plays a key role in the Europe 2020 strategy as one of the market-based instruments to be used to achieve a smart, sustainable and inclusive growth while ensuring the most efficient use of public funds. The award of works concessions is presently subject to basic rules of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts while the award of services concessions with a cross-border interest is subject to the principles of the Treaty, and in particular the principle of
Amendment 250 #
Proposal for a directive Recital 2 (2) Public procurement plays a key role in the Europe 2020 strategy as one of the market-based instruments to be used to achieve a smart, sustainable and inclusive growth while ensuring the most efficient use of public funds. The award of works concessions is presently subject to basic rules of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works
Amendment 251 #
Proposal for a directive Recital 2 (2) Public procurement plays a key role in the Europe 2020 strategy as one of the market-based instruments to be used to achieve a smart, sustainable and inclusive growth while ensuring the most efficient use of public funds. The award of works concessions is presently subject to basic
Amendment 252 #
Proposal for a directive Recital 3 (3) This Directive recognises and reaffirms the right of Member States to determine the means of organisation they judge to be most appropriate for performing the works and providing the services for which they are responsible. This Directive should not in any way affect the freedom of Member States or public authorities to
Amendment 253 #
Proposal for a directive Recital 3 (3)
Amendment 254 #
Proposal for a directive Recital 3 (3) This Directive
Amendment 255 #
Proposal for a directive Recital 3 (3)
Amendment 256 #
Proposal for a directive Recital 3 a (new) (3a) This directive does not affect the freedom of public authorities to define, at national level the scope of services of general economic interest and characteristics of the service to be provided, including any conditions regarding the quality of the service, in order to pursue its public policy objectives. This Directive does not deal with the funding of services of general economic interest or with systems of aids granted by Member States, in particular in the social field, in accordance with Community rules on competition.
Amendment 257 #
Proposal for a directive Recital 3 b (new) (3b) This Directive does not affect terms and conditions of employment, including maximum work periods and minimum rest periods, minimum paid annual holidays, minimum rates of pay as well as health, safety and hygiene at work, which Member States apply in compliance with Union law nor does it affect relations between social partners, including the right to negotiate and conclude collective agreements, the right to strike and to take industrial action in accordance with national law and practices which respect Union law
Amendment 258 #
Proposal for a directive Recital 3 c (new) (3c) Member States may provide that contracting authorities and contracting entities shall base the award of concessions inter alia on the criterion of the most economically advantageous tender. This criterion may refer, in addition to price or costs, to quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, environmental, social characteristics and innovative character. It may also refer to after-sales service and technical assistance, delivery date, delivery period or period of completion, the organisation, qualification and experience of the staff assigned to performing the concession in question as well as to the specific process of production or provision of the requested works, supplies or services to the extent that it does not discriminates between economic operators
Amendment 259 #
Proposal for a directive Recital 4 Amendment 260 #
Proposal for a directive Recital 5 Amendment 261 #
Proposal for a directive Recital 5 Amendment 262 #
Proposal for a directive Recital 5 Amendment 263 #
Proposal for a directive Recital 5 Amendment 264 #
Proposal for a directive Recital 5 (5)
Amendment 265 #
Proposal for a directive Recital 5 (5) Certain coordination provisions should also be introduced for the award of works and services concessions awarded in the
Amendment 266 #
Proposal for a directive Recital 5 (5)
Amendment 267 #
Proposal for a directive Recital 5 a (new) (5a) In keeping with the European Parliament resolutions of 14 January 2004, 10 March 2004 and 31 May 2006, the water sector should not be liberalised but should be modernised. It should therefore be excluded from the scope of this Directive.
Amendment 268 #
Proposal for a directive Recital 5 a (new) (5a) In keeping with the European Parliament resolutions of 14 January 2004, 10 March 2004 and 31 May 2006, the water sector should not be liberalised but should be modernised. It should therefore be excluded from the scope of this Directive.
Amendment 269 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or licences whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources, such as land lease contracts, particularly in the area of maritime or inland ports, whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services.
Amendment 270 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or licences, or approval requirements for the provision of social services, whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources, such as land lease contracts whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services.
Amendment 271 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more
Amendment 272 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally
Amendment 273 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest
Amendment 274 #
Proposal for a directive Recital 6 (6) Concessions for the purposes of this Directive are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, even if they are termed ‘concessions’ in some Member States, certain State acts such as qualifications, authorisations, or licences whereby the State or a public authority establishes the conditions for the exercise of an economic activity
Amendment 275 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or licences whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions.
Amendment 276 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of
Amendment 277 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or licences whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources, such as land lease contracts whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services. This also applies to agreements opening up general and non- discriminatory access to the market to all economic operators meeting the conditions established beforehand by the contracting authority, without any limits or quotas. Town planning contracts are also not concessions.
Amendment 278 #
Proposal for a directive Recital 6 (6) Concessions
Amendment 279 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast,
Amendment 280 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or licences whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources, such as land lease contracts whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services. Simple approvals or the right to use public goods or a public domain are not services concessions.
Amendment 281 #
Proposal for a directive Recital 6 (6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or licences whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions.
Amendment 282 #
Proposal for a directive Recital 7 (7)
Amendment 283 #
Proposal for a directive Recital 7 (7) Difficulties related to the interpretation of the concepts of concession and public contract have been source of continued legal uncertainty among stakeholders and have given rise to numerous judgments of the Court of Justice of the European Union on this subject. Therefore, the definition of concession should be clarified, in particular by referring to the concept of substantial operating risk.
