En En ***I Report

EUROPEAN PARLIAMENT 2009 - 2014

Plenary sitting

A7-0034/2013

7.2.2013

***I REPORT

on the proposal for a directive of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sectors (COM(2011)0895 – C7-0007/2012– 2011/0439(COD))

Committee on the Internal Market and Consumer Protection

Rapporteur: Marc Tarabella

RR\926628EN.doc PE483.470v03-00

EN United in diversity EN

PR_COD_1amCom

Symbols for procedures

* Consultation procedure *** Consent procedure ***I Ordinary legislative procedure (first reading) ***II Ordinary legislative procedure (second reading) ***III Ordinary legislative procedure (third reading)

(The type of procedure depends on the legal basis proposed by the draft act.)

Amendments to a draft act

In amendments by Parliament, amendments to draft acts are highlighted in bold italics. Highlighting in normal italics is an indication for the relevant departments showing parts of the draft act which may require correction when the final text is prepared – for instance, obvious errors or omissions in a language version. Suggested corrections of this kind are subject to the agreement of the departments concerned.

The heading for any amendment to an existing act that the draft act seeks to amend includes a third line identifying the existing act and a fourth line identifying the provision in that act that Parliament wishes to amend. Passages in an existing act that Parliament wishes to amend, but that the draft act has left unchanged, are highlighted in bold. Any deletions that Parliament wishes to make in such passages are indicated thus: [...].

PE483.470v03-00 2/296 RR\926628EN.doc EN CONTENTS

Page

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION...... 4

EXPLANATORY STATEMENT...... 129

OPINION OF THE COMMITTEE ON INTERNATIONAL TRADE ...... 133

OPINION OF THE COMMITTEE ON EMPLOYMENT AND SOCIAL AFFAIRS...... 159

OPINION OF THE COMMITTEE ON INDUSTRY, RESEARCH AND ENERGY...... 193

OPINION OF THE COMMITTEE ON TRANSPORT AND TOURISM ...... 214

OPINION OF THE COMMITTEE ON REGIONAL DEVELOPMENT...... 239

OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ...... 274

PROCEDURE ...... 296

RR\926628EN.doc 3/296 PE483.470v03-00 EN DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2011)0895),

– having regard to Article 294(2) and Article 53(1), Article 62 and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0007/2012),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the reasoned opinions submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Swedish Parliament and by the United Kingdom House of Commons, asserting that the draft legislative act does not comply with the principle of subsidiarity,

– having regard to the opinion of the European Economic and Social Committee of 26 April 20121,

– having regard to the opinion of the Committee of the Regions of 9 October 20122,

– having regard to Rule 55 of its Rules of Procedure,

– having regard to the report of the Committee on the Internal Market and Consumer Protection and the opinions of the Committee on International Trade, the Committee on Employment and Social Affairs, the Committee on Industry, Research and Energy, the Committee on Transport and Tourism, the Committee on Regional Development, and the Committee on Legal Affairs (A7-0034/2013),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

1 OJ C 191, 29.6.2012, p. 84. 2 OJ C 391, 18.12.2012, p. 49.

PE483.470v03-00 4/296 RR\926628EN.doc EN Amendment 1

Proposal for a directive Recital 2

Text proposed by the Commission Amendment

(2) In order to guarantee the opening up to (2) In order to guarantee the opening up to competition of procurement by entities competition of procurement by entities operating in the water, energy, transport operating in the water, energy, transport and postal services sectors, provisions and postal services sectors, provisions should be drawn up coordinating should be drawn up coordinating procurement procedures in respect of procurement procedures in respect of contracts above a certain value. Such contracts above a certain value. Such coordination is needed to ensure the effect coordination is needed to ensure the effect of the principles of the Treaty on the of the principles of the Treaty on the Functioning of the European Union and in Functioning of the European Union and in particular the free movement of goods, the particular the free movement of goods, the freedom of establishment and the freedom freedom of establishment and the freedom to provide services as well as the principles to provide services as well as the principles deriving therefrom, such as equal deriving therefrom, such as equal treatment, non-discrimination, mutual treatment, non-discrimination, mutual recognition, proportionality and recognition, proportionality and transparency. In view of the nature of the transparency. In view of the nature of the sectors affected by such coordination, the sectors affected by such coordination, the latter should, while safeguarding the latter should, while safeguarding the application of those principles, establish a application of those principles, establish a framework for sound commercial practice framework for sound commercial practice and should allow maximum flexibility. and should allow maximum flexibility at every level of the public procurement procedure, particularly favouring small and medium-sized enterprises. Public procurement rules have to respect the distribution of competences as enshrined in Article 14 TFEU and in Protocol (No 26) on Services of General Interest. The application of those rules should not interfere with the freedom of public authorities to decide how they carry out their public service tasks.

Amendment 2

Proposal for a directive Recital 4

RR\926628EN.doc 5/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(4) Public procurement plays a key role in (4) Public procurement plays a key role in the Europe 2020 strategy as one of the the Europe 2020 strategy as one of the market-based instruments to be used to market-based instruments to be used to achieve a smart, sustainable and inclusive achieve a smart, sustainable and inclusive growth while ensuring the most efficient growth while ensuring the most efficient use of public funds. For that purpose, the use of public funds. For that purpose, the current public procurement rules adopted current public procurement rules adopted pursuant to Directive 2004/17/EC of the pursuant to Directive 2004/17/EC of the European Parliament and of the Council of European Parliament and of the Council of 31 March 2004 coordinating the 31 March 2004 coordinating the procurement procedures of entities procurement procedures of entities operating in the water, energy, transport operating in the water, energy, transport and postal services sectors and Directive and postal services sectors and Directive 2004/18/EC of the European Parliament 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on and of the Council of 31 March 2004 on the coordination of procedures for the the coordination of procedures for the award of public works contracts, public award of public works contracts, public supply contracts and public service supply contracts and public service contracts have to be revised and contractshave to be revised and modernised modernised in order to increase the in order to increase the efficiency of public efficiency of public spending, facilitating spending, ensure value for money, in particular the participation of small and facilitate equal access and fair medium-sized enterprises in public participation of small and medium-sized procurement and to enable procurers to enterprises and craftsmen in public make better use of public procurement in procurement, both at local and Union- support of common societal goals. There is wide level, and enable procurers to make also a need to clarify basic notions and better use of public procurement in support concepts to ensure better legal certainty of sustainable production and and to incorporate certain aspects of related consumption. There is also a need to well-established case-law of the Court of clarify basic notions and concepts to ensure Justice of the European Union. better legal certainty and to incorporate certain aspects of related well-established case-law of the Court of Justice of the European Union.

Amendment 3

Proposal for a directive Recital 4 a (new)

Text proposed by the Commission Amendment

(4a) The internal market and international markets are increasingly interlinked, therefore Union values, such

PE483.470v03-00 6/296 RR\926628EN.doc EN as transparency, a principled stance against corruption, the principle of reciprocity and the advancement of social and human rights should be appropriately promoted in procurement policies.

Amendment 4 Proposal for a directive Recital 4 b (new)

Text proposed by the Commission Amendment

(4b) It is also appropriate to recall that this Directive should neither affect the social security legislation of the Member States nor should it deal with the liberalisation of services of general economic interest, reserved to public or private entities, or with the privatisation of public entities providing services. It should equally be recalled that Member States are free to organise the provision of compulsory social services or of other services such as postal services either as services of general economic interest or as non-economic services of general interest or as a mixture thereof. It is appropriate to clarify that non-economic services of general interest should not fall within the scope of this Directive.

Amendment 5

Proposal for a directive Recital 5

Text proposed by the Commission Amendment

(5) Under Article 11 of the Treaty on the (5) This Directive clarifies how the Functioning of the European Union, contracting entities may contribute to the environmental protection requirements protection of the environment and the must be integrated into the definition and promotion of sustainable development, implementation of the Union policies and whilst ensuring that they can obtain the activities, in particular with a view to best value for money for their contracts. promoting sustainable development. This Directive clarifies how the contracting entities may contribute to the protection of

RR\926628EN.doc 7/296 PE483.470v03-00 EN the environment and the promotion of sustainable development, whilst ensuring that they can obtain the best value for money for their contracts.

Justification

Social considerations are not enough covered by the Commission proposal

Amendment 6

Proposal for a directive Recital 6

Text proposed by the Commission Amendment

(6) It is appropriate that the notion of (6) It is appropriate that the notion of procurement or the definition of what procurement or the definition of what constitutes a single procurement are as constitutes a single procurement are as close as possible to those applied pursuant close as possible to those applied pursuant to Directive […] of the European to Directive […] of the European Parliament and of the Council of […] on Parliament and of the Council of […] on public procurement , having due regard for public procurement , having due regard for the specificities of the sectors covered by the specificities of the sectors covered by this Directive. The concept of single this Directive. The concept of single procurement encompasses all supplies, procurement encompasses all supplies, works and services needed to carry out a works and services needed to carry out a particular project, for instance a works particular project, for instance a works project or an entirety of works, supplies project or an entirety of works, supplies and/or services. Indications for the and/or services. existence of one single project can for instance consist in overall prior planning and conception by the contracting entity, the fact that the different elements purchased fulfil a single economic and technical function or that they are otherwise logically interlinked and carried out in a narrow time frame.

Amendment 7

Proposal for a directive Recital 12

PE483.470v03-00 8/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

(12) Even if they do not necessarily lead to (12) Even if they do not necessarily lead to corrupt conduct, actual, potential or corrupt conduct, actual, potential or perceived conflicts of interest have a high perceived conflicts of interest have a high potential to improperly influence public potential to improperly influence public procurement decisions with the effect of procurement decisions with the effect of distorting competition and jeopardising distorting competition and jeopardising equal treatment of tenderers. Effective equal treatment of tenderers. Effective mechanisms should therefore be set up to mechanisms should therefore be set up to prevent, identify and remedy conflicts of prevent, identify and remedy conflicts of interest. Given the differences in the interest. In addition, in order to guarantee decision-making processes of respectively efficient protection of ‘whistleblowers’, contracting authorities and undertakings, it Member States should ensure that any is appropriate to limit such provisions to staff member who reports undisclosed procurement carried out by the former. conflicts in good faith is protected against retaliation, harassment or deleterious actions. In this context, retaliation means any direct or indirect detrimental action recommended, threatened or taken against an individual because of such action. Given the differences in the decision-making processes of respectively contracting authorities and undertakings, it is appropriate to limit such provisions to procurement carried out by the former.

Amendment 8

Proposal for a directive Recital 16

Text proposed by the Commission Amendment

(16) The results of the Evaluation deleted demonstrated that the exclusion of certain services from the full application of this directive should be reviewed. As a result, the full application of the Directive is extended to a number of services (such as hotel and legal services, which both showed a particularly high percentage of cross-border trade).

RR\926628EN.doc 9/296 PE483.470v03-00 EN Amendment 9 Proposal for a directive Recital 16 a (new)

Text proposed by the Commission Amendment

(16a) Service contracts in the fields of civil defence, civil protection, and hazard prevention should be excluded from the scope of this Directive. Those fields include, in particular, emergency rescue work, which should be defined as separate from ambulance services. In order to ensure successful civil protection and emergency response in the interests of the general public, it should be sufficient to apply the principles of the Treaties.

Amendment 10

Proposal for a directive Recital 17

Text proposed by the Commission Amendment

(17) Other categories of services continue (17) The results of the Commission Staff by their very nature to have a limited cross- Working Paper of 27 June 2011 entitled border dimension, namely what are known ‘Evaluation Report - the Impact and as services to the person such as certain Effectiveness of EU Public Procurement social, health and educational services. Legislation’ demonstrated that the Those services are provided within a exclusion of certain services from the full particular context that varies widely application of the Directive should be amongst Member States, due to different reviewed. Some categories of services cultural traditions. A specific regime continue by their very nature to have a should therefore be established for limited cross-border dimension, for contracts for those services, with a higher example what are known as services to the threshold of EUR 1 000 000. In the person, such as certain social, health and particular context of procurement in those educational services. Those services are sectors, services to the person with values provided within a particular context that below this threshold will typically not be of varies widely amongst Member States, due interest to providers from other Member to different cultural traditions. A specific States unless there are concrete indications regime should therefore be established for to the contrary, such as Union financing for public contracts for these services, with a transborder projects. Contracts for services higher threshold of EUR 1 000 000. to the person above this threshold should Services to the person with values below be subject to Union-wide transparency. this threshold will typically not be of Given the importance of the cultural interest to providers from other Member

PE483.470v03-00 10/296 RR\926628EN.doc EN context and the sensitivity of those States, unless there are concrete indications services, Member States should be given to the contrary, such as Union financing for wide discretion to organise the choice of transborder projects. Contracts for services the service providers in the way they to the person above this threshold should consider most appropriate. The rules of this be subject to Union-wide transparency. directive take account of that imperative, Given the importance of the cultural imposing only observance of basic context and the sensitivity of those principles of transparency and equal services, Member States should be given treatment and making sure that contracting wide discretion to organise the choice of entities are able to apply specific quality the service providers in the way they criteria for the choice of service providers, consider most appropriate. The rules of this such as the criteria set out in the voluntary directive take account of that imperative, European Quality Framework for Social imposing only observance of basic Services of the European Union's Social principles of transparency and equal Protection Committee. Member States treatment and making sure that contracting and/or contracting entities remain free to entities are able to apply specific quality provide those services themselves or to criteria for the choice of service providers, organise social services in a way that does such as the criteria set out in the voluntary not entail the conclusion of public European Quality Framework for Social contracts, for example through the mere Services of the European Union's Social financing of such services or by granting Protection Committee. Member States licences or authorisations to all economic and/or contracting entities remain free to operators meeting the conditions provide those services themselves or to established beforehand by the contracting organise social services in a way that does entity, without any limits or quotas, not entail the conclusion of public provided such a system ensures sufficient contracts, for example through the mere advertising and complies with the financing of such services or by granting principles of transparency and non- licences or authorisations to all economic discrimination. operators meeting the conditions established beforehand by the contracting entitiy, without any limits or quotas, provided such a system ensures sufficient advertising and complies with the principles of transparency and non- discrimination.This Directive should not apply to tried and tested procedures in Member States that are based on the users’ free choice of service providers for services of general interest (i.e. voucher system, free choice model, triangular relationship) provided that account is taken of the Treaties' general principles of equal treatment and transparency.

Amendment 11

Proposal for a directive Recital 18

RR\926628EN.doc 11/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(18) Being addressed to Member States, (18) Being addressed to Member States, this directive does not apply to this directive does not apply to procurement carried out by international procurement carried out by international organisations on their own behalf and for organisations on their own behalf and for their own account. There is, however, a their own account. There is, however, a need to clarify to what extent this directive need to clarify to what extent this directive should be applied to procurement governed should be applied to procurement governed by specific international rules. by specific international rules. The Union institutions should, in particular, take into account the changes provided for in this Directive and adjust their own procurement rules accordingly to reflect those changes.

Amendment 12 Proposal for a directive Recital 18 a (new)

Text proposed by the Commission Amendment

(18a) The awarding of public contracts for certain audiovisual and radio media services by media providers should allow aspects of cultural or social significance to be taken into account which render application of procurement rules inappropriate. For those reasons, an exception should therefore be made for public service contracts, awarded by the media service providers themselves, for the purchase, development, production or co-production of off-the-shelf programmes and other preparatory services, such as those relating to scripts or artistic performances necessary for the production of the programme. It should also be clarified that this exclusion should apply equally to broadcast media services as well as on-demand services (non-linear services). However, this exclusion should not apply to the supply of technical equipment necessary for the production, co-production and broadcasting of such programmes.

PE483.470v03-00 12/296 RR\926628EN.doc EN

Amendment 13

Proposal for a directive Recital 24

Text proposed by the Commission Amendment

(24) The implementation and application of (24) The implementation and application of appropriate Union legislation opening a appropriate Union legislation opening a given sector, or a part of it, will be given sector, or a part of it, will be considered to provide sufficient grounds considered to provide sufficient grounds for assuming that there is free access to the for assuming that there is free access to the market in question. Such appropriate market in question. Such appropriate legislation should be identified in an annex legislation should be identified in an annex which can be updated by the Commission. which can be updated by the Commission. It is appropriate that this annex should It is appropriate that this annex should currently refer to Directive 2009/73/EC of currently refer to Directive 2009/73/EC of the European Parliament and of the the European Parliament and of the Council of 13 July 2009 concerning Council of 13 July 2009 concerning common rules for the internal market in common rules for the internal market in natural gas and repealing Directive natural gas and repealing Directive 2003/55/EC , Directive 2009/72/EC of the 2003/55/EC , Directive 2009/72/EC of the European Parliament and of the Council of European Parliament and of the Council of 13 July 2009 concerning common rules for 13 July 2009 concerning common rules for the internal market in electricity and the internal market in electricity and repealing Directive 2003/54/EC and repealing Directive 2003/54/EC, Directive Directive 94/22/EC. 94/22/EC and Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways1. ______1 OJ L 237, 24.8.1991, p. 25.

Amendment 14

Proposal for a directive Recital 25

Text proposed by the Commission Amendment

RR\926628EN.doc 13/296 PE483.470v03-00 EN Europe 2020 strategy for smart, sustainable Europe 2020 strategy for smart, sustainable and inclusive growth. Contracting entities and inclusive growth. Contracting entities should make the best strategic use of public should make the best strategic use of public procurement to spur innovation. Buying procurement to drive innovation. Buying innovative goods and services plays a key innovative goods and services plays a key role in improving the efficiency and quality role in improving the efficiency and quality of public services while addressing major of public services while addressing major societal challenges. It contributes to societal challenges. It contributes to achieving best value for money as well as achieving best value for public money as wider economic, environmental and well as wider economic, environmental and societal benefits in terms of generating new societal benefits in terms of generating new ideas, translating them into innovative ideas, translating them into innovative products and services and thus promoting products and services and promoting sustainable economic growth. This sustainable economic growth. An directive should contribute to facilitating innovative procurement model is detailed procurement of innovation and help in the Commission’s communication of 14 Member States in achieving the Innovation December 2007 entitled ‘Driving Union targets. A specific procurement innovation to ensure high quality public procedure should therefore be provided for services in Europe’. This model promotes which allows contracting entities to the take-up in the procurement of establish a long-term innovation research and development services which partnership for the development and do not fall within the scope of this subsequent purchase of a new, innovative Directive. That model, which has been product, service or works provided it can incorporated into this Directive, is be delivered to agreed performance levels recognised and will be available for all and costs. The partnership should be contracting entities to consider. This structured in such a way that it can provide Directive should however contribute to the necessary ‘market-pull’ incentivising facilitating the public procurement of the development of an innovative solution innovation more generally, and help without foreclosing the market. Member States in achieving the Innovation Union targets. Where a need for the development of an innovative product, service or works and the subsequent purchase of the resulting output cannot be met by solutions already available on the market, contracting entities should have access to a specific procurement procedure in respect of contracts falling within the scope of this Directive. This new procedure should allow contracting entities to establish an innovation partnership for the development and subsequent purchase of new, innovative products, services or works, provided that these can be delivered to agreed performance levels and costs. The procedure should be based on the rules applying to the competitive procedure with negotiations and contracts should be

PE483.470v03-00 14/296 RR\926628EN.doc EN awarded on the sole basis of the most economically advantageous tender, which is the most suited to comparing tenders for innovative solutions. Whether the innovation partnership concerns a very large project or a smaller project, it should be structured in such a way that it can provide the necessary ‘market pull’, incentivising the development of innovative solutions without foreclosing the market. Contracting entities should therefore not misuse innovation partnerships to prevent, restrict or distort competition. In addition, when setting the terms and conditions for procurement, contracting entities should be allowed to establish innovative characteristics, including best available techniques, as a criterion relating to the subject of the contract concerned.

Amendment 15

Proposal for a directive Recital 27

Text proposed by the Commission Amendment

(27) Electronic means of information and (27) Electronic means of information and communication can greatly simplify the communication can greatly simplify the publication of contracts and increase the publication of contracts and increase the efficiency and transparency of procurement efficiency and transparency of procurement processes. They should become the processes. They should become the standard means of communication and standard means of communication and information exchange in procurement information exchange in procurement procedures. The use of electronic means procedures. The use of electronic means also leads to time savings. As a result, also leads to time savings. As a result, provision should be made for reducing the provision should be made for reducing the minimum periods where electronic means minimum periods where electronic means are used, subject, however, to the condition are used, subject, however, to the condition that they are compatible with the specific that they are compatible with the specific mode of transmission envisaged at Union mode of transmission envisaged at Union level. Moreover, electronic means of level. Moreover, electronic means of information and communication including information and communication including adequate functionalities can enable adequate functionalities can enable contracting authorities to prevent, detect contracting authorities to prevent, detect and correct errors that occur during and correct errors that occur during procurement procedures. In addition, the

RR\926628EN.doc 15/296 PE483.470v03-00 EN procurement procedures. submission of building information electronic modelling tools for works contracts should be encouraged in order to modernise the procurement process and ensure greater efficiencies are achieved in the public procurement of works covered by this Directive, in particular in relation to taking into account lifecycle costs and sustainability criteria.

Amendment 16

Proposal for a directive Recital 27 a (new)

Text proposed by the Commission Amendment

(27a) In order to ensure confidentiality during the procedure, contracting entities should not disclose information that has been forwarded to it by economic operators which they have designated as confidential. Non-compliance with this obligation should render the contracting entity liable if harm can be clearly demonstrated by the economic operator.

Amendment 17

Proposal for a directive Recital 28

Text proposed by the Commission Amendment

PE483.470v03-00 16/296 RR\926628EN.doc EN purchases should be carefully monitored in purchases should be carefully monitored in order to avoid excessive concentration of order to avoid excessive concentration of purchasing power and collusion, and to purchasing power and collusion, and to preserve transparency and competition, as preserve transparency and competition, as well as market access opportunities for well as market access opportunities for small and medium-sized enterprises. small and medium-sized enterprises. The Commission should provide guidance to Member States and contracting entities on the required monitoring of aggregated and centralised purchases to avoid excessive concentration of purchasing power and collusion.

Amendment 18

Proposal for a directive Recital 29

Text proposed by the Commission Amendment

(29) The instrument of framework (29) The instrument of framework agreements can be an efficient procurement agreements can be an efficient procurement technique throughout Europe; however, technique throughout Europe; however, there is a need to enhance competition by there is a need to enhance competition by improving transparency of and access to improving transparency of and access to procurement carried out by means of procurement carried out by means of framework agreements. It is therefore framework agreements. appropriate to revise the provisions applicable to those agreements, notably by providing for mini-competitions for the award of specific contracts based on the agreement and by limiting the duration of framework agreements.

Amendment 19 Proposal for a directive Recital 31

Text proposed by the Commission Amendment

RR\926628EN.doc 17/296 PE483.470v03-00 EN use complies with the rules of this use complies with the rules of this Directive and the principles of equal Directive and the principles of equal treatment, non-discrimination and treatment, non-discrimination and transparency. In particular where transparency. In addition, the handling of competition has been reopened under a data in this context should be conducted framework agreement or where a dynamic in accordance with national and Union purchasing system is being used and where data protection law. In particular where sufficient guarantees are offered in respect competition has been reopened under a of ensuring traceability, equal treatment framework agreement or where a dynamic and predictability, contracting entities purchasing system is being used and where should be allowed to generate tenders in sufficient guarantees are offered in respect relation to specific purchases on the basis of ensuring traceability, equal treatment of previously transmitted electronic and predictability, contracting entities catalogues. In line with the requirements of should be allowed to generate tenders in the rules for electronic means of relation to specific purchases on the basis communication, contracting entities should of previously transmitted electronic avoid unjustified obstacles to economic catalogues. In line with the requirements of operators' access to procurement the rules for electronic means of procedures in which tenders are to be communication, contracting entities should presented in the form of electronic avoid unjustified obstacles to economic catalogues and which guarantee operators' access to procurement compliance with the general principles of procedures in which tenders are to be non-discrimination and equal treatment. presented in the form of electronic catalogues and which guarantee compliance with the general principles of non-discrimination and equal treatment.

Amendment 20

Proposal for a directive Recital 32

Text proposed by the Commission Amendment

(32) Centralised purchasing techniques are (32) Centralised purchasing techniques are increasingly used in most Member States. increasingly used in most Member States. Central purchasing bodies are responsible Central purchasing bodies are responsible for making acquisitions or awarding for making acquisitions or awarding contracts/framework agreements for other contracts/framework agreements for other contracting authorities or for contracting contracting authorities or for contracting entities. In view of the large volumes entities. In view of the large volumes purchased, such techniques help increase purchased, such techniques help increase competition and professionalise public competition and professionalise public purchasing. Provision should therefore be purchasing, Specific attention should be made for a Union definition of central paid to the accessibility of any such purchasing bodies dedicated to contracting procedures for small and medium-sized entities, without preventing the enterprises. Provision should therefore be continuation of less institutionalised and made for a Union definition of central

PE483.470v03-00 18/296 RR\926628EN.doc EN systematic common purchasing or the purchasing bodies dedicated to contracting established practice of having recourse to entities, without preventing the service providers that prepare and manage continuation of less institutionalised and procurement procedures on behalf and for systematic common purchasing or the the account of a contracting entity. Rules established practice of having recourse to should also be laid down for allocating service providers that prepare and manage responsibility for the observance of the procurement procedures on behalf and for obligations pursuant to this Directive, also the account of a contracting entity. Rules in the case of remedies, among the central should also be laid down for allocating purchasing body and the contracting responsibility for the observance of the entities procuring from or through the obligations pursuant to this Directive, also central purchasing body. Where the latter in the case of remedies, among the central has sole responsibility for the conduct of purchasing body and the contracting the procurement procedures, it should also entities procuring from or through the be solely and directly responsible for the central purchasing body. Where the latter legality of the procedures. Where a has sole responsibility for the conduct of contracting entity conducts certain parts of the procurement procedures, it should also the procedure, for instance the reopening of be solely and directly responsible for the competition under a framework agreement legality of the procedures. Where a or the award of individual contracts based contracting entity conducts certain parts of on a dynamic purchasing system, it should the procedure, for instance the reopening of continue to be responsible for the stages it competition under a framework agreement conducts. or the award of individual contracts based on a dynamic purchasing system, it should continue to be responsible for the stages it conducts.

Amendment 21

Proposal for a directive Recital 33

Text proposed by the Commission Amendment

(33) Electronic means of communication (33) Electronic means of communication are particularly well suited to support are particularly well suited to support centralised purchasing practices and tools centralised purchasing practices and tools because of the possibility they offer to re- because of the possibility they offer to re- use and automatically process data and to use and automatically process data and to minimise information and transaction minimise information and transaction costs. The use of such electronic means of costs. The use of such electronic means of communication should therefore, as a first communication should therefore, as a first step, be rendered compulsory for central step, be rendered compulsory for central purchasing bodies, while also facilitating purchasing bodies, while also facilitating converging practices across the Union. converging practices across the Union. This should be followed by a general This should be followed by a general obligation to use electronic means of obligation to use electronic means of communication in all procurement communication in all procurement

RR\926628EN.doc 19/296 PE483.470v03-00 EN procedures after a transition period of two procedures after a transition period of two years. years. So as to ensure continued legal certainty, those provisions should not affect existing arrangements at national level for publishing information on public procurement contracts for amounts below the thresholds set in this Directive..

Amendment 22

Proposal for a directive Recital 34

Text proposed by the Commission Amendment

(34) Joint awarding of contracts by (34) Joint awarding of contracts by contracting entities from different Member contracting entities from different Member States currently encounters specific legal States currently encounters specific legal difficulties, with special reference to difficulties, with special reference to conflicts of national laws. Despite the fact conflicts of national laws. Despite the fact that Directive 2004/17/EC implicitly that Directive 2004/17/EC implicitly allowed for cross-border joint public allowed for cross-border joint public procurement, in practice several national procurement, in practice several national legal systems have explicitly or implicitly legal systems have explicitly or implicitly rendered cross-border joint procurement rendered cross-border joint procurement legally uncertain or impossible. legally uncertain or impossible. Contracting entities from different Member Contracting entities from different Member States may be interested in cooperating and States may be interested in cooperating and in jointly awarding contracts in order to in jointly awarding contracts in order to derive maximum benefit from the potential derive maximum benefit from the potential of the internal market in terms of of the internal market in terms of economies of scale and risk-benefit economies of scale and risk-benefit sharing, not least for innovative projects sharing, not least for innovative projects involving a greater amount of risk than involving a greater amount of risk than reasonably bearable by a single contracting reasonably bearable by a single contracting entity. Therefore new rules on cross-border entity. Therefore new rules on cross-border joint procurement designating the joint procurement designating the applicable law should be established in applicable law should be established in order to facilitate cooperation between order to facilitate cooperation between contracting entities across the Single contracting entities across the Single Market. In addition, contracting entities Market. In addition, contracting entities from different Member States may set up from different Member States may set up joint legal bodies established under joint legal bodies established under national or Union law. Specific rules national or Union law. Specific rules should be established for such form of joint should be established for such form of joint procurement. procurement. Similarly, in the context of cross-border public procurement, it is

PE483.470v03-00 20/296 RR\926628EN.doc EN essential to clarify the aspects relating to intellectual property law.

Amendment 23 Proposal for a directive Recital 35

Text proposed by the Commission Amendment

(35) The technical specifications drawn up (35) The technical specifications drawn up by purchasers need to allow public by purchasers need to allow public procurement to be opened up to procurement to be open to competition as competition. To that end, it must be well as to achieve objectives of possible to submit tenders that reflect the sustainability. To that end, it must be diversity of technical solutions so as to possible to submit tenders that reflect the obtain a sufficient level of competition. diversity of technical solutions, standards Consequently, technical specifications and technical specifications in the should be drafted in such a way to avoid marketplace, including those drawn up on artificially narrowing down competition the basis of performance criteria linked to through requirements that favour a specific the life cycle and the sustainability of the economic operator by mirroring key production process of the works, supplies characteristics of the supplies, services or and services. Consequently, technical works habitually offered by that economic specifications should be drafted in such a operator. Drawing up the technical way to avoid artificially narrowing down specifications in terms of functional and competition through requirements that performance requirements generally allows favour a specific economic operator by this objective to be achieved in the best mirroring key characteristics of the way possible and favours innovation. supplies, services or works habitually Where reference is made to a European offered by that economic operator. standard or, in the absence thereof, to a Drawing up the technical specifications in national standard, tenders based on other terms of functional and performance equivalent arrangements which meet the requirements generally allows this requirements of the contracting entities and objective to be achieved in the best way are equivalent in terms of safety must be possible and favours innovation. Where considered by the contracting entities. To reference is made to a European standard demonstrate equivalence, tenderers can be or, in the absence thereof, to a national required to provide third-party verified standard, tenders based on other equivalent evidence; however, other appropriate arrangements which meet the requirements means of proof such as a technical dossier of the contracting entities and are of the manufacturer should also be allowed equivalent in terms of safety must be where the economic operator concerned considered by the contracting entities. To has no access to such certificates or test demonstrate equivalence, tenderers can be reports, or no possibility of obtaining them required to provide third-party verified within the relevant time limits. evidence; however, other appropriate means of proof such as a technical dossier of the manufacturer should also be allowed where the economic operator concerned has no access to such certificates or test

RR\926628EN.doc 21/296 PE483.470v03-00 EN reports, or no possibility of obtaining them within the relevant time limits. In order not to discriminate against tenderers who invest time and money for certificates or test reports, the burden to provide equivalence should be placed on the tenderer claiming equivalence.

Amendment 24

Proposal for a directive Recital 36

Text proposed by the Commission Amendment

(36) Contracting entities that wish to (36) Contracting entities that wish to purchase works, supplies or services with purchase works, supplies or services with specific environmental, social or other specific environmental, social or other characteristics should be able to refer to characteristics should be able to refer to particular labels, such as the European particular labels or certificates, such as the Eco-label, (multi-) national eco-labels or European Eco-label, (multi-) national eco- any other label provided that the labels or any other label or certificate requirements for the label are linked to the provided that the requirements for the label subject-matter of the contract, such as the are linked to the subject-matter of the description of the product and its contract, such as the description of the presentation, including packaging product and its presentation, including requirements. It is furthermore essential packaging requirements. It is furthermore that those requirements are drawn up and essential that those requirements are drawn adopted on the basis of objectively up and adopted on the basis of objectively verifiable criteria, using a procedure in verifiable criteria, using a procedure in which stakeholders, such as government which stakeholders, such as government bodies, consumers, manufacturers, bodies, consumers, manufacturers, distributors and environmental distributorsenvironmental organisations organisations can participate, and that the and social partners, can participate, and label is accessible and available to all that the label is accessible and available to interested parties. all interested parties.

Amendment 25

Proposal for a directive Recital 37 a (new)

Text proposed by the Commission Amendment

(37a) For all procurement it is necessary that contracting authorities ensure that the products, services and works subject to the contract meet the requirements of data

PE483.470v03-00 22/296 RR\926628EN.doc EN protection law. In order to ensure and demonstrate the protection of the rights and freedoms of data subjects with regard to the processing of personal data, tenderers should adopt internal policies and implement appropriate technical and organisational measures at the time of the design of the processing of personal data (data protection by design).

Amendment 26

Proposal for a directive Recital 38

Text proposed by the Commission Amendment

(38) In order to encourage the involvement (38) Public procurement should be of small and medium-sized enterprises adapted to the needs of small and (SMEs) in the procurement market, it medium-sized enterprises (SMEs). should be provided explicitly that contracts Contracting entities should make use of may be divided into lots, whether the Code of Best Practices set out in the homogenous or heterogeneous. Where Commission Staff Working Document of contracts are divided into lots, contracting 25 June 2008 entitled ‘European Code of entities may, for instance in order to Best Practices Facilitating Access by preserve competition or to ensure security SMEs to Public Procurement Contracts’1 of supply, limit the number of lots for providing guidance on how they may which an economic operator may tender; apply the public procurement framework they may also limit the number of lots that in a way that facilitates SME may be awarded to any one tenderer. participation. In order to encourage the involvement of SMEs in the procurement market, and to enhance competition, contracting entities should be encouraged in particular to give consideration to dividing contracts into lots, especially for products that require quality for welfare, such as food for passive consumers in hospitals, schools, care for children and older people. Where contracts are divided into lots, contracting entities may, for instance in order to preserve competition or to ensure security of supply, limit the number of lots for which an economic operator may tender; they may also limit the number of lots that may be awarded to any one tenderer..

RR\926628EN.doc 23/296 PE483.470v03-00 EN ______1 (SEC (2008)COM 2193)

Amendment 27

Proposal for a directive Recital 39 a (new)

Text proposed by the Commission Amendment

(39a) Member States should adopt measures to promote the access of SMEs to public procurement, in particular through improved information and guidance on tendering and on the new opportunities offered by the modernised Union legal framework, and to foster the exchange of best practice and the organisation of training and events involving contracting entities and SMEs.

Amendment 28

Proposal for a directive Recital 40

Text proposed by the Commission Amendment

PE483.470v03-00 24/296 RR\926628EN.doc EN contracting authorities. Furthermore, therefore be limited to contracting entities contracting entities should be given the that are contracting authorities. possibility to exclude candidates or Furthermore, contracting entities should be tenderers for violations of environmental given the possibility to exclude candidates or social obligations, including rules on or tenderers for violations of accessibility for disabled persons or other environmental, social or labour law forms of grave professional misconduct, provisions referred to in the general such as violations of competition rules or principles of this Directive. of intellectual property rights.

Amendment 29

Proposal for a directive Recital 41

Text proposed by the Commission Amendment

(41) Where contracting entities are obliged (41) Where contracting entities are obliged or choose to apply the just mentioned or choose to apply the exclusion criteria exclusion criteria, they should apply mentioned above, they should apply Directive [2004/18] concerning the Directive [2004/18] concerning the possibility that economic operators adopt possibility that economic operators adopt compliance measures aimed at remedying compliance measures aimed at remedying the consequences of any criminal offences the consequences of any criminal offences or misconduct and at effectively preventing or misconduct and at effectively preventing further occurrences of the misbehaviour. further occurrences of the misbehaviour.

Amendment 30

Proposal for a directive Recital 43

Text proposed by the Commission Amendment

RR\926628EN.doc 25/296 PE483.470v03-00 EN lowest cost', taking into account that in the into account that it should refer to quality latter case they are free to set adequate and sustainability standards by using quality standards by using technical technical specifications or contract specifications or contract performance performance conditions. conditions.

Amendment 31 Proposal for a directive Recital 44

Text proposed by the Commission Amendment

(44) Where contracting entities choose to (44) Contracting entities awarding a award a contract to the most economically contract on the basis of the most advantageous tender, they must determine economically advantageous tender the award criteria on the basis of which criterion, they must determine the award they will assess tenders in order to identify criteria on the basis of which they will which one offers the best value for money. assess tenders in order to identify which The determination of these criteria depends one offers the best value for money. The on the subject-matter of the contract since determination of those criteria, which may they must allow the level of performance include economic, environmental and offered by each tender to be assessed in the social characteristics, depends on the light of the subject-matter of the contract, subject-matter of the contract since they as defined in the technical specifications, must allow the level of performance and the value for money of each tender to offered by each tender to be assessed in the be measured. Furthermore, the chosen light of the subject-matter of the contract, award criteria should not confer an as defined in the technical specifications, unrestricted freedom of choice on the and the value for money of each tender to contracting entity and they should ensure be measured. Furthermore, the chosen the possibility of effective competition and award criteria should not confer an be accompanied by requirements that allow unrestricted freedom of choice on the the information provided by the tenderers contracting entity and they should ensure to be effectively verified. the possibility of effective and fair competition and be accompanied by requirements that allow the information provided by the tenderers to be effectively verified.