Amendment 284 #
Proposal for a directive Recital 7 (7)
Amendment 285 #
Proposal for a directive Recital 8 (8) Where sector specific regulation provides for a guarantee to the concessionaire on breaking even on investments and costs incurred for operating the contract, such contract should not qualify as a concession within the meaning of this Directive. A distinction should nevertheless be established with cases where the operating risk is limited from the outset. This does not prevent a concession from being accepted (see the case-law of the ECJ in case WAZV Gotha (C-206/08)).
Amendment 286 #
Proposal for a directive Recital 8 (8) Where sector specific regulation provides for a guarantee to the concessionaire on breaking even on investments and costs incurred for operating the contract, such contract should not qualify as a concession within the meaning of this Directive.
Amendment 287 #
Proposal for a directive Recital 8 (8) Where sector
Amendment 288 #
Proposal for a directive Recital 8 a (new) (8a) An operating risk must stem from the factors which are outside the control of the parties and thus can not result from inappropriate performance of the contract by any of the parties to the contract. An operating risk may consist in either a demand risk or an availability risk, or both a demand and availability risk. Demand risk is to be understood as the risk on actual demand for the services which are the object of the contract. Availability risk is to be understood as the risk on the supply of the works or services which are the object of the contract, in particular the risk that the supply of the services will not match demand and the risk of liability for harm or damage resulting from the inadequacy of the works or services. This risk of inadequate supply, or liability, may arise from the decisions of the concessionaire about the capital investments and other investments needed in order to perform the concession, and may lead to a risk that the insufficient supply or inadequacy of the works and services adversely affects the concessionaire's ability to make a return on investment within the duration of the concession contract.
Amendment 289 #
Proposal for a directive Recital 8 a (new) (8a) An operating risk must stem from the factors which are outside the control of the parties and thus can not result from inappropriate performance of the contract by any of the parties to the contract. An operating risk may consist in either a demand or an availability risk or in both a demand and an availability risk. Demand risk is to be understood as the risk on actual demand for the works or services which are the object of the contract. Availability risk is to be understood as the risk on the supply of the works or services which are the object of the contract, in particular the risk that the supply of the services will not match demand and the risk of liability for harm or damage resulting from inadequacy of the works or services. It is sufficient (for the contract to be categorised as a concession) that the supplier assumes all, or at least a significant share, of the operating risk faced by the contracting authority, even if that risk is, from the outset, very limited on account of the detailed rules of public law governing that service.
Amendment 290 #
Proposal for a directive Recital 9 (9) The notion of special or exclusive rights is central to the definition of the scope of this Directive, since entities which are neither contracting entities pursuant to Article 4 (1) (1) nor public undertakings are subject to
Amendment 291 #
Proposal for a directive Recital 9 (9) The notion of special or exclusive rights is central to the definition of the scope of this Directive, since entities which are neither contracting entities pursuant to Article 4 (1) (1) nor public undertakings are subject to its provisions only to the extent that they exercise one of the
Amendment 292 #
Proposal for a directive Recital 9 (9) The notion of special or exclusive rights is central to the definition of the scope of this Directive, since entities which are neither contracting entities pursuant to Article 4
Amendment 293 #
Proposal for a directive Recital 10 Amendment 294 #
Proposal for a directive Recital 10 Amendment 295 #
Proposal for a directive Recital 10 (10)
Amendment 296 #
Proposal for a directive Recital 10 (10)
Amendment 297 #
Proposal for a directive Recital 11 (11)
Amendment 298 #
Proposal for a directive Recital 11 (11) To ensure a real opening up of the market and a fair balance in the application of concession award rules in the
Amendment 299 #
Proposal for a directive Recital 11 (11) To ensure a real opening up of the market and a fair balance in the application of concession award rules in the water, energy, transport and postal services sectors it is necessary for the entities covered to be clearly identified
Amendment 300 #
Proposal for a directive Recital 11 (11)
Amendment 301 #
Proposal for a directive Recital 11 a (new) (11a) The entities covered by the Directive should not be identified on the basis of their legal status. It should be ensured, therefore, that the equal treatment of contracting entities operating in the public sector and those operating in the private sector is not prejudiced. It is also necessary to ensure, in keeping with Article 345 of the Treaty, that the rules governing the system of property ownership in Member States are not prejudiced.
Amendment 302 #
Proposal for a directive Recital 11 a (new) (11a) In accordance with Article 14 TFEU in association with Protocol No 26, national, regional or local competent authorities shall have wide discretion in deciding whether to award contracts for services of general interest.
Amendment 303 #
Proposal for a directive Recital 12 a (new) (12a) In accordance with the relevant case law of the Court of Justice of the European Union, whereas gambling activities are considered economic activities of a particular nature which do not directly fall under the application of the Treaty rules, whereas Member States have free policy choices of exclusive concessions, single or multiple, the inclusion of gambling within the scope of this Directive would contribute to creating legal uncertainty. It is therefore appropriate to exclude gambling from the scope of this Directive
Amendment 304 #
Proposal for a directive Recital 13 (13) It is appropriate to exclude from the scope of this Directive certain services concessions awarded to an economic operator
Amendment 305 #
Proposal for a directive Recital 13 (13) It is appropriate to exclude from the scope of this Directive certain services concessions awarded to an economic operator which
Amendment 306 #
Proposal for a directive Recital 13 (13) It is appropriate to exclude from the scope of this Directive certain services concessions awarded to an economic operator which
Amendment 307 #
Proposal for a directive Recital 13 (13) It is appropriate to exclude from the scope of this Directive certain services concessions awarded to an economic
Amendment 308 #
Proposal for a directive Recital 13 (13) It is appropriate to exclude from the scope of this Directive certain services concessions awarded to an economic operator which is itself a contracting authority or a contracting entity on the basis of an exclusive right which that operator enjoys under published national law or an administrative act, as in the case of public-domain maritime concessions for recreational tourist purposes, and which has been granted in accordance with the Treaty and Union sectoral legislation concerning the management of networks infrastructure related to the activities set out in
Amendment 309 #
Proposal for a directive Recital 13 a (new) Amendment 310 #
Proposal for a directive Recital 13 a (new) (13a) This Directive is without prejudice to the Member States’ power to award, define and organise the provision of a public service task in accordance with Protocol 29 annexed to the Treaties on the system of public broadcasting in the Member States.
Amendment 311 #
Proposal for a directive Recital 13 a (new) (13a) It is appropriate to exclude from the scope of this Directive concessions relating to gambling activities involving a financial risk through investing a sum of money in games of chance (lotteries, betting), run at national level by a single body, which, in accordance with the Treaties, has been awarded exclusive rights by one or more Member States pursuant to applicable and published national laws, regulations or administrative provisions. That exclusion is justified by the granting of exclusive rights to a single body at national level, making a competitive procedure inapplicable, as well as by the need to retain the possibility for Member States to regulate the gambling sector at national level in view of their obligations in terms of protecting public and social order.
Amendment 312 #
Proposal for a directive Recital 14 Amendment 313 #
Proposal for a directive Recital 14 (14) It is appropriate to exclude certain service and works concessions awarded to
Amendment 314 #
Proposal for a directive Recital 14 (14) It is appropriate to exclude certain service and works concessions awarded to
Amendment 315 #
Proposal for a directive Recital 15 a (new) (15a) On the other hand, service contracts in the fields of civil protection, emergency response and everyday hazard prevention should be excluded from the scope of the Directive. These fields include, in particular, emergency rescue work, which forms part of everyday hazard prevention and should be defined as separate from ambulance services. In order to ensure successful civil protection and emergency response as part of everyday hazard prevention in the interests of the general public, it should be sufficient to apply the principles of primary law.
Amendment 316 #
Proposal for a directive Recital 17 Amendment 317 #
Proposal for a directive Recital 17 (17) Th
Amendment 318 #
Proposal for a directive Recital 17 (17) There is considerable legal uncertainty as to how far cooperation between
Amendment 319 #
Proposal for a directive Recital 17 a (new) (17a) The duration of the concession should be limited so that market foreclosure is avoided and there is no long-term prevention of competition.
Amendment 320 #
Proposal for a directive Recital 18 (18) In order to ensure adequate advertisement of works and services concessions above a certain
Amendment 321 #
Proposal for a directive Recital 19 (19) In view of the detrimental effects on competition, awarding concessions without prior publication should only be permitted in
Amendment 322 #
Proposal for a directive Recital 19 (19) In view of the detrimental effects on competition, awarding concessions without prior publication should only be permitted in very exceptional circumstances. This exception should be limited to cases where it is clear from the outset that a publication would not trigger more competition, notably because there is objectively only one economic operator who can perform the concession. Only situations of objective exclusivity can justify the award of a concession without publication to an economic operator, where the situation of exclusivity has not been created by the contracting authority or contracting entity itself in view of the future award procedure
Amendment 323 #
Proposal for a directive Recital 19 (19)
Amendment 324 #
Proposal for a directive Recital 19 (19) In view of the detrimental effects on
Amendment 325 #
Proposal for a directive Recital 19 (19) In view of the detrimental effects on competition, awarding concessions without prior publication should only be permitted in very exceptional circumstances. This exception should be limited to cases where it is clear from the outset that a publication would not trigger more competition, notably because there is objectively only one economic operator who can perform the concession, as is the case with owners of seaside businesses set up on property under concession. Only situations of objective exclusivity can justify the award of a concession without publication to an economic operator, where the situation of exclusivity has not been created by the contracting authority or contracting entity
Amendment 326 #
Proposal for a directive Recital 20 Amendment 327 #
Proposal for a directive Recital 20 Amendment 328 #
Proposal for a directive Recital 20 Amendment 329 #
Proposal for a directive Recital 20 Amendment 330 #
Proposal for a directive Recital 20 Amendment 331 #
Proposal for a directive Recital 20 Amendment 332 #
Proposal for a directive Recital 20 (20) A review of so-called prioritary and non-prioritary services (‘A’ and ‘B’ services) by the Commission has shown that it is not justified to restrict the full application of procurement law to a limited group of services. As a result, this Directive should apply to a number of services
Amendment 333 #
Proposal for a directive Recital 20 a (new) (20a) So-called services to the person should be excluded from the full application of the Directive, since they have a limited cross-border dimension (e.g. in the social, educational and health field, including rescue services). These services are provided within a particular context that varies widely amongst Member States, due to different cultural traditions. A significantly reduced, light regime will therefore apply, with only two transparency requirements.