Amendment 32

Proposal for a directive Recital 45

Text proposed by the Commission Amendment

(45) It is of utmost importance to fully (45) Efforts should be made to exploit the exploit the potential of public procurement potential of public procurement to achieve

PE483.470v03-00 26/296 RR\926628EN.doc EN to achieve the objectives of the Europe the objectives of the Europe 2020 Strategy 2020 Strategy for sustainable growth. In for sustainable growth, without view of the important differences between encroaching upon the powers of the individual sectors and markets, it would contracting entities. In view of the however not be appropriate to set general important differences between individual mandatory requirements for environmental, sectors and markets, it would however not social and innovation procurement. The be appropriate to set general mandatory Union legislature has already set requirements for environmental, social and mandatory procurement requirements for innovation procurement. The Union obtaining specific goals in the sectors of legislature has already set mandatory road transport vehicles (Directive procurement requirements for obtaining 2009/33/EC of the European Parliament specific goals in the sectors of road and the Council of 23 April 2009 on the transport vehicles (Directive 2009/33/EC promotion of clean and energy-efficient of the European Parliament and the road transport vehicles) and office Council of 23 April 2009 on the promotion equipment (Regulation (EC) No 106/2008 of clean and energy-efficient road transport of the European Parliament and the vehicles) and office equipment (Regulation Council of 15 January 2008 on a (EC) No 106/2008 of the European Community energy-efficiency labelling Parliament and the Council of 15 January programme for office equipment). In 2008 on a Community energy-efficiency addition, the definition of common labelling programme for office equipment). methodologies for life cycle costing has In addition, the definition of common significantly advanced. It therefore appears methodologies for life cycle costing has appropriate to continue on that path, significantly advanced. It therefore appears leaving it to sector-specific legislation to appropriate to continue on that path, set mandatory objectives and targets in leaving it to sector-specific legislation to function of the particular policies and set mandatory objectives and targets in conditions prevailing in the relevant sector function of the particular policies and and to promote the development and use of conditions prevailing in the relevant sector European approaches to life-cycle costing and to promote the development and use of as a further underpinning for the use of European approaches to life-cycle costing public procurement in support of as a further underpinning for the use of sustainable growth. public procurement in support of sustainable growth.

Amendment 33

Proposal for a directive Recital 46

Text proposed by the Commission Amendment

(46) Those sector-specific measures must (46) Those sector-specific measures must be complemented by an adaptation of the be complemented by an adaptation of the public procurement Directives empowering public procurement Directives empowering contracting entities to pursue the objectives contracting entities to pursue the objectives of the Europe 2020 Strategy in their of the Europe 2020 Strategy in their purchasing strategies. It should hence be purchasing strategies. It should hence be

RR\926628EN.doc 27/296 PE483.470v03-00 EN made clear that contracting entities can made clear that contracting entities can determine the most economically determine the most economically advantageous tender and the lowest cost advantageous tender using a life-cycle using a life-cycle costing approach, costing approach, provided that the provided that the methodology to be used methodology to be used is established in an is established in an objective and non- objective and non-discriminatory manner discriminatory manner and accessible to all and accessible to all interested parties. The interested parties. The notion of life-cycle notion of life-cycle costing includes all costing includes all costs over the life- costs over the life-cycle of a works, cycle of a works, supplies or services, both supplies or services, both their internal their internal costs (such as development, costs (such as research, development, production, use, maintenance and end-of- production, transport use, maintenance and life disposal costs) and their external costs, end-of-life disposal costs) and their provided they can be monetised and external costs, provided they can be monitored. Common methodologies monetised and monitored. should be developed at the level of the Union for the calculation of life-cycle costs for specific categories of supplies or services; whenever such a methodology is developed its use should be made compulsory.

Justification

Contracting authorities should be encouraged to consider lifecycle costs. However the development of the calculation method is still experiencing problems. An obligation to use the EU method is far too ambitious further more European legislation on public procurement sets minimum requirements, contracting authorities may go further in their requirements as long as they comply with the Treaty principles and the specific requirements for award criteria.

Amendment 34

Proposal for a directive Recital 47

Text proposed by the Commission Amendment

(47) Furthermore, in technical (47) Furthermore, in technical specifications and in award criteria, specifications, in award criteria and in contracting entities should be allowed to contract performance clauses, contracting refer to a specific production process, a entities should be allowed to refer to a specific mode of provision of services, or a specific production process including for specific process for any other stage of the example social and environmental life-cycle of a product or service, provided aspects, a specific mode of provision of that they are linked to the subject-matter of services, or a specific process for any other the contract. In order to better integrate stage of the life-cycle of a product or social considerations in public service, provided that they are linked to the procurement, procurers may also be subject-matter of the contract. In order to

PE483.470v03-00 28/296 RR\926628EN.doc EN allowed to include, in the award criterion better integrate social considerations in of the most economically advantageous public procurement, procurers may tender characteristics related to the include, in the award criteria and in working conditions of the persons directly contract performance clauses, participating in the process of production characteristics related to the working, or provision in question. Those employment and environmentalconditions characteristics may only concern the and require the production of certificates protection of health of the staff involved in or labels drawn up by independent bodies the production process or the favouring of attesting compliance by the economic social integration of disadvantaged persons operator with rules and standards set in or members of vulnerable groups amongst those fields, which apply where the works the persons assigned to performing the are executed, services provided or goods contract, including accessibility for persons produced or supplied, as set out in with disabilities. Any award criteria which international conventions and in Union include those characteristics should in any and national law as well as in collective event remain limited to characteristics that agreements concluded in accordance with have immediate consequences on staff national law and practices which respect members in their working environment. Union law.. Those characteristics may They should be applied in accordance with concern among others the protection of Directive 96/71/EC of the European health of the staff involved in the Parliament and of the Council of 16 production process or the favouring of December 1996 concerning the posting of social integration of disadvantaged persons workers in the framework of the provision or members of vulnerable groups amongst of services and in a way that does not the persons assigned to performing the discriminate directly or indirectly against contract, including accessibility for persons economic operators from other Member with disabilities. Any award criteria which States or from third countries parties to the include those characteristics should in any Agreement or to Free Trade Agreements to event remain limited to characteristics that which the Union is party. 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 servicesand 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.

Amendment 35

Proposal for a directive Recital 47 a (new)

RR\926628EN.doc 29/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(47a) Taking into account the recent case law of the Court of Justice of the European Union, contracting entities should be permitted to choose an award criterion which refers to the fact that the product concerned is of fair trade origin, including the requirement to pay a minimum price and price premium to producers.

Amendment 36 Proposal for a directive Recital 49

Text proposed by the Commission Amendment

(49) Tenders that appear abnormally low in (49) Tenders that appear abnormally low in relation to the works, supplies or services relation to the works, supplies or services might be based on technically, might be based on technically, economically or legally unsound economically or legally unsound assumptions or practices. In order to assumptions or practices. In order to prevent possible disadvantages during prevent possible disadvantages during contract performance, contracting entities contract performance, contracting entities should be obliged to ask for an explanation should be obliged to ask for an explanation of the price charged where a tender of the price charged where a tender significantly undercuts the prices significantly undercuts the prices demanded by other tenderers. Where the demanded by other tenderers. Where the tenderer cannot provide a sufficient tenderer cannot provide a sufficient explanation, the contracting entity should explanation, the contracting entity should be entitled to reject the tender. Rejection be entitled to reject the tender. Rejection should be mandatory in cases where the should be mandatory in cases where the contracting entity has established that the contracting entity has established that the abnormally low price results from non- abnormally low price results from non- compliance with mandatory Union compliance with mandatory Union legislation in the fields of social, labour or legislation in the fields of social, labour or environmental law or international labour environmental law provisions referred to law provisions. in the general principles of this Directive.

Amendment 37 Proposal for a directive Recital 50

PE483.470v03-00 30/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

(50) Contract performance conditions are (50) Contract performance conditions are compatible with this Directive provided compatible with this Directive provided that they are not directly or indirectly that they are not directly or indirectly discriminatory, are linked to the subject- discriminatory, are directly linked to the matter of the contract and are indicated in subject-matter of the contract and to the the notice used to make the call for principle of the procurement related to competition, or in the procurement compliance with environmental, social documents. They may, in particular, be and labour law provisions and are intended to favour on-site vocational indicated in the notice used to make the training, the employment of people call for competition, or in the procurement experiencing particular difficulty in documents. They may, in particular, be achieving integration, the fight against intended to favour on-site vocational or unemployment, protection of the professional training, the employment of environment or animal welfare. For people experiencing particular difficulty in example, mention may be made of the achieving integration, the fight against requirements applicable during the unemployment, protection of the performance of the contract to recruit long- environment or animal welfare. For term job-seekers or to implement training example, mention may be made of the measures for the unemployed or young requirements applicable during the persons, to comply in substance with performance of the contract to recruit long- fundamental International Labour term job-seekers or to implement training Organisation (ILO) Conventions, even measures for the unemployed or young where such Conventions have not been persons, to comply in substance with implemented in national law, and to recruit fundamental International Labour more disadvantaged persons than are Organisation (ILO) Conventions, even required under national legislation. where such Conventions have not been implemented in national law, and to recruit more disadvantaged persons than are required under national legislation.

Amendment 38

Proposal for a directive Recital 51

Text proposed by the Commission Amendment

(51) The laws, regulations and collective (51) Member State should ensure that agreements, at both national and Union economic operators comply with the level, that are in force in the areas of environmental, social and labour law employment conditions and safety at work provisions which apply at the place where apply during the performance of a the works are executed, services provided contract, provided that such rules, and or goods produced or supplied, as set out their application, comply with Union law. in international conventions listed in In cross-border situations where workers Annex XIV and in Union and national

RR\926628EN.doc 31/296 PE483.470v03-00 EN from one Member State provide services in law as well as in collective agreements another Member State for the purpose of concluded in accordance with national performing a contract, Directive 96/71/EC law and practices which respect Union of the European Parliament and of the law. In cross-border situations where Council of 16 December 1996 concerning workers from one Member State provide the posting of workers in the framework of services in another Member State for the the provision of services lays down the purpose of performing a contract, Directive minimum conditions that must be observed 96/71/EC of the European Parliament and by the host country in respect of such of the Council of 16 December 1996 posted workers. Where national law concerning the posting of workers in the contains provisions to this effect, non- framework of the provision of services lays compliance with those obligations may be down the minimum conditions that must be considered to be grave misconduct on the observed by the host country in respect of part of the economic operator concerned, such posted workers. Where national law liable to lead to the exclusion of that contains provisions to this effect, non- economic operator from the procedure for compliance with those obligations should the award of a public contract. be considered to be grave misconduct on the part of the economic operator concerned, which may lead to the exclusion of that economic operator from the procedure for the award of a public contract.

Amendment 39

Proposal for a directive Recital 56 a (new)

Text proposed by the Commission Amendment

(56a) Contracting entities should respect time-limits for payment as provided for in Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions1. ______1 OJ. L 48, 23.2.2011, p. 1

Amendment 40

Proposal for a directive Recital 57

PE483.470v03-00 32/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

(57) The evaluation has shown that (57) The evaluation has shown that there is Member States do not consistently and still considerable room for improvement systematically monitor the implementation in the application of the Union public and the functioning of public procurement procurement rules. With a view to rules. This has a negative impact on the ensuring a more efficient and consistent correct implementation of provisions application of the rules, it is on the one stemming from those directives, which is a hand essential to get a good overview on major source of cost and uncertainty. possible structural problems and general Several Member States have appointed a patterns in national procurement policies, national central body dealing with public in order to address possible problems in a procurement issues, but the functions that more targeted way. Such an overview such bodies are empowered with vary should be gained through appropriate considerably across Member States. monitoring, the results of which should be Clearer, more consistent and authoritative regularly published, in order to allow for monitoring and control mechanisms an informed debate on possible would increase knowledge of the improvements of procurement rules and functioning of procurement rules, legal practice. On the other hand, better certainty for businesses and contracting guidance and assistance to contracting entities, and contribute to establish a level authorities and economic operators could playing field. Such mechanisms could also greatly contribute to enhancing the serve as tools for detection and early efficiency of public procurement, through resolution of problems, especially with better knowledge, increased legal regard to projects cofunded by the Union, certainty and professionalisation of and for the identification of structural procurement practices. Such guidance deficiencies. There is in particular a should be made available to contracting strong need to coordinate those authorities and economic operators mechanisms to ensure consistent wherever it appears necessary, to ensure application, controls and monitoring of correct application of the rules. For that public procurement policy, as well as purpose, Member States should ensure systematic assessment of the outcomes of that competent authorities or structures procurement policy across the Union. are in charge of monitoring, implementation and control of public procurement.

Amendment 41

Proposal for a directive Recital 58

Text proposed by the Commission Amendment

(58) Member States should designate a deleted single national authority in charge of monitoring, implementation and control of public procurement. Such a central

RR\926628EN.doc 33/296 PE483.470v03-00 EN body should have first hand and timely information particularly in relation to different problems affecting the implementation of public procurement law. It should be able to provide immediate feedback on the functioning of the policy, the potential weaknesses in national legislation and practice and contribute to the quick identification of solutions. In view of efficiently fighting corrupion and fraud, this central body and the general public should also have the possibility to inspect the texts of concluded contracts. High-value contracts should hence be transmitted to the oversight body with a possibility of interested persons to have access to these documents, to the extent that legitimate public or private interests are not jeopardized.

Amendment 42

Proposal for a directive Recital 59

Text proposed by the Commission Amendment

(59) Not all contracting entities may have (59) Not all contracting entities, and the internal expertise to deal with particularly local authorities, may have economically or technically complex the internal expertise to deal with contracts. Against this background, economically or technically complex appropriate professional support would be contracts. Against this background, an effective complement to monitoring and appropriate professional support control activities. On the one hand, this constitutes an effective complement to objective can be achieved by knowledge monitoring and control activities. On the sharing tools (knowledge centres) offering one hand, this objective can be achieved by technical assistance to contracting entities; knowledge sharing tools (knowledge on the other hand, business, not least centres) offering technical assistance to SMEs, should benefit from administrative contracting entities; on the other hand, assistance, in particular when participating business, and in particular SMEs, should in procurement procedures on a cross- benefit from administrative assistance, in border basis. particular when participating in procurement procedures on a cross-border basis.

PE483.470v03-00 34/296 RR\926628EN.doc EN Amendment 43

Proposal for a directive Recital 59 a (new)

Text proposed by the Commission Amendment

(59a) Citizens, the stakeholders concerned, whether organised or not, and other persons or bodies which do not have access to review procedures pursuant to Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts1 nevertheless have a legitimate interest, as taxpayers, in sound procurement procedures. They should therefore be given the possibility to signal possible violations of this Directive to a competent authority or structure. So as to avoid duplication of existing authorities or structures, Member States should be able to provide for recourse to general monitoring authorities or structures, sectoral oversight bodies, municipal oversight authorities, competition authorities, the ombudsman or national auditing authorities. ______1 OJ L 395, 30.12.1989, p. 33.

Amendment 44

Proposal for a directive Recital 60

Text proposed by the Commission Amendment

(60) Monitoring, oversight and support (60) Traceability and transparency of structures or mechanisms exist already at decision-making in procurement national level and can of course be used to procedures is essential for ensuring sound ensure monitoring, implementation and procedures, including effectively fighting control of public procurement and to corruption and fraud. Contracting provide the required support to authorities should keep copies of

RR\926628EN.doc 35/296 PE483.470v03-00 EN contracting entities and economic concluded high-value contracts to be able operators. to provide access to those documents to interested parties in accordance with applicable rules on access to documentation. Furthermore, the essential elements and decisions of individual procurement procedures should be documented in a procurement report. To limit administrative burdens, the procurement report should refer to information already contained in the relevant contract award notices. The electronic systems for publication of those notices, managed by the Commission, should also be improved with a view to facilitating data entry while making it easier to extract reports and exchange data between systems.

Amendment 45

Proposal for a directive Recital 61

Text proposed by the Commission Amendment

(61) Effective cooperation is necessary to deleted ensure consistent advice and practice within each Member State and across the Union. Bodies designated for monitoring, implementation, control and technical assistance should be able to share information and cooperate; in the same context, the national authority designated by each Member State should act as the preferred contact point with the Commission services for the purpose of collecting data, exchanging information and monitoring the implementation of Union public procurement law.

PE483.470v03-00 36/296 RR\926628EN.doc EN Amendment 46

Proposal for a directive Recital 61 a (new)

Text proposed by the Commission Amendment

(61a) The way this Directive is transposed is of utmost importance to the efforts of simplification, as well as to ensure a uniform approach to the interpretation and application of Union rules on public procurement, thus contributing to the necessary legal certainty required by contracting authorities, in particular at sub-central level, and by SMEs. The Commission and the Member States should therefore ensure that this Directive is transposed taking into account the major impact of the public procurement national legislation on the process of accessing Union funds. Therefore it is of utmost importance for the Member States to avoid as far as possible any fragmentation in interpretation and application, while also contributing to the simplification at national level.

Amendment 47

Proposal for a directive Recital 63

Text proposed by the Commission Amendment

(63) It is of particular importance that the (63) It is of particular importance that the Commission carry out appropriate Commission carries out appropriate consultations during its preparatory work, consultations during its preparatory work, including at expert level. When preparing including at expert level. When preparing and drawing up delegated acts, the and drawing up delegated acts, the Commission should ensure simultaneous, Commission should ensure simultaneous, timely and appropriate transmission of timely and appropriate transmission of relevant documents to the European relevant documents to the European Parliament and the Council. Parliament and the Council. The Commission should provide full information and documentation on its meetings with national experts within the framework of the preparation and

RR\926628EN.doc 37/296 PE483.470v03-00 EN implementation of delegated acts. In this respect, the Commission should ensure that the European Parliament is duly involved, drawing on best practices from previous experience in other policy areas in order to create the best possible conditions for future scrutiny of delegated acts by the European Parliament.

Amendment 48

Proposal for a directive Recital 64

Text proposed by the Commission Amendment

(64) In order to ensure uniform conditions (64) In order to ensure uniform conditions for the implementation of this Directive, as for the implementation of this Directive, as for the procedure for sending and for the procedure for sending and publishing data referred to in Annex IX publishing data referred to in Annex IX and the procedures for drawing up and and the procedures for drawing up and transmitting notices, the standard forms for transmitting notices, the standard forms for the publication of notices as well as of the publication of notices as well as of process and messaging standards and the process and messaging standards, common template to be used by the implementing powers should be conferred oversight bodies for drawing up the on the Commission. Those powers should implementation and statistical report, be exercised in accordance with Regulation implementing powers should be conferred (EU) No. 182/2011 of the European on the Commission. Those powers should Parliament and of the Council of 16 be exercised in accordance with Regulation February 2011 laying down the rules and (EU) No. 182/2011 of the European general principles concerning mechanisms Parliament and of the Council of 16 for control by the Member States of the February 2011 laying down the rules and Commission's exercise of implementing general principles concerning mechanisms powers. The advisory procedure should be for control by the Member States of the used for the adoption of those Commission's exercise of implementing implementing acts, which do not have any powers. The advisory procedure should be impact either from the financial point of used for the adoption of those views or on the nature and scope of implementing acts, which do not have any obligations stemming from this Directive. impact either from the financial point of On the contrary, those acts are views or on the nature and scope of characterised by a mere administrative obligations stemming from this Directive. purpose and serve to facilitate the On the contrary, those acts are application of the rules set by this characterised by a mere administrative Directive. Furthermore, decisions to purpose and serve to facilitate the establish whether a given activity is application of the rules set by this directly exposed to competition on markets Directive. Furthermore, decisions to to which access is free should be adopted establish whether a given activity is under conditions ensuring uniform

PE483.470v03-00 38/296 RR\926628EN.doc EN directly exposed to competition on markets conditions for implementing that provision. to which access is free should be adopted Implementing powers should therefore be under conditions ensuring uniform conferred on the Commission also in conditions for implementing that provision. respect of the detailed provisions for the Implementing powers should therefore be implementation of the procedure, provided conferred on the Commission also in for under Article 28, for establishing respect of the detailed provisions for the whether Article 27 is applicable as well as implementation of the procedure, provided the Decisions themselves. Those powers for under Article 28, for establishing should be exercised in accordance with whether Article 27 is applicable as well as Regulation (EU) 182/2011 of the European the Decisions themselves. Those powers Parliament and of the Council of 16 should be exercised in accordance with February 2011 laying down the rules and Regulation (EU) 182/2011 of the European general principles concerning mechanisms Parliament and of the Council of 16 for control by the Member States of the February 2011 laying down the rules and Commission's exercise of implementing general principles concerning mechanisms powers. The advisory procedure should be for control by the Member States of the used for the adoption of those Commission's exercise of implementing implementing acts. powers. The advisory procedure should be used for the adoption of those implementing acts.

Amendment 49

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

Text proposed by the Commission Amendment

2. Procurement within the meaning of this 2. Procurement within the meaning of this Directive is the purchase or other forms of Directive is the acquisition of works, acquisition of works, supplies or services supplies or services by one or more by one or more contracting entities from contracting entities from economic economic operators chosen by those operators chosen by those contracting contracting entities, provided that the entities, provided that the works, supplies works, supplies or services are intended for or services are intended for the pursuit of the pursuit of one of the activities referred one of the activities referred to in Articles to in Articles 5 to 11. 5 to 11.

Amendment 50

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

Text proposed by the Commission Amendment

An entirety of works, supplies and/or deleted services, even if purchased through

RR\926628EN.doc 39/296 PE483.470v03-00 EN different contracts, constitutes a single procurement within the meaning of this Directive, if the contracts are part of one single project.

Amendment 51 Proposal for a directive Article 1 – paragraph 2 a (new)

Text proposed by the Commission Amendment

2a. 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 pursuant to Article 14 TFEU and Protocol (No 26) on Services of General Interest.

Amendment 52

Proposal for a directive Article 2 – point 4 – point a

Text proposed by the Commission Amendment

(a) they are established for or has the (a) they are established for or has the specific purpose of meeting needs in the specific purpose of meeting needs in the general interest, not having an industrial general interest, not having an industrial or or commercial character; for that commercial character; purpose, a body which operates in normal market conditions, aims to make a profit, and bears the losses resulting from the exercise of its activity does not have the purpose of meeting needs in the general interest, not having an industrial or commercial character;

Amendment 53

Proposal for a directive Article 2 – point 8 – point c

Text proposed by the Commission Amendment

PE483.470v03-00 40/296 RR\926628EN.doc EN work corresponding to the requirements to the requirements specified by the specified by the contracting entity contracting entity exercising a decisive exercising a decisive influence on the type influence on the type or design of the or design of the work; work;

Amendment 54

Proposal for a directive Article 2 – point 15

Text proposed by the Commission Amendment

(15) ‘procurement documents’ means all (15) ‘procurement documents’ means any documents produced or referred to by the document produced or referred to by the contracting entity to describe or determine contracting entity to describe or determine elements of the procurement or the elements of the procurement or the procedure, including the contract notice, procedure, including the contract notice, the prior information notice or the notices the prior information notice or the notices on the existence of a qualification system on the existence of a qualification system where they are used a means of calling for where they are used a means of calling for competition, the technical specifications, competition, the technical specifications, proposed conditions of contract, formats proposed conditions of contract, formats for the presentation of documents by for the presentation of documents by candidates and tenderers, information on candidates and tenderers, information on generally applicable obligations and any generally applicable obligations and any additional documents; additional documents;

Amendment 55

Proposal for a directive Article 2 – point 22

Text proposed by the Commission Amendment

(22) ‘life cycle’ means all consecutive (22) ‘life cycle’ means all consecutive or and/or interlinked stages, including interlinked stages throughout the production, transport, use and maintenance, existence of a product or a work or the throughout the existence of a product or a provision of a service, including research, works or the provision of a service, from development, production, transport, use raw material acquisition or generation of and maintenance, from raw material resources to disposal, clearance and acquisition or generation of resources to finalisation; disposal, clearance and finalisation;

Amendment 56

RR\926628EN.doc 41/296 PE483.470v03-00 EN Proposal for a directive Article 2 – point 23 a (new)

Text proposed by the Commission Amendment

(23a) ‘innovation’ means the implementation of a new or significantly improved good, service or process, a new marketing method, or a new organisational method in business practices, workplace organisation or external relations that helps solve societal challenges or supports the Europe 2020 strategy for smart, sustainable and inclusive growth..

Amendment 57

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

Text proposed by the Commission Amendment

2. Rights which have been granted by 2. Rights which have been granted by means of a procedure in which adequate means of a tender procedure in which publicity has been ensured and where the adequate publicity has been ensured and granting of those rights was based on where the granting of those rights was objective criteria shall not constitute based on objective and non-discriminatory "special or exclusive rights" within the award criteria shall not constitute "special meaning of point 6 of Article 2. or exclusive rights" within the meaning of point 6 of Article 2.

Amendment 58

Proposal for a directive Article 4 – paragraph 3 – point a

Text proposed by the Commission Amendment

(a) which are contracting authorities or (a) which are contracting authorities or public undertakings and which pursue one public undertakings and which pursue one of the activities referred to in Articles 5 to of the activities referred to in Articles 5 to 11; 11 except in cases where the activity is pursued on the basis of rights which have been granted in accordance with paragraph 2 of this Article;

PE483.470v03-00 42/296 RR\926628EN.doc EN

Amendment 59

Proposal for a directive Article 5 – title

Text proposed by the Commission Amendment

Gas and heat Gas, heating and cooling

Amendment 60

Proposal for a directive Article 11 – title

Text proposed by the Commission Amendment

Extraction of oil and gas and exploration Extraction and exploration of oil and gas, for, or extraction of, coal or other solid coal or other solid fuels fuels

Amendment 61

Proposal for a directive Article 11 a (new)

Texte proposé par la Commission Amendement

Article 11a Exemption from the application of this Directive with a view to protecting a commercial strategy 1. Whenever a procurement procedure is likely to reveal a commercial strategy which it would be detrimental to bring to the attention of competitors, the contracting entity may refer the matter to the competent authorities and structures referred to in Article 92 in order to obtain an exemption from the application of this Directive. 2. To this end, the contracting entity making the application shall present a duly motivated request to the competent authorities and structures referred to in

RR\926628EN.doc 43/296 PE483.470v03-00 EN Article 92. 3. If the competent authorities or structures authorise the exemption in accordance with paragraph 1, this Directive shall not apply to the procurement procedure in question.

Amendment 62

Proposal for a directive Article 14 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

Every two years from 30 June 2014, the Every two years from 30 June 2014, the Commission shall verify that the thresholds Commission shall verify that the thresholds set out in points (a) and (b) of Article 12 set out in points (a) and (b) of Article 12 correspond to the thresholds established in correspond to the thresholds established in the Government Procurement Agreement, the Government Procurement Agreement, and shall, where necessary, revise them. and shall, where necessary and after consulting the Member States on the application of the thresholds to certain sectors and types of contracts, revise them.

Amendment 63 Proposal for a directive Article 15 – paragraph 2

Text proposed by the Commission Amendment

2. The contracting entities shall notify the 2. The contracting entities shall notify the Commission or the national oversight Commission of all the categories of body at their request of all the categories products or activities which they regard as of products or activities which they regard excluded under paragraph 1. The as excluded under paragraph 1. The Commission may periodically publish in Commission may periodically publish in the Official Journal of the European Union, the Official Journal of the European Union, for information purposes, lists of the for information purposes, lists of the categories of products and activities which categories of products and activities which it considers to be covered by this it considers to be covered by this exclusion. In so doing, the Commission exclusion. In so doing, the Commission shall respect any sensitive commercial shall respect any sensitive commercial aspects that the contracting entities may aspects that the contracting entities may point out when forwarding information. point out when forwarding information.

PE483.470v03-00 44/296 RR\926628EN.doc EN

Amendment 64

Proposal for a directive Article 16 – paragraph 1

Text proposed by the Commission Amendment

1. This Directive shall not apply to 1. This Directive shall not apply to contracts which the contracting entities contracts which the contracting entities award for purposes other than the pursuit award for purposes other than the pursuit of their activities as described in Articles 5 of their activities as described in Articles 5 to 11 or for the pursuit of such activities in to 11 and are connected with utility a third country, in conditions not involving activities, or for the pursuit of such the physical use of a network or activities in a third country, in conditions geographical area within the Union nor not involving the physical use of a network shall it apply to design contests organised or geographical area within the Union nor for such purposes. shall it apply to design contests organised for such purposes.

Amendment 65 Proposal for a directive Article 16 – paragraph 2

Text proposed by the Commission Amendment

2. The contracting entities shall notify the 2. The contracting entities shall notify the Commission or the national oversight Commission if so requested of any body at their request of any activities activities which they regard as excluded which they regard as excluded under under paragraph 1. The Commission may paragraph 1. The Commission may periodically publish in the Official Journal periodically publish in the Official Journal of the European Union for information of the European Union for information purposes, lists of the categories of activities purposes, lists of the categories of activities which it considers to be covered by this which it considers to be covered by this exclusion. In so doing, the Commission exclusion. In so doing, the Commission shall respect any sensitive commercial shall respect any sensitive commercial aspects that the contracting entities may aspects that the contracting entities may point out when forwarding this point out when forwarding this information. information.

Amendment 66

Proposal for a directive Article 17 – paragraphs 1 and 2

RR\926628EN.doc 45/296 PE483.470v03-00 EN Text proposed by the Commission Amendment

1. In respect of contracts awarded and 1. In respect of contracts awarded and design contests organised in the fields of design contests organised in the fields of defence and security, this Directive shall defence and security, this Directive shall not apply to: not apply to: (a) contracts to which Directive (a) contracts for which the application of 2009/81/EC applies; the rules of this Directive would oblige a Member State to supply information the disclosure of which it considers contrary to the essential interests of its security, or contracts for which the procurement and performance of the contract is accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in a Member State where the Member State has determined that the essential interests concerned cannot be guaranteed by less intrusive measures as for instance those referred to in paragraph 2; (b) contracts to which Directive (b) contracts awarded in the framework of 2009/81/EC does not apply pursuant to a cooperative programme referred to in Articles 8, 12 and 13 thereof. point (c) of Article 13 of Directive 2009/81/EC; (ba) contracts awarded by a government to another government relating to works and services directly linked to military equipment or sensitive equipment, or works and services specifically for military purposes, or sensitive works and sensitive services; (bb) contracts awarded in a third country, carried out when forces are deployed outside the territory of the Union where operational needs require them to be concluded with economic operators located in the area of operations. 2. This Directive shall not apply to 2. This Directive shall not apply to public contracts and design contests other than contracts and design contests other than those mentioned in the first paragraph to those referred to in paragraph 1 to the the extent that the protection of the extent that the protection of the essential essential security interests of a Member security interests of a Member State cannot State cannot be guaranteed in an be guaranteed in a procurement procedure procurement procedure as provided for in as provided for in this Directive not Article 39(1). otherwise exempted under paragraph 1, to the extent that the protection of the

PE483.470v03-00 46/296 RR\926628EN.doc EN essential security interests of a Member State cannot be guaranteed by less intrusive measures, for instance by imposing requirements aimed at protecting the confidential nature of information which the contracting authority makes available in a contract award procedure as provided for in this Directive.

Amendment 67

Proposal for a directive Article 19 – paragraph 1 – point b

Text proposed by the Commission Amendment

(b) arbitration and conciliation services; (b) arbitration and conciliation services and any of the following legal services: (i) legal representation of a client in judicial or administrative proceedings before courts, tribunals or public authorities by a lawyer within the meaning of Article 1 of Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services1; (ii) legal services provided by trustees, appointed guardians or other legal services the providers of which are designated by a court or tribunal in the Member State concerned; (iii) legal services which in the Member State concerned are connected with the exercise of official authority; (iv) certification and authentication of documents by notaries. ______1 OJ L 78, 26.3.1977, p. 17.

Amendment 68

Proposal for a directive Article 19 – paragraph 1 – point c

RR\926628EN.doc 47/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(c) financial services in connection with (c) financial services in connection with the issue, sale, purchase or transfer of the issue, sale, purchase or transfer of securities or other financial instruments securities or other financial instruments within the meaning of Directive within the meaning of 2004/39/EC of the European Parliament Directive 2004/39/EC of the European and of the Council and operations Parliament and of the Council, or conducted with the European Financial transactions by contracting authorities to Stability Facility; raise money or capital, central bank services and operations conducted with the European Financial Stability Facility;

Amendment 69

Proposal for a directive Article 19 – paragraph 1 – point e a (new)

Text proposed by the Commission Amendment

(ea) civil defence,civil protection services and danger prevention ;

Amendment 70

Proposal for a directive Article 19 – paragraph 1 – point f

Text proposed by the Commission Amendment

(f) contracts for broadcasting time that are (f) contracts for broadcasting or awarded to broadcasters. distribution and transmission of media services; for the purposes of this Directive,‘media services’ means all forms of transmission and distribution using any form of electronic network;

Amendment 71

Proposal for a directive Article 19 – paragraph 1 – point f a (new)

PE483.470v03-00 48/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

(fa) provision of international assistance, including development aid.

Amendment 72

Proposal for a directive Article 19 – paragraph 2

Text proposed by the Commission Amendment

The broadcasting referred to in point (f) deleted of the first paragraph shall include any transmission and distribution using any form of electronic network.

Amendment 73 Proposal for a directive Article 21 – title

Text proposed by the Commission Amendment

Relations between public authorities Cooperation between public authorities

Amendment 74

Proposal for a directive Article 21 – paragraph 1 – subparagraph 1 – point a

Text proposed by the Commission Amendment

(a) the contracting authority exercises over (a) the contracting authority exercises over the legal person concerned a control which the legal person concerned a control which is similar to that which it exercises over its is similar to that which it exercises over its own departments; own departments, that is to say it exerts a decisive influence over both strategic objectives and significant decisions of the controlled legal person;

Amendment 75

Proposal for a directive Article 21 – paragraph 1 – subparagraph 1 – point b

RR\926628EN.doc 49/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(b) at least 90 % of the activities of that (b) at least 80 % of the average total legal person are carried out for the turnover of that legal person are carried controlling contracting authority or for out for the controlling contracting authority other legal persons controlled by that or for other legal persons controlled by that contracting authority; contracting authority;

Amendment 76

Proposal for a directive Article 21 – paragraph 1 – subparagraph 1 – point c

Text proposed by the Commission Amendment

(c) there is no private participation in the (c) there is no private participation in the controlled legal person. controlled legal person, with the exception of non-controlling or legally enforced forms of private participation, in conformity with the Treaties, and which do not exert any influence on the decisions of the controlling contracting authority.

Amendment 77

Proposal for a directive Article 21 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

A contracting authority shall be deemed deleted to exercise over a legal person a control similar to that which it exercises over its own departments within the meaning of point (a) of the first subparagraph where it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person.

Justification

Point (a) of subparagraph 1 is clear enough - no repetion needed.

Amendment 78

PE483.470v03-00 50/296 RR\926628EN.doc EN Proposal for a directive Article 21 – paragraph 2

Text proposed by the Commission Amendment

2. Paragraph 1 also applies where a 2. Paragraph 1 also applies where a controlled entity which is a contracting controlled entity, or entities, which is/are authority awards a contract to its (a) contracting authority/authorities controlling entity, or to another legal award(s) a contract to its controlling entity, person controlled by the same contracting or entities, or to another legal person authority, provided that there is no private controlled by the same contracting participation in the legal person being authority, provided that there is no private awarded the public contract. participation in the legal person being awarded the public contract, with the exception of non-controlling or legally enforced forms of private participation, in conformity with the Treaties, and which do not exert any influence on the decisions of the controlling contracting authority.

Amendment 79

Proposal for a directive Article 21 – paragraph 3 – subparagraph 1 – introductory part

Text proposed by the Commission Amendment

3. A contracting authority, which does not 3, A contracting authority, which does not exercise over a legal person control within exercise over a legal person control within the meaning of paragraph 1, may the meaning of point (a) paragraph 1 of nevertheless award a contract without this Article, may nevertheless award a applying this Directive to a legal person contract outside the scope of this Directive which it controls jointly with other to a legal person which it controls jointly contracting authorities, where the with other contracting authorities, where following conditions are fulfilled: the following conditions are fulfilled:

Amendment 80

Proposal for a directive Article 21 – paragraph 3 – subparagraph 1 – point b

Text proposed by the Commission Amendment

RR\926628EN.doc 51/296 PE483.470v03-00 EN legal persons controlled by the same authorities or other legal persons controlled contracting authorities; by the same contracting authorities;

Amendment 81

Proposal for a directive Article 21 – paragraph 3 – subparagraph 1 – point c

Text proposed by the Commission Amendment

Amendment 82

Proposal for a directive Article 21 – paragraph 3 – subparagraph 2 – point a

Text proposed by the Commission Amendment

(a) the decision-making bodies of the (a) the decision-making bodies of the controlled legal person are composed of controlled legal person are composed of representatives of all participating representatives of the participating contracting authorities; contracting authorities, while one representative may represent one or many participating contracting authorities.