Amendment 334 #
Proposal for a directive Recital 21 (21) In the light of the results of the evaluation conducted by the Commission on the reform of public procurement rules it is appropriate to exclude from the full application of this Directive
Amendment 335 #
Proposal for a directive Recital 21 (21)
Amendment 336 #
Proposal for a directive Recital 21 (21) In the light of the results of the evaluation conducted by the Commission on the reform of public procurement rules it is appropriate to exclude from the full application of this Directive only those services which have a limited cross-border dimension, namely the so-called services to the person such as certain social, health and educational services. These services are provided within a particular context that varies widely amongst Member States, due to different cultural traditions. A specific regime should therefore be established for concession for these services which takes into account the fact that they are newly regulated. An obligation to publish a
Amendment 337 #
Proposal for a directive Recital 21 (21) In the light of the results of the evaluation conducted by the Commission on the reform of public procurement rules it is appropriate to exclude from the full application of this Directive
Amendment 338 #
Proposal for a directive Recital 21 (21) In the light of the results of the evaluation conducted by the Commission on the reform of public procurement rules it is appropriate to exclude from the full application of this Directive only those services which have a limited cross-border dimension, namely the so-called services to the person such as certain social, health and educational service, and other services of limited cross border dimension such as certain legal, hotel, and catering services. These services are provided within a particular context that varies widely amongst Member States, due to different cultural traditions. A specific regime should therefore be established for concession for these services which takes into account the fact that they are newly regulated. An
Amendment 339 #
Proposal for a directive Recital 21 (21)
Amendment 340 #
Proposal for a directive Recital 21 a (new) (21a) This Directive is without prejudice to the freedom of national, regional and local authorities, in compliance with the Treaties, to define services of general economic interest. It is also without prejudice to the power of national, regional and local authorities to provide, commission and finance services of general economic interest in accordance with Article 14 of the Treaty on the Functioning of the European Union and Protocol 26 annexed to that Treaty.
Amendment 341 #
Proposal for a directive Recital 22 (22) Given the importance of the cultural context and the sensitivity of these services, Member States sh
Amendment 342 #
Proposal for a directive Recital 22 (22) Given the importance of the cultural context and the sensitivity of these services, Member States
Amendment 343 #
Proposal for a directive Recital 22 (22) Given the importance of the cultural context and the sensitivity of these services, Member States sh
Amendment 344 #
Proposal for a directive Recital 22 a (new) (22 a) Services of general economic interest (SGEI), as laid down in Article 14 and Article 106 TFEU, are often profit- making services, but they are primarily of universal interest and the Member States have therefore imposed special public service obligations on them. The SGEI are considered essential by the authorities, even though the market might not offer sufficient incentives to provide them. Fulfilling a public service requirement may involve special or exclusive rights and special funding arrangements. SGEI services are not and cannot be satisfactorily provided by the market under conditions such as price, objective quality characteristics, continuity and access to the service, consistent with the public interest, as defined by the Member State. This directive does not affect the competences of Member States to define a SGEI.
Amendment 345 #
Proposal for a directive Recital 22 a (new) (22a) The procedure for awarding concession contracts should comprise several stages, including the publication of a concession notice allowing the grantor wishing to award a concession to make known its intention; the presentation by interested economic operators of their application in response to that notice; verification of the conditions of participation for candidates; the submission of a tender by the candidates; the grantor's right to negotiate with the tenderer on the basis of objective award criteria; the decision on the award by the grantor of the concession contract to the concessionaire and the publication of an award notice. Intermediate stages must be possible, including the selection of certain candidates authorised to submit a tender and the sending of an invitation to tender to the candidates thus selected. The grantor should also be able to approach economic operators who have not responded to the concession notice. In addition, and subject to compliance with the principles of transparency and non- discrimination, it must be possible to reverse the order of certain stages, including, for example, analysing submitted tenders before verifying compliance with the selection criteria. Subject to compliance with the provisions of this Directive, the grantor should be allowed considerable flexibility to define the procedure leading to the choice of concessionaire, the only two mandatory stages being the publication of a concession notice at the beginning of the procedure, except where this is not required under this Directive, and the publication of an award notice at the end of the procedure. This freedom should be balanced against a requirement for transparency and equal treatment of candidates and tenderers.
Amendment 346 #
Proposal for a directive Recital 23 (23) In order to make it possible for all interested operators to submit applications
Amendment 347 #
Proposal for a directive Recital 24 Amendment 348 #
Proposal for a directive Recital 24 (24) The choice and application of proportional, non-discriminatory and fair selection criteria to economic operators is crucial for their effective access to the economic opportunities related to concessions. In particular, the possibility for a candidate to rely on the capacities of other entities can be decisive to enable the participation of small and medium sized enterprises. Therefore, it is appropriate to
Amendment 349 #
Proposal for a directive Recital 24 (24) The choice and application of proportional, non-discriminatory and fair selection criteria
Amendment 350 #
Proposal for a directive Recital 25 (25) In order to ensure transparency and equal treatment, criteria for the award of concessions should always comply with some general standards. These should be disclosed in advance to all
Amendment 351 #
Proposal for a directive Recital 25 (25) In order to ensure transparency and equal treatment, criteria for the award of concessions should always comply with some general standards. These should be disclosed in advance to all potential tenderers, be directly related to the subject matter of the contract and should not offer to the contracting authority or contracting entity an unrestricted freedom of choice. They should ensure the possibility of effective competition and be accompanied by requirements that allow the information provided by the tenderers to be effectively verified. In order to comply with these standards while improving legal certainty, Member States may provide for the use of the criterion of the most economically advantageous tender.
Amendment 352 #
Proposal for a directive Recital 25 a (new) (25a) In order to ensure that women and men have equal access to the labour market, the grantor should also be able to include characteristics relating to promoting gender equality.
Amendment 353 #
Proposal for a directive Recital 25 b (new) (25b) In order to better integrate social considerations in the award of concessions, the grantor should also be able to include characteristics relating to working conditions among the award criteria. Those characteristics shall aim to protect the health of the staff involved in the production process or to promote the social integration of disadvantaged persons or members of vulnerable groups among the persons responsible for performing the contract, including accessibility for disadvantaged groups, such as the young, long-term unemployed, people with migration backgrounds and persons with disabilities. In this case, the award criteria should be applied in accordance with Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services[1], in such a way as not to discriminate directly or indirectly against economic operators from other Member States. The grantor should also be allowed to use as award criteria the organisation, qualifications and experience of the staff assigned to the performance of the concession contract, as they may affect the quality of provision and, as a result, the economic value of the tender. [1] OJ L 18, 21.1.1997, p. 1.
Amendment 354 #
Proposal for a directive Recital 26 Amendment 355 #
Proposal for a directive Recital 28 Amendment 356 #
Proposal for a directive Recital 28 a (new) (28a) Technical specifications and concession award criteria play distinct roles in the process of awarding concessions, but the specifications and criteria are similar in substance. By means of the technical specifications, contracting authorities and entities lay down conditions governing the qualities required to take part. The ability to meet the technical specifications is a prerequisite for consideration as a candidate for the award of a concession contract and only works, supplies and services which comply with the specifications should therefore be considered. In addition, the award criteria enable contracting authorities and entities to compare the advantages of various combinations of criteria. Every tender should be assessed according to each criterion, but the ability to satisfy all the award criteria is not a necessary condition for consideration as a candidate for the award of a concession contract. Finally, the conditions governing the performance of the concession should be included in the contract in order to show how it should be implemented.
Amendment 358 #
Proposal for a directive Recital 29 (29) In technical specifications and in award criteria, contracting authorities and contracting entities should be allowed to refer to
Amendment 359 #
Proposal for a directive Recital 29 (29) In technical specifications and in
Amendment 360 #
Proposal for a directive Recital 30 Amendment 361 #
Proposal for a directive Recital 31 Amendment 362 #
Proposal for a directive Recital 32 (32) The laws, regulations and collective agreements, at both national and European Union level, which are in force in the areas of employment conditions and safety at
Amendment 363 #
Proposal for a directive Recital 33 (33) Concessions should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption, fraud to the detriment of the Union’s financial interests or money laundering.
Amendment 364 #
Proposal for a directive Recital 33 (33) Concessions should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption, fraud to the detriment of the Union's financial interests
Amendment 365 #
Proposal for a directive Recital 33 (33) Concessions should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption, fraud to the detriment of the Union's financial interests or money laundering. Non-payment of taxes or social security contributions should also be sanctioned by mandatory exclusion at the level of the Union. Furthermore, contracting authorities and contracting entities should be given the possibility to exclude candidates or tenderers for serious violations of Union or national law aimed at the protection of public interests compatible with the Treaty if such a violation has been established by a court, or where the economic operator has shown significant or persistent deficiencies in the performance of a prior concession or concessions of a similar nature
Amendment 366 #
Proposal for a directive Recital 34 (34) It is necessary to clarify the conditions under which modifications of a concession
Amendment 367 #
Proposal for a directive Recital 34 (34) It is necessary to clarify the conditions under which modifications of a concession during its execution require a new award procedure, taking into account the relevant case-law of the Court of Justice of the European Union. Any concession in force may be modified by means of a supplementary agreement. A new award procedure
Amendment 368 #
Proposal for a directive Recital 34 (34) It is necessary to clarify the conditions under which modifications of a concession during its execution require a new award procedure, taking into account the relevant case-law of the Court of Justice of the European Union. Any concession in force may be modified by means of a supplementary agreement. A new award procedure is required
Amendment 369 #
Proposal for a directive Recital 34 a (new) (34a) As concessions are often long-term contracts, in order to determine their value the relevant quantitative data need to be updated whenever the value of a concession is assessed. In this way the legal approach can be made consistent with the economic and financial reality of the concession contract.
Amendment 370 #
Proposal for a directive Recital 35 (35)
Amendment 371 #
Proposal for a directive Recital 36 (36) In line with the principles of equal treatment and transparency, the successful tenderer should not be replaced by another economic operator without reopening the concession to competition. However, the successful tenderer performing the concession may undergo certain structural changes during the performance of the concession, such as purely internal reorganisations, mergers and acquisitions or insolvency or be substituted on the basis of a contractual clause known to all tenderers and in line with the principles of equal treatment and transparency. Such structural changes should not
Amendment 372 #
Proposal for a directive Recital 36 (36) In line with the principles of equal treatment and transparency, the successful tenderer should not be replaced by another economic operator without reopening the concession to competition. However, the successful tenderer performing the concession may undergo certain structural changes during the performance of the concession
Amendment 373 #
Proposal for a directive Recital 37 a (new) (37a) In keeping with the case law of the Court of Justice of the European Union, this Directive should apply to concessions awarded after its entry into force.