Amendment 83

Proposal for a directive Article 21 – paragraph 3 – subparagraph 2 – point c

Text proposed by the Commission Amendment

(c) the controlled legal person does not (c) the controlled legal person does not pursue any interests which are distinct pursue any interests which are in conflict from that of the public authorities affiliated with that of the public authorities affiliated to it; to it;

PE483.470v03-00 52/296 RR\926628EN.doc EN Amendment 84

Proposal for a directive Article 21 – paragraph 3 – subparagraph 2 – point d

Text proposed by the Commission Amendment

(d) the controlled legal person does not deleted draw any gains other than the reimbursement of actual costs from the public contracts with the contracting authorities. Amendment 85 Proposal for a directive Article 21 – paragraph 4

Text proposed by the Commission Amendment

4. An agreement concluded between two or 4. An agreement concluded between two or more contracting authorities shall not be more contracting authorities shall fall deemed to be a “works, supply or service outside the scope of this Directive, where contract” within the meaning of point 7 of the following cumulative conditions are Article 2 of this Directive, where the met: following cumulative conditions are met: (a) the agreement establishes a genuine co- (a) the agreement establishes a genuine operation between the participating cooperation between the participating contracting authorities aimed at carrying contracting authorities aimed at carrying out jointly their public service tasks and out jointly their public service tasks and involving mutual rights and obligations of involving mutual rights and obligations of the parties; the parties for the purpose of the performance of a shared public service task or the pooling of resources in order to enable them to perform their own tasks; (b) the agreement is governed only by (b) the agreement is governed only by considerations relating to the public considerations relating to the public interest; interest; (c) the participating contracting authorities do not perform on the open market more than 10% in terms of turnover of the activities which are relevant in the context of the agreement; (d) the agreement does not involve financial transfers between the participating contracting authorities, other than those corresponding to the reimbursement of actual costs of the

RR\926628EN.doc 53/296 PE483.470v03-00 EN works, services or supplies; (e) there is no private participation in any (c) there is no private participation in any of the contracting authorities involved. of the contracting authorities involved with the exception of non-controlling or legally enforced forms of private participation in conformity with the Treaties, and which do not exert any influence on the decisions of the controlling contracting authorities.

Amendment 86

Proposal for a directive Article 21 – paragraph 4 a (new)

Text proposed by the Commission Amendment

4a. This Directive shall not apply to agreements, decisions or other legal instruments, concluded between several contracting authorities or groupings of contracting authorities, which make provision, in the context of the internal institutional and administrative organisation of a Member State and pursuant to applicable national law or regulation, for the transfer of powers or for the transfer of a public service task between the parties. There shall be no private participation in any of the contracting authorities or entities involved.

Amendment 87 Proposal for a directive Article 21 – paragraph 5 – subparagraph 2

Text proposed by the Commission Amendment

The exclusions provided for in deleted paragraphs 1 to 4 shall cease to apply from the moment any private participation takes place, with the effect that ongoing contracts need to be opened to competition through regular procurement procedures.

PE483.470v03-00 54/296 RR\926628EN.doc EN Amendment 88

Proposal for a directive Article 22 – paragraphs 1 and 2

Text proposed by the Commission Amendment

1. For the purposes of this Article, 1. For the purposes of this Article, ‘affiliated undertaking’ means ‘affiliated undertaking’ means: any undertaking the annual accounts of (a) any undertaking the annual accounts of which are consolidated with those of the which are consolidated with those of the contracting entity in accordance with the contracting entity in accordance with the requirements of the Seventh Council requirements of the Seventh Council Directive 83/349/EEC. Directive 83/349/EEC; or (b) any undertaking finding itself to be in any of the following situations: 2. In the case of entities not subject to that Directive, ‘affiliated undertaking’ shall mean any undertaking that: (a) may be, directly or indirectly, subject to (i) it is, directly or indirectly, subject to a a dominant influence by the contracting dominant influence by the contracting entity within the meaning of point (5) of entity; Article 2 and Article 4(1) of this Directive; (b) may exercise a dominant influence over (ii) it exercises a dominant influence over the contracting entity; the contracting entity; or (c) in common with the contracting entity, (iii) in common with the contracting entity, is subject to the dominant influence of it is subject to the dominant influence of another undertaking by virtue of another undertaking by virtue of ownership, financial participation, or the ownership, financial participation, or the rules which govern it. rules which govern it. For the purposes of this Directive, the notion of ‘dominant influence’ is defined in point 5 of Article 2 and Article 4(1).

Amendment 89

Proposal for a directive Article 22 – paragraph 3

Text proposed by the Commission Amendment

3. Article 21 notwithstanding and provided 3. Article 21 notwithstanding and provided that the conditions in paragraph 4 are met, that the conditions set out in paragraphs 1 this Directive shall not apply to contracts and 4 of this Article are met, this Directive awarded: shall not apply to contracts awarded:

RR\926628EN.doc 55/296 PE483.470v03-00 EN (a) by a contracting entity to an affiliated (a) by a contracting entity to an affiliated undertaking, or undertaking, or (b) by a joint venture, formed exclusively (b) by a joint venture, formed exclusively by a number of contracting entities for the by two or more contracting entities for the purpose of carrying out activities within purpose of carrying out activities within the meaning of Articles 5 to 11, to an the meaning of Articles 5 to 11, to an undertaking which is affiliated with one of undertaking which is affiliated with one of those contracting entities. those contracting entities.

Amendment 90

Proposal for a directive Article 22 – paragraph 4 – point a

Text proposed by the Commission Amendment

(a) to service contracts provided that at (a) to service contracts provided that at least 80% of the average total turnover of least 80% of the average total turnover of the affiliated undertaking with respect to the affiliated undertaking, taking into services in general for the preceding three account all services provided by that years derives from the provision of undertaking, over the preceding three services to undertakings with which it is years derives from the provision of affiliated; services to the contracting entity with which it is affiliated, or to the contracting entity which is itself subject to the dominant influence of another undertaking with which the contractual partner is affiliated.

Amendment 91

Proposal for a directive Article 22 – paragraph 4 – point b

Text proposed by the Commission Amendment

(b) to supply contracts provided that at (b) to supply contracts provided that at least 80% of the average total turnover of least 80% of the average total turnover of the affiliated undertaking with respect to the affiliated undertaking, taking into supplies in general for the preceding three account all supplies provided by that years derives from the provision of undertaking, over the preceding three supplies to undertakings with which it is years derives from the provision of those affiliated; supplies to the contracting entity with which it is affiliated, or to the contracting entity which is itself subject to the dominant influence of another

PE483.470v03-00 56/296 RR\926628EN.doc EN undertaking with which the contractual partner is affiliated;

Amendment 92

Proposal for a directive Article 22 – paragraph 4 – point c

Text proposed by the Commission Amendment

(c) to works contracts provided that at least (c) to works contracts provided that at least 80% of the average total turnover of the 80% of the average total turnover of the affiliated undertaking with respect to affiliated undertaking, taking into account works in general for the preceding three all works provided by that undertaking, years derives from the provision of works over the preceding three years derives from to undertakings with which it is affiliated. the provision of works to the contracting entity with which it is affiliated, or to the contracting entity which is itself subject to the dominant influence of another undertaking with which the contractual partner is affiliated.

Amendment 93

Proposal for a directive Article 22 – paragraph 5 – subparagraph 1

Text proposed by the Commission Amendment

5. When, because of the date on which an 5. When, because of the date on which an affiliated undertaking was created or affiliated undertaking was created or commenced activities, the turnover is not commenced activities, the turnover is not available for the preceding three years, it available for the preceding three years, it will be sufficient for that undertaking to will be sufficient for that undertaking to show that the turnover referred to in points show that the proportion of the average (a), (b) or (c) of paragraph 4 is credible, total turnover referred to in points (a), (b) particularly by means of business or (c) of paragraph 4 is credible, projections. particularly by means of business projections. Where more than one undertaking affiliated with the contracting entity provides the same or similar services, supplies or works, the above percentages shall be calculated taking into account the total turnover deriving respectively from the provision of services, supplies or

RR\926628EN.doc 57/296 PE483.470v03-00 EN works by those affiliated undertakings.

Amendment 94 Proposal for a directive Article 24 – introductory part

Text proposed by the Commission Amendment

Contracting entities shall notify to the Contracting entities shall notify to the Commission or the national oversight Commission the following information body, at their request, the following regarding the application of Article 22, information regarding the application of paragraphs 2, 3 and Article 23: Article 22, paragraphs 2, 3 and Article 23:

Amendment 95

Proposal for a directive Article 27 – paragraph 1

Text proposed by the Commission Amendment

1. Contracts intended to enable an activity 1. Contracts intended to enable an activity mentioned in Articles 5 to 11 to be carried mentioned in Articles 5 to 11 to be carried out shall not be subject to this Directive if out shall not be subject to this Directive if the Member State or the contracting the Member State or the contracting entities having introduced the request entities having introduced the request pursuant to Article 28 can demonstrate pursuant to Article 28 can demonstrate that, in the Member State in which it is that, in the Member State in which it is performed, the activity is directly exposed performed, or in the related specific to competition on markets to which access sectors or segments the activity is directly is not restricted; nor shall design contests exposed to competition on markets to that are organised for the pursuit of such an which access is not restricted; nor shall activity in that geographic area be subject design contests that are organised for the to this Directive. Such competition pursuit of such an activity in that assessment, which will be made in the light geographic area be subject to this of the information available to the Directive. Such competition assessment, Commission and for the purposes of this which will be made in the light of the Directive, is without prejudice to the information available to the Commission application of competition law. and for the purposes of this Directive, is without prejudice to the application of competition law.

Amendment 96 Proposal for a directive Article 27 – paragraph 2 – subparagraph 1

PE483.470v03-00 58/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

2. For the purposes of paragraph 1, the 2. For the purposes of paragraph 1 the question of whether an activity is directly question of whether an activity is directly exposed to competition shall be decided on exposed to competition requires that the the basis of criteria that are in conformity relevant product market and the relevant with the provisions on competition of the geographic market be defined. The Treaty; those may include the relevant product market shall be decided characteristics of the goods or services on the basis of criteria that are in concerned, the existence of alternative conformity with the provisions on goods or services, the prices and the actual competition of the Treaty; those may or potential presence of more than one include the characteristics of the goods or supplier of the goods or provider of the services concerned, the existence of services in question. alternative goods or services considered to be substitutable on the supply side or demand side, the prices and the actual or potential presence of more than one supplier of the goods or provider of the services in question. The relevant geographic market, on the basis of which exposure to competition is assessed, shall consist of the area in which the undertakings concerned are involved in the supply and demand of products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because, in particular, conditions of competition are appreciably different in those areas. That assessment shall take account in particular of the nature and characteristics of the products or services concerned, of the existence of entry barriers or of consumer preferences, of appreciable differences of the undertakings’ market shares between the area concerned and neighbouring areas and of substantial price differences.

Amendment 97 Proposal for a directive Article 27 – paragraph 3 – subparagraph 1

Text proposed by the Commission Amendment

3. For the purposes of paragraph 1, access 3. For the purposes of paragraph 1, access

RR\926628EN.doc 59/296 PE483.470v03-00 EN to a market shall be deemed not to be to a market shall be deemed not to be restricted if the Member State has restricted if the Member State has implemented and applied the Union implemented and applied the Union legislation listed in Annex III. legislation listed in Annex III or, if the Member State has extended to the market concerned the application of principles established by the Union legislation listed in that Annex.

Amendment 98

Proposal for a directive Article 27 – paragraph 3 a (new)

Text proposed by the Commission Amendment

3a. The protection of the intellectual property of the tenderers shall be ensured.

Amendment 99 Proposal for a directive Article 28 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

1. Where a Member State or, where the 1. Where a Member State or, where the legislation of the Member State concerned legislation of the Member State concerned provides for it, a contracting entity provides for it, a contracting entity considers that, on the basis of the criteria considers that, on the basis of the criteria set out in Article 27(2) and (3), a given set out in Article 27(2) and (3), a given activity is directly exposed to competition activity is completely or partially, even on markets to which access is not with regard to single sectors or segments restricted, it may submit a request to thereof, directly exposed to competition on establish that this Directive does not apply markets to which access is not restricted, it to the award of contracts or the may submit a request to establish that this organisation of desing contests for the Directive does not apply to the award of pursuit of that activity. contracts or the organisation of desing contests for the pursuit of that activity or of a single sector or segment thereof.

Amendment 100 Proposal for a directive Article 28 – paragraph 1 – subparagraph 2

PE483.470v03-00 60/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

Requests shall be accompanied by a Requests shall be accompanied by a reasoned and substantiated position reasoned and substantiated position adopted by an independent national adopted by an independent national authority that is competent in relation to authority that is competent in relation to the activity concerned. This position shall the activity concerned, or the individual thoroughly analyse the conditions for the sector or segment thereof. This position possible applicability of Article 27(1) to shall thoroughly analyse the conditions for the activity concerned in accordance with the possible applicability of Article 27(1) its paragraphs 2 and 3. to the activity concerned in accordance with its paragraphs 2 and 3.

Amendment 101 Proposal for a directive Article 28 – paragraph 2 – subparagraph 1

Text proposed by the Commission Amendment

Upon request submitted in accordance with Upon request submitted in accordance with paragraph 1 of this Article, the paragraph 1 of this Article, the Commission may, by way of an Commission may, by way of an implementing decision adopted within the implementing decision adopted within the periods set out in paragraph 4 of this periods set out in paragraph 4 of this Article, establish whether an activity Article, establish whether an activity, or of referred to in Articles 5 to 11 is directly a single sector or segment thereof, exposed to competition on the basis of the referred to in Articles 5 to 11 is directly criteria set out in Article 27. Those exposed to competition on the basis of the implementing decisions shall be adopted in criteria set out in Article 27. Those accordance with the advisory procedure implementing decisions shall be adopted in referred to in Article 100(2). accordance with the advisory procedure referred to in Article 100(2).

Amendment 102 Proposal for a directive Article 28 – paragraph 2 – subparagraph 2 – introductory part

Text proposed by the Commission Amendment

Contracts intended to enable the activity Contracts intended to enable the activity concerned to be carried out and design concerned, or of a single sector or contests that are organised for the pursuit segment thereof, to be carried out and of such an activity shall cease to be subject design contests that are organised for the to this Directive in any of the following pursuit of such an activity, or of a single cases: sector or segment thereof, shall cease to be subject to this Directive in any of the

RR\926628EN.doc 61/296 PE483.470v03-00 EN following cases:

Amendment 103 Proposal for a directive Article 28 – paragraph 4

Text proposed by the Commission Amendment

4. Where an activity in a given Member 4. Where an activity, or an individual State is already the subject of a procedure sector or segment thereof, in a given under paragraphs 1, 2 and 3, further Member State is already the subject of a requests concerning the same activity in procedure under paragraphs 1, 2 and 3, the same Member State before the expiry further requests concerning the same of the period opened in respect of the first activity, or individual sector or segment request shall not be considered as new thereof, in the same Member State before procedures and shall be treated in the the expiry of the period opened in respect context of the first request. of the first request shall not be considered as new procedures and shall be treated in the context of the first request.

Amendment 104

Proposal for a directive Article 29

Text proposed by the Commission Amendment

Contracting entities shall treat economic 1. Contracting entities shall treat economic operators equally and without operators equally and without discrimination and shall act in a transparent discrimination and shall act in a transparent and proportionate way. and proportionate way. The design of the procurement shall not be The design of the procurement shall not be made with the objective of excluding it made with the objective of excluding it from the scope of this Directive or of from the scope of this Directive or of artificially narrowing competition. artificially narrowing competition. 2. Member States shall ensure that economic operators comply with the environmental, social and labour law provisions which apply at the place where the works are executed, services provided or goods produced or supplied, as set out in international conventions listed in Annex XIV and in Union and national law as well as in collective agreements concluded in accordance with national law and practices which respect Union

PE483.470v03-00 62/296 RR\926628EN.doc EN law.

Amendment 105

Proposal for a directive Article 30 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

However, in the case of service and works However, in the case of service and works contracts as well as supply contracts contracts as well as supply contracts covering in addition services or siting and covering in addition services or siting and installation operations, legal persons may installation operations, legal persons may be required to indicate, in the tender or the be required to indicate, in the tender or the request to participate, the names and request to participate, the number and relevant professional qualifications of the relevant professional qualification levels staff responsible for the performance of the of the staff responsible for the performance contract in question. of the contract in question.

Amendment 106 Proposal for a directive Article 30 – paragraph 2 – subparagraph 1 a (new)

Text proposed by the Commission Amendment

Contracting entities shall give the possibility to a temporary association of economic operators to fulfil all technical, legal and financial requirements as a single entity, summing up the individual characteristics of the components of the group.

Amendment 107

Proposal for a directive Article 32 – paragraph 2 a (new)

Text proposed by the Commission Amendment

2a. This Article shall not prevent public disclosure of non-confidential parts of concluded contracts, including any subsequent changes.

RR\926628EN.doc 63/296 PE483.470v03-00 EN Amendment 108 Proposal for a directive Article 33 – paragraph 1 – subparagraph 1 – point c

Texte proposé par la Commission Amendement

Amendment 109

Proposal for a directive Article 33 – paragraph 3 – subparagraph 3

Text proposed by the Commission Amendment

To ensure the interoperability of technical To ensure the interoperability of technical formats as well as of process and formats as well as of process and messaging standards, especially in a cross- messaging standards, especially in a cross- border context, the Commission shall be border context, the Commission may empowered to adopt delegated acts in recommend the use of specific technical accordance with Article 98 to establish the standards, at least with regard to the use of mandatory use of certain technical e-submission, electronic catalogues and standards, at least with regard to the use of means for electronic authentication. e-submission, electronic catalogues and means for electronic authentication. (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)

Amendment 110 Proposal for a directive Article 33 – paragraph 6 – subparagraph 1 – point a

Text proposed by the Commission Amendment

(a) requests to participate in procedures for (a) requests to participate in procedures for the award of contracts may be made in the award of contracts may be made in writing or by telephone; in the latter case, writing; a written confirmation must be sent before expiry of the time limit set for their receipt;

PE483.470v03-00 64/296 RR\926628EN.doc EN Amendment 111 Proposal for a directive Article 34 - subparagraph 1 a (new)

Text proposed by the Commission Amendment

For works contracts above the threshold set out in Article 12, Member States may require the use by both contracting entities and tenderers of building information electronic modelling tools following the general timescales for the implementation of electronic procurement set out in the first subparagraph.

Amendment 112

Proposal for a directive Article 36 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

1. Member States shall, in respect of 1. Member States shall, in respect of contracting authorities within the meaning contracting authorities within the meaning of point 1 of Article 2, provide for rules to of point 1 of Article 2, put in place effectively prevent, identify and mechanisms to effectively prevent, immediately remedy conflicts of interests identify and remedy conflicts of interests arising in the conduct of procurement arising in the conduct of procurement procedures that are subject to this procedures so as to avoid any distortion of Directive, including the design and competition and ensure equal treatment of preparation of the procedure, the all economic operators. drawing-up of the procurement documents, the selection of candidates and tenderers and the award of the contract, so as to avoid any distortion of competition and ensure equal treatment of all tenderers.

Amendment 113

Proposal for a directive Article 36 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

The notion of conflict of interests shall at The concept of conflicts of interests shall least cover any situation where the at least cover any situation where staff or

RR\926628EN.doc 65/296 PE483.470v03-00 EN categories of persons referred to in decision-making members of the paragraph 2 have, directly or indirectly, a contracting authority or of a procurement private interest in the outcome of the service provider acting on behalf of the procurement procedure, which may be contracting authority who are involved in perceived to impair the impartial and the conduct of the procurement procedure objective performance of their duties. or may influence the outcome of that procedure have, directly or indirectly, a financial, economic or other personal or common interest which may be perceived to compromise their impartiality and independence in the context of the procurement procedure.

Amendment 114

Proposal for a directive Article 36 – paragraph 1 – subparagraph 3

Text proposed by the Commission Amendment

For the purposes of this Article, 'private deleted interests' means any family, emotional life, economic, political or other shared interests with the candidates or the tenderers, including conflicting professional interests.

Amendment 115

Proposal for a directive Article 36 – paragraphs 2, 3 and 4

Text proposed by the Commission Amendment

2. The rules referred to in paragraph 1 deleted shall apply to conflicts of interests involving at least the following categories of persons: (a) staff members of the contracting authority, procurement service providers or staff members of other service providers who are involved in the conduct of the procurement procedure; (b) the chairperson of the contracting authority and members of decision- making bodies of the contracting

PE483.470v03-00 66/296 RR\926628EN.doc EN authority who, without necessarily being involved in the conduct of the procurement procedure, may nevertheless influence the outcome of that procedure. 3. Member States shall ensure in particular: (a) that staff members referred to in paragraph 2(a) are required to disclose any conflict of interests in relation to any of the candidates or tenderers, as soon as they become aware of such conflicts, in order to enable the contracting authority to take remedial action; (b) that candidates and tenderers, are required to submit at the beginning of the procurement procedure a declaration on the existence of any privileged links with the persons referred to in paragraph 2(b), which are likely to place those persons in a situation of conflict of interests; the contracting authority shall indicate in the individual report referred to in Article 85 whether any candidate or tenderer has submitted a declaration. In the event of a conflict of interests, the contracting authority shall take appropriate measures. Those measures may include the recusal of the staff member in question from involvement in the affected procurement procedure or the re-assignment of the staff member’s duties and responsibilities. Where a conflict of interests cannot be effectively remedied by other means, the candidate or tenderer concerned shall be excluded from the procedure. Where privileged links are identified, the contracting authority shall immediately inform the oversight body designated in accordance with Article 84 and take appropriate measures to avoid any undue influence on the award process and ensure equal treatment of candidates and tenderers. Where the conflict of interests cannot be effectively remedied by other means, the candidate or tenderer concerned shall be excluded from the

RR\926628EN.doc 67/296 PE483.470v03-00 EN procedure. 4. All measures taken pursuant to this Article shall be documented in the individual report referred to in Article 94.

Amendment 116

Proposal for a directive Article 38 − paragraph 1

Text proposed by the Commission Amendment

1. As far as covered by Annexes III, IV and 1. As far as covered by Annexes III, IV and V and the General Notes to the European V and the General Notes to the European Union’s Appendix 1 to the Government Union’s Appendix 1 to the Government Procurement Agreement and by the other Procurement Agreement and by the other international agreements by which the international agreements by which the Union is bound, as listed in Annex V to Union is bound — including the this Directive, contracting entities within commitments entered into within the the meaning of Article 4(3)(a) shall accord framework of bilateral trade agreements, to the works, supplies, services and as listed in Annex V to this Directive, economic operators of the signatories to contracting entities within the meaning of those agreements treatment no less Article 4(3)(a) shall accord to the works, favourable than the treatment accorded to supplies, services and economic operators the works, supplies, services and economic of the signatories to those agreements operators of the Union. By applying this treatment no less favourable than the Directive to economic operators of the treatment accorded to the works, supplies, signatories to those agreements contracting services and economic operators of the entities shall comply with those Union. By applying this Directive to agreements. economic operators of the signatories to those agreements contracting entities shall comply with those agreements.

Amendment 117

Proposal for a directive Article 39 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

Member States shall provide that Member States shall provide that contracting entities may apply open or contracting entities may apply open or restricted procedures or negotiated restricted procedures or negotiated procedures with prior call for competition procedures with prior call for competition as regulated in this Directive. and innovation partnerships as regulated in this Directive.

PE483.470v03-00 68/296 RR\926628EN.doc EN

Amendment 118

Proposal for a directive Article 40 – paragraph 3

Text proposed by the Commission Amendment

3. Where a state of urgency duly 3. Where a state of urgency duly substantiated by the contracting entities substantiated by the contracting entities renders impracticable the time limit laid renders impracticable the time limit laid down in the second subparagraph of down in the second subparagraph of paragraph 1, they may fix a time limit paragraph 1, they may fix a time limit which shall be not less than 20 days from which shall be not less than 25 days from the date on which the contract notice was the date on which the contract notice was sent. sent. A state of urgency shall only result in a shorter time limit being set if it has not been brought about by the contracting entities themselves.

Amendment 119

Proposal for a directive Article 42 – paragraph 2 – subparagraph 3 a (new)

Text proposed by the Commission Amendment

Contracting entities may not confine negotiations to the prices quoted in tenders.

Amendment 120 Proposal for a directive Article 43 – paragraph 1

Text proposed by the Commission Amendment

1. Member States may provide that 1. Member States shall provide that contracting entities may apply innovation contracting entities may apply innovation partnerships as regulated in this Directive. partnerships as regulated in this Directive. Member States may decide not to transpose into their national law innovation partnerships or to restrict the use of it to certain types of procurement.

RR\926628EN.doc 69/296 PE483.470v03-00 EN In innovation partnerships, any economic In innovation partnerships, any economic operator may submit a request to operator may submit a request to participate in response to a call for participate in response to a call for competition with a view to establishing a competition with a view to establishing a structured partnership for the development structured partnership for the development of an innovative product, service or works of an innovative product, service or works and the subsequent purchase of the and the subsequent purchase of the resulting supplies, services or works resulting supplies, services or works provided that they correspond to the agreed provided that they correspond to the agreed performance levels and costs. performance levels and costs. The contract setting up the innovation partnership shall be awarded on the sole basis of the award criterion of the most economically advantageous tender in accordance with Article 76(1)(a).

Amendment 121 Proposal for a directive Article 43 – paragraph 2

Text proposed by the Commission Amendment

2. The partnership shall be structured in 2. The partnership shall be structured in successive stages following the sequence successive stages following the sequence of steps in the research and innovation of steps in the research and innovation process, possibly up to the manufacturing process, which may include the of the supply or the provision of the manufacturing of the supply or the services. It shall provide for intermediate provision of the services or the completion targets to be attained by the partner and of the works. The partnership shall set provide for payment of the remuneration in intermediate targets to be attained by the appropriate instalments. Based on those partner and provide for remuneration in targets, the contracting entity may decide appropriate instalments. Based on those after each stage to terminate the targets, the contracting entity may decide partnership and launch a new procurement after each stage to terminate the procedure for the remaining phases, partnership and launch a new procurement provided that it has acquired the relevant procedure for the remaining phases, intellectual property rights. provided the contracting entity has indicated in the procurement documents under which conditions it may make use of this discretion to terminate the partnership.

Amendment 122 Proposal for a directive Article 43 – paragraph 3

PE483.470v03-00 70/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

3. The contract shall be awarded in 3. In the procurement documents, accordance with the rules for a negotiated contracting entities shall describe the procedure with with prior call for minimum requirements to be met and the competition set out in Article 42. award criteria. That description shall be sufficiently precise so as to enable economic operators to identify the nature and scope of the procurement and to decide whether to request to participate in the procedure. The minimum time limit for receipt of requests to participate shall be 35 days from the date on which the contract notice, or, where a notice on the existence of a qualification system is used as a means of calling for competition, from the date on which the invitation to confirm interest is sent. The minimum time limit for the receipt of initial tenders shall be 35 days from the date on which the invitation is sent. 3a. Contracting entities shall negotiate with tenderers the initial and all subsequent tenders submitted, to improve the content to and ensure that those tenders better fulfil the award criteria specified in the procurement documents.

3b. During the negotiations, contracting entities shall ensure the equal treatment of all tenderers. To that end, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others. They shall inform all tenderers, whose tenders have not been eliminated pursuant to paragraph 3(e), in writing of any changes to procurement documents other than those setting out the minimum requirements. They shall provide such tenderers with sufficient time to allow them to modify and re-submit amended tenders following those changes.

3c. In accordance with Article 18, contracting entities shall not reveal to the other participants confidential

RR\926628EN.doc 71/296 PE483.470v03-00 EN information communicated by a candidate participating in the negotiations without that candidate’s agreement. Such agreement shall not take the form of a general waiver but shall be given with reference to the intended communication of specific information.

3d. The minimum requirements and the award criteria shall not be subject to negotiations.

Once the deadline for submitting tenders has expired, and prior to their examination, contracting entities may specify a relative weighting attached to the elements composing an award criterion defined in advance to determine the MEAT, in accordance with Article 76(4), provided that:

(a) the contract award criteria set out in the contract documents or the contract notice are unaltered;

(b) this does not include new elements which would have affected the preparation of the tenders; and

3e. Innovation partnership procedures may take place in successive stages in order to reduce the number of tenders to be negotiated, by applying the award criteria specified in the contract notice, in the invitation to confirm interest or in the procurement documents. In the contract notice, the invitation to confirm interest or in the procurement documents, the contracting entity shall clearly indicate whether it will use that option. In selecting candidates, contracting 3f. In selecting candidates, contracting authorities shall pay particular attention to authorities shall pay particular attention to criteria concerning the tenderers’ capacity criteria concerning the candidates’ and experience in the field of research and capacity in the field of research and development or of developing innovative development or of developing innovative solutions. They may limit the number of solutions. They may limit the number of suitable candidates to be invited to suitable candidates to be invited to participate in the procedure in accordance participate in the procedure in accordance

PE483.470v03-00 72/296 RR\926628EN.doc EN with Article 72(2). with Article 72(2). Only those economic operators invited by Only those economic operators invited by the contracting entity following its the contracting entity following its assessment of the requested information assessment of the requested information may submit research and innovation may submit research and innovation projects aimed at meeting the needs projects aimed at meeting the needs identified by the contracting entity that identified by the contracting entity that cannot be met by existing solutions. The cannot be met by existing solutions. contract shall be awarded on the sole basis of the award criterion of the most economically advantageous tender in accordance with Article 76(1)(a).

Amendment 123 Proposal for a directive Article 43 – paragraph 4

Text proposed by the Commission Amendment

4. The structure of the partnership and, in 4. The contracting entities shall ensure particular, the duration and value of the that the structure of the partnership and, in different phases shall reflect the degree of particular, the duration and value of the innovation of the proposed solution and the different phases shall reflect the degree of sequence of the research and innovation innovation of the proposed solution and the activities required for the development of sequence of the research and innovation an innovative solution not yet available on activities required for the development of the market. The value and duration of a an innovative solution not yet available on contract for the purchase of the resulting the market. The estimated value of supply, service or works shall remain supplies, services or works shall not be within appropriate limits, taking into disproportionate in relation to the account the need to recover the costs, investment required for their including those incurred in developing an development. innovative solution, and to achieve an adequate profit. Contracting entities shall not use innovation partnerships in such a way as to prevent, restrict or distort competition.

Amendment 124 Proposal for a directive Article 44 – paragraph 1 – point c

Text proposed by the Commission Amendment

(c) where the aim of the procurement is the (c) where the aim of the procurement is the creation or obtention of a work of art or an

RR\926628EN.doc 73/296 PE483.470v03-00 EN creation or obtention of a work of art; artistic performance;

Amendment 125

Proposal for a directive Article 44 - paragraph 1 -point d – point iii

Text proposed by the Commission Amendment

(iii) the protection of other exclusive rights. (iii) the protection of other exclusive rights, including ownership of a property site.

Amendment 126

Proposal for a directive Article 44 - paragraph 1 -point d – subparagraph 2

Text proposed by the Commission Amendment

This exception only applies when no This exception only applies when the reasonable alternative or substitute exists absence of competition is not the result of and the absence of competition is not the an artificial narrowing down of the result of an artificial narrowing down of parameters of the procurement; the parameters of the procurement;

Amendment 127 Proposal for a directive Article 44 – paragraph 1 – point e

Text proposed by the Commission Amendment

(e) insofar as is strictly necessary where, (e) insofar as is strictly necessary where, for reasons of extreme urgency brought for reasons of extreme urgency brought about by force majeure, the time limits about by events unforeseeable by the laid down for open procedures, restricted contracting entity, the time limits laid procedures and negotiated procedures with down for open procedures, restricted prior call for competition cannot be procedures and negotiated procedures with complied with. The circumstances invoked prior call for competition cannot be to justify extreme urgency must not in any complied with. The circumstances invoked event be attributable to the contracting to justify extreme urgency must not in any entity; event be attributable to the contracting entity;

Amendment 128

PE483.470v03-00 74/296 RR\926628EN.doc EN Proposal for a directive Article 44 – paragraph 2 – point a

Text proposed by the Commission Amendment

(a) it is irregular or unacceptable, and (a) it is irregular or unacceptable, or

Amendment 129

Proposal for a directive Article 45 – paragraph 1 – subparagraph 3

Text proposed by the Commission Amendment

The term of a framework agreement shall The term of a framework agreement shall not exceed four years, save in exceptional not exceed five years, save in the following cases duly justified, in particular by the cases: subject of the framework agreement. (a) the subject of the framework agreement concerns works or services that will take longer than five years to carry out; or (b) economic operators need to make investments for which the amortisation period is longer than five years or which are linked to maintenance, the recruitment of suitable staff to perform the contract or the training of staff to perform the contract. The term of a framework agreement shall be based on the lifecycle of the work, service or supply.

Amendment 130

Proposal for a directive Article 45 – paragraph 2 – subparagraph 4 a (new)

Text proposed by the Commission Amendment

After conclusion of the framework agreement, the number of participating contracting authorities may only be increased where the following conditions are met:

RR\926628EN.doc 75/296 PE483.470v03-00 EN (a) the framework agreement has been concluded by a central purchasing body; (b) the possibility of such an increase is expressly provided for in the contract notice; (c) the scope for the increase can be determined on the basis of clear criteria; and (d) all parties to the framework agreement agree to the increase.

Amendment 131

Proposal for a directive Article 46 – paragraph 1

Text proposed by the Commission Amendment

1. For commonly used purchases, the 1. For commonly used goods and services characteristics of which, as generally purchases the characteristics of which, as available on the market, meet the generally available on the market, meet the requirements of the contracting entities, requirements of the contracting entities, contracting entities may use a dynamic contracting entities may use a dynamic purchasing system. The dynamic purchasing system. The dynamic purchasing system shall be operated as a purchasing system shall be operated as a completely electronic process, open completely electronic process, open throughout its validity to any economic throughout its validity to any economic operator that satisfies the selection criteria. operator that satisfies the selection criteria.

Amendment 132

Proposal for a directive Article 46 – paragraph 3 - point a

Text proposed by the Commission Amendment

(a) publish a call for competition making it (a) publish a call for competition making it clear that a dynamic purchasing system is clear that a dynamic purchasing system is involved; involved and describe how the procedure operates;

Amendment 133

Proposal for a directive Article 46 – paragraph 7

PE483.470v03-00 76/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

7. No charges may be billed to the 7. No charges may be billed during the interested economic operators or to parties award procedure to the interested to the dynamic purchasing system. economic operators or to parties to the dynamic purchasing system.

Amendment 134

Proposal for a directive Article 47 - paragraph 1

Text proposed by the Commission Amendment

1. Contracting entities may use electronic 1. For commonly used goods and services, auctions, in which new prices, revised contracting entities may use electronic downwards, and/or new values concerning auctions, in which new prices, revised certain elements of tenders are presented. downwards, and/or new values concerning certain elements of tenders are presented.

Amendment 135

Proposal for a directive Article 47 – paragraph 3 - subparagraph 1

Text proposed by the Commission Amendment

3. The electronic auction shall be based on 3. The electronic auction shall be based on one of the the following criteria: prices and/or on the new values of certain elements of the tenders indicated in the specifications. (a) solely on prices where the contract is awarded to the tender offering the lowest cost; (b) on prices and/or on the new values of the features of the tenders indicated in the specifications where the contract is awarded to the most economically advantageous tender.

Amendment 136

RR\926628EN.doc 77/296 PE483.470v03-00 EN Proposal for a directive Article 47 – paragraph 5 - subparagraph 1

Text proposed by the Commission Amendment

5. Before proceeding with an electronic 5. Before proceeding with an electronic auction, contracting entities shall make a auction, contracting entities shall make a full initial evaluation of the tenders in full initial evaluation of the tenders in accordance with the award criterion or accordance with the award criteria and criteria and with the weighting fixed for with the weighting fixed for them. them.

Amendment 137

Proposal for a directive Article 47 – paragraph 6 - subparagraph 1

Text proposed by the Commission Amendment

6. Where the contract is to be awarded on 6. The invitation shall be accompanied by the basis of the most economically the outcome of a full evaluation of the advantageous tender, the invitation shall relevant tenderer, carried out in accordance be accompanied by the outcome of a full with the weighting provided for in the first evaluation of the relevant tenderer, carried subparagraph of Article 76(5). out in accordance with the weighting provided for in the first subparagraph of Article 76(5).

Amendment 138

Proposal for a directive Article 49 – paragraph 3 – subparagraph 1

Text proposed by the Commission Amendment

3. A contracting entity fulfils its 3. A contracting entity fulfils its obligations pursuant to this Directive when obligations pursuant to this Directive when it procures by having recourse to it procures by having recourse to centralised purchasing activities, to the centralised purchasing activities, to the extent that the procurement procedures extent that the procurement procedures concerned and their performance are concerned and their performance are conducted by the central procurement body conducted by the central procurement body alone in all its stages from the publication in all its stages from the publication of the of the call for competition to the end of the call for competition to the end of the execution of the ensuing contract or execution of the ensuing contract or

PE483.470v03-00 78/296 RR\926628EN.doc EN contracts. contracts

Amendment 139

Proposal for a directive Article 51 – paragraph 1

Text proposed by the Commission Amendment

1. One or more contracting entities may 1. Two or more contracting entities may agree to perform certain specific agree to perform certain specific procurements jointly. procurements jointly.