Amendment 374 #
Proposal for a directive Recital 38 (38) In order to adapt to rapid technical and economic developments, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission in respect of a number of non- essential elements of this Directive. In fact, the technical details and characteristics of the devices for electronic receipt should be kept up to date with technological developments and administrative needs; it is also necessary to empower the Commission to make mandatory technical standards for electronic communication, such as the submission of three- dimensional digital representations when tendering for a works concession, to ensure the interoperability of technical formats, processes and messaging in
Amendment 375 #
Proposal for a directive Recital 39 Amendment 376 #
Proposal for a directive Recital 39 Amendment 377 #
Proposal for a directive Recital 39 Amendment 378 #
Proposal for a directive Recital 41 Amendment 379 #
Proposal for a directive Recital 44 a (new) (44a) This Directive is without prejudice to the Member States’ power to award, define and organise the provision of a public service task in accordance with Protocol 29 annexed to the Treaties on the system of public broadcasting in the Member States.
Amendment 380 #
Proposal for a directive Rule 1 1. This Directive establishes rules on the procedures for procurement by contracting authorities and by contracting entities with respect to concessions whose value is estimated to be not less than the thresholds laid down in Article 5
Amendment 381 #
Proposal for a directive Article 1 – paragraph 1 a (new) 1a. This Directive recognises the principle of free administration by contracting authorities and contracting entities in conformity with the Treaties. The latter will be free to decide how best to provide, organise and manage the execution of the work and the provision of the services for which they are responsible, in accordance with the legislative arrangements and the methods which they judge to be the most effective manner to ensure a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights in public services.
Amendment 382 #
Proposal for a directive Article 1 – paragraph 1 a (new) 1a. This Directive is without prejudice to the right of public authorities at all levels to decide whether, how and to what extent they want to perform public functions themselves. Public authorities may perform public interest tasks using their own resources, without being obliged to call on external economic operators. They may do so in cooperation with other public authorities.
Amendment 383 #
Proposal for a directive Article 1 – paragraph 1 b (new) 1b. The details of concession contracts, including regarding the transfer of operating risk and eventual payments from the grantor to the economic operator, shall be made public and open to scrutiny. Any subsequent modifications to the contract shall also be made public. Member states shall ensure that periodic evaluation of the performance of concessions shall be made public. Member states shall ensure that for public service concession contracts the same requirements for transparency and public control apply as for publically- delivered services.
Amendment 384 #
Proposal for a directive Article 1 – paragraph 2 – point a a) Contracting authorities
Amendment 385 #
Proposal for a directive Article 1 – paragraph 2 a (new) 2a. This Directive shall not apply where a contracting authority performs its public interest tasks with its own resources or in cooperation with other contracting authorities.
Amendment 386 #
Proposal for a directive Article 1 – paragraph 2 a (new) 2a. This Directive does not affect the terms and conditions of employment, including environmental, health and safety, social and labour law, rules and standards, defined by Union and national legislation and collective agreements, which apply where the provision of works, services and supplies takes place.
Amendment 387 #
Proposal for a directive Article 1 – paragraph 2 a (new) 2a. This Directive constitutes the rules for the award of concessions. In consequence both Directives on public procurement and on procurement by entities operating in the water, energy, transport and postal services sectors do not apply to concessions as defined in this Directive.
Amendment 388 #
Proposal for a directive Article 1 – paragraph 2 a (new) 2a. The application of this Directive is subject to Articles 36, 51, 52, 62 and 346 TFEU.
Amendment 389 #
Proposal for a directive Article 1 – paragraph 2 a (new) 2a. Exclusively the conditions laid down in this Directive shall apply to the procedures followed by contracting authorities or contracting entities as referred to in Article 1(1) when concluding concessions. The provisions of the directive on public procurement and the directive on the procurement procedures of entities operating in the water, energy, transport and postal services sectors shall not apply to concessions referred to in paragraph 1, even in a corresponding form.
Amendment 390 #
Proposal for a directive Article 1 – paragraph 2 a (new) 2a. This Directive shall not apply where a contracting authority performs its public interest tasks with its own resources or in cooperation with other contracting authorities.
Amendment 391 #
Proposal for a directive Article 1 – paragraph 2 a (new) 2a. This Directive shall not affect the right of public authorities at any level to decide whether they shall perform public works or services themselves, by using their own internal resources without being obliged to award concessions to external economic operators. These tasks may be performed in cooperation with other public contracting authorities.
Amendment 392 #
Proposal for a directive Article 1 – paragraph 2 a (new) 2a. This Directive does not apply to acts or contracts through which the State or a public authority or entity awards an economic operator establishing the right to exploit certain public domains or resources when either the State or public authority or entity establishes: a) general conditions for the exercise of an economic activity without becoming a beneficiary of the specific works or services provided by the economic operator, or b) terms and conditions to exploit certain public domains or resources, such as land lease contracts. To this end, it is immaterial that, in exploiting public land or domain, works may be carried out for the improvement or infrastructuring of such public land or domain, as long as the economic activity carried out by the operator maintains a prevailing nature on the execution of these works.
Amendment 393 #
Proposal for a directive Article 1 – paragraph 2 a (new) 2a. This Directive shall apply to concessions awarded after its entry into force.