Amendment 140

Proposal for a directive Article 51 – paragraph 2 – subparagraph 1

Text proposed by the Commission Amendment

Where one contracting entity alone Where the conduct of a procurement conducts the procurement procedures procedure in its entirety is carried out concerned in all its stages from the jointly by the contracting entities publication of the call for competition to concerned, they shall be jointly the end of the performance of the ensuing responsible for fulfilling the obligations contract or contracts, that contracting pursuant to this Directive. Contracting entity shall have sole responsibility for entities shall be deemed to conduct an fulfilling the obligations pursuant to this award procedure jointly where one Directive. contracting entity manages the procedure on both its own behalf and on that of the other contracting entities concerned.

Amendment 141

Proposal for a directive Article 52 – paragraph 3 – subparagraph 2

Text proposed by the Commission Amendment

When determining the applicable national When determining the applicable national law in accordance with point (a), law in accordance with point (a), contracting entities may choose the contracting entities shall choose the national provisions of any Member State in national provisions of any Member State in which at least one of the participating which at least one of the participating

RR\926628EN.doc 79/296 PE483.470v03-00 EN entities is located. entities is located.

Amendment 142

Proposal for a directive Article 52 – paragraph 5 – point c

Text proposed by the Commission Amendment

(c) where it is not possible to determine deleted the applicable national law pursuant to points (a) or (b), contracting entities shall apply the national provisions of the Member State of the contracting entity which bears the biggest share of the costs.

Amendment 143

Proposal for a directive Article 53 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

For this purpose, contracting entities may For this purpose, contracting entities may seek or accept advice from administrative seek or accept advice from administrative support structures or from third parties or support structures or from third parties or market participants, provided that such market participants. advice does not have the effect of precluding competition and does not result in a violation of the principles of non-discrimination and transparency.

Amendment 144

Proposal for a directive Article 53 – paragraph 2 – subparagraph 2 a (new)

Text proposed by the Commission Amendment

Contracting entities shall: (i) clarify in their invitation to participate in a market consultation what information will be considered relevant and thus may be shared with all potential bidders; and

PE483.470v03-00 80/296 RR\926628EN.doc EN (ii) set out in detail the rights of and procedures available to market consultation participants that allow them to protect confidential information.

Amendment 145 Proposal for a directive Article 54 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

The technical specifications as defined in The technical specifications shall be set out point 1 of Annex VIII shall be set out in in the procurement documents. They shall the procurement documents. They shall define the characteristics required of a define the characteristics required of a works, service or supply provided that they works, service or supply. are linked to the subject-matter of the contract and proportionate to its value and its objectives.

Amendment 146 Proposal for a directive Article 54 – paragraph 1 – subparagraph 4 a (new)

Text proposed by the Commission Amendment

For all procurements, technical specifications shall be drawn up so as to ensure that the products, services and works subject to the contract meet the requirements of data protection law at the time of the design of the processing of personal data (data protection by design).

Amendment 147 Proposal for a directive Article 54 – paragraph 1 – subparagraph 5

Text proposed by the Commission Amendment

Where mandatory accessibility standards Where mandatory accessibility, standards are adopted by a legislative act of the are adopted by a legislative act of the Union, technical specifications shall, as far Union, technical specifications shall, as far as accessibility criteria are concerned, be as accessibilitycriteria for persons with defined by reference thereto. disabilities or design for all users are concerned, be defined by reference thereto.

RR\926628EN.doc 81/296 PE483.470v03-00 EN

Amendment 148 Proposal for a directive Article 54 – paragraph 3 – point b

Text proposed by the Commission Amendment

(b) by reference to technical specifications (b) by reference to technical specifications and, in order of preference, to national and, in order of preference, and without standards transposing European standards, discrimination as to development method, European technical approvals, common to national standards transposing European technical specifications, international standards, European technical approvals, standards, other technical reference common technical specifications, systems established by the European international standards, other technical standardisation bodies or - when those do reference systems established by the not exist - national standards, national European standardisation bodies or - when technical approvals or national technical those do not exist - national standards, specifications relating to the design, national technical approvals or national calculation and execution of the works and technical specifications relating to the use of the supplies; each reference shall be design, calculation and execution of the accompanied by the words ‘or equivalent’; works and use of the supplies; each reference shall be accompanied by the words ‘or equivalent’;

Amendment 149 Proposal for a directive Article 55 – title

Text proposed by the Commission Amendment

Labels Certificates and labels

Amendment 150

Proposal for a directive Article 55 – paragraph 1 – subparagraph 1 – introductory part

Text proposed by the Commission Amendment

1. Where contracting entities lay down 1. Where contracting entities lay down environmental, social or other environmental, social or other requirements characteristics of a works, service or or criteria in the technical specifications, supply in terms of performance or the award criteria or the contract functional requirements as referred to in performance clauses, they may require a point (a) of Article 54 paragraph 3, they specific label or certificate as means of may require that those works, supplies or proof that these works, supplies or services

PE483.470v03-00 82/296 RR\926628EN.doc EN services bear a specific label, provided that correspond to such requirements or all of the following conditions are fulfilled: criteria provided that all of the following conditions are fulfilled:

Amendment 151

Proposal for a directive Article 55 – paragraph 1 – subparagraph 1 – point a

Text proposed by the Commission Amendment

(a) the requirements for the label only (a) the requirements to be met in order to concern characteristics which are linked obtain the label or the certificate are to the subject-matter of the contract and appropriate to define the characteristics of are appropriate to define the characteristics the works, supplies or services that are the of the works, supplies or services that are subject-matter of the contract; the subject-matter of the contract;

Amendment 152

Proposal for a directive Article 55 – paragraph 1 – subparagraph 1 – point b

Text proposed by the Commission Amendment

(b) the requirements for the label are drawn (b) the requirements to be met in order to up on the basis of scientific information or obtain the label or the certificate are based based on other objectively verifiable and on objectively verifiable and non- non-discriminatory criteria; discriminatory criteria;

Amendment 153

Proposal for a directive Article 55 – paragraph 1 – subparagraph 1 – point c

Text proposed by the Commission Amendment

(c) the labels are established in an open and (c) the labels or certificates are established transparent procedure in which all in an open and transparent procedure in stakeholders, including government which all relevant stakeholders, including bodies, consumers, manufacturers, government bodies and non- distributors and environmental governmental organisations, have a organisations may participate, substantial role;

RR\926628EN.doc 83/296 PE483.470v03-00 EN Amendment 154 Proposal for a directive Article 55 – paragraph 1 – subparagraph 1 – point d - introductory part

Text proposed by the Commission Amendment

(d) the labels are accessible to all interested (d) the labels or certificates are accessible parties; to all interested parties;

Amendment 155

Proposal for a directive Article 55 – paragraph 1 – subparagraph 1 – point e

Text proposed by the Commission Amendment

(e) the criteria of the label are set by a (e) the requirements to be met in order to third party which is independent from the obtain the label or certificate are set by a economic operator applying for the label. third party which is independent from the economic operator applying for the label or certificate. The third party may be a specific national or government body or organisation

Amendment 156

Proposal for a directive Article 55 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

Contracting entities requiring a specific Contracting entities requiring a specific label shall accept all equivalent labels that label or certificate shall accept all fulfil the requirements of the label equivalent labels that fulfil the indicated by the contracting entities. For requirements of the specific label or products that do not bear the label, certificate indicated by the contracting contracting entities shall also accept a entities. Contracting entities shall also technical dossier of the manufacturer or accept other appropriate means of proof other appropriate means of proof. for such requirements which may include a technical dossier of the manufacturer where the economic operator concerned has no access to the label, or no possibility of obtaining them within the relevant time limit, provided that the lack of access is not attributable to the economic operator concerned. It shall be the responsibility of the tenderer to prove equivalence with the

PE483.470v03-00 84/296 RR\926628EN.doc EN label requested.

Amendment 157 Proposal for a directive Article 55 – paragraph 2

Text proposed by the Commission Amendment

2. Where a label fulfils the conditions of 2. Where a a label or certificate fulfils the provided in points (b), (c), (d) and (e) of conditions of provided in points (b), (c), (d) paragraph 1 but also sets outs out and (e) of paragraph 1 but also sets out requirements not linked to the subject- requirements not linked to the subject- matter of the contract, contracting entities matter of the contract, contracting entities may use those of the detailed specifications may use the detailed specifications of that of that label, or, if necessary, parts thereof, label or certificate, or, if necessary, parts that are linked to the subject-matter of the thereof, that are linked to the subject- contract and are appropriate to define matter of the contract and are appropriate characteristics of this subject-matter. to define characteristics of this subject- matter.

Amendment 158

Proposal for a directive Article 56 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

1. Contracting entities may require that 1. Contracting entities may require that economic operators provide a test report economic operators provide a test report from a recognised body or a certificate from a recognised body or a certificate issued by such a body as means of proof of issued by such a body as means of proof of conformity with the technical conformity with requirements or criteria specifications. set out in the technical specifications, the award criteria or the contract performance clauses.

Amendment 159

Proposal for a directive Article 56 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

Where contracting entities require the Where contracting entities require the submission of certificates drawn up by submission of certificates drawn up by a recognised bodies attesting conformity specific conformity assessment body,

RR\926628EN.doc 85/296 PE483.470v03-00 EN with a particular technical specification, certificates from equivalent other certificates from equivalent other recognised bodies shall also be accepted by recognised bodies shall also be accepted by the contracting entities. the contracting entities.

Amendment 160

Proposal for a directive Article 56 – paragraph 2

Text proposed by the Commission Amendment

2. Contracting entities shall accept other 2. Contracting entities shall accept other appropriate means of proof than those appropriate and equivalent means of proof referred to in paragraph 1, such as a than those referred to in paragraph 1, technical dossier of the manufacturer which may include a technical dossier of where the economic operator concerned the manufacturer where the economic has no access to such certificates or test operator concerned has no access to such reports referred to in paragraph 1, or no certificates or test reports referred to in possibility of obtaining them within the paragraph 1, or no possibility of obtaining relevant time limits. them within the relevant time limits, provided that the lack of access is not attributable to the economic operator concerned. It shall be the responsibility of the tenderer to prove equivalence with the required test reports or certificates.

Amendment 161

Proposal for a directive Article 56 – paragraph 4

Text proposed by the Commission Amendment

4. Member States shall make available to 4. Member States shall make available to other Member States, upon request, any other Member States, upon request, any information related to the evidence and information related to the evidence and documents submitted in accordance with documents submitted in accordance with Article 54(6), Article 55 and paragraphs 1, Article 54(6), Article 55 and paragraphs 1, 2 and 3 of this Article to prove compliance 2 and 3 of this Article. The competent with technical requirements. The authorities of the Member State of competent authorities of the Member State establishment of the economic operator of establishment shall provide this shall provide this information in information in accordance with Article 96. accordance with Article 96.

PE483.470v03-00 86/296 RR\926628EN.doc EN Amendment 162

Proposal for a directive Article 57 – paragraph 2

Text proposed by the Commission Amendment

2. Where the technical specifications are 2. Where the technical specifications are based on documents available by electronic based on documents available by electronic means through unrestricted and full direct means through full direct access free of access free of charge to interested charge to interested economic operators, economic operators, the inclusion of a the inclusion of a reference to those reference to those documents shall be documents shall be sufficient. sufficient.

Amendment 163

Proposal for a directive Article 58 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

Contracting entities may take account of Contracting entities shall take account of variants which are submitted by a tenderer variants which are submitted by a tenderer and meet the minimum requirements along with a basic proposal and meet the specified by the contracting entities. minimum requirements specified by the contracting entities as long as they are linked to the subject matter of the contract.

Amendment 164

Proposal for a directive Article 58 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

Contracting entities shall indicate in the In duly justified cases, contracting entities specifications whether or not they may decide not to authorise variants, authorise variants and, if so, the provided that they indicate the reasons for minimum requirements to be met by the their decision in the contract notice or, variants and any specific requirements for where a periodic indicative notice is used their presentation. Where variants are as a means of calling for competition, in authorised, they shall also ensure that the the invitation to confirm interest. chosen award criteria can be usefully applied to variants meeting those minimum requirements as well as to

RR\926628EN.doc 87/296 PE483.470v03-00 EN conforming tenders which are not variants.

Amendment 165

Proposal for a directive Article 58 – paragraph 2

Text proposed by the Commission Amendment

2. In procedures for awarding supply or 2. In procedures for awarding supply or service contracts, contracting entities that service contracts, contracting entities shall have authorised variants shall not reject a not reject a variant on the sole ground that variant on the sole ground that it would, it would, where successful, lead either to a where successful, lead either to a service service contract rather than a supply contract rather than a supply contract or to contract or to a supply contract rather than a supply contract rather than a service a service contract. contract.

Amendment 166

Proposal for a directive Article 59 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

1. Contracts may be subdivided into 1. To facilitate greater access to public homogenous or heterogeneous lots. procurement by small and medium-sized Article 13(7) applies. enterprises, contracts may be subdivided into homogenous or heterogeneous lots. Article 13(7) applies.

Amendment 167

Proposal for a directive Article 59 – paragraph 3

Text proposed by the Commission Amendment

PE483.470v03-00 88/296 RR\926628EN.doc EN procurement documents whether they reserve the right to make such a choice and, if so, which lots may be grouped together under one contract. Contracting entities shall first determine the tenders fulfilling best the award criteria set out pursuant to Article 76 for each individual lot. They may award a contract for more than one lot to a tenderer that is not ranked first in respect of all individual lots covered by this contract, provided that the award criteria set out pursuant to Article 76 are better fulfilled with regard to all the lots covered by that contract. Contracting entities shall specify the methods they intend to use for such comparison in the procurement documents. Such methods shall be transparent, objective and non- discriminatory.

Amendment 168

Proposal for a directive Article 64 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

1. Within two months of the award of a 1. Not later than 14 days after the award contract or the conclusion of a framework of a contract or the conclusion of a agreement, contracting entities shall send a framework agreement, contracting entities contract award notice on the results of the shall send a contract award notice on the procurement procedure. results of the procurement procedure.

Amendment 169

Proposal for a directive Article 64 – paragraph 1 – subparagraph 2 a (new)

Text proposed by the Commission Amendment

In case of an incomplete or incoherent contract award notice, the Commission will contact the contracting entity with the aim to receive completion or clarification of the contract award notice.

RR\926628EN.doc 89/296 PE483.470v03-00 EN

Amendment 170

Proposal for a directive Article 70 – paragraph 5

Text proposed by the Commission Amendment

5. Contracting entities may decide not to 5. Contracting entities shall not award a award a contract to the tenderer submitting contract to the tenderer submitting the best the best tender where they have established tender where it has been established, based that the tender does not comply, at least in on clear and sufficient evidence, that the an equivalent manner, with obligations tender does not comply with the established by Union legislation in the environmental,social and labour law field of social and labour law or provisions referred to in Article 29(2). environmental law or of the international social and environmental law provisions listed in Annex XIV.

Amendment 171

Proposal for a directive Article 74 – paragraph 2

Text proposed by the Commission Amendment

2. The criteria and rules referred to in 2. The criteria and rules referred to in paragraph 1 may include the selection paragraph 1 may include the selection criteria set out in Article 56 of Directive criteria set out in Article 56 of Directive 2004/18/EC on the terms and conditions 2004/18/EC on the terms and conditions set out therein, notably as regards the limits set out therein, notably as regards the limits to requirements concerning yearly to requirements concerning yearly turnovers, as provided for under the second turnovers, the acceptance of self- subparagraph of paragraph 3 of that declarations as well as of the European Article. Procurement Passport, as provided for under the second subparagraph of paragraph 3 of that Article.

Amendment 172

Proposal for a directive Article 74 – paragraph 3

Text proposed by the Commission Amendment

3. For the purpose of applying paragraphs 3. For the purpose of applying paragraphs

PE483.470v03-00 90/296 RR\926628EN.doc EN 1 and 2 of this Article, Articles 57 to 60 of 1 and 2 of this Article, Articles 55 to 60 of Directive 2004/18/EC shall apply. Directive 2004/18/EC shall apply.

Amendment 173

Proposal for a directive Article 75 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

Contracting entities shall recognise Contracting entities shall recognise equivalent certificates from bodies equivalent certificates from bodies established in other Member States. They established in other Member States. They shall also accept other evidence of shall also accept other evidence of equivalent quality assurance measures equivalent quality assurance measures from economic operators that have no from economic operators that have no access to such certificates, or no possibility access to such certificates, or no possibility of obtaining them within the relevant time of obtaining them within the relevant time limits. limits. In order not to discriminate against tenderers who invest time and money for certificates, the burden to provide equivalence with a specific label shall be placed on the tenderer claiming equivalence.

Amendment 174

Proposal for a directive Article 75 – paragraph 2 – subparagraph 2

Text proposed by the Commission Amendment

Contracting entities shall recognise Contracting entities shall recognise equivalent certificates from bodies equivalent certificates from bodies established in other Member States. They established in other Member States. They shall also accept other evidence of shall also accept other evidence of equivalent environmental management equivalent environmental management measures from economic operators that measures from economic operators that have no access to such certificates, or no have no access to such certificates, or no possibility of obtaining them within the possibility of obtaining them within the relevant time limits. relevant time limits. In order not to discriminate against tenderers who invest time and money for certificates, the burden to provide equivalence with a specific label shall be placed on the tenderer claiming equivalence.

RR\926628EN.doc 91/296 PE483.470v03-00 EN

Amendment 175 Proposal for a directive Article 76 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

Amendment 176 Proposal for a directive Article 76 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

Costs may be assessed, at the choice of the deleted contracting entity, on the basis of the price only or using a cost-effectiveness approach, such as a life-cycle costing approach, under the conditions set out in Article 77.

Amendment 177 Proposal for a directive Article 76 – paragraph 2 – subparagraph 1

Text proposed by the Commission Amendment

2. The most economically advantageous 2. The most economically advantageous tender referred to in point (a) of paragraph tender referred to in paragraph 1 from the 1 from the point of view of the contracting point of view of the contracting entity shall entity shall be identified on the basis of be identified on the basis of criteria linked criteria linked to the subject-matter of the to the subject-matter of the contract in contract in question. question.

PE483.470v03-00 92/296 RR\926628EN.doc EN Amendment 178

Proposal for a directive Article 76 – paragraph 2 – subparagraph 2 – introductory part

Text proposed by the Commission Amendment

Those criteria shall include in addition to Those criteria may include, in addition to the price or costs referred to in point (b) of the price or costs qualitative, paragraph 1, other criteria linked to the environmental and social considerations, subject-matter of the contract in question, such as: such as:

Amendment 179

Proposal for a directive Article 76 – paragraph 2 – subparagraph 2 – point a

Text proposed by the Commission Amendment

(a) quality, including technical merit, (a) quality, including technical merit, aesthetic and functional characteristics, aesthetic and functional characteristics, accessibility, design for all users, accessibility, design for all users, social environmental characteristics and environmental and innovative innovative character; characteristics, including cost effectiveness of short-distance procurement where relevant, and the costs over the life- cycle in accordance with Article 67;

Amendment 180 Proposal for a directive Article 76 – paragraph 2 – point b

Text proposed by the Commission Amendment

(b) for service contracts and contracts (b) wherever relevant for the involving the design of works, the performance of the contract, qualification organisation, qualification and experience and experience of the staff assigned to of the staff assigned to performing the performing the contract in question; contract in question may be taken into consideration, with the consequence that, following the award of the contract, such staff may only be replaced with the consent of the contracting entity , which must verify that replacements ensure

RR\926628EN.doc 93/296 PE483.470v03-00 EN equivalent organisation and quality;

Amendment 181 Proposal for a directive Article 76 – paragraph 2 – point c

Text proposed by the Commission Amendment

(c) after-sales service and technical (c) after-sales service and technical assistance, delivery date and delivery assistance, and delivery conditions such as period or period of completion, delivery date and delivery period or period commitments with regard to parts and of completion, commitments with regard to security of supply; parts and security of supply;

Amendment 182 Proposal for a directive Article 76 – paragraph 3

Text proposed by the Commission Amendment

3. Member States may provide that the deleted award of certain types of contracts shall be based on the most economically advantageous tender referred to in point (a) of paragraph 1 and in paragraph 2.

Amendment 183 Proposal for a directive Article 76 – paragraph 5 – subparagraph 1

Text proposed by the Commission Amendment

5. In the case referred to in point (a) of 5. The contracting entity shall specify the paragraph 1 the contracting entity shall relative weighting which it gives to each of specify the relative weighting which it the criteria chosen to determine the most gives to each of the criteria chosen to economically advantageous tender. determine the most economically advantageous tender.

Amendment 184

Proposal for a directive Article 77 –paragraph 1 – introductory part

PE483.470v03-00 94/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

1. Life-cycle costing shall to the extent 1. Life-cycle costing shall to the extent relevant cover the following costs over the relevant cover parts or all of the following life cycle of a product, service or works as costs borne by contracting authorities defined in point 22 of Article 2: over the life cycle of a product, service or works as defined in point 22 of Article 2:

Amendment 185

Proposal for a directive Article 77 –paragraph 1 – point b

Text proposed by the Commission Amendment

(b) external environmental costs directly (b) external costs, such as social or linked to the life cycle, provided their environmental costs, directly linked to the monetary value can be determined and life cycle, provided their monetary value verified, which may include the cost of can be determined and verified, which may emissions of greenhouse gases and of other include the cost of emissions of greenhouse pollutant emissions and other climate gases and of other pollutant emissions and change mitigation costs. other climate change mitigation costs.

Amendment 186

Proposal for a directive Article 77 –paragraph 2

Text proposed by the Commission Amendment

2. Where contracting entities assess the 2. Where contracting entities assess the costs using a life-cycle costing approach, costs using a life-cycle costing approach, they shall indicate in the procurement they shall indicate in the procurement documents the methodology used for the documents the data to be provided by the calculation of the life-cycle costs. The tenderers and the method which the methodology used must fulfil all of the contracting authority will use to following conditions: determine the life-cycle costs. The method used must fulfil all of the following conditions: (a) it has been drawn up on the basis of (a) it has been drawn up in close scientific information or is based on other consultation with stakeholders and is objectively verifiable and non- based on objectively verifiable and non- discriminatory criteria; discriminatory criteria; (b) it has been established for repeated or

RR\926628EN.doc 95/296 PE483.470v03-00 EN continuous application; (c) it is accessible to all interested parties. (b) it is accessible to all interested parties. (ca) the data required can be provided with reasonable effort by normally diligent economic operators, including operators from third countries. Contracting entities shall allow economic operators, including economic operators from third countries, to apply a different methodology for establishing the life-cycle costs of their offer, provided that they prove that this methodology complies with the requirements set out in points a, b and c and is equivalent to the methodology indicated by the contracting entity.

Amendment 187

Proposal for a directive Article 77 –paragraph 3 – subparagraph 1

Text proposed by the Commission Amendment

3. Whenever a common methodology for 3. Any common methodology for the the calculation of life-cycle costs is calculation of life-cycle costs is adopted as adopted as part of a legislative act of the part of a legislative act of the Union, Union, including by delegated acts including by delegated acts pursuant to pursuant to sector specific legislation, it sector specific legislation or as part of a shall be applied where life-cycle costing is European technical specification shall be included in the award criteria referred to in deemed to meet the criteria set out in Article 76 (1). paragraph 2 and may be included in the award criteria referred to in Article 76(1).

Amendment 188

Proposal for a directive Article 79 – paragraph 1

Text proposed by the Commission Amendment

1. The contracting entity shall request 1. Contracting entities shall require economic operators to explain the price or economic operators to explain the price or costs charged, where all of the following costs proposed in the tender where tenders appear to be abnormally low in relation to

PE483.470v03-00 96/296 RR\926628EN.doc EN conditions are fulfilled: the works, supplies or services. (a) the price or cost charged is more than 50 % lower than the average price or costs of the remaining tenders; (b) the price or cost charged is more than 20 % lower than the price or costs of the second lowest tender; (c) at least five tenders have been submitted.

Amendment 189

Proposal for a directive Article 79 – paragraph 2

Text proposed by the Commission Amendment

2. Where tenders appear to be abnormally deleted low for other reasons, contracting entities may also request such explanations.

Amendment 190

Proposal for a directive Article 79 – paragraph 3 – introductory part

Text proposed by the Commission Amendment

3. The explanations referred to in 3. The explanations referred to in paragraphs 1 and 2 may in particular paragraph 1 may in particular relate to: relate to:

Amendment 191

Proposal for a directive Article 79 – paragraph 3 – point d

Text proposed by the Commission Amendment

(d) compliance, at least in an equivalent (d) compliance with social, environmental manner, with obligations established by and labour law provisions referred to in Union legislation in the field of social and Article 29(2); labour law or environmental law or of the

RR\926628EN.doc 97/296 PE483.470v03-00 EN international social and environmental law provisions listed in Annex XIV or, where not applicable, with other provisions ensuring an equivalent level of protection;

Amendment 192 Proposal for a directive Article 79 – paragraph 3 – point d a (new)

Text proposed by the Commission Amendment

(da) compliance with subcontracting requirements set out in Article 81.

Amendment 193 Proposal for a directive Article 79 – paragraph 4 – subparagraph 3

Text proposed by the Commission Amendment

Contracting entities shall reject the tender, Contracting entities shall reject the tender, where they have established that the tender where they have established that the tender is abnormally low because it does not is abnormally low because it does not comply with obligations established by comply with social, environmental and Union legislation in the field of social and labour law provisions referred to in labour law or environmental law or by the Article 29(2) or with data protection law. international social and environmental law provisions listed in Annex XIV.

Amendment 194

Proposal for a directive Article 79 – paragraph 5

Text proposed by the Commission Amendment

5. Where a contracting entity establishes 5. When submitting a tender, tenderers that a tender is abnormally low because the shall provide a declaration on their tenderer has obtained State aid, the tender honour attesting that to their best may be rejected on that ground alone only knowledge and good faith they have not after consultation with the tenderer where received for the purposes of their tender the latter is unable to prove, within a State aid which would be incompatible sufficient time limit fixed by the with Article 107 TFEU, or which would contracting entity, that the aid in question be incompatible with that Article if the

PE483.470v03-00 98/296 RR\926628EN.doc EN was compatible with the internal market State granting that aid were a Union within the meaning of Article 107 of the Member State, and furnish any Treaty. Where the contracting entity rejects substantiating documents requested by the a tender in those circumstances, it shall contracting entity. inform the Commission thereof. Where a contracting entity establishes that a tender is abnormally low because the tenderer has obtained State aid, the tender may be rejected on that ground alone only after consultation with the tenderer where the latter is unable to prove, within a sufficient time limit fixed by the contracting entity, that the aid in question was compatible with the internal market within the meaning of Article 107 of the Treaty. Where the contracting entity rejects a tender in these circumstances, it shall inform the Commission of that fact. If it is established that the selected tenderer has received unlawful State aid, the call for tender procedure shall be cancelled.

Amendment 195

Proposal for a directive Article 79 a (new)

Text proposed by the Commission Amendment

Article 79a Tenders comprising products originating in third countries 1. This Article shall apply to tenders covering products originating in third countries with which the Union has not concluded, whether multilaterally or bilaterally, an agreement ensuring comparable and effective access for Union undertakings to the markets of those third countries. It shall be without prejudice to the obligations of the Union or its Member States in respect of third countries. 2. Contracting entities may ask tenderers to provide information on the origin of the

RR\926628EN.doc 99/296 PE483.470v03-00 EN products in their tender and their value. Declarations on the tenderer’s honour shall be accepted as a preliminary means of proof. A contracting entity may, at any time in the procedure, ask for part or all of the documentation required. Any tender submitted for the award of a supply contract may be rejected where the value of the products originating in third countries, as determined in accordance with Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code1, exceeds 50 % of the total value of the products constituting the tender. For the purposes of this Article, software used in telecommunications network equipment shall be regarded as products. 3. Subject to the second subparagraph of this paragraph, where two or more tenders are equivalent in the light of the contract award criteria defined in Article 76, preference shall be given to those tenders which may not be rejected pursuant to paragraph 2. The prices of those tenders shall be considered equivalent for the purposes of this Article, if the price difference does not exceed 3 %. A tender shall not be preferred to another pursuant to the first subparagraph where its acceptance would oblige the contracting entity to acquire equipment having technical characteristics different from those of existing equipment, resulting in incompatibility, technical difficulties in operation and maintenance, or disproportionate costs. 4. For the purposes of this Article, those third countries to which the benefit of the provisions of this Directive has been extended by a Council Decision in accordance with paragraph 1 shall not be taken into account for determining the proportion, referred to in paragraph 2, of products originating in third countries. 5. The Commission shall submit an

PE483.470v03-00 100/296 RR\926628EN.doc EN annual report to the European Parliament and to the Council, commencing in the second half of the first year following the entry into force of this Directive, on progress made in multilateral or bilateral negotiations regarding access for Union undertakings to the markets of third countries in the fields covered by this Directive, on any result which such negotiations may have achieved, and on the implementation in practice of all the agreements which have been concluded. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may, in the light of such developments, amend the provisions of this Article. ______1 OJ L 302, 19.10.1992, p. 1.

Amendment 196

Proposal for a directive Article 79 b (new)

Text proposed by the Commission Amendment

Article 79b Relations with third countries as regards works, supplies and service contracts 1. Member States shall inform the Commission of any general difficulties, in law or in fact, encountered and reported by their undertakings in securing the award of works, supplies or service contracts in third countries. 2. The Commission shall report to the European Parliament and to the Council before 31 December 2014, and periodically thereafter, on the opening up of service contracts in third countries and on progress in negotiations with these countries on this subject, particularly within the framework of the WTO.

RR\926628EN.doc 101/296 PE483.470v03-00 EN 3. The Commission shall endeavour, by approaching the third country concerned, to remedy any situation whereby it finds, on the basis either of the reports referred to in paragraph 2 or of other information, that, in the context of the award of service contracts, a third country: (a) does not grant undertakings established in the Union effective access comparable to that granted by the Union to undertakings established in that third country; (b) does not grant undertakings established in the Union national treatment or the same competitive opportunities as are available to undertakings established in that third country; or (c) grants undertakings established in other third countries more favourable treatment than undertakings established in the Union. 4. Member States shall inform the Commission of any difficulties, in law or in fact, encountered and reported by the undertakings established in their territories and which are due to the non- observance of the international social and environmental law provisions listed in Annex XIV when those undertakings have tried to secure the award of contracts in third countries. 5. In the circumstances referred to in paragraphs 3 and 4, the Commission may at any time propose that the Council decide to suspend or restrict, over a period to be laid down in the decision, the award of service contracts to: (a) undertakings governed by the law of the third country in question; (b) undertakings affiliated to the undertakings specified in point (a) and having their registered office in the Union but having no direct and effective link with the economy of a Member State;

PE483.470v03-00 102/296 RR\926628EN.doc EN (c) undertakings submitting tenders which have as their subject-matter services originating in the third country in question. The Council shall act, by qualified majority, as soon as possible. The Commission may propose these measures on its own initiative or at the request of a Member State. 6. This Article shall be without prejudice to the commitments of the Union in relation to third countries ensuing from international agreements on public procurement, particularly within the framework of the WTO.

Amendment 197

Proposal for a directive Article 80

Text proposed by the Commission Amendment

Contracting entities may lay down special Contracting entities may lay down special conditions relating to the performance of a conditions linked to the subject matter and contract, provided that they are indicated in relating to the performance of a contract, the call for competition or in the provided that they are indicated in the call specifications. Those conditions may, in for competition or in the specifications. particular, concern social and Those conditions may include economic, environmental considerations. They may innovation-related, environmental social also include the requirement that or employment- related considerations. economic operators foresee compensations for risks of price increases that are the result of price fluctuations (hedging) and that could substantially impact the performance of a contract.

Amendment 198 Proposal for a directive Article 81 – paragraph 1

RR\926628EN.doc 103/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

1. In the procurement documents, the 1. In the procurement documents, the contracting entity may ask or may be contracting entity shall ask the tenderer to required by a Member State to ask the indicate in its tender any share of the tenderer to indicate in its tender any share contract it may intend to subcontract to of the contract it may intend to subcontract third parties and any proposed to third parties and any proposed subcontractors. subcontractors.

Amendment 199 Proposal for a directive Article 81 – paragraph 1 a (new)

Text proposed by the Commission Amendment

1a. After the tenderer has been selected, it shall indicate to the contracting entities the name, contact details and legal representatives of the subcontractors and any changes related to that information during the course of the contract. The information shall be provided to the tenderer by each subcontractor in the subcontracting chain through the subcontractor’s direct contractor. Each subcontractor shall keep the information up to date during the course of the contract.

Amendment 200 Proposal for a directive Article 81 – paragraphs 3 a and 3 b (new)

Text proposed by the Commission Amendment

3a. Member States shall ensure that subcontractors also respect all mandatory legal, regulatory and administrative provisions in force in the Member State of contract performance, which includes the obligations referred to in Article 29(2). To this end, Member States may provide for a system of liability throughout the subcontracting chain so that the direct contractor of a subcontractor is liable in

PE483.470v03-00 104/296 RR\926628EN.doc EN the event that subcontractor fails to comply with one of those provisions or is insolvent. When a direct contractor is insolvent, such system should provide that the next solvent direct contractor up the subcontracting chain, including the main contractor, is liable 3b. Member States may provide for more stringent liability rules under national law.

Amendment 201

Proposal for a directive Article 82 – paragraph 2 – introductory part and points (-a) and (-aa) (new)

Text proposed by the Commission Amendment

2. A modification of a contract during its 2. Without prejudice to paragraphs 3 and term shall be considered substantial 4, a modification shall be considered within the meaning of paragraph 1, where substantial where one of the following it renders the contract substantially conditions is met: different from the one initially concluded. In any case, without prejudice to paragraph 3 and 4, a modification shall be considered substantial where one of the following conditions is met: (-a) it alters the nature of the contract; (-aa) it entails replacement of the contractual partner;

Amendment 202

Proposal for a directive Article 82 – paragraph 2 – point c

Text proposed by the Commission Amendment

(c) the modification extends the scope of (c) the modification extends the subject of the contract considerably to encompass the contract considerably to encompass supplies, services or works not initially supplies, services or works not initially covered. covered.

Amendment 203

RR\926628EN.doc 105/296 PE483.470v03-00 EN Proposal for a directive Article 82 – paragraph 3 – subparagraph 1

Text proposed by the Commission Amendment

3. The replacement of the contractual deleted partner shall be considered a substantial modification within the meaning of paragraph 1.

Amendment 204

Proposal for a directive Article 82 – paragraph 3 – subparagraph 2

Text proposed by the Commission Amendment

However, the first subparagraph shall not Point (-aa) of paragraph 2 shall not apply apply in the event of universal or partial in the event of universal or partial succession into the position of the initial succession into the position of the initial contractor, following corporate contractor, following corporate restructuring operations or insolvency, of restructuring operations, transfer of capital another economic operator that fulfils the or assets between undertakings or the criteria for qualitative selection initially taking-on of a contractual partner after established provided that this does not his insolvency, by another economic entail other substantial modifications to the operator that fulfils the criteria for contract and is not aimed at circumventing qualitative selection initially established the application of this Directive. provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Directive or in the event of the take-over of the main contractors’ signatory status by the contracting entity in accordance with Member States' provisions in line with Article 81.

Amendment 205

Proposal for a directive Article 82 – paragraph 4

Text proposed by the Commission Amendment

PE483.470v03-00 106/296 RR\926628EN.doc EN paragraph 1, where its value does not paragraph 1, where its value does not exceed the thresholds set out in Article 12 exceed the thresholds set out in Article 12 and where it is below 5% of the price of or where it is below 10 % of the price of the initial contract, provided that the the initial contract, provided that the modification does not alter the overall modification does not alter the overall nature of the contract. Where several nature of the contract. Where several successive modifications are made, the successive modifications are made, the value shall be assessed on the basis of the value shall be assessed on the basis of the cumulative value of the successive cumulative value of the successive modifications. modifications.

Amendment 206

Proposal for a directive Article 82 – paragraph 4 a (new)

Text proposed by the Commission Amendment

4a. A modification shall not be considered to be substantial within the meaning of paragraph 1 where the scope of the contract might evolve pursuant to: (a) significant innovations or technological changes; (b) a technical difficulty in operation or maintenance requiring the intervention of the initial contractor; (c) the necessary implementation of emergency and unforeseeable works, services or supplies which cannot be technically or economically separated from the main contract without causing major disruption to the contracting entity.

Amendment 207

Proposal for a directive Article 82 – paragraph 5

Text proposed by the Commission Amendment

5. Contract modifications shall not be 5. Contract modifications shall not be considered substantial within the meaning considered substantial within the meaning of paragraph 1 where they have been of paragraph 1 where they have been provided for in the procurement documents provided for in the procurement documents

RR\926628EN.doc 107/296 PE483.470v03-00 EN in clear, precise and unequivocal review in clear, precise and unequivocal review clauses or options. Such clauses shall state clauses or options, or in the form of a the scope and nature of possible price revision clause. Such clauses shall modifications or options as well as the state the scope and nature of possible conditions under which they may be used. modifications or options as well as the They shall not provide for modifications or conditions under which they may be used. options that would alter the overall nature They shall not provide for modifications or of the contract. options that would alter the overall nature of the contract.