Amendment 394 #
Proposal for a directive Article 1 - paragraph 2 a (new) 2a. This Directive shall not affect: (a) labour law, that is any legal or contractual provision concerning employment conditions, working conditions, including health and safety at work and the relationship between employers and workers, which Member States apply in accordance with national law which is in conformity with Community law. Equally, this Directive shall not affect the social security legislation of the Member States; (b) the exercise of fundamental rights recognised in the Member States and by Community legislation. Nor does it affect the right to negotiate, conclude and enforce collective agreements and to take industrial action in accordance with national law and practices which respect Community law; (c) the freedom of Member States to define, in conformity with Community law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with the State aid rules, and what specific obligations they should be subject to.
Amendment 395 #
Proposal for a directive Article 1 – paragraph 2 b (new) 2b. This Directive does not apply to nor indirectly affect services of general economic interest, as defined by the Member States. The provisions of this directive shall in all cases preserve the role of services of general economic interest, in particular in promoting social and territorial cohesion.
Amendment 396 #
Proposal for a directive Article 1 a (new) Article 1a Principle of free administration by public authorities This Directive recognises the principle of free administration by contracting authorities and contracting entities in conformity with the Treaties. The latter will be free to decide how best to provide, organise and manage the execution of the work and the provision of the services for which they are responsible, in accordance with the legislative arrangements and the methods which they judge to be the most effective manner to ensure a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights in public services.
Amendment 397 #
Proposal for a directive Article 1 a (new) Article 1a Principle of free administration by public authorities This Directive recognises the principle of free administration by contracting authorities and contracting entities in accordance with the subsidiarity principle enshrined in Union law and the national legislation in force. They shall be free to decide on the management method they wish to select in order to execute works or provide services, or whether they will have works executed or services provided within the meaning of this Directive directly or by external providers, in accordance with the legal arrangements in the corresponding Member States.
Amendment 398 #
Proposal for a directive Article 1 a (new) Article 1 a Principle of free administration by public authorities 1. This Directive recognises the principle of free administration by contracting authorities and contracting entities in conformity with the EU Treaties. The latter will be free to decide how best to provide, organise and manage the execution of the work and the provision of the services for which they are responsible, in accordance with the legislative arrangements and the methods which they judge to be the most effective manner to ensure a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights in public services. 2. This Directive does not affect the freedom of Member States to define, in conformity with the Union law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with the State aid rules, and what specific obligations they should be subject to.
Amendment 399 #
Proposal for a directive Article 1 a (new) Article 1a Principle of free administration by public authorities This Directive recognises the principle of free administration by contracting authorities and contracting entities in conformity with the national legislation in force. They shall be free to decide on the management method they deem to be the most appropriate in order to execute the works and provide the services for which they are responsible, in accordance with the legal and procedural arrangements they deem to be the most effective. Pursuant to Article 14 of the Treaty on the Functioning of the European Union, and Protocol 26 to that Treaty, this Directive shall have neither the objective nor the effect of laying down a specific legal form for the public authorities concerned.
Amendment 400 #
Proposal for a directive Article 1 b (new) Amendment 401 #
Proposal for a directive Article 1 b (new) Article 1 b Principles of transparency by public authorities The details of concession contracts, including regarding the transfer of operating risk and eventual payments from the grantor to the economic operator, shall be made public and open to scrutiny. Any subsequent modifications to the contract shall also be made public. Member States shall ensure that periodic evaluation of the performance of concessions shall be made public.
Amendment 402 #
Proposal for a directive Article 2 – paragraph 1 – point 2 (2)
Amendment 403 #
Proposal for a directive Article 2 – paragraph 1 – point 2 (2)
Amendment 404 #
Proposal for a directive Article 2 – paragraph 1 – point 2 (2)
Amendment 405 #
Proposal for a directive Article 2 – paragraph 1 – point 2 (2)
Amendment 406 #
Proposal for a directive Article 2 – paragraph 1 – point 2 – point b (new) (b) a 'services concession' means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or entities award the performance of services for which they are responsible to one or more economic operators, where the consideration for that award consists either solely in the right to perform the services that are the subject of the contract or in that right together with payment. The right to exploit the works or services shall imply the transfer to the concessionaire of a significant part of the economic risk in exploiting these works or services, defined as the risk of exposure to the vagaries of the market, whether those risks are linked to supply or demand. The concessionaire shall be deemed to assume the substantial operating risk where, under normal conditions of exploitation, it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject of the concession.
Amendment 407 #
Proposal for a directive Article 2 – paragraph 1 – point 2 a (new) Amendment 408 #
Proposal for a directive Article 2 – paragraph 1 – point 2 a (new) (2a) 'services concession' means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrusts the operation of a service for which they are responsible to one or more economic operators, where the consideration for this delegation consists either solely in the right to exploit the service which is the subject of the contract or in that right together with payment. The right to exploit the works or services shall imply the transfer to the concessionaire of the substantial economic risk in exploiting these works or services, defined as the risk of exposure to the vagaries of the market and encompassing both demand and availability risk. The concessionaire shall be deemed to assume the substantial operating risk where, under normal conditions of exploitation and according to the provisions of the contract, it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject-matter of the concession.