Amendment 208

Proposal for a directive Article 82 – paragraph 6 a (new)

Text proposed by the Commission Amendment

6a. For the purpose of the calculation of the price referred to in paragraph 4 of this Article, the updated price shall be the reference value when the contract includes an indexation clause

Amendment 209

Proposal for a directive Article 82 – paragraph 7

Text proposed by the Commission Amendment

7. Contracting entities shall not have 7. Contracting entities shall not invoke the recourse to modifications of the contract in provisions of this Article concerning the following cases: modifications of the contract where the modification of the contract would aim at compensating risks of price increases that have been hedged by contractor. (a) where the modification would aim at remedying deficiencies in the performance of the contractor or the consequences, which can be remedied through the enforcement of contractual obligations; (b) where the modification would aim at compensating risks of price increases that have been hedged by the contractor.

PE483.470v03-00 108/296 RR\926628EN.doc EN

Amendment 210

Proposal for a directive Article 83 – paragraph 1 – point a

Text proposed by the Commission Amendment

(a) the exceptions provided for in Article (a) the exceptions provided for in Article 21 cease to apply following a private 21 cease to apply following a private participation in the legal person awarded participation in the legal person awarded the contract pursuant to Article 21 (4); the contract pursuant to Article 21(4), except for non-controlling or legally enforced forms of private participation;

Justification

Such provision is not necessary in the EU legislation on public procurement. It can be sufficiently regulated by national legislation.

Amendment 211

Proposal for a directive Article 83 – paragraph 1 a (new)

Text proposed by the Commission Amendment

1a. Member States shall ensure that contracting entities have the possibility, under the conditions determined by the applicable national contract law, to terminate a framework agreement during its term, where the economic operator has shown significant or persistent deficiencies in the performance of any substantive requirement under the agreement.

Amendment 212

Proposal for a directive Article 85 – paragraph 1

Text proposed by the Commission Amendment

1. Contracting entities intending to award a 1. Contracting entities intending to award a

RR\926628EN.doc 109/296 PE483.470v03-00 EN contract for the services referred to in public contract for the services referred to Article 84 shall make known their intention in Article 84 shall make known their by means of a contract notice. intention by means of a periodic indicative notice, which shall be published continuously and contain the information set out in Annex XVIII part A. The periodic indicative notice shall indicate that the contract will be awarded without further publication and invite interested economic operators to express their interest in writing.

Amendment 213

Proposal for a directive Article 85 – paragraph 3

Text proposed by the Commission Amendment

3. The notices referred to in paragraphs 1 3. The notice referred to in paragraph 2 and 2 shall contain the information shall contain the information referred to in referred to in Annex XVIII in accordance Annex XVIII part B, in accordance with with the standard model notices. The the standard model notices. The Commission shall establish the standard Commission shall establish the standard forms. Those implementing acts shall be forms. Those implementing acts shall be adopted in accordance with the advisory adopted in accordance with the advisory procedure referred to in Article 100. procedure referred to in Article 100.

Amendment 214

Proposal for a directive Article 86 – paragraph 1

Text proposed by the Commission Amendment

1. Member States shall put in place 1. Member States shall put in place appropriate procedures for the award of simplified procedures in accordance with contracts subject to this Chapter, ensuring Article 85(1), for the award of contracts full compliance with the principles of subject to this Chapter, ensuring full transparency and equal treatment of compliance with the principles of economic operators and allowing transparency and equal treatment of contracting entities to take into account the economic operators and allowing specificities of the services in question. contracting entities to take into account the specificities of the services in question.

PE483.470v03-00 110/296 RR\926628EN.doc EN Amendment 215

Proposal for a directive Article 86 – paragraph 2

Text proposed by the Commission Amendment

2. Member States shall ensure that 2. Member States shall ensure that contracting entities may take into account contracting entities may take into account the need to ensure quality, continuity, the need to ensure high quality, continuity, accessibility, availability and accessibility, affordability, availability and comprehensiveness of the services, the comprehensiveness of the services, the specific needs of different categories of specific needs of different categories of users, the involvement and empowerment users, including disadvantaged and of users and innovation. Member States vulnerable groups, the involvement and may also provide that the choice of the empowerment of users and innovation. service provider shall not be made solely Member States shall ensure that the choice on the basis of the price for the provision of the service provider is not made solely of the service. on the basis of the price for the provision of the service, but takes into account quality and sustainability criteria for social services.

Amendment 216

Proposal for a directive Article 92 – title

Text proposed by the Commission Amendment

Enforcement Implementation and enforcement by competent authorities and structures

Amendment 217

Proposal for a directive Article 92 – paragraph 1

Text proposed by the Commission Amendment

In conformity with Council Directive 1. In order to effectively ensure correct 92/13/EEC, Member States shall ensure and efficient implementation, Member correct application of this Directive by States shall ensure that at least the tasks effective, available and transparent set out in this Article are performed by mechanisms which complement the one or more authorities or structures. system in place for the review of decisions They shall indicate to the Commission all taken by contracting authorities.. authorities or structures competent for

RR\926628EN.doc 111/296 PE483.470v03-00 EN those tasks.

Amendment 218

Proposal for a directive Article 92 – paragraph 1 a (new)

Text proposed by the Commission Amendment

1a. Member States shall ensure that the application of public procurement rules is monitored, including the implementation of projects co-financed by the Union with a view to detecting threats to the financial interests of the Union. Such monitoring shall be used to prevent, detect and adequately report possible instances of procurement fraud, corruption, conflict of interest and other serious irregularities. Where monitoring authorities or structures identify specific violations or systemic problems, they shall ensure that those problems are referred to national auditing authorities, courts or tribunals or other appropriate authorities or structures, such as the ombudsman, national Parliaments or committees thereof.

Amendment 219

Proposal for a directive Article 92 – paragraph 1 b (new)

Text proposed by the Commission Amendment

1b. The results of the monitoring activities pursuant to paragraph 2 shall be made available to the public through appropriate means of information. In particular, Member States shall publish, at least every two years, an overview of the most frequent sources of incorrect application or of legal uncertainty, including possible structural or recurring problems in the application of the rules,

PE483.470v03-00 112/296 RR\926628EN.doc EN possible cases of fraud and other illegal behaviours. Member States shall transmit to the Commission every two years, a general overview of their national sustainable procurement policies, describing the relevant national action plans and initiatives and, where known, their practical implementation. They shall also indicate the success rate of SMEs in public procurement; where it is lower than 50 % in terms of values of contracts awarded to SMEs, Member States shall indicate whether any initiatives are in place to increase this success rate. On the basis of the data received, the Commission shall regularly issue a report on the implementation and best practices of such policies in the internal market.

Amendment 220

Proposal for a directive Article 92 – paragraph 1 c (new)

Text proposed by the Commission Amendment

1c. Member States shall ensure that guidance on the interpretation and application of the Union public procurement law is available free of charge to assist contracting entities and economic operators, in particular SMEs, in correctly applying the Union public procurement rules.

Amendment 221

Proposal for a directive Article 92 – paragraph 1 d (new)

Text proposed by the Commission Amendment

1d. Member States shall, without prejudice to the general procedures and working methods established by the

RR\926628EN.doc 113/296 PE483.470v03-00 EN Commission for its communications and contacts with Member States, designate a contact point for cooperation with the Commission as regards the application of Union law and the implementation of the budget from the Union on the basis of Article 17 TFEU and Article 317 TFEU.

Amendment 222

Proposal for a directive Article 92 – paragraph 1 e (new)

Text proposed by the Commission Amendment

1e. Contracting entities shall, at least for the duration of the contract, keep copies of all concluded contracts with a value equal to or greater than: (a) 1 000 000 EUR in the case of supply contracts or service contracts; (b) 10 000 000 EUR in the case of works contracts.

Amendment 223 Proposal for a directive Article 93

Text proposed by the Commission Amendment

Article 93 deleted 1. Member States shall appoint a single independent body responsible for the oversight and coordination of implementation activities (hereinafter "the oversight body"). Member States shall inform the Commission of their designation. All contracting entities shall be subject to such oversight. 2. The competent authorities involved in the implementation activities shall be organised in such a manner that conflicts of interests are avoided. The system of

PE483.470v03-00 114/296 RR\926628EN.doc EN public oversight shall be transparent. For this purpose, all guidance and opinion documents and an annual report illustrating the implementation and application of rules laid down in this Directive shall be published. The annual report shall include the following: (a) an indication of the success rate of small and medium-sized enterprises (SMEs) in procurement; where the percentage is lower than 50 % in terms of values of contracts awarded to SMEs, the report shall provide an analysis of the reasons therefore; (b) a global overview of the implementation of sustainable procurement policies, including on procedures taking into account considerations linked to the protection of the environment, social inclusion including accessibility for persons with disabilities or fostering innovation; (c) centralized data about reported cases of fraud, corruption, conflict of interests and other serious irregularities in the field of public procurement, including those affecting projects cofinanced by the budget of the Union. 3. The oversight body shall be responsible for the following tasks: (a) monitoring the application of public procurement rules and the related practice by contracting entities and in particular by central purchasing bodies; (b) providing legal advice to contracting entities on the interpretation of public procurement rules and principles and on the application of public procurement rules in specific cases; (c) issuing own initiative opinions and guidance on questions of general interest pertaining to the interpretation and application of public procurement rules, on recurring questions and on systemic

RR\926628EN.doc 115/296 PE483.470v03-00 EN difficulties related to the application of public procurement rules, in the light ofthe provisions of this Directive and of the relevant case-law of the Court of Justice of the European Union; (d) establishing and applying comprehensive, actionable 'red flag' indicator systems to prevent, detect and adequately report instances of procurement fraud, corruption, conflict of interest and other serious irregularities; (e) drawing the attention of the national competent institutions, including auditing authorities, to specific violations detected and to systemic problems; (f) examining complaints from citizens and businesses on the application of public procurement rules in specific cases and transmitting the analysis to the competent contracting entities, which shall have the obligation to take it into account in their decisions or, where the analysis is not followed, to explain the reasons for disregarding it; (g) monitoring the decisions taken by national courts and authorities following a ruling given by the Court of Justice of the European Union on the basis of Article 267 of the Treaty or findings of the European Court of Auditors establishing violations of Union public procurement rules related to projects cofinanced by the Union; the oversight body shall report to the European Anti-Fraud Office any infringement to Union procurement procedures where these were related to contracts directly or indirectly funded by the European Union. The tasks referred to in point (e) shall be without prejudice to the exercise of rights of appeal under national law or under the system established on the basis of directive 92/13/EEC. Member States shall empower the oversight body to seize the jurisdiction competent according to national law for

PE483.470v03-00 116/296 RR\926628EN.doc EN the review of contracting entities' decisions where it has detected a violation in the course of its monitoring and legal advising activity. 4. Without prejudice to the general procedures and working methods established by the Commission for its communications and contacts with Member States, the oversight body shall act as a specific contact point for the Commission when it monitors the application of Union law and the implementation of the budget from the Union on the basis of Article 17 of the Treaty on the European Union and Article 317 of the Treaty on the Functioning of the European Union. It shall report to the Commission any violation of this Directive in procurement procedures for the award of contracts directly or indirectly funded by the Union. The Commission may in particular refer to the oversight body the treatment of individual cases where the contract is not yet concluded or a review procedure can still be carried out. It may also entrust the oversight body with the monitoring activities necessary to ensure the implementation of the measures to which Member States are committed in order to remedy a violation of Union public procurement rules and principles identified by the Commission. The Commission may require the oversight body to analyse alleged breaches to Union public procurement rules affecting projects co-financed by the budget of the Union. The Commission may entrust the oversight body to follow- up certain cases and to ensure that the appropriate consequences of breaches to Union public procurement rules affecting projects co-financed are taken by the competent national authorities which will be obliged to follow its instructions. 5. The investigation and enforcement activities carried out by the oversight body

RR\926628EN.doc 117/296 PE483.470v03-00 EN to ensure that contracting entities' decisions comply with this Directive and the general principles of the Treaty on the Functioning of the European Union shall not replace or prejudge the institutional role of the Commission as guardian of the Treaty. When the Commission decides to refer the treatment of an individual case, it shall also retain the right to intervene in accordance withhe powers conferred to it by the Treaty. 6. Contracting authorities shall transmit to the national oversight body the full text of all concluded contracts with a a value equal to or greater than (a) 1 000 000 EUR in the case of supply contracts or service contracts; (b) 10 000 000 EUR in the case of works contracts. 7. Without prejudice to the national law concerning access to information, and in accordance with national and EU legislation on data protection, the oversight body shall, upon written request, give unrestricted and full direct access, free of charge, to the concluded contracts referred to in paragraph 6. Access to certain parts of the contracts may be refused where their disclosure would impede law enforcement or otherwise be contrary to the public interest, would harm the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them. Access to the parts that may be released shall be given within a reasonable delay and no later than 45 days from the date of the request. The applicants filing a request for access to a contract shall not need to show any direct or indirect interest related to that particular contract. The recipient of information should be allowed to make it public.

PE483.470v03-00 118/296 RR\926628EN.doc EN 8. A summary of all the activities carried out by the oversight body in accordance with paragraphs 1 to 7 shall be included in the annual report mentioned in paragraph 2.

Amendment 224

Proposal for a directive Article 94 – paragraph 1 – subparagraph 1 – introductory part

Text proposed by the Commission Amendment

1. Contracting entities shall keep 1. Contracting entities shall keep appropriate information on each contract, appropriate information on each contract, framework agreement and each time a framework agreement and each time a dynamic purchasing system is established. dynamic purchasing system is established, This information shall be sufficient to for all procurement contracts with a value permit them at a later date to justify equal to or greater than the thresholds decisions taken in connection with: laid down in Article 12. This information shall be sufficient to permit them at a later date to justify decisions taken in connection with:

Amendment 225

Proposal for a directive Article 94 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

Contracting entities shall document the Contracting entities shall document the progress of all procurement procedures, progress of all procurement procedures, whether or not the procedures are whether or not those are conducted by conducted by electronic means. To that electronic means. To that end, they shall end, they shall document all stages in the ensure that they keep sufficient procurement procedure, including all documentation to justify decisions taken communications with economic operators at all stages of the procurement procedure, and internal deliberations, preparation of on communications with economic the tenders, dialogue or negotiation if any, operators, preparation of the tenders, selection and award of the contract. dialogue or negotiation if any, selection and award of the contract.

Amendment 226

RR\926628EN.doc 119/296 PE483.470v03-00 EN Proposal for a directive Article 95 – paragraph 1

Text proposed by the Commission Amendment

1. The bodies established or appointed in 1. Member States shall forward to the accordance with Article 93 shall forward Commission a statistical report on each to the Commission an implementation and year, based on a standard form, not later statistical report on each year, based on a than 31 October of the following year. standard form, not later than 31 October of the following year.

Amendment 227

Proposal for a directive Article 95 – paragraph 3

Text proposed by the Commission Amendment

3. Member States shall ensure that this 3. For all contracts above the thresholds report contains at least the number and laid down in Article 12, Member States value of contracts awarded, broken down shall ensure that this report contains at least by categories of activity to which Articles the number and value of contracts awarded, 5 to 11 refer and any other information broken down by categories of activity to required to verify the proper application of which Articles 5 to 11 refer and any other the Agreement. This shall include the information required to verify the proper number and value of contracts awarded application of the WTO Government pursuant to a negotiated procedure Procurement Agreement. without a call for competition, broken down according to the circumstances referred to in Article 44 and by categories of activity to which Articles 5 to 11 refer. It shall also specify the Member State or third country of the successful contractor.

Amendment 228

Proposal for a directive Article 95 – paragraph 5

Text proposed by the Commission Amendment

5. The Commission shall establish the 5. The Commission shall establish the standard form for the drawing-up of the standard form for the annual statistical annual implementation and statistical report referred to in paragraph 1. Those report referred to in paragraph 1. Those implementing acts shall be adopted in implementing acts shall be adopted in accordance with the advisory procedure

PE483.470v03-00 120/296 RR\926628EN.doc EN accordance with the advisory procedure referred to in Article 100. referred to in Article 100.

Amendment 229 Proposal for a directive Article 96 – title

Text proposed by the Commission Amendment

Assistance to contracting entities and Assistance to contracting entities businesses

Amendment 230

Proposal for a directive Article 96 – paragraph 1

Text proposed bythe Commission Amendment

1. Member States shall make available 1. Member States shall make available technical support structures in order to technical support structures in order to provide legal and economic advice, provide legal and economic information, guidance and assistance to contracting guidance and assistance to contracting entities in preparing and carrying out entities in preparing and carrying out procurement procedures. Member States procurement procedures. Member States shall also ensure that each contracting shall also ensure that each contracting entity can obtain competent assistance and entity can obtain technical assistance and advice on individual questions. information on individual questions, in particular in relation to Articles 70, 71, 74 and 81.

Amendment 231 Proposal for a directive Article 96 – paragraph 2

Text proposed by the Commission Amendment

2. With a view to improving access to deleted public procurement for economic operators, in particular SMEs, and in order to facilitate correct understanding of the provisions of this Directive, Member States shall ensure that appropriate assistance can be obtained, including by electronic means or using

RR\926628EN.doc 121/296 PE483.470v03-00 EN existing networks dedicated to business assistance.

Amendment 232 Proposal for a directive Article 96 – paragraph 3 – subparagraph 1

Text proposed by the Commission Amendment

3. Specific administrative assistance shall deleted be available to economic operators intending to participate in a procurement procedure in another Member State. Such assistance shall at least cover administrative requirements in the Member State concerned, as well as possible obligations related to electronic procurement.

Amendment 233 Proposal for a directive Article 96 – paragraph 3 – subparagraph 2

Text proposed by the Commission Amendment

Member States shall ensure that deleted interested economic operators have easy access to appropriate information on the obligations relating to taxes, environmental protection and to social and labour law obligations, which are in force in the Member State, in the region or locality where the works are to be carried out or the services are to be provided and which will be applicable to the works carried out on site or to the services provided during the performance of the contract.

Amendment 234

Proposal for a directive Article 96 – paragraph 4

PE483.470v03-00 122/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

4. For the purposes of paragraphs 1, 2 deleted and 3, Member States may appoint a single body or several bodies or administrative structures. Member States shall ensure case due coordination between those bodies and structures.

Amendment 235

Proposal for a directive Article 97 – paragraph 1

Text proposed by the Commission Amendment

1. Member States shall provide mutual 1. Member States shall provide mutual assistance to each other, and shall put in assistance to each other, and shall put in place measures for effective cooperation place measures for effective cooperation with one another, in order to ensure with one another, in order to ensure exchange of information on issues referred exchange of information on issues referred to in Articles 56, 75 and 79. They shall to in Articles 71, 72, 56, 75 and 79. They ensure the confidentiality of the shall ensure the confidentiality of the information which they exchange. information which they exchange.

Amendment 236

Proposal for a directive Article 97 – paragraph 3

Text proposed by the Commission Amendment

3. For the purposes of this Article, deleted Member States shall designate one or more liaison points, the contact details of which shall be communicated to the other Member States, the oversight bodies and the Commission. Member States shall publish and regularly update the list of liaison points. The oversight body shall be in charge of the coordination of such liaison points.

Amendment 237

RR\926628EN.doc 123/296 PE483.470v03-00 EN Proposal for a directive Article 98 – paragraph 2

Text proposed by the Commission Amendment

2. The delegation of power referred to in 2. The delegation of power referred to in Articles 4, 35, 33, 38, 25, 65, 70, 77, 85 Articles 4, 35, 38, 25, 65, 70 shall be and 95 shall be conferred on the conferred on the Commission for an Commission for an indeterminate period of indeterminate period of time from the [date time from the [date of entry into force of of entry into force of this Directive]. this Directive].

Amendment 238

Proposal for a directive Article 98 – paragraph 3

Text proposed by the Commission Amendment

3. The delegation of power referred to in 3. The delegation of power referred to in Articles 4, 35, 33, 38, 25, 65, 70, 77, 85 Articles 4, 35, 38, 25, 65, 70 may be and 95 may be revoked at any time by the revoked at any time by the European European Parliament or by the Council. A Parliament or by the Council. A revocation revocation decision shall put an end to the decision shall put an end to the delegation delegation of the power specified in that of the power specified in that decision. It decision. It shall take effect the day shall take effect the day following the following the publication of the decision in publication of the decision in the Official the Official Journal of the European Union Journal of the European Union or at a later or at a later date specified therein. It shall date specified therein. It shall not affect the not affect the validity of any delegated acts validity of any delegated acts already in already in force. force.

Amendment 239

Proposal for a directive Annex 2 – paragraph 1 – point e a (new)

Text proposed by the Commission Amendment

(ea) the procedures to allocate railway infrastructure capacity, railway licences or safety certifications in accordance with the Directives 95/18/EC, 2001/14/EC and 2004/49/EC.

Amendment 240

PE483.470v03-00 124/296 RR\926628EN.doc EN Proposal for a directive Annex 3 – point D – paragraph 1

Text proposed by the Commission Amendment

Rail Freight transport Rail transport

Amendment 241

Proposal for a directive Annex 3 – point D – paragraph 3

Text proposed by the Commission Amendment

Rail passenger transport deleted None

Amendment 242 Proposal for a directive Annex VIII – point 2 – introductory part

Text proposed by the Commission Amendment

(2) "Standard" means a technical (2) ‘Standard’ means a technical specification approved by a recognised specification established by consensus and standardisation body for repeated or approved by a recognised standardisation continuous application, compliance with organisation for repeated or continuous which is not compulsory and which falls use with which compliance is not into one of the following categories: compulsory and which falls into one of the following categories:

Amendment 243 Proposal for a directive Annex VIII – point 4

Text proposed by the Commission Amendment

(4) "Common technical specifications" (4) ‘Common technical specifications’ means a technical specification laid down means a technical specification laid down in accordance with a procedure recognised in accordance with a procedure recognised by the Member States or in accordance by the Member States or, in the field of with Articles 9 and 10 of Parliament and information and communication Council Regulation [XXX] on European technologies, in accordance with Articles standardisation [and amending Council 13 and 14 of Regulation (EU) No Directives 89/686/EEC and 93/15/EEC 1025/2012 of the European Parliament

RR\926628EN.doc 125/296 PE483.470v03-00 EN and Directives 94/9/EC, 94/25/EC, and of the Council of 25 October 2012 on 95/16/EC, 97/23/EC, 98/34/EC, European standardisation1; 2004/22/EC, 2007/23/EC, 2009/105/EC and 2009/23/EC of the European Parliament and the Council] which has been published in the Official Journal of the European Union; ______1 OJ L 316, 14.11.2012, p. 12.

Amendment 244

Proposal for a directive Annex 17

Text proposed by the Commission Amendment

CPV Code Description CPV Code Description 79611000-0; Health, social 79611000-0; Health, social and from 85000000-9 services 75200000-8; related services to 85323000-9 75231200-6; (except 75231240-8; from 85000000-9 85321000-5 and to 85323000-9 85322000-2); (except 85321000-5 and 85322000-2); and 98133100-5 and 98200000-5 75121000-0, Administrative 75121000-0, Administrative 75122000-7, educational, 75122000-7, educational, 75124000-1; from healthcare and 75124000-1; from healthcare and 79995000-5 to cultural services 79995000-5 to cultural services 79995200-7; from 79995200-7; from 80100000-5 to 80100000-5 to 80660000-8 80660000-8 (except (except 80533000-9, 80533000-9, 80533100-0, 80533100-0, 80533200-1); 80533200-1); from 92000000-1 from 92000000-1 to 92700000-8 to 92700000-8 (except (except 92230000-2, 92230000-2, 92231000-9, 92231000-9, 92232000-6) 92232000-6)

PE483.470v03-00 126/296 RR\926628EN.doc EN 75300000-9 Compulsory 75300000-9 Compulsory social security social security services services1 75310000-2, Benefit services 75310000-2, Benefit services 75311000-9, 75311000-9, 75312000-6, 75312000-6, 75313000-3, 75313000-3, 75313100-4, 75313100-4, 75314000-0, 75314000- 75320000-5, 0,75320000-5, 75330000-8, 75330000-8, 75340000-1 75340000-1 98000000-3 Other 98000000-3; Other community, 55521100-9 community, social and social and personal services personal services 98120000-0 Services 98120000-0 Services furnished by trade furnished by trade unions unions 98131000-0 Religious services 98131000-0 Religious services From 80100000- Education and 5 to 80660000-8 vocational (except education 80533000- 9, services 80533100-0, 80533200-1) from 79100000-5 Legal services to to 79140000-7 the extent that they are not excluded under point (b) of the first paragraph of Article 19(b) ______1 These services are not covered by this Directive where they are organised as non- economic services of general interest. Member States are free to organise the provision of compulsory social services or of other services as services of general interest or as non- economic services of general interest.

Amendment 245

Proposal for a directive ANNEX XVIII - Part

RR\926628EN.doc 127/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

PART A Contract notice PART A Periodic indicative notice 1. Name, identification number (where 1. Name, identification number (where provided for in national legislation), provided for in national legislation), address including NUTS code, telephone, address including NUTS code, email and fax number, email and internet address of internet address of the contracting the contracting entity and, where different, authority. of the service from which additional information may be obtained. 2. Main activity exercised. 2. Main activity exercised. 3. Description of the services or categories 3. Brief description of the services or thereof and where applicable, incidental categories thereof and where applicable, works and supplies to be procured, incidental works and supplies to be including an indication of the quantities or procured, including, if known, an values involved, nomenclature reference indication of the quantities or values No(s). involved, nomenclature reference No(s). 3a. As far as already known: 4. NUTS code for the main place of a) NUTS code for the main place of performance of the services. performance of the services. 5. Where appropriate, state whether the b) Where appropriate, state whether the contract is reserved for sheltered contract is reserved for sheltered workshops or whether its performance is workshops or whether its performance is reserved in the context of sheltered reserved in the context of sheltered employment programmes. employment programmes. 6. Main conditions to be fulfilled by the c) Main conditions to be fulfilled by the economic operators in view of their economic operators in view of their participation, or, where appropriate, the participation, or, where appropriate, the electronic address where detailed electronic address where detailed information may be obtained. information may be obtained. 7. Time limit(s) for contacting the contracting entity in view of participation. 8. Any other relevant information. 8. Any other relevant information.

PE483.470v03-00 128/296 RR\926628EN.doc EN EXPLANATORY STATEMENT

The rapporteur believes that the modernisation of the public procurement directives should strike a balance between simplification of the rules, on the one hand, and, on the other, sound, effective procedures related to innovative, sustainable award criteria, while also securing a higher rate of SME participation and making wider use of e-procurement.

The aim should be to exploit the potential of public procurement to the full within the single market in order to foster sustainable growth, employment, and social inclusion. Given that public procurement makes up quite a substantial proportion of the economy (accounting for an estimated 19% of EU GDP), the successful revision and enforcement of public procurement rules would do much to revitalise investment in the real economy and overcome Europe’s economic crisis.

The rapporteur welcomes the Commission proposals, which, in his view, put forward some interesting new principles and ideas. They need, however, to be improved in order to achieve the best possible result. The rapporteur’s proposals are discussed in more detail in his working document of 23 February 2012 (PE483.690), which he drew up in anticipation of this draft report.

.Effective and socially sustainable public procurement Especially where social aspects are concerned, the rapporteur does not think that the Commission proposal goes far enough. He therefore wishes to ensure compliance with social standards at every stage of public procurement procedures.

The rapporteur is accordingly enlarging upon the technical specifications set out in the tender documents, which define the requisite features of the works, services, or supplies, in order to enable a contracting authority to attain sustainability objectives if it so wishes. The technical specifications should therefore be allowed to include requirements concerning performance (e.g. environmental performance), the organisation, qualifications, and experience of the workers called upon to carry out the contract, safety, in particular methods for assessing product quality, packaging and instructions for use, life cycle, and features related to the socially sustainable production process.

The socially sustainable production process, a concept devised by the rapporteur and mentioned in the award criteria, means a production process linked to the purpose of the contract, be it to provide supplies, works, or services, which is such as to take the health and safety of workers into account and observe social standards. The social criteria underlying it will refer to social standards defined and certified in accordance with national and European law and by collective agreements.

The rapporteur is also tightening up the grounds for exclusion by means of a stipulation that an economic operator must be excluded from public procurement contracts if it has breached its obligations under social, labour, and gender equality law as defined by national and European legislation and collective agreements. Similarly, contracting authorities may not award a contract to the tenderer making the best bid if the economic operator in question is unable to provide up-to-date information on the payment of its social security contributions.

RR\926628EN.doc 129/296 PE483.470v03-00 EN

As regards the selection criteria, the rapporteur believes that contracting authorities should be permitted to lay down conditions of participation linked to compliance with employee health and safety standards and with social and labour legislation as defined by national and European law and by collective agreements.

Finally, regarding the award criteria stage of public procurement contacts, the rapporteur considers that the ‘lowest price’ concept should be permanently abandoned and replaced by the concept of the ‘most economically advantageous tender’. Given that this latter approach also allows for price, contracting authorities would be able to make the choices most appropriate to their specific needs and, not least, consider strategic societal aspects, social criteria – including social and labour rights, working conditions, health and safety at the workplace, and access to employment for disadvantaged persons, young persons, women, older workers, and the long-term unemployed – environmental criteria, and, in particular, fair trade. As already mentioned, the concept of a socially sustainable production process is included in the evaluation of the most economically advantageous tender. Furthermore, the definition of the life cycle must include a reference to the place of production. The European Union should be able to give preference to local producers, in particular SMEs, when awarding public procurement contracts in certain specific cases. Besides promoting sustainable development and safeguarding local and regional production, this provision would offer contracting authorities a means of alleviating the local impact of the economic crisis.

However, for reasons of efficiency and legal certainty, none of the award criteria should give total freedom of choice to the contracting authority: the award criteria selected for determining the most economically advantageous tender should always be linked to the subject matter of the contract and afford scope for effective competition.

To ensure that public procurement contracts are implemented effectively, Member States should also have the option of requiring contracting authorities to check the performance of the economic operator to which a contract has been awarded.

.Sound subcontracting for effective SME participation The rapporteur supports subcontracting to the extent that it helps SMEs to develop. However, there have been some alarming cases in which the practice of ‘cascade subcontracting’ has led to the exploitation of workers and hence to lower quality in public procurement contracts. It is in the interest of all parties, companies as well as contracting authorities, to ensure that work carried out in the performance of public procurement contracts is of high quality and complies with labour law. The rapporteur is accordingly proposing that, to restrict cascade subcontracting, the number of consecutive subcontractors should be limited to not more than three. He also proposes that the principle of responsibility be established throughout the subcontracting chain so that all stages in the process would share the responsibility of respecting fundamental rights and complying with employee health and safety regulations and existing labour laws.

In addition, a contracting entity must ask a tenderer to indicate in its tender what proportion of the contract it intends to contract out to third parties and specify the subcontractors proposed.

The provisions on abnormally low bids should also be strengthened to avoid any possibility of subcontracting not in conformity with labour law.

PE483.470v03-00 130/296 RR\926628EN.doc EN

The rapporteur supports the Commission’s proposal to make e-procurement the general rule, as this will facilitate and encourage SME participation. However, he believes that the current submission deadlines under Directive 2004/17/EC should continue to apply, since he takes that the view that a minimum time-frame is necessary to enable tenderers, particularly SMEs, to draw up an appropriate tender.

.Simplifying public procurement for contracting authorities The rapporteur is focusing particular attention on the contracting authorities which will be responsible for applying the provisions of the forthcoming directive on public procurement in the water, energy, transport, and postal services sectors. That is why he is anxious not to make their task any harder, and to enable them to complete public procurement contracts effectively and in the best interests of their local area. In order to safeguard the free movement of goods, freedom of establishment, freedom to provide services, and the principles deriving from those freedoms, for example equal treatment, non-discrimination, mutual recognition, proportionality, and transparency, and taking into account the nature of the sectors concerned and the varying degrees of liberalisation achieved in the Member States, the rapporteur takes the view that this directive cannot be applied when public procurement procedures fail to guarantee fair competition among economic operators.

He therefore considers it essential for all the procedures laid down in the directive to be transposed in the Member States: each contracting authority should be provided with a toolbox enabling it to choose the procedure best suited to its needs. The rapporteur feels that the negotiated procedure should be used more widely in the future.

Moreover, he believes that Member States should provide contracting authorities with the technical and financial resources they need in order to adapt to e-procurement and draw up their calls for tender.

The rapporteur also wishes to improve flexibility in the relations between public authorities along the lines that the Commission is proposing. The Commission is codifying current precedents in quite a restrictive way: local authorities will thus have considerably less room for manoeuvre, and the overall efficiency of public procurement will consequently be undermined. The rapporteur is therefore providing for exceptions to the principle of a total ban on private participation, while insisting on the need to pursue the general interest. Given that the above doctrine would be equally applicable to public authorities operating in the sectors covered by this directive, it should be ensured that the same rules apply both in this directive and in Directive […/…/EU][on public procurement].

The rapporteur supports the Commission’s proposal to do away with the distinction between priority and non-priority services. He believes that a special scheme should be established for social services, given their specific characteristics and the desirability of making strategic use of public procurement, but wishes to make the scheme less stringent by removing the requirement for ex ante publication, while stressing the need to comply with the principles of transparency and equal treatment.

As regards the national governance authority, the rapporteur considers it important for each Member State to have an authority responsible for the proper operation of public procurement. However, he wishes to avoid any additional administrative burden which might

RR\926628EN.doc 131/296 PE483.470v03-00 EN slow down the work of contracting authorities. He therefore takes the view that, if Member States already have such authorities, these should be given new responsibilities.

PE483.470v03-00 132/296 RR\926628EN.doc EN

21.9.2012

OPINION OF THE COMMITTEE ON INTERNATIONAL TRADE

for the Committee on the Internal Market and Consumer Protection

on the proposal for a Directive of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sectors (COM(2011)0895 – C7-0007/2012 – 2011/0439(COD))

Rapporteur: Gianluca Susta

SHORT JUSTIFICATION

The Commission recently proposed to update the directives on public procurement (Directive 2004/18/EC) and on the procurement procedures of entities operating in the water, energy, transport and postal services sectors (Directive 2004/17/EC). A proposal was also presented for a new directive aimed at regulating the concessions sector and, only subsequently, a proposal to regulate the access of third-country goods and services to the Union’s internal public procurement market and procedures supporting negotiations on access of Union goods and services to third-country public procurement markets.

At international level, public procurement represents an important slice of world trade: the procurement sector is worth on average 15 to 20 % of GDP in developed countries. Despite its importance, the public procurement market remains one of the most closed (the Commission estimates that more than half the global public procurement market is still closed to foreign competition) and least regulated sectors in international trade.

At multilateral level, the key regulation is the Government Procurement Agreement (GPA), which recently underwent a review completed in March 2012. This review aimed to increase the transparency and openness of international public procurement markets and to simplify procedures. In this regard, the rapporteur welcomes this review process and hopes that it is quickly approved by the Union; at the same time, he notes that only 42 Member States of the WTO (of which 27 are Member States of the EU) have currently adhered to this Agreement and strongly hopes that many other countries may join, in particular more developed countries and emerging economies, in order to extend its geographical coverage and thus obtain a system of agreed and universally valid rules in this important sector for international trade.

Specific previsions relating to the public procurement sector are also present in another WTO

RR\926628EN.doc 133/296 PE483.470v03-00 EN agreement, the General Agreement on Trade in Services (GATS).

At bilateral level, the Union is also tied by obligations entered into under some bilateral agreements that it has already made (with Albania, the Former Yugoslav Republic of Macedonia, CARIFORUM, Chile, Croatia, Mexico, Montenegro, South Korea and Switzerland). The procurement sector is an important and often delicate aspect of ongoing negotiations to conclude possible new trade agreements with other international partners.

With regard to this international context, the rapporteur highlights the importance of the international dimension in the public procurement sector. He also notes the need for a gradual opening of international public procurement markets on the basis of a system of agreed rules, marking reciprocity, equity and compliance with international environmental, social and employment standards. The European Union currently guarantees international operators a significant level of openness to its public procurement market, openness which is very often not reciprocated by other important international trade partners. The rapporteur, therefore, hopes for more incisive action by the Union, through legislative initiatives and a coherent negotiating position, in order to re-establish equitable conditions and introduce a real level playing field at international level.

From this viewpoint, he deplores the Commission's decision not to proceed with a unitary standardisation of the ‘external dimension’ of the public procurement sector: the decision not to re-propose the provisions contained in Directive 2004/17/EC on tenders involving foreign goods and services and the subsequent presentation of a complementary but entirely independent legislative initiative, also in terms of its legislative procedure — although favourably received as regards its proposed contents — risks creating a dangerous legal vacuum, depriving European legislation of provisions aimed at regulating the access of third- country goods, services and companies to the European procurement market.

For this reason, the rapporteur believes it is extremely important to reintroduce specific rules aimed at systematically and extensively regulating the conditions by which to reject any tenders in which there is a prevalence of goods and services that are not contemplated by international agreements: in this regard, the rapporteur intends to adapt the legislative mechanism proposed by the Commission itself in its recent proposal for a regulation.

It also appears important to make the law proposed by the Commission more restrictive with regard to so-called ‘abnormally low tenders’, by introducing the option to have a mechanism for the automatic exclusion of tenders which are significantly lower than others and the extension of the minimum conditions for requesting additional information from economic operators.

Finally, it is deemed appropriate to introduce some amendments to better highlight the international context in which European directives operate.

AMENDMENTS

The Committee on International Trade calls on the Committee on International Trade, as the committee responsible, to incorporate the following amendments in its report:

PE483.470v03-00 134/296 RR\926628EN.doc EN

Amendment 1

Proposal for a directive Recital 4

Text proposed by the Commission Amendment

(4) Public procurement plays a key role in (4) Public procurement plays a key role in the Europe 2020 strategy as one of the the Europe 2020 strategy as one of the market-based instruments to be used to market-based instruments to be used to achieve a smart, sustainable and inclusive achieve a smart, sustainable and inclusive growth while ensuring the most efficient growth while ensuring the most efficient use of public funds. For that purpose, the use of public funds. Public procurement is current public procurement rules adopted a key tool in the process of reframing pursuant to Directive 2004/17/EC of the European industrial policy. For that European Parliament and of the Council of purpose, the current public procurement 31 March 2004 coordinating the rules adopted pursuant to Directive procurement procedures of entities 2004/17/EC of the European Parliament operating in the water, energy, transport and of the Council of 31 March 2004 and postal services sectors and Directive coordinating the procurement procedures 2004/18/EC of the European Parliament of entities operating in the water, energy, and of the Council of 31 March 2004 on transport and postal services sectors and the coordination of procedures for the Directive 2004/18/EC of the European award of public works contracts, public Parliament and of the Council of 31 March supply contracts and public service 2004 on the coordination of procedures for contracts have to be revised and the award of public works contracts, public modernised in order to increase the supply contracts and public service efficiency of public spending, facilitating contracts have to be revised and in particular the participation of small and modernised in order to increase the medium-sized enterprises in public efficiency of public spending, facilitating procurement and to enable procurers to in particular the participation of small and make better use of public procurement in medium-sized enterprises in public support of common societal goals. There is procurement and to enable procurers to also a need to clarify basic notions and make better use of public procurement in concepts to ensure better legal certainty support of common societal goals. There is and to incorporate certain aspects of related also a need to clarify basic notions and well-established case-law of the Court of concepts to ensure better legal certainty Justice of the European Union. and to incorporate certain aspects of related well-established case-law of the Court of Justice of the European Union.

Amendment 2

Proposal for a directive Recital 4 a (new)

RR\926628EN.doc 135/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(4a) Internal Market and international markets are increasingly interlinked, therefore EU values, such as transparency, a principled stance against corruption, principle of reciprocity and the advancement of social and human rights should be appropriately promoted in procurement policies.

Amendment 3

Proposal for a directive Recital 14

Text proposed by the Commission Amendment

(14) Council Decision 94/800/EC of (14) Council Decision 94/800/EC of 22 December 1994 concerning the 22 December 1994 concerning the conclusion on behalf of the European conclusion on behalf of the European Community, as regards matters within its Community, as regards matters within its competence, of the Agreements reached in competence, of the Agreements reached in the Uruguay Round multilateral the Uruguay Round multilateral negotiations (1986-1994) approved in negotiations (1986–1994) approved in particular the World Trade Organisation particular the World Trade Organisation Agreement on Government Procurement, Agreement on Government Procurement, hereinafter referred to as the ‘Agreement’. hereinafter referred to as the ‘Agreement’. The aim of the Agreement is to establish a The aim of the Agreement is to establish a multilateral framework of balanced rights multilateral framework of balanced rights and obligations relating to public contracts and obligations relating to public contracts with a view to achieving the liberalisation with a view to achieving the liberalisation and expansion of world trade. For contracts and expansion of world trade. This covered by the Agreement, as well as by Agreement has been subject to a review other relevant international agreements by which ended in March 2012; the main which the Union is bound, contracting objectives of the review were to increase entities fulfil the obligations under those the degree of openness of markets in the agreements by applying this Directive to sector, expand its coverage, eliminate economic operators of third countries that discriminatory measures and increase are signatories to the agreements. transparency in procedures. For contracts covered by the Agreement, as well as by other relevant international agreements by which the Union is bound, including commitments entered into under the framework of bilateral trade agreements,

PE483.470v03-00 136/296 RR\926628EN.doc EN contracting entities fulfil the obligations under those agreements by applying this Directive to economic operators of third countries that are signatories to the agreements. In this regard, it is necessary for the international commitments entered into by the Union with regard to third countries on access to the public procurement market to be transposed into the Union’s legal order so as to guarantee their effective and uniform application.

Amendment 4

Proposal for a directive Recital 14 a (new)

Text proposed by the Commission Amendment

(14a) Within the World Trade Organisation and within the framework of its bilateral relations, the Union supports an ambitious international opening up of the international public procurement markets of the Union and of its trade partners, in a spirit of reciprocity and reciprocal advantage.

Amendment 5

Proposal for a directive Recital 15

Text proposed by the Commission Amendment

(15) The Agreement applies to contracts (15) The Agreement applies to contracts above certain thresholds, set in the above certain thresholds, set in the Agreement and expressed as special Agreement and expressed as special drawing rights. The thresholds laid down drawing rights. The thresholds laid down by this Directive should be aligned to by this Directive should be aligned to ensure that they correspond to the euro ensure that they correspond to the euro equivalents of the thresholds of the equivalents of the thresholds of the Agreement. Provision should also be made Agreement. Provision should also be made for periodic reviews of the thresholds for periodic reviews of the thresholds expressed in euros so as to adjust them, by expressed in euros so as to adjust them, by way of a purely mathematical operation, to way of a purely mathematical operation, to possible variations in the value of the euro possible variations in the value of the euro

RR\926628EN.doc 137/296 PE483.470v03-00 EN in relation to the special drawing right. To in relation to the special drawing right. To avoid a multiplication of thresholds it is avoid a multiplication of thresholds it is furthermore appropriate, without prejudice furthermore appropriate, without prejudice to the international commitments of the to the international commitments of the Union, to continue to apply the same Union, to continue to apply the same thresholds to all contracting entities, thresholds to all contracting entities, regardless of the sector in which they regardless of the sector in which they operate. operate. It is also appropriate for this periodic review of the thresholds to be undertaken not least on the basis of a preliminary assessment of the correct implementation of the principle of substantial reciprocity in the opening up of the market between the Union and the other signatories to the Agreement. The assessment of substantial reciprocity is also valid for third countries which do not adhere to the Agreement on public procurement but which enjoy access to the European public procurement market.

Amendment 6

Proposal for a directive Recital 18

Text proposed by the Commission Amendment

(18) Being addressed to Member States, (18) Being addressed to Member States, this directive does not apply to this directive does not apply to procurement carried out by international procurement carried out by international organisations on their own behalf and for organisations on their own behalf and for their own account. There is, however, a their own account. There is, however, a need to clarify to what extent this directive need to clarify to what extent this directive should be applied to procurement governed should be applied to procurement governed by specific international rules. by specific international rules. The European Institutions should, in particular, take into account the changes effected by this Directive and adjust their own procurement rules accordingly to reflect these changes.

PE483.470v03-00 138/296 RR\926628EN.doc EN Amendment 7

Proposal for a directive Recital 40

Text proposed by the Commission Amendment

(40) Public contracts should not be (40) Public contracts should not be awarded to economic operators that have awarded to economic operators that have participated in a criminal organisation or participated in a criminal organisation or have been found guilty of corruption, fraud have been found guilty of corruption, fraud to the detriment of the Union’s financial to the detriment of the Union’s financial interests or money laundering. Non- interests or money laundering. Non- payment of taxes or social security payment of taxes or social security contributions should also be sanctioned by contributions should also be sanctioned by mandatory exclusion at the level of the mandatory exclusion at the level of the Union. Given that contracting entities, Union. Given that contracting entities, which are not contracting authorities, which are not contracting authorities, might not have access to indisputable proof might not have access to indisputable proof on the matter, it is appropriate to leave the on the matter, it is appropriate to leave the choice of whether or not to apply the choice of whether or not to apply the exclusion criteria listed in exclusion criteria listed in Directive [2004/18] to such contracting Directive [2004/18] to such contracting entities. The obligation to apply entities. The obligation to apply Article 55(1) and (2) of Article 55(1) and (2) of Directive [2004/18] should therefore be Directive [2004/18] should therefore be limited to contracting entities that are limited to contracting entities that are contracting authorities. Furthermore, contracting authorities. Furthermore, contracting entities should be given the contracting entities should be given the possibility to exclude candidates or possibility to exclude candidates or tenderers for violations of environmental or tenderers for violations of environmental or social obligations, including rules on social obligations, also in compliance with accessibility for disabled persons or other internationally recognised principles and forms of grave professional misconduct, including rules on accessibility for disabled such as violations of competition rules or persons or other forms of grave of intellectual property rights. professional misconduct, such as violations of competition rules or of intellectual property rights.

Amendment 8

Proposal for a directive Recital 40

Text proposed by the Commission Amendment

RR\926628EN.doc 139/296 PE483.470v03-00 EN have been found guilty of corruption, fraud have been found guilty of corruption, fraud to the detriment of the Union’s financial to the detriment of the Union’s financial interests or money laundering. Non- interests or money laundering. Non- payment of taxes or social security payment of taxes or social security contributions should also be sanctioned by contributions and violations of mandatory exclusion at the level of the environmental or social obligations, Union. Given that contracting entities, including rules on accessibility for which are not contracting authorities, disabled persons, should also be might not have access to indisputable proof sanctioned by mandatory exclusion at the on the matter, it is appropriate to leave the level of the Union. Given that contracting choice of whether or not to apply the entities, which are not contracting exclusion criteria listed in Directive authorities, might not have access to [2004/18] to such contracting entities. The indisputable proof on the matter, it is obligation to apply Article 55(1) and (2) of appropriate to leave the choice of whether Directive [2004/18] should therefore be or not to apply the exclusion criteria listed limited to contracting entities that are in Directive [2004/18] to such contracting contracting authorities. Furthermore, entities. The obligation to apply Article contracting entities should be given the 55(1) and (2) of Directive [2004/18] should possibility to exclude candidates or therefore be limited to contracting entities tenderers for violations of environmental that are contracting authorities. or social obligations, including rules on Furthermore, contracting entities should be accessibility for disabled persons or other given the possibility to exclude candidates forms of grave professional misconduct, or tenderers for forms of grave professional such as violations of competition rules or misconduct, such as violations of of intellectual property rights. competition rules or of intellectual property rights.

Amendment 9

Proposal for a directive Recital 43

Text proposed by the Commission Amendment

PE483.470v03-00 140/296 RR\926628EN.doc EN lowest cost", taking into account that in the latter case they are free to set adequate quality standards by using technical specifications or contract performance conditions.

Amendment 10

Proposal for a directive Recital 44

Text proposed by the Commission Amendment

(44) Where contracting entities choose to (44) With a view to awarding a contract to award a contract to the most economically the most economically advantageous advantageous tender, they must determine tender, contracting entities must determine the award criteria on the basis of which the award criteria on the basis of which they will assess tenders in order to identify they will assess tenders in order to identify which one offers the best value for money. which one offers the best value for money. The determination of those criteria depends The determination of those criteria depends on the subject-matter of the contract, since on the subject-matter of the contract, since they must allow the level of performance they must allow the level of performance offered by each tender to be assessed in the offered by each tender to be assessed in the light of the subject-matter of the contract, light of the subject-matter of the contract, as defined in the technical specifications, as defined in the technical specifications, and the value for money of each tender to and the value for money of each tender to be measured. Furthermore, the chosen be measured. Furthermore, the chosen award criteria should not confer an award criteria should not confer an unrestricted freedom of choice on the unrestricted freedom of choice on the contracting entity and they should ensure contracting entity and they should ensure the possibility of effective competition and the possibility of effective competition and be accompanied by requirements that allow be accompanied by requirements that allow the information provided by the tenderers the information provided by the tenderers to be effectively verified. to be effectively verified.

Amendment 11

Proposal for a directive Recital 49

Text proposed by the Commission Amendment

RR\926628EN.doc 141/296 PE483.470v03-00 EN economically or legally unsound economically or legally unsound assumptions or practices. In order to assumptions or practices. In order to prevent possible disadvantages during prevent possible disadvantages during contract performance, contracting entities contract performance, contracting entities should be obliged to ask for an explanation should have the option of excluding of the price charged where a tender tenders that significantly undercut the significantly undercuts the prices prices demanded by other tenderers and demanded by other tenderers. Where the should be obliged to ask for an explanation tenderer cannot provide a sufficient of the price charged where a tender explanation, the contracting entity should significantly undercuts the prices be entitled to reject the tender. Rejection demanded by other tenderers. Where the should be mandatory in cases where the tenderer cannot provide a sufficient contracting entity has established that the explanation, the contracting entity should abnormally low price results from non- be entitled to reject the tender. Rejection compliance with mandatory Union should be mandatory in cases where the legislation in the fields of social, labour or contracting entity has established that the environmental law or international labour abnormally low price results from non- law provisions. compliance with mandatory Union legislation in the fields of social, labour or environmental law or international labour law provisions. Amendment 12

Proposal for a directive Recital 56 a (new)

Text proposed by the Commission Amendment

(56a) Contracting entities should respect the delay of payment as established in Directive 2011/7/EU.

Amendment 13

Proposal for a directive Recital 63

Text proposed by the Commission Amendment

PE483.470v03-00 142/296 RR\926628EN.doc EN Parliament and the Council. Parliament and the Council. The Commission should provide full information and documentation on its meetings with national experts within the framework of the preparation and implementation of delegated acts. In this respect, the Commission should ensure that the European Parliament is duly involved, drawing on best practices from previous experience in other policy areas in order to create the best possible conditions for future scrutiny of delegated acts by the European Parliament.

Justification

The directive foresees the use of delegated acts - among other things - to adapt the methodology for the calculation of the threshold levels to any change provided for by the Government Procurement Agreement (Article 6.5 classic, Article 12.4 utilities directive) and to change the list of international social and environmental law provisions in ANNEX XI (Article 54.2 classic directive, Article 70 utilities directive). As these are issue with a clear international trade dimension, the rapporteur feels that the same institutional procedures should apply as with "normal" trade legislation.

In line with OMNIBUS I and OMNIBUS II (alignment package in INTA), the rapporteur proposes emphasizing the need for the European Parliament to be duly involved in the preparation and implementation of delegated acts (recital 55). This will facilitate the scrutiny of delegated acts and will ensure an efficient exercise of the delegation of power by avoiding objections from the European Parliament.

The rapporteur deems it appropriate to limit in time (article 89.2) the conferral of powers on the Commission. Such limitation brings about more parliamentary control, obliging the Commission to draw up a report in respect of the delegation of power no later than nine months before the end of the established period. On the other hand, tacit extension of the delegation for a period of identical durations prevents overburdening the legislators and facilitates the implementation of the common commercial policy.

Considering the dynamics of the Parliamentary work, internal procedures and deadlines, it is important to assure that the legislator is given enough time to duly scrutinize a legislative act (Article 89.5).

All changes reflect changes brought about by the two Trade Omnibuses.

Amendment 14

Proposal for a directive Article 12 a (new)

RR\926628EN.doc 143/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

Article 12a When awarding contracts which, on account of their value, are not covered by this Directive, national contracting entities shall be required to comply with the principles of equal treatment, non- discrimination and transparency.

Amendment 15

Proposal for a directive Article 14 − paragraph 1 − subparagraph 2

Text proposed by the Commission Amendment

In accordance with the calculation method In accordance with the calculation method set out in the Government Procurement set out in the Government Procurement Agreement, the Commission shall calculate Agreement, the Commission shall calculate the value of those thresholds on the basis the value of those thresholds on the basis of the average daily value of the euro in of the average daily value of the euro in terms of the special drawing rights (SDRs), terms of the special drawing rights (SDRs), over a period of 24 months terminating on over a period of 24 months terminating on the last day of August preceding the the last day of August preceding the revision with effect from 1 January. The revision with effect from 1 January. The value of the thresholds thus revised shall, value of the thresholds thus revised shall, where necessary, be rounded down to the where necessary, be rounded down to the nearest thousand euros so as to ensure that nearest thousand euros so as to ensure that the thresholds in force provided for by the the thresholds in force provided for by the Agreement, expressed in SDR, are Agreement, expressed in SDR, are observed. observed. The Commission may also take into consideration the variations in the thresholds made by the other parties to the Agreement. Amendment 16

Proposal for a directive Article 15 – paragraph 2

Text proposed by the Commission Amendment

2. The contracting entities shall notify the 2. The contracting entities shall notify the Commission or the national oversight body Commission or the national competent at their request of all the categories of body at their request of all the categories of

PE483.470v03-00 144/296 RR\926628EN.doc EN products or activities which they regard as products or activities which they regard as excluded under paragraph 1. The excluded under paragraph 1. The Commission may periodically publish in Commission may periodically publish in the Official Journal of the European Union, the Official Journal of the European Union, for information purposes, lists of the for information purposes, lists of the categories of products and activities which categories of products and activities which it considers to be covered by this it considers to be covered by this exclusion. In so doing, the Commission exclusion. In so doing, the Commission shall respect any sensitive commercial shall respect any sensitive commercial aspects that the contracting entities may aspects that the contracting entities may point out when forwarding information. point out when forwarding information. Amendment 17

Proposal for a directive Article 18 – paragraph 1 – point c

Text proposed by the Commission Amendment

(c) a particular procedure of an (c) a particular procedure of an international organisation; international organisation, which has its affiliation in the Member State;

Amendment 18

Proposal for a directive Article 21 − paragraph 4 − point c

Text proposed by the Commission Amendment

(c) the participating contracting deleted authorities do not perform on the open market more than 10 % in terms of turnover of the activities which are relevant in the context of the agreement;

Amendment 19

Proposal for a directive Article 38 − paragraph 1

Text proposed by the Commission Amendment

RR\926628EN.doc 145/296 PE483.470v03-00 EN international agreements by which the international agreements by which the Union is bound, as listed in Annex V to Union is bound — including the this Directive, contracting entities within commitments entered into within the the meaning of Article 4(3)(a) shall accord framework of bilateral trade agreements, to the works, supplies, services and as listed in Annex V to this Directive, economic operators of the signatories to contracting entities within the meaning of those agreements treatment no less Article 4(3)(a) shall accord to the works, favourable than the treatment accorded to supplies, services and economic operators the works, supplies, services and economic of the signatories to those agreements operators of the Union. By applying this treatment no less favourable than the Directive to economic operators of the treatment accorded to the works, supplies, signatories to those agreements contracting services and economic operators of the entities shall comply with those Union. By applying this Directive to agreements. economic operators of the signatories to those agreements contracting entities shall comply with those agreements.

Amendment 20

Proposal for a directive Article 53 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

For this purpose, contracting entities may For this purpose, contracting entities may seek or accept advice from administrative seek or accept advice from administrative support structures or from third parties or support structures or from independent market participants, provided that such third parties or market participants, advice does not have the effect of provided that such advice does not have the precluding competition and does not result effect of precluding competition and does in a violation of the principles of non- not result in a violation of the principles of discrimination and transparency. non-discrimination and transparency.

Amendment 21

Proposal for a directive Article 59 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

Contracts may be subdivided into With a view to maximizing competition homogenous or heterogeneous lots. and access of SMEs to public Article 13(7) applies. procurement, contracts may be subdivided into lots. Article 13(7) applies.

Amendment 22

PE483.470v03-00 146/296 RR\926628EN.doc EN Proposal for a directive Article 59 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

Contracting entities shall indicate, in the Where contracting entity limits the contract notice, in the invitation to confirm possibility to tender to one or more lots it interest, or, where the means of calling for shall indicate it in the contract notice, in competition is a notice on the existence of the invitation to confirm interest, or, where a qualification system, in the invitation to the means of calling for competition is a tender or to negotiate, whether tenders are notice on the existence of a qualification limited to one or more lots only. system, in the invitation to tender or to negotiate, or in the procurement documents.

Amendment 23

Proposal for a directive Article 59 – paragraph 3

Text proposed by the Commission Amendment

3. Where more than one lot may be deleted awarded to the same tenderer, contracting entities may provide that they will either award a contract per lot or one or more contracts, covering several or all lots. Contracting entities shall specify in the procurement documents whether they reserve the right to make such a choice and, if so, which lots may be grouped together under one contract. Contracting entities shall first determine the tenders fulfilling best the award criteria set out pursuant to Article 76 for each individual lot. They may award a contract for more than one lot to a tenderer that is not ranked first in respect of all individual lots covered by this contract, provided that the award criteria set out pursuant to Article 76 are better fulfilled with regard to all the lots covered by that contract. Contracting entities shall specify the methods they intend to use for such comparison in the procurement documents. Such methods shall be transparent, objective and non-

RR\926628EN.doc 147/296 PE483.470v03-00 EN discriminatory.

Justification

This paragraph could lead to contrary of what is the aim of the proposal, namely to enable better access of SMEs to public contracts, as it may lead to aggregation of procurement, excluding therefore SMEs.

Amendment 24

Proposal for a directive Article 70 – paragraph 5

Text proposed by the Commission Amendment

5. Contracting entities may decide not to 5. Contracting entities shall not award a award a contract to the tenderer submitting contract to the tenderer submitting the best the best tender where they have established tender where they have established that the that the tender does not comply, at least in tender does not comply, at least in an an equivalent manner, with obligations equivalent manner, with obligations established by Union legislation in the field established by Union legislation in the field of social and labour law or environmental of social and labour law or environmental law or of the international social and law or of the international social and environmental law provisions listed in environmental law provisions listed in Annex XIV. Annex XIV.

Amendment 25

Proposal for a directive Article 76 – paragraph 1 – subparagraph 1 – introductory part

Text proposed by the Commission Amendment

Without prejudice to national laws, Without prejudice to national laws, regulations or administrative provisions on regulations or administrative provisions on the remuneration of certain services, the the remuneration of certain services, the criteria on which contracting entities shall criterion on which contracting entities base the award of contracts shall be one of shall base the award of contracts shall be the following: the most economically advantageous tender.

Amendment 26

Proposal for a directive Article 76 – paragraph 1 – subparagraph 1 – point a

PE483.470v03-00 148/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

(a) the most economically advantageous deleted tender;

Amendment 27

Proposal for a directive Article 76 – paragraph 1 – subparagraph 1 – point b

Text proposed by the Commission Amendment

(b) the lowest cost. deleted

Amendment 28

Proposal for a directive Article 76 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

Amendment 29

Proposal for a directive Article 76 – paragraph 2 – subparagraph 1

Text proposed by the Commission Amendment

The most economically advantageous The most economically advantageous tender referred to in point (a) of tender from the point of view of the paragraph 1) from the point of view of the contracting authority shall be identified on contracting entity shall be identified on the the basis of criteria linked to the subject- basis of criteria linked to the subject-matter matter of the public contract in question. of the contract in question.

Amendment 30

RR\926628EN.doc 149/296 PE483.470v03-00 EN Proposal for a directive Article 76 – paragraph 2 – subparagraph 2 – introductory part

Text proposed by the Commission Amendment

Those criteria shall include in addition to Those criteria shall include in addition to the price or costs referred to in point (b) of the price or costs – assessed, at the choice paragraph 1, other criteria linked to the of the contracting entity, on the basis of subject-matter of the contract in question, price only or using a cost-effectiveness such as: approach, such as a life-cycle costing approach, under the conditions set out in Article 77 - other criteria linked to the subject-matter of the contract in question, such as:

Amendment 31

Proposal for a directive Article 76 – paragraph 3

Text proposed by the Commission Amendment

Amendment 32

Proposal for a directive Article 76 – paragraph 5 – subparagraph 1

Text proposed by the Commission Amendment

In the case referred to in point (a) of The contracting entity shall specify the paragraph 1, the contracting entity shall relative weighting which it gives to each of specify the relative weighting which it the criteria chosen to determine the most gives to each of the criteria chosen to economically advantageous tender. determine the most economically advantageous tender.

PE483.470v03-00 150/296 RR\926628EN.doc EN Amendment 33Proposal for a directive Article 79

Text proposed by the Commission Amendment

Abnormally low tenders Abnormally low tenders 1. The contracting entity shall request 1. The contracting entity may exclude economic operators to explain the price or tenders where the price or the costs costs charged, where all of the following applied is more than 50% lower than the conditions are fulfilled: base tender price. (a) the price or cost charged is more than 2. The contracting entity shall request 50 % lower than the average price or costs economic operators to explain the price or of the remaining tenders; costs charged, if at least three tenders have been submitted and one of the following conditions is fulfilled: (b) the price or cost charged is more than (a) the price or cost charged is more than 20 % lower than the price or costs of the 30 % lower than the average price or costs second lowest tender; of the remaining tenders; (c) at least five tenders have been (b) the price or cost charged is more than submitted. 20 % lower than the price or costs of the second lowest tender; 2. Where tenders appear to be abnormally (c) the price or cost indicated in a tender low for other reasons, contracting entities is more than 40% lower than the price or may also request such explanations. cost estimated by contracting entity including taxes. 3. The explanations referred to in 3. Where tenders appear to be abnormally paragraphs 1 and 2 may in particular relate low for other reasons, contracting entities to: shall also request such explanations. (a) the economics of the manufacturing 4. The explanations referred to in process, of the services provided and of the paragraphs 2 and 3 may in particular relate construction method; to: (b) the technical solutions chosen or any (a) the economics of the manufacturing exceptionally favourable conditions process, of the services provided and of the available to the tenderer for the supply of construction method; the goods or services or for the execution of the work; (c) the originality of the supplies, services (b) the technical solutions chosen or any or work proposed by the tenderer; exceptionally favourable conditions available to the tenderer for the supply of the goods or services or for the execution of the work; (d) compliance, at least in an equivalent (c) the originality of the supplies, services manner, with obligations established by or work proposed by the tenderer Union legislation in the field of social and labour law or environmental law or of the

RR\926628EN.doc 151/296 PE483.470v03-00 EN international social and environmental law provisions listed in Annex XIV or, where not applicable, with other provisions ensuring an equivalent level of protection; (e) the possibility of the tenderer obtaining (d) compliance, at least in an equivalent State aid. manner, with obligations established by Union legislation in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in Annex XIV or, where not applicable, with other provisions ensuring an equivalent level of protection; 4. The contracting entity shall verify the (e) the possibility of the tenderer obtaining information provided by consulting the State aid both for the financing of the tenderer. tender itself, and for the financing of the services, supplies and works relating to the tender. It may only reject the tender where the 5. The contracting entity shall verify the evidence does not justify the low level of information provided by consulting the price or costs charged, taking into account tenderer. the elements referred to in paragraph 3. Contracting entities shall reject the tender, It shall reject the tender where the where they have established that the tender evidence does not justify the low level of is abnormally low because it does not price or costs charged, taking into account comply with obligations established by the elements referred to in paragraph 3. Union legislation in the field of social and labour law or environmental law or by the international social and environmental law provisions listed in Annex XIV. 5. Where a contracting entity establishes Contracting entities shall reject the tender, that a tender is abnormally low because the where they have established that the tender tenderer has obtained State aid, the tender is abnormally low because it does not may be rejected on that ground alone only comply with obligations established by after consultation with the tenderer where Union legislation in the field of social and the latter is unable to prove, within a labour law or environmental law or by the sufficient time limit fixed by the international social and environmental law contracting entity, that the aid in question provisions listed in Annex XIV. was compatible with the internal market within the meaning of Article 107 of the Treaty. Where the contracting entity rejects a tender in those circumstances, it shall inform the Commission thereof. 6. Upon request, Member States shall make 6. Where a contracting entity establishes available to other Member States, in that a tender is abnormally low because the accordance with Article 97, any tenderer has obtained State aid, the tender information relating to the evidence and may be rejected on that ground alone only

PE483.470v03-00 152/296 RR\926628EN.doc EN documents produced in relation to details after consultation with the tenderer where listed in paragraph 3. the latter is unable to prove, within a sufficient time limit fixed by the contracting entity, that the aid in question was compatible with the internal market within the meaning of Article 107 of the Treaty. Where the contracting entity rejects a tender in those circumstances, it shall inform the Commission thereof. 7. Upon request, Member States shall make available to other Member States, in accordance with Article 97, any information relating to the evidence and documents produced in relation to details listed in paragraph 3.

Amendment 34

Proposal for a directive Article 79 b (new)

Text proposed by the Commission Amendment

Article 79b The current Directive shall be in accordance with Regulation on the access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries (COM/2012/0124 - 2012/0060 (COD)) and shall be in accordance with the conditions laid down in Articles 58 and 59 of Directive 2004/17/EC, tenders covering goods originating in third countries with which the European European Union has not concluded, whether multilaterally or bilaterally, an agreement ensuring comparable and effective access for Union undertakings to the markets of those third countries, may be rejected.

Amendment 35

RR\926628EN.doc 153/296 PE483.470v03-00 EN Proposal for a directive Article 92 – paragraph 1 a (new)

Text proposed by the Commission Amendment

(1a) Member States shall ensure that the application of public procurement rules is monitored including the implementation of projects co-financed by the Union with a view to detecting threats to the financial interests of the Union. This monitoring shall be used to prevent, detect and adequately report possible instances of procurement fraud, corruption, conflict of interest and other serious irregularities. Where monitoring authorities or structures identify specific violations or systemic problems, they shall be empowered to refer those problems to national auditing authorities, courts or tribunals or other appropriate authorities or structures, such as the ombudsman, national Parliaments or committees thereof.

Amendment 36

Proposal for a directive Article 92 – paragraph 1 b (new)

Text proposed by the Commission Amendment

(1b) The results of the monitoring activities pursuant to paragraph 2 shall be made available to the public through appropriate means of information. In particular, Member States shall publish, at least biennially, an overview of the most frequent sources of wrong application or of legal uncertainty, including possible structural or recurring problems in the application of the rules, hereunder possible cases of fraud and other illegal behaviours. Member States shall transmit to the Commission on a biennial basis, a general overview of their national sustainable

PE483.470v03-00 154/296 RR\926628EN.doc EN procurement policies, describing the relevant national action plans and initiatives and, where known, their practical implementation. They shall also indicate the success rate of SMEs in public procurement; where it is lower than 50% in terms of values of contracts awarded to SMEs, Member States shall indicate whether any initiatives are in place to increase this success rate. On the basis of the data received, the Commission shall regularly issue a report on the implementation and best practices of such policies in the Internal Market.

Amendment 37

Proposal for a directive Article 98 − paragraph 2

Text proposed by the Commission Amendment

2. The delegation of power referred to in 2. The delegation of power referred to in Articles 4, 35, 33, 38, 25, 65, 70, 77, 85 Articles 4, 35, 33, 38, 25, 65, 70, 77, 85 and 95 shall be conferred on the and 95 shall be conferred on the Commission for an indeterminate period Commission for a period of five years of time from the [date of entry into force of from...*(date of entry into force of this Directive]. Directive). The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

Justification

RR\926628EN.doc 155/296 PE483.470v03-00 EN should apply as with "normal" trade legislation.

All changes reflect changes brought about by the two Trade Omnibuses.

Amendment 38

Proposal for a directive Article 98 − paragraph 5

Text proposed by the Commission Amendment

5. A delegated act adopted pursuant to 5. A delegated act adopted pursuant to Article 98 shall enter into force only if no Article 98 shall enter into force only if no objection has been expressed either by the objection has been expressed either by the European Parliament or by the Council European Parliament or by the Council within a period of 2 months of notification within a period of 2 months of notification of the act to the European Parliament and of the act to the European Parliament and the Council or if, before the expiry of that the Council or if, before the expiry of that period, the European Parliament and the period, the European Parliament and the Council have both informed the Council have both informed the Commission that they will not object. That Commission that they will not object. That period shall be extended by 2 months at the period shall be extended by four months at initiative of the European Parliament or the the initiative of the European Parliament or Council. the Council.

Justification

PE483.470v03-00 156/296 RR\926628EN.doc EN (Article 54.2 classic directive, Article 70 utilities directive). As these are issue with a clear international trade dimension, the rapporteur feels that the same institutional procedures should apply as with "normal" trade legislation.

All changes reflect changes brought about by the two Trade Omnibuses.

Amendment 39

Proposal for a directive Annex XIV − paragraph 12 a (new)

Text proposed by the Commission Amendment

- Convention No 94 on labour clauses (public procurement).

RR\926628EN.doc 157/296 PE483.470v03-00 EN PROCEDURE

Title Procurement by entities operating in the water, energy, transport and postal services sectors References COM(2011)0895 – C7-0007/2012 – 2011/0439(COD) Committee responsible IMCO Date announced in plenary 19.1.2012

Opinion by INTA Date announced in plenary 19.1.2012

Rapporteur Gianluca Susta Date appointed 25.1.2012 Discussed in committee 25.4.2012 11.7.2012 Date adopted 18.9.2012

Result of final vote +: 21 –: 4 0: 5

Members present for the final vote William (The Earl of) Dartmouth, Laima Liucija Andrikienė, Nora Berra, David Campbell Bannerman, María Auxiliadora Correa Zamora, Christofer Fjellner, Metin Kazak, Franziska Keller, Bernd Lange, David Martin, Vital Moreira, Paul Murphy, Cristiana Muscardini, Franck Proust, Godelieve Quisthoudt-Rowohl, Niccolò Rinaldi, Helmut Scholz, Peter Šťastný, Robert Sturdy, Gianluca Susta, Henri Weber, Jan Zahradil, Paweł Zalewski Substitute(s) present for the final vote Amelia Andersdotter, George Sabin Cutaş, Małgorzata Handzlik, Syed Kamall, Ioannis Kasoulides, Maria Eleni Koppa, Marietje Schaake, Jarosław Leszek Wałęsa, Pablo Zalba Bidegain Substitute(s) under Rule 187(2) present Emilio Menéndez del Valle, Raimon Obiols for the final vote

PE483.470v03-00 158/296 RR\926628EN.doc EN

4.10.2012

OPINION OF THE COMMITTEE ON EMPLOYMENT AND SOCIAL AFFAIRS

for the Committee on the Internal Market and Consumer Protection

Rapporteur: Ramona Nicole Mănescu

SHORT JUSTIFICATION

The Commission proposal for a directive on procurement plays a key role in the ‘Europe 2020’ strategy for smart, sustainable, and inclusive growth (COM(2010)2020). It is one of the market-based instruments to be used to achieve the Europe 2020 objectives by improving the conditions for business to innovate and by encouraging the wider use of green procurement supporting the shift towards a resource efficient and low-carbon economy. At the same time, the Europe 2020 strategy stresses that public procurement policy must ensure the most efficient use of public funds and that procurement markets must be kept open Union-wide (all the more in times of financial crisis). Public procurement is a key market-based instrument geared to the needs of society which, in addition to meeting other objectives, can play a role in fostering sustainable employment, working conditions, innovation particularly for businesses, above all SMEs, promoting social inclusion, and addressing the employment needs of vulnerable and disadvantaged social groups and can make an important contribution towards meeting the EU 2020 targets. The public procurement can also play an important role in promoting a European social model based on quality jobs, equal opportunities, non-discrimination and social inclusion. The modernisation of the public procurement directives should strike a balance between simplifications of the rules, on the one hand, and, on the other, sound, effective procedures related to innovative, sustainable award criteria, while also securing a higher rate of SME participation and making wider use of e-procurement. The aim should be to exploit the potential of public procurement to the full within the single market in order to foster sustainable growth, high employment level, and social inclusion. The successful revision and enforcement of public procurement rules would do much to revitalise investment in the real economy and overcome Europe’s economic crisis. The rapporteur for opinion welcomes the Commission's proposal, which put forward some

RR\926628EN.doc 159/296 PE483.470v03-00 EN interesting new principles and ideas. The legislative proposal should result in simpler and more flexible procurement procedures for contracting authorities and provide easier access for companies, especially SMEs. Given that the money involved is public money, it should not be spent on short-term goals, but should, on the contrary, be viewed as a long-term investment in society; to that extent, the onus on the authorities is all the greater. The public procurement, if used effectively, could be a real driver to promoting quality jobs, equality, developing skills, training, promoting environmental policies and providing incentives for research and innovation. Hence, the costs that companies incur in tendering for a public procurement contract should be minimised, with a view to making companies more competitive and boosting employment.

AMENDMENTS

The Committee on Employment and Social Affairs calls on the Committee on the Internal Market and Consumer Protection, as the committee responsible, to incorporate the following amendments in its report:

Amendment 1

Proposal for a directive Citation 1

Text proposed by the Commission Amendment

Having regard to the Treaty on the Having regard to the Treaty on the Functioning of the European Union, and in Functioning of the European Union, and in particular Article 53(1) and Article 62 and particular Article, 14, Article 53(1) and Article 114 thereof, Article 62 and Article 114 as well as Protocol 26 thereof,

Amendment 2

Proposal for a directive Recital 2

Text proposed by the Commission Amendment

PE483.470v03-00 160/296 RR\926628EN.doc EN coordination is needed to ensure the effect coordination is needed to ensure the effect of the principles of the Treaty on the of the principles of the Treaty on the Functioning of the European Union and in Functioning of the European Union and in particular the free movement of goods, the particular the free movement of goods, the freedom of establishment and the freedom freedom of establishment and the freedom to provide services as well as the principles to provide services as well as the principles deriving therefrom, such as equal deriving therefrom, such as equal treatment, non-discrimination, mutual treatment, non-discrimination, mutual recognition, proportionality and recognition, proportionality and transparency. In view of the nature of the transparency. In view of the nature of the sectors affected by such coordination, the sectors affected by such coordination, the latter should, while safeguarding the latter should, while safeguarding the application of those principles, establish a application of those principles, establish a framework for sound commercial practice framework for sound commercial practice and should allow maximum flexibility. and should allow maximum flexibility. Public procurement rules have to respect the distribution of competences as enshrined in Article 14 TFEU and Protocol No 26. The application of those rules should not interfere with the freedom of public authorities to decide how they carry out their public service tasks.