Amendment 409 #
Proposal for a directive Article 2 – paragraph 1 – point 4 Amendment 410 #
Proposal for a directive Article 2 – paragraph 1 – point 4 Amendment 411 #
Proposal for a directive Article 2 – paragraph 1 – point 5 Amendment 412 #
Proposal for a directive Article 2 – paragraph 1 – point 5 (5) ‘execution of works’ means the execution, or both the design and execution, of works related to one of the activities referred to in Annex I or of a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the
Amendment 413 #
Proposal for a directive Article 2 – paragraph 1 – point 7 Amendment 414 #
Proposal for a directive Article 2 – paragraph 1 – point 7 (7)
Amendment 415 #
Proposal for a directive Article 2 – paragraph 1 – point 7 (7) 'services concession' means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities or contracting entities and having as their object the provision of services other than those referred to in points 2 and 4 where the consideration for the services to be
Amendment 416 #
Proposal for a directive Article 2 – paragraph 1 – point 7 (7) 'services concession' means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities or contracting entities and having as their object the provision of services other than those referred to in points 2 and 4 where the consideration for the services to be provided consists either solely in the right to exploit the services that are subject of the contract or in that right together with payment, except in the case of simple approvals, in particular approvals on the use of a public good or a public domain.
Amendment 417 #
Proposal for a directive Article 2 – paragraph 1 – point 7 (7) a 'services concession' means a contract for pecuniary interest concluded in writing b
Amendment 418 #
Proposal for a directive Article 2 – paragraph 1 – point 7 a (new) (7a) "services concession" means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities or contracting entities and having as their object the provision of services other than those referred to in points 2 and 4 where the consideration for the services to be provided consists either solely in the right to exploit the services that are subject of the contract or in that right together with payment; Member State procedures based on the principle that all service providers capable of meeting the conditions established beforehand by law, regardless of their legal form, shall be authorised to provide the service shall not be considered services concessions, in so far as they comply with the general principles of equal treatment, transparency and non- discrimination.
Amendment 419 #
Proposal for a directive Article 2 – paragraph 1 – point 7 b (new) (7b) "services concession" means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities or contracting entities and having as their object the provision of services other than those referred to in points 2 and 4 where the consideration for the services to be provided consists either solely in the right to exploit the services that are subject of the contract or in that right together with payment; approvals or the simple approval for the use of a public good or public domain are not services concessions within the meaning of this Directive.
Amendment 420 #
Proposal for a directive Article 2 – paragraph 1 – point 10 (10) “economic operator” means any natural or legal person, or public entity, or a group of such persons and/or entities, including consortia of undertakings, which offers the execution of works and/or a work, supplies or services on the market.
Amendment 421 #
Proposal for a directive Article 2 – paragraph 1 – point 12 (12)
Amendment 422 #
Proposal for a directive Article 2 – paragraph 1 – point 13 (13)
Amendment 423 #
Proposal for a directive Article 2 – paragraph 1 – point 13 a (new) (13a) ‘socially sustainable production process’ means that the concession contract is performed in accordance with the laws, rules and standards governing health and safety and with social and employment law, in particular with regard to equal treatment in the workplace. The principle of equal treatment in the workplace refers to compliance with the relevant conditions of employment, including the laws, rules and standards governing health and safety and social and employment law, as laid down in Union and national legislation and in the collective agreements applying in the place where the works, services or supplies are provided;
Amendment 424 #
Proposal for a directive Article 2 – paragraph 1 – point 14 (14)
Amendment 425 #
Proposal for a directive Article 2 – paragraph 1 – point 14 (14) ‘life cycle’ means all consecutive and/or interlinked stages, including production, transport, use and maintenance, throughout the existence of a product or a works or the provision of a service, from raw material acquisition or generation of resources to disposal
Amendment 426 #
Proposal for a directive Article 2 – paragraph 1 – point 14 (14) ‘life cycle’
Amendment 427 #
Proposal for a directive Article 2 – paragraph 1 – point 14 a (new) Amendment 428 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 1 The right to exploit the works or services
Amendment 429 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 1 The right to exploit the works or services as referred to in points 2, 4 and 7 of the first paragraph shall
Amendment 430 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 1 The right to exploit the works or services as referred to in points 2, 4 and 7 of the
Amendment 431 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 1 The
Amendment 432 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 2 Amendment 433 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 2 Amendment 434 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 2 – introductory part That
Amendment 435 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 2 – point b (b) the risk related to the availability of the infrastructure provided by the concessionaire or used for the provision of services to users, including contracting authorities.
Amendment 436 #
Proposal for a directive Article 2 – paragraph 2 – subparagraph 2 a (new) The substantial operating risk shall be determined taking into account the Eurostat criteria required in order to establish whether the investment should be entered in the budget of the public authority or of the private operator in such a way as to trigger an excessive deficit procedure.
Amendment 437 #
Proposal for a directive Article 2 – paragraph 2 a (new) 2a. The right to exploit the works or services as referred to in points 2, 4 and 7 of the first paragraph shall imply the transfer to the concessionaire of the operating risk. The concessionaire shall be deemed to assume the operating risk where it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject-matter of the concession. This shall also apply where the operating risk is limited from the outset.
Amendment 438 #
Proposal for a directive Article 4 – paragraph 3 – subparagraph 2 Amendment 439 #
Proposal for a directive Article 4 – paragraph 3 – subparagraph 2 – point b a (new) (ba) procedures pursuant to legislative acts of Member States conforming to Treaty principles regarding equal treatment, transparency, proportionality, and mutual recognition.
Amendment 440 #
Proposal for a directive Article 4 – paragraph 3 – subparagraph 3 Amendment 441 #
Proposal for a directive Rule 5 Amendment 442 #
Proposal for a directive Article 5 – paragraph 1 – introductory part 1. This Directive shall apply to the following concessions the value of which is equal to or greater than |