Justification

Adaption to the new provisions of the Lisbon Treaty

Amendment 3

Proposal for a directive Recital 4

Text proposed by the Commission Amendment

RR\926628EN.doc 161/296 PE483.470v03-00 EN 2004/18/EC of the European Parliament 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on and of the Council of 31 March 2004 on the coordination of procedures for the the coordination of procedures for the award of public works contracts, public award of public works contracts, public supply contracts and public service supply contracts and public service contracts have to be revised and contracts have to be revised and modernised in order to increase the modernised in order to enable procurers to efficiency of public spending, facilitating make better use of public procurement in in particular the participation of small and support of sustainable development and medium-sized enterprises in public employment and other common societal procurement and to enable procurers to goals, thereby leading to the creation of make better use of public procurement in new sustainable jobs and increasing the support of common societal goals. There is efficiency of public spending, while also a need to clarify basic notions and ensuring the best possible outcome in concepts to ensure better legal certainty cost-benefit ratio terms and facilitating in and to incorporate certain aspects of related particular the participation of small and well-established case-law of the Court of medium-sized enterprises in public Justice of the European Union. procurement. There is also a need to simplify Union public procurement rules, particularly with regard to the method to be used to attain the sustainability objectives, which should be included in public procurement policy, and to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well-established case-law of the Court of Justice of the European Union.

Amendment 4

Proposal for a directive Recital 5

Text proposed by the Commission Amendment

(5) Under Article 11 of the Treaty on the (5) Under Article 9, 10 and 11 of the Functioning of the European Union, Treaty on the Functioning of the European environmental protection requirements Union, environmental protection must be integrated into the definition and requirements and social considerations implementation of the Union policies and must be integrated into the definition and activities, in particular with a view to implementation of the Union policies and promoting sustainable development. This activities, in particular with a view to Directive clarifies how the contracting promoting sustainable development. This entities may contribute to the protection of Directive clarifies how the contracting the environment and the promotion of entities may contribute to the protection of sustainable development, whilst ensuring the environment and the promotion of that they can obtain the best value for sustainable development and how they can use their discretionary power to select

PE483.470v03-00 162/296 RR\926628EN.doc EN money for their contracts. technical specifications and award criteria with the aim of achieving sustainable public procurement, whilst ensuring the link to the subject matter of the contract and obtaining the best value for money for their contracts.

Justification

Social considerations are not sufficiently well covered by the Commission proposal.

Amendment 5

Proposal for a directive Recital 5 b (new)

Text proposed by the Commission Amendment

(5b) This Directive should not prevent Member States from complying with ILO Convention 94 on labour clauses in public contracts, and encourages the inclusion of labour clauses in public procurement.

Amendment 6

Proposal for a directive Recital 7 a (new)

Text proposed by the Commission Amendment

(7a) Under Article 14 of the TFEU in association with Protocol No 26 thereto, national, regional and local authorities enjoy wide discretion in decisions on procurement in the field of services of general interest.

Justification

It is important to highlight these stipulations so that state decision makers are not pressured into privatisation solely on grounds of price, especially as competition in the form of under- bidding often results in wages being squeezed.

Amendment 7

RR\926628EN.doc 163/296 PE483.470v03-00 EN Proposal for a directive Recital 13 a (new)

Text proposed by the Commission Amendment

(13a) International labour standards, ILO conventions and recommendations should be duly respected in all phases of the procurement process.

Amendment 8

Proposal for a directive Recital 14

Text proposed by the Commission Amendment

(14) Council Decision 94/800/EC of 22 (14) Council Decision 94/800/EC of 22 December 1994 concerning the conclusion December 1994 concerning the conclusion on behalf of the European Community, as on behalf of the European Community, as regards matters within its competence, of regards matters within its competence, of the Agreements reached in the Uruguay the Agreements reached in the Uruguay Round multilateral negotiations (1986 to Round multilateral negotiations (1986 to 1994)25 , approved in particular the World 1994), approved in particular the World Trade Organisation Agreement on Trade Organisation Agreement on Government Procurement, hereinafter Government Procurement, hereinafter referred to as the ‘Agreement’. The aim of referred to as the "Agreement". The aim of the Agreement is to establish a multilateral the Agreement is to establish multilateral framework of balanced rights and framework of balanced rights and obligations relating to public contracts with obligations relating to public contracts and a view to achieving the liberalisation and Member States should endeavour to place expansion of world trade. For contracts Union and third country businesses on an covered by the Agreement, as well as by equal footing on the single market with a other relevant international agreements by view to facilitating the integration of which the Union is bound, contracting small and medium-sized enterprises entities fulfil the obligations under those (SMEs) and stimulating employment and agreements by applying this Directive to innovation within the Union. For contracts economic operators of third countries that covered by the Agreement, as well as by are signatories to the agreements. other relevant international agreements by which the Union is bound, contracting authorities fulfil the obligations imposed by those various agreements by applying this Directive to economic operators of third countries that are signatories to the agreements.

PE483.470v03-00 164/296 RR\926628EN.doc EN Amendment 9

Proposal for a directive Recital 17

Text proposed by the Commission Amendment

(17) Other categories of services continue (17) Other categories of services continue by their very nature to have a limited cross- by their very nature to have a limited cross- border dimension, namely what are known border dimension, namely what are known as services to the person such as certain as services to the person such as certain social, health and educational services. social, health and educational services. Those services are provided within a Those services are provided within a particular context that varies widely particular context that varies widely amongst Member States, due to different amongst Member States, due to different cultural traditions. A specific regime cultural traditions. For a better quality of should therefore be established for those services in contracts, a specific contracts for those services, with a higher regime should be established with a higher threshold of EUR 1 000 000. In the threshold of EUR 1 000 000. In the particular context of procurement in those particular context of procurement in those sectors, services to the person with values sectors, services to the person with values below this threshold will typically not be of below this threshold will typically not be of interest to providers from other Member interest to providers from other Member States unless there are concrete indications States unless there are concrete indications to the contrary, such as Union financing for to the contrary, such as Union financing for transborder projects. Contracts for services transborder projects. Contracts for services to the person above this threshold should to the person above this threshold should be subject to Union-wide transparency. be subject to Union-wide transparency. Given the importance of the cultural Given the importance of the cultural context and the sensitivity of those context and the sensitivity of those services, Member States should be given services, Member States should be given wide discretion to organise the choice of wide discretion to organise the choice of the service providers in the way they the service providers in the way they consider most appropriate. The rules of this consider most appropriate. The essential directive take account of that imperative, role and wide discretion of national, imposing only observance of basic regional and local authorities in principles of transparency and equal providing, commissioning and organising treatment and making sure that contracting services of general interest is also in line entities are able to apply specific quality with Protocol (No 26) on Services of criteria for the choice of service providers, general interest, Article 14 of the Treaty such as the criteria set out in the voluntary on the Functioning of the European European Quality Framework for Social Union and Article 36 of the Charter of Services of the European Union's Social Fundamental Rights. The rules of this Protection Committee. Member States directive take account of that imperative, and/or contracting entities remain free to imposing only observance of basic provide those services themselves or to principles of transparency and equal organise social services in a way that does treatment and making sure that contracting not entail the conclusion of public entities apply specific quality criteria for contracts, for example through the mere the choice of service providers, such as the

RR\926628EN.doc 165/296 PE483.470v03-00 EN financing of such services or by granting criteria set out in the voluntary European licences or authorisations to all economic Quality Framework for Social Services of operators meeting the conditions the European Union's Social Protection established beforehand by the contracting Committee. Member States and/or entity, without any limits or quotas, contracting entities remain free to provide provided such a system ensures sufficient those services themselves or to organise advertising and complies with the social services in a way that does not entail principles of transparency and non- the conclusion of public contracts, for discrimination. example through the mere financing of such services or by granting licences or authorisations to all economic operators meeting the conditions established beforehand by the contracting entity, without any limits or quotas, provided such a system ensures sufficient advertising and complies with the principles of transparency and non-discrimination.

Amendment 10

Proposal for a directive Recital 27

Text proposed by the Commission Amendment

(27) Electronic means of information and (27) Electronic means of information and communication can greatly simplify the communication can greatly simplify the publication of contracts and increase the publication of contracts and increase the efficiency and transparency of procurement efficiency and transparency of procurement processes. They should become the processes. It is necessary that they should standard means of communication and become the standard means of information exchange in procurement communication and information exchange procedures. The use of electronic means in procurement procedures. The use of also leads to time savings. As a result, electronic means also leads to time savings. provision should be made for reducing the As a result, provision should be made for minimum periods where electronic means reducing the minimum periods where are used, subject, however, to the condition electronic means are used, subject, that they are compatible with the specific however, to the condition that they are mode of transmission envisaged at Union compatible with the specific mode of level. Moreover, electronic means of transmission envisaged at Union level. information and communication including Moreover, electronic means of information adequate functionalities can enable and communication including adequate contracting authorities to prevent, detect functionalities can enable contracting and correct errors that occur during authorities to prevent, detect and correct procurement procedures. errors that occur during procurement procedures.

PE483.470v03-00 166/296 RR\926628EN.doc EN Amendment 11

Proposal for a directive Recital 31

Text proposed by the Commission Amendment

(31) In addition, new electronic purchasing (31) In addition, new electronic purchasing techniques are constantly being developed, techniques are constantly being developed, such as electronic catalogues. They help to such as electronic catalogues. They help to increase competition and streamline public increase competition and streamline public purchasing, particularly in terms of savings purchasing, particularly in terms of savings in time and money. Certain rules should in time and money. Certain rules should however be laid down to ensure that such however be laid down to ensure that such use complies with the rules of this use complies with the rules of this Directive and the principles of equal Directive and the principles of equal treatment, non-discrimination and treatment, non-discrimination and transparency. In particular where transparency. In particular where competition has been reopened under a competition has been reopened under a framework agreement or where a dynamic framework agreement or where a dynamic purchasing system is being used and where purchasing system is being used and where sufficient guarantees are offered in respect sufficient social guarantees are offered in of ensuring traceability, equal treatment respect of ensuring accessibility, and predictability, contracting entities traceability, equal treatment and should be allowed to generate tenders in predictability, contracting entities should relation to specific purchases on the basis be allowed to generate tenders in relation of previously transmitted electronic to specific purchases on the basis of catalogues. In line with the requirements of previously transmitted electronic the rules for electronic means of catalogues. In line with the requirements of communication, contracting entities should the rules for electronic means of avoid unjustified obstacles to economic communication, contracting entities should operators’ access to procurement avoid unjustified obstacles to economic procedures in which tenders are to be operators’ access to procurement presented in the form of electronic procedures in which tenders are to be catalogues and which guarantee presented in the form of electronic compliance with the general principles of catalogues and which guarantee non-discrimination and equal treatment. compliance with the general principles of non-discrimination and equal treatment.

Amendment 12

Proposal for a directive Recital 35

Text proposed by the Commission Amendment

RR\926628EN.doc 167/296 PE483.470v03-00 EN competition. To that end, it should be competition. To that end, it should be possible to submit tenders that reflect the possible to submit tenders that reflect the diversity of technical solutions so as to diversity of technical solutions so as to obtain a sufficient level of competition. obtain a sufficient level of competition. Consequently, technical specifications Consequently, technical specifications should be drafted in such a way to avoid should be drafted and applied in artificially narrowing down competition conformity with the principles of through requirements that favour a specific transparency, non-discrimination and economic operator by mirroring key equality of opportunity to avoid artificially characteristics of the supplies, services or narrowing down competition through works habitually offered by that economic requirements that favour a specific operator. Drawing up the technical economic operator by mirroring key specifications in terms of functional and characteristics of the supplies, services or performance requirements generally allows works habitually offered by that economic this objective to be achieved in the best operator. Drawing up the technical way possible and favours innovation. specifications in terms of functional and Where reference is made to a European performance requirements generally allows standard or, in the absence thereof, to a this objective to be achieved in the best national standard, tenders based on other way possible and favours innovation. equivalent arrangements which meet the Where reference is made to a European requirements of the contracting entities and standard or, in the absence thereof, to a are equivalent in terms of safety must be national standard, tenders based on other considered by the contracting entities. To equivalent arrangements which meet the demonstrate equivalence, tenderers can be requirements of the contracting entities and required to provide third-party verified are equivalent in terms of safety must be evidence; however, other appropriate considered by the contracting entities. To means of proof such as a technical dossier demonstrate equivalence, tenderers can be of the manufacturer should also be allowed required to provide third-party verified where the economic operator concerned evidence; however, other appropriate has no access to such certificates or test means of proof such as a technical dossier reports, or no possibility of obtaining them of the manufacturer should also be allowed within the relevant time limits. where the economic operator concerned has no access to such certificates or test reports, or no possibility of obtaining them within the relevant time limits.

Amendment 13

Proposal for a directive Recital 36

Text proposed by the Commission Amendment

PE483.470v03-00 168/296 RR\926628EN.doc EN Eco-label, (multi-) national eco-labels or Eco-label, (multi-) national eco-labels or any other label provided that the any other label provided that the requirements for the label are linked to the requirements for the label are linked to the subject-matter of the contract, such as the subject-matter of the contract, such as the description of the product and its description of the product and its presentation, including packaging presentation, including packaging requirements. It is furthermore essential requirements. It is furthermore essential that those requirements are drawn up and that those requirements are drawn up and adopted on the basis of objectively adopted on the basis of objectively verifiable criteria, using a procedure in verifiable criteria, using a procedure in which stakeholders, such as government which stakeholders, such as government bodies, consumers, manufacturers, bodies, consumers, manufacturers, distributors and environmental distributors, social organisations and organisations can participate, and that the environmental organisations can label is accessible and available to all participate, and that the label is accessible interested parties. and available to all interested parties.

Amendment 14

Proposal for a directive Recital 38

Text proposed by the Commission Amendment

(38) In order to encourage the involvement (38) Public procurement should be of small and medium-sized enterprises adapted to the needs of SMEs. (SMEs) in the procurement market, it Contracting authorities should make use should be provided explicitly that contracts of the Code of Best Practice providing may be divided into lots, whether guidance on how they may apply the homogenous or heterogeneous. Where public procurement framework in a way contracts are divided into lots, contracting that facilitates SME participation. In order entities may, for instance in order to to encourage the involvement of small and preserve competition or to ensure security medium-sized enterprises (SMEs) in the of supply, limit the number of lots for procurement market, contracting which an economic operator may tender; authorities should in particular give they may also limit the number of lots that consideration to dividing contracts into may be awarded to any one tenderer. lots, whether homogenous or heterogeneous, and ensure transparency in access to information on their reasons for doing so or choosing not to do so.

Amendment 15

Proposal for a directive Recital 39 a (new)

RR\926628EN.doc 169/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(39a) Member States should introduce measures to promote the access of SMEs to public procurement, in particular through improved information and guidance on tendering and on the new opportunities offered by the modernized EU legal framework, and to foster the exchange of best practice and the organisation of training and events involving public procurers and SMEs.

Amendment 16

Proposal for a directive Recital 40

Text proposed by the Commission Amendment

(40) Public contracts should not be (40) Public contracts should not be awarded to economic operators that have awarded to economic operators that have participated in a criminal organisation or participated in a criminal organisation or have been found guilty of corruption, fraud have been found guilty of corruption, fraud to the detriment of the Union’s financial to the detriment of the Union's financial interests or money laundering. Non- interests or money laundering. Non- payment of taxes or social security payment of taxes or social security contributions should also be sanctioned by contributions should also be sanctioned by mandatory exclusion at the level of the mandatory exclusion at the level of the Union. Given that contracting entities, Union. Given that contracting entities, which are not contracting authorities, which are not contracting authorities, might not have access to indisputable proof might not have access to indisputable proof on the matter, it is appropriate to leave the on the matter, it is appropriate to leave the choice of whether or not to apply the choice of whether or not to apply the exclusion criteria listed in Directive exclusion criteria listed in Directive [2004/18] to such contracting entities. The [2004/18] to such contracting entities. The obligation to apply Article 55(1) and (2) of obligation to apply Article 55(1) and (2) of Directive [2004/18] should therefore be Directive [2004/18] should therefore be limited to contracting entities that are limited to contracting entities that are contracting authorities. Furthermore, contracting authorities. Furthermore, contracting entities should be given the contracting entities should be given the possibility to exclude candidates or possibility to exclude candidates or tenderers for violations of environmental or tenderers for violations of environmental, social obligations, including rules on labour or social obligations, including accessibility for disabled persons or other rules on working conditions, collective forms of grave professional misconduct, agreements and accessibility for disabled

PE483.470v03-00 170/296 RR\926628EN.doc EN such as violations of competition rules or persons, health and safety at work rules or of intellectual property rights. other forms of grave professional misconduct, such as violations of competition rules or of intellectual property rights.

Justification

The equal treatment of workers and the compliance with national laws is included in the current directive; there is no reason for deletion. Recital 34 of the current Directive 2004/18/EC: The laws, regulations and collective agreements, at both national and Community level, which are in force in the areas of employment conditions and safety at work apply during performance of a public contract, providing that such rules, and their application, comply with Community law.... If national law contains provisions to this effect, non-compliance with those obligations may be considered to be grave misconduct or an offence concerning the professional conduct of the economic operator concerned, liable to lead to the exclusion of that economic operator from the procedure for the award of a public contract.

Amendment 17

Proposal for a directive Recital 43

Text proposed by the Commission Amendment

(43) Contracts should be awarded on the (43) Contracts should be awarded on the basis of objective criteria that ensure basis of objective criteria that ensure compliance with the principles of compliance with the principles of transparency, non-discrimination and equal transparency, non-discrimination and equal treatment. Those criteria should guarantee treatment. These criteria should guarantee that tenders are assessed in conditions of that tenders are assessed in conditions of effective competition, also where effective competition, at the same time contracting entities require high-quality ensuring that contracting authorities works, supplies and services that are require high-quality works, supplies and optimally suited to their needs. As a result, services that are optimally suited to their contracting entities should be allowed to needs and which include factors linked to adopt as award criteria either ‘the most socially sustainable production process economically advantageous tender’ or ‘the criteria and decent jobs. As a result, lowest cost’, taking into account that in the contracting entities should be allowed to latter case they are free to set adequate adopt as award criteria either 'the most quality standards by using technical economically advantageous tender' or 'the specifications or contract performance lowest cost', taking into account that in the conditions. latter case they should refer to adequate quality standards by using technical specifications or contract performance conditions.

RR\926628EN.doc 171/296 PE483.470v03-00 EN Amendment 18

Proposal for a directive Recital 43 a (new)

Text proposed by the Commission Amendment

(43a). It is important to stress that the principles of equal treatment and non- discrimination of economic operators, without bringing prejudice to fair competition, are crucial instruments for the prevention of corruption, notably bribery.

Amendment 19

Proposal for a directive Recital 44

Text proposed by the Commission Amendment

(44) Where contracting entities choose to (44) Where contracting entities choose to award a contract to the most economically award a contract to the most economically advantageous tender, they must determine advantageous tender, they must determine the award criteria on the basis of which the award criteria on the basis of which they will assess tenders in order to identify they will assess tenders in order to identify which one offers the best value for money. which one offers the best value for money, The determination of those criteria depends economic and social sustainability. The on the subject-matter of the contract, since determination of those criteria depends on they must allow the level of performance the subject-matter of the contract, since offered by each tender to be assessed in the they must allow the level of performance light of the subject-matter of the contract, offered by each tender to be assessed in the as defined in the technical specifications, light of the subject-matter of the contract, and the value for money of each tender to as defined in the technical specifications, be measured. Furthermore, the chosen and the value for money of each tender to award criteria should not confer an be measured. Furthermore, the chosen unrestricted freedom of choice on the award criteria should not confer an contracting entity and they should ensure unrestricted freedom of choice on the the possibility of effective competition and contracting entity and they should ensure be accompanied by requirements that allow the possibility of effective competition and the information provided by the tenderers be accompanied by requirements that allow to be effectively verified. the information provided by the tenderers to be effectively verified.

PE483.470v03-00 172/296 RR\926628EN.doc EN Amendment 20

Proposal for a directive Recital 50

Text proposed by the Commission Amendment

(50) Contract performance conditions are (50) Contract performance conditions are compatible with this Directive provided compatible with this Directive provided that they are not directly or indirectly that they are not directly or indirectly discriminatory, are linked to the subject- discriminatory, are linked to the subject- matter of the contract and are indicated in matter of the contract and are indicated in the notice used to make the call for the notice used to make the call for competition, or in the procurement competition, or in the procurement documents. They may, in particular, be documents. They may, in particular, be intended to favour on-site vocational intended to favour on-site vocational training, the employment of people training, the employment of people experiencing particular difficulty in experiencing particular difficulty in achieving integration, the fight against achieving integration, the fight against unemployment, protection of the unemployment, protection of the environment or animal welfare. For environment or animal welfare. For example, mention may be made of the example, mention may be made of the requirements applicable during the requirements applicable during the performance of the contract to recruit long- performance of the contract to recruit long- term job-seekers or to implement training term job-seekers, unemployed young measures for the unemployed or for young persons or persons with disabilities or to persons, to comply in substance with implement training measures for the fundamental International Labour unemployed or for young persons, to Organisation (ILO) Conventions, even comply in substance with fundamental where such Conventions have not been International Labour Organisation (ILO) implemented in national law, and to recruit Conventions, even where such more disadvantaged persons than are Conventions have not been implemented in required under national legislation. national law, and to recruit more disadvantaged persons than are required under national legislation.

Amendment 21

Proposal for a directive Recital 55

Text proposed by the Commission Amendment

(55) In line with the principles of equal (55) In line with the principles of equal treatment and transparency, the successful treatment, objectivity, traceability and tenderer should not be replaced by another transparency, the successful tenderer economic operator without reopening the should not be replaced by another contract to competition. However, the economic operator without reopening the

RR\926628EN.doc 173/296 PE483.470v03-00 EN successful tenderer performing the contract contract to competition. However, the may undergo certain structural changes successful tenderer performing the contract during the performance of the contract, may undergo certain structural changes such as purely internal reorganisations, during the performance of the contract, mergers and acquisitions or insolvency. such as purely internal reorganisations, Such structural changes should not mergers and acquisitions or insolvency. automatically require new procurement Such structural changes should not procedures for all contracts performed by automatically require new procurement that undertaking. procedures for all contracts performed by that undertaking.

Amendment 22

Proposal for a directive Recital 59

Text proposed by the Commission Amendment

(59) Not all contracting entities may have (59) Not all contracting entities may have the internal expertise to deal with the internal expertise to deal with economically or technically complex economically or technically complex contracts. Against this background, contracts. Against this background, appropriate professional support would be appropriate professional support would be an effective complement to monitoring and an effective complement to monitoring and control activities. On the one hand, this control activities. On the one hand, this objective can be achieved by knowledge objective can be achieved by knowledge sharing tools (knowledge centres) offering sharing tools (knowledge centres) offering technical assistance to contracting entities; technical assistance to contracting entities; on the other hand, business, not least on the other hand, business, especially SMEs, should benefit from administrative SMEs, should benefit from administrative assistance, in particular when participating assistance, in particular when participating in procurement procedures on a cross- in procurement procedures on a cross- border basis. border basis.

Amendment 23

Proposal for a directive Recital 59 a (new)

Text proposed by the Commission Amendment

(59a) Citizens, concerned stakeholders, organised or not, and other persons or bodies which do not have access to review procedures pursuant to Council Directive 89/665/EEC do nevertheless have a legitimate interest as taxpayers in sound procurement procedures. They should

PE483.470v03-00 174/296 RR\926628EN.doc EN therefore be given a possibility to signal possible violations of this Directive to a competent authority or structure. So as not to duplicate existing authorities or structures, Member States should be able to provide for recourse to general monitoring authorities or structures, sectoral oversight bodies, municipal oversight authorities, competition authorities, the ombudsman or national auditing authorities.

Amendment 24

Proposal for a directive Article 2 – point 22

Text proposed by the Commission Amendment

(22) ‘life cycle’ means all consecutive (22) ‘life cycle’ means all consecutive and/or interlinked stages, including and/or interlinked stages, including production, transport, use and maintenance, production, transport, installation, use and throughout the existence of a product or a maintenance, throughout the existence of a works or the provision of a service, from product or a works or the provision of a raw material acquisition or generation of service, from raw material acquisition or resources to disposal, clearance and generation of resources to disposal, finalisation; clearance and finalisation;

Amendment 25

Proposal for a directive Article 12 – paragraph 1 a (new)

Text proposed by the Commission Amendment

1a. When awarding contracts which, on account of their value, are not covered by this Directive, national contracting entities shall be required to comply with the principles of equal treatment, non- discrimination and transparency.

Amendment 26

Proposal for a directive Article 19 a (new)

RR\926628EN.doc 175/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

Article 19a Service contracts awarded on the basis of exclusive rights This Directive shall not apply to service contracts awarded to an entity which is itself a contracting authority within the meaning of Article 2 (1) or to an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a published law, regulation or administrative provision which is compatible with the Treaty.

Justification

To reintroduce Article 25 from the current Directive 2004/17/EC. This Article is important for operations of services of general economic interest it excludes public service contracts that are based on an exclusive right enshrined in a public law, regulation or administrative provision, compatible with the Treaty. The ECJ has applied this provision in C-360/96.

Amendment 27

Proposal for a directive Article 19 b (new)

Text proposed by the Commission Amendment

Article 19b Specific Regimes to deliver SGI This directive shall not apply to tried and tested Member State procedures that are based on the user’s free choice of service providers (i.e. voucher system, free choice model, triangular relationship) as well as the principle that all providers which are able to comply with the conditions previously laid down by law should, irrespective of their legal form, be permitted to provide services, provided that account is taken of the general principles of equal treatment, transparency and non-discrimination.

PE483.470v03-00 176/296 RR\926628EN.doc EN Amendment 28

Proposal for a directive Article 21 – paragraph 1 – subparagraph 1 – point b

Text proposed by the Commission Amendment

(b) at least 90 % of the activities of that (b) at least 80% of the activities of that legal person are carried out for the legal person, subject to the contract, are controlling contracting authority or for carried out for the controlling contracting other legal persons controlled by that authority or for other legal persons contracting authority; controlled by that contracting authority;

Amendment 29

Proposal for a directive Article 21 – paragraph 1 – subparagraph 1 – point c

Text proposed by the Commission Amendment

(c) there is no private participation in the (c) there is no private participation in the controlled legal person. controlled legal person, with the exception of legally enforced forms of private participation.

Justification

There has to be a clear distinction between public-public cooperation and public-private partnerships. However in some Member States private participation might be an obligation enforced by law.

Amendment 30

Proposal for a directive Article 21 – paragraph 2

Text proposed by the Commission Amendment

2. Paragraph 1 also applies where a 2. Paragraph 1 also applies where a controlled entity which is a contracting controlled entity which is a contracting authority awards a contract to its authority awards a contract to its controlling entity, or to another legal controlling entity or entities, or to another person controlled by the same contracting legal person controlled by the same authority, provided that there is no private contracting authority, provided that there is participation in the legal person being no private participation in the legal person awarded the public contract. being awarded the public contract with the exception of legally enforced forms of

RR\926628EN.doc 177/296 PE483.470v03-00 EN private participation.

Amendment 31

Proposal for a directive Article 21 – paragraph 3 – subparagraph 1 – introductory part

Text proposed by the Commission Amendment

A contracting authority, which does not A contracting authority, which does not exercise over a legal person control within exercise over a legal person control within the meaning of paragraph 1, may the meaning of paragraph 1, may nevertheless award a contract without nevertheless award a contract outside the applying this Directive to a legal person scope of this Directive to a legal person which it controls jointly with other which it controls jointly with other contracting authorities, where the contracting authorities, where the following conditions are fulfilled: following conditions are fulfilled:

Amendment 32

Proposal for a directive Article 21 – paragraph 3 – subparagraph 1 – point b

Text proposed by the Commission Amendment

(b) at least 90 % of the activities of that (b) at least 80 % of the activities of that legal person are carried out for the legal person, subject to the contract, are controlling contracting authorities or other carried out for the controlling contracting legal persons controlled by the same authorities or other legal persons controlled contracting authorities; by the same contracting authorities;

Amendment 33

Proposal for a directive Article 21 – paragraph 3 – subparagraph 1 – point c

Text proposed by the Commission Amendment

Amendment 34

PE483.470v03-00 178/296 RR\926628EN.doc EN Proposal for a directive Article 21 – paragraph 4 – point c

Text proposed by the Commission Amendment

(c) the participating contracting authorities (c) the participating public authorities do do not perform on the open market more not perform on the open market more than than 10 % in terms of turnover of the 20 % in terms of turnover of the activities activities which are relevant in the context which are subject of the contract; of the agreement;

Justification

This clarification is necessary in order not to create legal disputes.

Amendment 35

Proposal for a directive Article 21 – paragraph 4 – point e

Text proposed by the Commission Amendment

(e) there is no private participation in any (e) the task is carried out solely by the of the contracting authorities involved. public authorities concerned, with no participation of a private party with the exception of contracting authorities participating in the cooperation as a public law body in the sense of Article 2(4)

Amendment 36

Proposal for a directive Article 21 – paragraph 5 – subparagraph 2

Text proposed by the Commission Amendment

The exclusions provided for in paragraphs The exclusions provided for in paragraphs 1 to 4 shall cease to apply from the 1 to 4 shall cease to apply from the moment any private participation takes moment any private participation takes place, with the effect that ongoing place, with the effect that ongoing contracts need to be opened to competition contracts need to be opened to competition through regular procurement procedures. through regular procurement procedures, unless the private participation is legally enforced and/or the private participation was not foreseeable at the time of the initial contracting.

RR\926628EN.doc 179/296 PE483.470v03-00 EN

Amendment 37

Proposal for a directive Article 27 – paragraph 3 a (new)

Text proposed by the Commission Amendment

3a. The protection of the intellectual property of the tenderers shall be ensured.

Amendment 38

Proposal for a directive Article 30 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

However, in the case of service and works However, in the case of service and works contracts as well as supply contracts contracts as well as supply contracts covering in addition services or siting and covering in addition services or siting and installation operations, legal persons may installation operations, legal persons may be required to indicate, in the tender or the be required to indicate, in the tender or the request to participate, the names and request to participate, the relevant relevant professional qualifications of the professional qualifications of the staff staff responsible for the performance of the responsible for the performance of the contract in question. contract in question.

Amendment 39

Proposal for a directive Article 30 – paragraph 2 – subparagraph 1

Text proposed by the Commission Amendment

Groups of economic operators may submit Groups of economic operators may submit tenders or put themselves forward as tenders or put themselves forward as candidates. Contracting entities shall not candidates. Groups of economic operators, establish specific conditions for particularly small and medium-sized participation of such groups in enterprises (SMEs), may take the form of procurement procedures which are not a consortium of enterprises. Contracting imposed on individual candidates. In order entities shall not establish specific to submit a tender or a request to conditions for participation of such groups participate, those groups shall not be in procurement procedures which are required by the contracting entities to additional or different to those conditions assume a specific legal form. imposed on individual candidates. In order

PE483.470v03-00 180/296 RR\926628EN.doc EN to submit a tender or a request to participate, those groups shall not be required by the contracting entities to assume a specific legal form.

Amendment 40

Proposal for a directive Article 31 – paragraph 1

Text proposed by the Commission Amendment

Member States may reserve the right to Member States may reserve the right to participate in procurement procedures to participate in public procurement sheltered workshops and economic procedures to the following: operators whose main aim is the social and professional integration of disabled and disadvantaged workers or provide for such contracts to be performed in the context of sheltered employment programmes, provided that more than 30% of the employees of those workshops, economic operators or programmes are disabled or disadvantaged workers. (a) sheltered workshops or social enterprises, or may 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; (b) sheltered workshops or social enterprises and programmes whose main aim is the social and professional integration of disadvantaged workers, such as long-term unemployed, women, young people, migrants, disadvantaged minorities, provided that more than 30 % of the employees of those economic operators or programmes are disabled or disadvantaged workers.

RR\926628EN.doc 181/296 PE483.470v03-00 EN

Amendment 41

Proposal for a directive Article 31 – paragraph 1 a (new)

Text proposed by the Commission Amendment

1a. Member States shall safeguard the implementation of adequate training and social standards within the employment programmes or workshops designed for disabled or disadvantaged workers.

Amendment 42

Proposal for a directive Article 31 – paragraph 1 a (new)

Text proposed by the Commission Amendment

1a. The protection of the intellectual property of the tenderers shall be ensured.

Amendment 43

Proposal for a directive Article 32 – paragraph 2 a (new)

Text proposed by the Commission Amendment

2a. The contracting entity shall not use in other competitive procedures the information forwarded to it by economic operators during an earlier competitive procedure.

Amendment 44

Proposal for a directive Article 43 – paragraph 3 – subparagraph 3

Text proposed by the Commission Amendment

Only those economic operators invited by Only those economic operators invited by

PE483.470v03-00 182/296 RR\926628EN.doc EN the contracting entity following its the contracting entity following its assessment of the requested information assessment of the requested information may submit research and innovation may submit research and innovation projects, aimed at meeting the needs projects, aimed at meeting the needs identified by the contracting entity that identified by the contracting entity that cannot be met by existing solutions. The cannot be met by existing solutions. The contract shall be awarded on the sole basis contract shall be awarded on the sole basis of the award criterion of the most of the award criterion of the most economically advantageous tender in economically advantageous tender in accordance with Article 76 (1)(a). accordance with Article 76 (1)(a) and Article 76(2).

Amendment 45

Proposal for a directive Article 54 – paragraph 1 – subparagraph 4

Text proposed by the Commission Amendment

For all procurement, the subject of which is For all procurement, the subject of which is intended for use by persons, whether intended for use by persons, whether general public or staff of the contracting general public or staff of the contracting entity, those technical specifications shall, entity, those technical specifications shall except in duly justified cases, be drawn up be drawn up so as to take into account so as to take into account accessibility accessibility criteria for people with criteria for people with disabilities or disabilities or design for all users other design for all users. than, by way of exception, in duly justified cases, which shall be stated in the call for competition and the tender documents.

Amendment 46

Proposal for a directive Article 54 – paragraph 3 – point d a (new)

Text proposed by the Commission Amendment

da. the organisation, qualification and experience of the staff assigned to performing the contract in question.

Amendment 47 Proposal for a directive Article 55 – paragraph 1 – subparagraph 1 – point c

RR\926628EN.doc 183/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(c) the labels are established in an open and (c) the labels are established in an open and transparent procedure in which all transparent procedure in which all relevant stakeholders, including government bodies, stakeholders, including government bodies, consumers, manufacturers, distributors and consumers, manufacturers, trade unions, environmental organisations may distributors, social and environmental participate, organisations may participate,.

Amendment 48

Proposal for a directive Article 55 – paragraph 1 – subparagraph 1 – point e

Text proposed by the Commission Amendment

(e) the criteria of the label are set by a (e) the requirements to be met in order to third party which is independent from the obtain the label are set by a third party economic operator applying for the label. which is independent from the economic operator applying for the label.

Amendment 49

Proposal for a directive Article 58 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

Contracting entities may take account of Contracting entities shall take account of variants which are submitted by a tenderer variants which are submitted by a tenderer and meet the minimum requirements and meet the minimum requirements specified by the contracting entities. specified by the contracting entities.

Amendment 50

Proposal for a directive Article 58 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

Contracting entities shall indicate in the Contracting entities shall indicate in the specifications whether or not they specifications the minimum requirements authorise variants and, if so, the minimum to be met by the variants, any specific requirements to be met by the variants and requirements for their presentation and any specific requirements for their they shall also ensure that the chosen

PE483.470v03-00 184/296 RR\926628EN.doc EN presentation. Where variants are award criteria can be usefully applied to authorised, they shall also ensure that the variants meeting those minimum chosen award criteria can be usefully requirements as well as to conforming applied to variants meeting those minimum tenders which are not variants. requirements as well as to conforming tenders which are not variants.

Amendment 51

Proposal for a directive Article 58 – paragraph 1 – subparagraph 2 a (new)

Text proposed by the Commission Amendment

Contracting entities may indicate in the specifications that the variants are not authorised and the related specific reason for such prohibition.

Amendment 52

Proposal for a directive Article 58 – paragraph 2

Text proposed by the Commission Amendment

Amendment 53

Proposal for a directive Article 70 – paragraph 5

Text proposed by the Commission Amendment

RR\926628EN.doc 185/296 PE483.470v03-00 EN an equivalent manner, with obligations the field of social and labour law or established by Union legislation in the environmental law established by Union field of social and labour law or or national legislation or by collective environmental law or of the international agreements according to Member States social and environmental law provisions practices and traditions, or with listed in Annex XIV. obligations in the field of intellectual property law or by the international social and environmental law provisions listed in Annex XIV.

Amendment 54

Proposal for a directive Article 76 – paragraph 1 – subparagraph 1 – point b

Text proposed by the Commission Amendment

(b) the lowest cost. deleted

Amendment 55

Proposal for a directive Article 76 – paragraph 2 – subparagraph 2 – point a a (new)

Text proposed by the Commission Amendment

(aa) a socially sustainable production process;

Amendment 56

Proposal for a directive Article 76 – paragraph 2 – subparagraph 2 – point d a (new)

Text proposed by the Commission Amendment

(da) the application of wage agreements and arbitration awards at national, local, sector and company level and of statutory provisions on health and safety and working conditions at national, European Union and international level.

Amendment 57

PE483.470v03-00 186/296 RR\926628EN.doc EN Proposal for a directive Article 76 – paragraph 2 – subparagraph 2 – point d b (new)

Text proposed by the Commission Amendment

(db) If, in the event of a change of contractor, the new contractor takes over workers from the former contractor, the workers shall be covered by the relevant legal effects of Directive 2001/23/EC.

Amendment 58

Proposal for a directive Article 77 – paragraph 1 – point b

Text proposed by the Commission Amendment

(b) external environmental costs directly (b) external costs such as social and/or linked to the life cycle, provided their environmental costs, directly linked to the monetary value can be determined and life cycle, provided their monetary value verified, which may include the cost of can be determined and verified, which may emissions of greenhouse gases and of other include the cost of emissions of greenhouse pollutant emissions and other climate gases and of other pollutant emissions and change mitigation costs. other climate change mitigation costs.

Amendment 59

Proposal for a directive Article 77 – paragraph 2 – subparagraph 1 – introductory part

Text proposed by the Commission Amendment

Where contracting entities assess the costs Where contracting entities assess the costs using a life-cycle costing approach, they using a life-cycle costing approach, they shall indicate in the procurement shall indicate in the procurement documents the methodology used for the documents the data to be provided by the calculation of the life-cycle costs. The tenderers and the method which the methodology used must fulfil all of the contracting authority will use to following conditions: determine the life-cycle costs. The method used for the assessment of those life-cycle costs must fulfil all of the following conditions:

Amendment 60

RR\926628EN.doc 187/296 PE483.470v03-00 EN Proposal for a directive Article 79 – paragraph 1 – introductory part

Text proposed by the Commission Amendment

The contracting entity shall request The contracting entity shall request economic operators to explain the price or economic operators to explain the costs costs charged, where all of the following charged, where all of the following conditions are fulfilled: conditions are fulfilled:

Amendment 61

Proposal for a directive Article 79 – paragraph 1 – point c

Text proposed by the Commission Amendment

Amendment 62

Proposal for a directive Article 79 – paragraph 3 – point (d)

Text proposed by the Commission Amendment

(d) compliance, at least in an equivalent (d) compliance, at least in an equivalent manner, with obligations established by manner, with obligations established by Union legislation in the field of social and national, European Union and labour law or environmental law or of the international legislation in the field of international social and environmental law social and labour law or environmental law provisions listed in Annex XIV or, where or of the international social and not applicable, with other provisions environmental law provisions listed in ensuring an equivalent level of protection; Annex XIV or, where not applicable, with other provisions ensuring an equivalent level of protection;

Amendment 63

Proposal for a directive Article 79 – paragraph 3 – point d a (new)

Text proposed by the Commission Amendment

(da) compliance with rules and standards in the field of health and safety, social

PE483.470v03-00 188/296 RR\926628EN.doc EN law, and labour law.

Amendment 64

Proposal for a directive Article 79 – paragraph 4 – subparagraph 2

Text proposed by the Commission Amendment

It may only reject the tender where the It may only reject the tender where the evidence does not justify the low level of evidence does not justify the low level of price or costs charged, taking into account price or costs charged, taking into account the elements referred to in paragraph 3. the elements referred to in paragraph 3, or when the received justification is not sufficient.

Amendment 65

Proposal for a directive Article 79 – paragraph 4 – subparagraph 3

Text proposed by the Commission Amendment

Contracting entities shall reject the tender, Contracting entities shall reject the tender, where they have established that the tender where they have established that the tender is abnormally low because it does not is abnormally low because it does not comply with obligations established by comply with national and European Union legislation in the field of social and Union obligations established by social labour law or environmental law or by the and labour law or environmental law or by international social and environmental law the international social and environmental provisions listed in Annex XIV. law provisions listed in Annex XIV.

Amendment 66

Proposal for a directive Article 81 – paragraph 1

Text proposed by the Commission Amendment

1. In the procurement documents, the 1. In the procurement documents, the contracting entity may ask, or may be contracting authority shall ask or shall be required by a Member State to ask, the required by a Member State to ask the tenderer to indicate in its tender any share tenderer to indicate in its tender any share of the contract it may intend to subcontract of the contract it may intend to subcontract to third parties and any proposed to third parties and any proposed subcontractors and to give information on

RR\926628EN.doc 189/296 PE483.470v03-00 EN subcontractors. the subcontractors, including their names, contact details and legal representatives. Any change in the subcontracting chain and any new subcontractor shall be indicated without delay to the contracting authority, including the subcontractors’ names, contact details and legal representatives.

Amendment 67

Proposal for a directive Article 86 – paragraph 1

Text proposed by the Commission Amendment

1. Member States shall put in place 1. Member States shall put in place appropriate procedures for the award of appropriate procedures for the award of contracts subject to this Chapter, ensuring contracts subject to this Chapter, ensuring full compliance with the principles of full compliance with the principles of transparency and equal treatment of transparency, non-discrimination and economic operators and allowing equal treatment of economic operators and contracting entities to take into account the allowing contracting entities to take into specificities of the services in question. account the specificities of the services in question.

Amendment 68

Proposal for a directive Article 86 – paragraph 2

Text proposed by the Commission Amendment

2. Member States shall ensure that 2. Member States shall ensure that contracting entities may take into account contracting entities may take into account the need to ensure quality, continuity, the need to ensure a high level of quality, accessibility, availability and safety, continuity, accessibility, comprehensiveness of the services, the affordability, availability and specific needs of different categories of comprehensiveness of the services, the users, the involvement and empowerment specific needs of different categories of of users and innovation. Member States users, including disadvantaged and may also provide that the choice of the vulnerable groups, the necessity to service provider shall not be made solely promote the participation of SMEs, the on the basis of the price for the provision involvement and empowerment of users of the service. and innovation. Member States may also provide that the choice of the service provider shall not be made solely on the

PE483.470v03-00 190/296 RR\926628EN.doc EN basis of the price for the provision of the service.

Amendment 69

Proposal for a directive Article 93 – paragraph 3 – subparagraph 1 – point f

Text proposed by the Commission Amendment

(f) examining complaints from citizens and (f) examining complaints from citizens and businesses on the application of public businesses and from professional procurement rules in specific cases and associations or similar bodies on the transmitting the analysis to the competent application of public procurement rules in contracting entities, which shall have the specific cases and transmitting the analysis obligation to take it into account in their to the competent contracting entities, decisions or, where the analysis is not which shall have the obligation to take it followed, to explain the reasons for into account in their decisions or, where disregarding it; the analysis is not followed, to explain the reasons for disregarding it;

Amendment 70

Proposal for a directive Article 93 – paragraph 8 a (new)

Text proposed by the Commission Amendment

8a. The annual report shall also include an annual comparison between the prices submitted and the actual cost of contracts that have already been performed and the potential influence over the number of staff employed by suppliers.

RR\926628EN.doc 191/296 PE483.470v03-00 EN PROCEDURE

Opinion by EMPL Date announced in plenary 19.1.2012

Rapporteur Ramona Nicole Mănescu Date appointed 16.2.2012 Discussed in committee 20.6.2012 6.9.2012 17.9.2012 Date adopted 18.9.2012

Result of final vote +: 38 –: 0 0: 4

Members present for the final vote Regina Bastos, Edit Bauer, Heinz K. Becker, Pervenche Berès, Vilija Blinkevičiūtė, Philippe Boulland, Alejandro Cercas, Ole Christensen, Derek Roland Clark, Marije Cornelissen, Emer Costello, Andrea Cozzolino, Frédéric Daerden, Sari Essayah, Thomas Händel, Marian Harkin, Nadja Hirsch, Stephen Hughes, Danuta Jazłowiecka, Ádám Kósa, Jean Lambert, Veronica Lope Fontagné, Olle Ludvigsson, Thomas Mann, Elisabeth Morin-Chartier, Csaba Őry, Siiri Oviir, Licia Ronzulli, Elisabeth Schroedter, Jutta Steinruck, Traian Ungureanu, Inês Cristina Zuber Substitute(s) present for the final vote Cornelia Ernst, Kinga Göncz, Jelko Kacin, Tunne Kelam, Jan Kozłowski, Svetoslav Hristov Malinov, Anthea McIntyre, Antigoni Papadopoulou, Birgit Sippel, Csaba Sógor

PE483.470v03-00 192/296 RR\926628EN.doc EN

1.10.2012

OPINION OF THE COMMITTEE ON INDUSTRY, RESEARCH AND ENERGY

for the Committee on the Internal Market and Consumer Protection

Rapporteur: Zigmantas Balčytis

SHORT JUSTIFICATION

The Europe 2020 strategy for smart, sustainable and inclusive growth [COM(2010) 2020] is based on three interlocking and mutually reinforcing priorities: developing an economy based on knowledge and innovation; promoting a low-carbon, resource-efficient and competitive economy; and fostering a high-employment economy delivering social and territorial cohesion.

Public procurement plays a key role in the Europe 2020 strategy as one of the market-based instruments to be used to achieve those objectives by improving the business environment and conditions for business to innovate and by encouraging wider use of green procurement supporting the shift towards a resource efficient and low-carbon economy. At the same time, the Europe 2020 strategy stresses that public procurement policy must ensure the most efficient use of funds and that procurement markets must be kept open Union-wide.

Public procurement plays an important role in the overall economic performance of the European Union. In Europe, public purchasers spend around 18% of GDP on supplies, works and services. Given the volume of purchases, public procurement can be used as a powerful lever for achieving a Single Market fostering smart, sustainable and inclusive growth.

Together with the proposed new Directive on procurement by public authorities, the proposal will replace Directives 2004/17/EC and 2004/18/EC as the core elements of the European Union public procurement legislative framework. The Directive will be complemented by the further elements of that legislative framework: Directive 2009/81/EC sets specific rules for defence and sensitive security procurement, Directive 92/13/EEC4 establishes common standards for national review procedures to ensure that rapid and effective means of redress is available in all EU countries in cases where bidders consider that contracts have been awarded unfairly.

RR\926628EN.doc 193/296 PE483.470v03-00 EN AMENDMENTS

The Committee on Industry, Research and Energy calls on the Committee on the Internal Market and Consumer Protection, as the committee responsible, to incorporate the following amendments in its report:

Amendment 1

Proposal for a directive Recital 4

Text proposed by the Commission Amendment

(4) Public procurement plays a key role in (4) Public procurement plays a key role in the Europe 2020 strategy16 as one of the the Europe 2020 strategy16 as one of the market-based instruments to be used to market-based instruments to be used to achieve a smart, sustainable and inclusive achieve a smart, sustainable and inclusive growth while ensuring the most efficient growth while ensuring the most efficient use of public funds. For that purpose, the use of public funds. For that purpose, the current public procurement rules adopted current public procurement rules adopted pursuant to Directive 2004/17/EC of the pursuant to Directive 2004/17/EC of the European Parliament and of the Council of European Parliament and of the Council of 31 March 2004 coordinating the 31 March 2004 coordinating the procurement procedures of entities procurement procedures of entities operating in the water, energy, transport operating in the water, energy, transport and postal services sectors17 and Directive and postal services sectors17 and Directive 2004/18/EC of the European Parliament 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on and of the Council of 31 March 2004 on the coordination of procedures for the the coordination of procedures for the award of public works contracts, public award of public works contracts, public supply contracts and public service supply contracts and public service contracts have to be revised and contracts have to be revised and modernised in order to increase the modernised in order to enable public efficiency of public spending, facilitating procurers to make better use of public in particular the participation of small and procurement in support of sustainable medium-sized enterprises in public development and other common societal procurement and to enable procurers to goals, thereby increasing the efficiency of make better use of public procurement in public spending by ensuring the best support of common societal goals. There possible outcome in cost-benefit ratio is also a need to clarify basic notions and terms, by reducing costs for both public concepts to ensure better legal certainty authorities and enterprises alike and by and to incorporate certain aspects of related facilitating in particular the participation of well-established case-law of the Court of small and medium-sized enterprises in Justice of the European Union. public procurement and to enable procurers to make better use of public procurement in support of common societal goals. There is also a need to simplify the EU rules, particularly with regard to how

PE483.470v03-00 194/296 RR\926628EN.doc EN sustainability objectives can be incorporated into public procurement, and to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well- established case-law of the Court of Justice of the European Union.

Amendment 2

Proposal for a directive Recital 5

Text proposed by the Commission Amendment

(5) Under Article 11 of the Treaty on the (5) Under Articles 9, 10, and 11 of the Functioning of the European Union, Treaty on the Functioning of the European environmental protection requirements Union, environmental protection must be integrated into the definition and requirements and the concepts underlying implementation of the Union policies and ‘socially sustainable’ production activities, in particular with a view to processes must be integrated into the promoting sustainable development. This definition and implementation of the Union Directive clarifies how the contracting policies and activities, in particular with a entities may contribute to the protection of view to promoting sustainable the environment and the promotion of development and, throughout the supply sustainable development, whilst ensuring chain, protecting health and public safety that they can obtain the best value for and ensuring compliance with social money for their contracts. standards and national and European labour laws. This Directive clarifies how the contracting authorities contribute to the protection of the environment and the promotion of sustainable development and use the discretionary power assigned to them to select the technical specifications and award criteria most likely to achieve socially sustainable public procurement whilst establishing the necessary relation to the subject matter of the contract and ensuring that they can obtain the best value for money.

Amendment 3

Proposal for a directive Recital 10 a (new)

RR\926628EN.doc 195/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(10a) It is furthermore appropriate to exclude procurement made for postal services and services other than postal services as that sector has consistently been found to be subject to such competitive pressure that the procurement discipline brought about by the Union procurement rules is no longer needed.

Justification

As a result of the liberalisation process in the postal sector, the introduction of fully-fledged sector-specific regulation and the evolution of the market, it is no longer necessary to regulate purchases by entities operating in the postal sector. Therefore, the time is ripe to exclude postal services and all the more so “other services than postal services”, from the scope of the Directive and allow all entities operating in the sector to base their decisions on purely economic criteria. Since 1997, the postal sector has been increasingly subject to competitive pressure. Three milestones in the EU postal acquis are relevant in this respect: the first and the second Postal Directives (97/67/EC and 2002/39/EC respectively), which followed the 1992 Green Paper, set in motion the process of a controlled liberalisation and gradually opened the postal markets to competition. The third Postal Directive (2008/06/EC) abolished all exclusive rights in the postal sector and set 31st December 2010 as the deadline for full market opening for the majority of Member States (in fact, 95% of the EU postal markets in terms of volumes) and 31st December 2012 for the remaining Member States.

Amendment 4

Proposal for a directive Recital 14

Text proposed by the Commission Amendment

PE483.470v03-00 196/296 RR\926628EN.doc EN obligations relating to public contracts with upholding equal opportunities for Union a view to achieving the liberalisation and and third country economic operators to expansion of world trade. For contracts compete on equal terms in Union and covered by the Agreement, as well as by third country markets with a view to other relevant international agreements by facilitating the integration of small and which the Union is bound, contracting medium-sized enterprises (SMEs) and entities fulfil the obligations under those stimulating employment and innovation agreements by applying this Directive to within the Union. For contracts covered economic operators of third countries that by the Agreement, as well as by other are signatories to the agreements. relevant international agreements by which the Union is bound, contracting entities fulfil the obligations under those agreements by applying this Directive to economic operators of third countries that are signatories to the agreements.

Amendment 5

Proposal for a directive Recital 14 a new

Text proposed by the Commission Amendment

(14a) The Union needs an effectiveinstrument to, on the one hand, encourage compliance with the principle of reciprocity and balance in relation to third countries which do not provide equivalent access to European economic operators, particularly through an assessment of substantial reciprocity to be carried out by the Commission, and, on the other hand, ensure fair competition and a level playing field worldwide.

Amendment 6

Proposal for a directive Recital 14 b (new)

Text proposed by the Commission Amendment

(14b) In view of the need to encourage participation by the Union's economic operators in cross-border public markets, it is important that the Member States transpose and implement in a timely and

RR\926628EN.doc 197/296 PE483.470v03-00 EN adequate manner the provisions of the Services Directive.

Amendment 7

Proposal for a directive Recital 27

Text proposed by the Commission Amendment

(27) Electronic means of information and (27) Electronic means of information and communication can greatly simplify the communication can greatly simplify the publication of contracts and increase the publication of contracts and increase the efficiency and transparency of procurement efficiency and transparency of procurement processes. They should become the processes. They should become the standard means of communication and standard means of communication and information exchange in procurement information exchange in procurement procedures. The use of electronic means procedures. The use of electronic means also leads to time savings. As a result, also leads to time, cost and resource provision should be made for reducing the savings. As a result, provision should be minimum periods where electronic means made for reducing the minimum periods are used, subject, however, to the condition where electronic means are used, subject, that they are compatible with the specific however, to the condition that they are mode of transmission envisaged at Union compatible with the specific mode of level. Moreover, electronic means of transmission envisaged at Union level. information and communication including Moreover, electronic means of information adequate functionalities can enable and communication including adequate contracting authorities to prevent, detect functionalities can enable contracting and correct errors that occur during authorities to prevent, detect and correct procurement procedures. errors that occur during procurement procedures.

Amendment 8

Proposal for a directive Recital 27 a (new)

Text proposed by the Commission Amendment

(27a) The use of e-procurement shall be encouraged to ensure that at least 50% of both the EU institutions’ and the Member States’ public procurement operations are carried out electronically, in line with the commitment made by the Member State governments at the ministerial conference on e-government in Manchester in 2005.

PE483.470v03-00 198/296 RR\926628EN.doc EN In the future, e-procurement, which plays a positive role in reducing the cost and increasing the accessibility of procurement procedures, shall become the main procedure. It is necessary to preserve open standards and technology neutrality in order to ensure the interoperability of different systems and avoid vendor lock-in and to ensure genuine interoperability between the various platforms for e-procurement already in place in Member States.

Amendment 9

Proposal for a directive Recital 33

Text proposed by the Commission Amendment

(33) Electronic means of communication (33) Electronic means of communication are particularly well suited to support are particularly well suited to support centralised purchasing practices and tools centralised purchasing practices and tools because of the possibility they offer to re- because of the possibility they offer to re- use and automatically process data and to use and automatically process data, to minimise information and transaction minimise information and transaction costs costs. The use of such electronic means of and to ensure transparency. The use of communication should therefore, as a first such electronic means of communication step, be rendered compulsory for central should therefore, as a first step, be rendered purchasing bodies, while also facilitating compulsory for central purchasing bodies, converging practices across the Union. while also facilitating converging practices This should be followed by a general across the Union. This should be followed obligation to use electronic means of by a general obligation to use electronic communication in all procurement means of communication in all procedures after a transition period of two procurement procedures after a transition years. period of two years.

Amendment 10

Proposal for a directive Recital 38

Text proposed by the Commission Amendment

(38) In order to encourage the involvement (38) In order to encourage the involvement of small and medium-sized enterprises of small and medium-sized enterprises (SMEs) in the procurement market, it (SMEs) in the procurement market, the

RR\926628EN.doc 199/296 PE483.470v03-00 EN should be provided explicitly that contracts "think small first" principle must apply may be divided into lots, whether and Member States should fully homogenous or heterogeneous. Where implement the European Code of Best contracts are divided into lots, contracting Practices Facilitating Access by SMEs to entities may, for instance in order to Public Procurement Contracts. preserve competition or to ensure security Furthermore, it should be provided of supply, limit the number of lots for explicitly that contracts may be divided which an economic operator may tender; into lots, whether homogenous or they may also limit the number of lots that heterogeneous. Where contracts are may be awarded to any one tenderer. divided into lots, contracting entities may, for instance in order to preserve competition or to ensure security of supply, limit the number of lots for which an economic operator may tender; they may also limit the number of lots that may be awarded to any one tenderer.

Amendment 11

Proposal for a directive Recital 43

Text proposed by the Commission Amendment

(43) Contracts should be awarded on the (43) Contracts should be awarded on the basis of objective criteria that ensure basis of objective criteria that ensure compliance with the principles of compliance with the principles of transparency, non-discrimination and equal transparency, non-discrimination and equal treatment. Those criteria should guarantee treatment. Those criteria should guarantee that tenders are assessed in conditions of that tenders are assessed in conditions of effective competition, also where effective competition, at the same time contracting entities require high-quality ensuring that contracting entities require works, supplies and services that are high-quality works, supplies and services optimally suited to their needs. As a result, that are optimally suited to their needs and contracting entities should be allowed to which include factors linked to socially- adopt as award criteria either ‘the most sustainable production process criteria. economically advantageous tender’ or ‘the As a result, contracting entities should be lowest cost’, taking into account that in the allowed to adopt as award criteria either latter case they are free to set adequate ‘the most economically advantageous quality standards by using technical tender’ or ‘the lowest cost’, taking into specifications or contract performance account that in the latter case they should conditions. refer to set adequate quality standards by using technical specifications or contract performance conditions.

Amendment 12

PE483.470v03-00 200/296 RR\926628EN.doc EN Proposal for a directive Recital 45

Text proposed by the Commission Amendment

(45) It is of utmost importance to fully (45) An effort should be made to exploit exploit the potential of public procurement the potential of public procurement to to achieve the objectives of the Europe achieve the objectives of the Europe 2020 2020 Strategy for sustainable growth. In Strategy for sustainable growth, without view of the important differences between encroaching upon the powers of the individual sectors and markets, it would contracting entities. In view of the however not be appropriate to set general important differences between individual mandatory requirements for environmental, sectors and markets, it would however not social and innovation procurement. The be appropriate to set general mandatory Union legislature has already set requirements for environmental, social and mandatory procurement requirements for innovation procurement. The Union obtaining specific goals in the sectors of legislature has already set mandatory road transport vehicles (Directive procurement requirements for obtaining 2009/33/EC of the European Parliament specific goals in the sectors of road and the Council of 23 April 2009 on the transport vehicles (Directive 2009/33/EC promotion of clean and energy-efficient of the European Parliament and the road transport vehicles) and office Council of 23 April 2009 on the promotion equipment (Regulation (EC) No 106/2008 of clean and energy-efficient road transport of the European Parliament and the vehicles) and office equipment (Regulation Council of 15 January 2008 on a (EC) No 106/2008 of the European Community energy-efficiency labelling Parliament and the Council of 15 January programme for office equipment). In 2008 on a Community energy-efficiency addition, the definition of common labelling programme for office equipment). methodologies for life cycle costing has In addition, the definition of common significantly advanced. It therefore appears methodologies for life cycle costing has appropriate to continue on that path, significantly advanced. It therefore appears leaving it to sector-specific legislation to appropriate to continue on that path, set mandatory objectives and targets in leaving it to sector-specific legislation to function of the particular policies and set mandatory objectives and targets in conditions prevailing in the relevant sector function of the particular policies and and to promote the development and use of conditions prevailing in the relevant sector European approaches to life-cycle costing and to promote the development and use of as a further underpinning for the use of European approaches to life-cycle costing public procurement in support of as a further underpinning for the use of sustainable growth. public procurement in support of sustainable growth.

Amendment 13

Proposal for a directive Article 2 – paragraph 1 – point 22

RR\926628EN.doc 201/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(22) ‘life cycle’ means all consecutive (22) ‘life cycle’ means all consecutive and/or interlinked stages, including and/or interlinked stages, including production, transport, use and maintenance, production and location of production, throughout the existence of a product or a transport, use and maintenance, throughout works or the provision of a service, from the existence of a product or works or the raw material acquisition or generation of provision of a service, from raw material resources to disposal, clearance and acquisition or generation of resources to finalisation; disposal, clearance and finalisation;

Amendment 14

Proposal for a directive Article 10

Text proposed by the Commission Amendment

[...] deleted

Justification

Amendment 15

Proposal for a directive Article 14 a (new)

Text proposed by the Commission Amendment

Article 14a Reciprocity The practical implementation of the Agreement on Government Procurement (AGP) within the Union legislative framework for public procurement shall

PE483.470v03-00 202/296 RR\926628EN.doc EN be based on prior assessment to ascertain that the principle of substantial reciprocity is being properly applied for the purposes of market opening between the Union and third country signatories. Assessment of substantial reciprocity shall apply equally to third countries which are not party to the Agreement on Government Procurement but have access to the market.

Amendment 16

Proposal for a directive Article 29 – paragraph 1

Text proposed by the Commission Amendment

Contracting entities shall treat economic Contracting entities shall treat economic operators equally and without operators equally and without discrimination and shall act in a transparent discrimination and shall act in a transparent and proportionate way. way.

Amendment 17

Proposal for a directive Article 40 – paragraph 3

Text proposed by the Commission Amendment

3. Where a state of urgency duly 3. Where a state of urgency duly substantiated by the contracting entities substantiated by the contracting entities renders impracticable the time limit laid renders impracticable the time limit laid down in the second subparagraph of down in the second subparagraph of paragraph 1, they may fix a time limit paragraph 1, they may fix a time limit which shall be not less than 20 days from which shall be not less than 25 days from the date on which the contract notice was the date on which the contract notice was sent. sent. A state of urgency may only result in a shorter time limit being set if it has not been brought about by the contracting entities themselves.

Amendment 18

RR\926628EN.doc 203/296 PE483.470v03-00 EN Proposal for a directive Article 40 – paragraph 4

Text proposed by the Commission Amendment

4. The contracting entity may reduce by 4. The contracting entity may reduce by five days the time limit for receipt of three days the time limit for receipt of tenders set out in the second subparagraph tenders set out in the second subparagraph of paragraph 1 where it accepts that tenders of paragraph 1 where it accepts that tenders may be submitted by electronic means in may be submitted by electronic means in accordance with Article 33(3), (4) and (5). accordance with Article 33(3), (4) and (5).

Amendment 19

Proposal for a directive Article 45 – paragraph 1 – subparagraph 3

Text proposed by the Commission Amendment

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

Justification

The proposed period of four years is too short and reduces the effect and possible savings that can be made from a long-term framework agreement, on the basis of which suppliers generally make better offers. One of the main reasons for these measures is the wish to maximise the cost-effectiveness of contracting entities’ procurement expenditure. The timescale proposed therefore runs counter to this objective, since cheaper price terms can be obtained through longer-term contracts.

Amendment 20

Proposal for a directive Article 54 – paragraph 1a (new)

Text proposed by the Commission Amendment

1a. Technical specifications may also include, as appropriate, requirements relating to:

Amendment 21

PE483.470v03-00 204/296 RR\926628EN.doc EN Proposal for a directive Article 54 – paragraph 1a – point a (new)

Text proposed by the Commission Amendment

(a) performance, including levels of environmental and climate performance and performance in terms of socially sustainable production process;

Amendment 22

Proposal for a directive Article 54 – paragraph 1a – point b (new)

Text proposed by the Commission Amendment

(b) life-cycle characteristics;

Amendment 23

Proposal for a directive Article 54 – paragraph 1a – point c (new)

Text proposed by the Commission Amendment

Amendment 24

Proposal for a directive Article 54 – paragraph 1a – point d (new)

Text proposed by the Commission Amendment

(d) the organisation, qualification and experience of the staff assigned to performing the contract in question.

Amendment 25

Proposal for a directive Article 54 – paragraph 3 – point c a (new)

RR\926628EN.doc 205/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(ca) in terms of a socially sustainable production process;

Amendment 26

Proposal for a directive Article 58 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

Contracting entities may take account of Contracting entities must take account of variants which are submitted by a tenderer variants which are submitted by a tenderer and meet the minimum requirements and meet the minimum requirements specified by the contracting entities. specified by the contracting entities.

Amendment 27

Proposal for a directive Article 58 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

Contracting entities shall indicate in the deleted specifications whether or not they authorise variants and, if so, the minimum requirements to be met by the variants and any specific requirements for their presentation. Where variants are authorised, they shall also ensure that the chosen award criteria can be usefully applied to variants meeting those minimum requirements as well as to conforming tenders which are not variants.

Amendment 28

Proposal for a directive Article 58 – paragraph 2

Text proposed by the Commission Amendment

2. In procedures for awarding supply or 2. In procedures for awarding supply or

PE483.470v03-00 206/296 RR\926628EN.doc EN service contracts, contracting entities that service contracts, contracting entities shall have authorised variants shall not reject a not reject a variant on the sole ground that variant on the sole ground that it would, it would, where successful, lead either to a where successful, lead either to a service service contract rather than a supply contract rather than a supply contract or to contract or to a supply contract rather than a supply contract rather than a service a service contract. contract.

Amendment 29

Proposal for a directive Article 70 – paragraph 5

Text proposed by the Commission Amendment

5. Contracting entities may decide not to 5. Contracting entities must decide not to award a contract to the tenderer submitting award a contract to the tenderer submitting the best tender where they have established the best tender where they have established that the tender does not comply, at least in that the tender does not comply with an equivalent manner, with obligations obligations established by Union established by Union legislation in the legislation in the field of social and labour field of social and labour law or law or environmental law established by environmental law or of the international Union or national legislation or by social and environmental law provisions collective agreements applicable to the listed in Annex XIV. place where the work, service, or supply is to be performed, or by the international social and environmental law provisions listed in Annex XI, or with obligations in the field of intellectual property law.

Amendment 30

Proposal for a directive Article 70 – paragraph 5 a (new)

Text proposed by the Commission Amendment

5a. Where such laws do not apply, infringements of other laws applicable to the tenderer which provide an equivalent degree of protection shall likewise constitute grounds for exclusion.

Amendment 31

RR\926628EN.doc 207/296 PE483.470v03-00 EN Proposal for a directive Article 73 – paragraph 3

Text proposed by the Commission Amendment

3. In the case of works contracts, service deleted contracts and siting and installation operations in the context of a supply contract, contracting entities may require that certain critical tasks be performed directly by the tenderer itself or, where a tender is submitted by a group of economic operators as referred to in Article 30, a participant in the group.

Amendment 32

Proposal for a directive Article 76 – paragraph 2 – subparagraph 2 – point a

Text proposed by the Commission Amendment

(a) quality, including technical merit, (a) quality, including technical merit, aesthetic and functional characteristics, aesthetic and functional characteristics, accessibility, design for all users, accessibility, energy efficiency environmental characteristics and performance, design for all users, innovative character; environmental characteristics and innovative character;

Amendment 33

Proposal for a directive Article 76 – paragraph 2 – subparagraph 2 – point a a (new)

Text proposed by the Commission Amendment

(aa) a socially sustainable production process;

Amendment 34

Proposal for a directive Article 79 – paragraph 3 – point d a (new)

PE483.470v03-00 208/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

(da) compliance with rules and standards in the field of health and safety, social law, and labour law laid down in Union and national legislation and by collective agreements applying in the place where the work, service, or supply is to be performed;

Amendment 35

Proposal for a directive Article 79 – paragraph 3 – point d b (new)

Text proposed by the Commission Amendment

(db) compliance with the subcontracting requirements set out in Article 81.

Amendment 36

Proposal for a directive Article 79 – paragraph 4 – subparagraph 3

Text proposed by the Commission Amendment

Contracting entities shall reject the tender, Contracting entities shall reject the tender, where they have established that the tender where they have established that the tender is abnormally low because it does not is abnormally low because it does not comply with obligations established by comply with obligations established by Union legislation in the field of social and Union and national legislation, and by labour law or environmental law or by the collective agreements applying in the international social and environmental law place where the work, service, or supply is provisions listed in Annex XIV. to be performed, in the field of social and labour law or environmental law, or by the international social and environmental law provisions listed in Annex XIV.

Amendment 37

Proposal for a directive Article 81 – paragraph 1

RR\926628EN.doc 209/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

1. In the procurement documents, the 1. In the procurement documents, the contracting entity may ask, or may be tenderer shall indicate to the contracting required by a Member State to ask, the authority, in its tender, any share of the tenderer to indicate in its tender any share contract it may intend to subcontract to of the contract it may intend to subcontract third parties and any proposed to third parties and any proposed subcontractors. subcontractors.

Amendment 38

Proposal for a directive Article 81 – paragraph 2

Text proposed by the Commission Amendment

2. Member States may provide that, at the 2. Member States may provide that request of the subcontractor and where payments to the subcontractor for services, the nature of the contract so allows, the supplies or works provided to the main contracting entity shall transfer due contractor shall become due immediately payments directly to the subcontractor for if and insofar as services, supplies or works provided to the main contractor. In such case, Member States shall put in place appropriate mechanisms permitting the main contractor to object to undue payments. The arrangements concerning that mode of payment shall be set out in the procurement documents. (a) the contracting authority has performed its obligations to the main contractor, or parts thereof, (b) the contracting authority has accepted the services, supplies or works as having been fully completed, or (c) the contracting authority has, without success, set the main contractor an appropriate time limit within which to provide information about the circumstances referred to at (a) and (b).

PE483.470v03-00 210/296 RR\926628EN.doc EN Amendment 39

Proposal for a directive Article 82 – paragraph 4

Text proposed by the Commission Amendment

4. Where the value of a modification can 4. Where the value of a modification can be expressed in monetary terms, the be expressed in monetary terms, the modification shall not be considered to be modification shall not be considered to be substantial within the meaning of substantial within the meaning of paragraph 1, where its value does not paragraph 1, where its value is below 10% exceed the thresholds set out in Article 12 of the price of the initial contract, provided and where it is below 5% of the price of that the modification does not alter the the initial contract, provided that the overall nature of the contract. modification does not alter the overall nature of the contract. Where several successive modifications are made, the value shall be assessed on the basis of the cumulative value of the successive modifications.

Amendment 40

Proposal for a directive Article 93 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

Member States shall appoint a single Member States shall ensure that an independent body responsible for the independent body responsible for the oversight and coordination of oversight and coordination of implementation activities (hereinafter ‘the implementation activities (hereinafter ‘the oversight body’). Member States shall oversight body’) is in place. Member inform the Commission of their States shall inform the Commission of their designation. designation.

Amendment 41

Proposal for a directive Article 93 a (new)

Text proposed by the Commission Amendment

Article 93a The Commission shall submit by the end of 2013 a report on the differing practices

RR\926628EN.doc 211/296 PE483.470v03-00 EN in awarding contracts below the threshold values laid down in Article 12, particularly in the case of services to which priority has not so far been assigned.

Amendment 42

Proposal for a directive Article 103 – paragraph 1

Text proposed by the Commission Amendment

The Commission shall review the The Commission shall review the economic effects on the internal market economic effects on the internal market resulting from the application of the resulting from the application of the thresholds set in Article 12 and report thresholds set in Article 12 and report thereon to the European Parliament and the thereon to the European Parliament and the Council by 30 June 2017. Council by 30 June 2015.

Amendment 43

Proposal for a directive Annex VIII – paragraph 1 – point 1 – point a

Text proposed by the Commission Amendment

(a) in the case of service or supply (a) in the case of service or supply contracts a specification in a document contracts a specification in a document defining the required characteristics of a defining the required characteristics of a product or a service, such as quality levels, product or a service, such as quality levels, environmental and climate performance environmental and climate performance levels, design for all requirements levels, design for all requirements (including accessibility for disabled (including accessibility for disabled persons) and conformity assessment, persons) and conformity assessment, performance, use of the product, safety or performance, use of the product, safety or dimensions, including requirements dimensions, including requirements relevant to the product as regards the name relevant to the product as regards the name under which the product is sold, under which the product is sold, terminology, symbols, testing and test terminology, symbols, testing and test methods, packaging, marking and methods, packaging, marking and labelling, user instructions, production labelling, user instructions and conformity processes and methods at any stage of the assessment procedures; life cycle of the supply or service and conformity assessment procedures;

PE483.470v03-00 212/296 RR\926628EN.doc EN

PROCEDURE

Opinion by ITRE Date announced in plenary 19.1.2012

Rapporteur Zigmantas Balčytis Date appointed 14.2.2012 Discussed in committee 31.5.2012 Date adopted 24.9.2012

Result of final vote +: 40 –: 6 0: 2

Members present for the final vote Amelia Andersdotter, Josefa Andrés Barea, Jean-Pierre Audy, Ivo Belet, Bendt Bendtsen, Reinhard Bütikofer, Maria Da Graça Carvalho, Giles Chichester, Pilar del Castillo Vera, Vicky Ford, Robert Goebbels, Jacky Hénin, Edit Herczog, Kent Johansson, Romana Jordan, Philippe Lamberts, Judith A. Merkies, Angelika Niebler, Jaroslav Paška, Vittorio Prodi, Jens Rohde, Paul Rübig, Amalia Sartori, Salvador Sedó i Alabart, Francisco Sosa Wagner, Evžen Tošenovský, Ioannis A. Tsoukalas, Claude Turmes, Marita Ulvskog, Vladimir Urutchev, Kathleen Van Brempt Substitute(s) present for the final vote Daniel Caspary, António Fernando Correia de Campos, Ioan Enciu, Vicente Miguel Garcés Ramón, Elisabetta Gardini, Françoise Grossetête, Andrzej Grzyb, Cristina Gutiérrez-Cortines, Roger Helmer, Jolanta Emilia Hibner, Gunnar Hökmark, Eija-Riitta Korhola, Werner Langen, Pavel Poc, Vladimír Remek Substitute(s) under Rule 187(2) present Jorgo Chatzimarkakis, Keith Taylor for the final vote

RR\926628EN.doc 213/296 PE483.470v03-00 EN

20.9.2012

OPINION OF THE COMMITTEE ON TRANSPORT AND TOURISM

for the Committee on the Internal Market and Consumer Protection

on the proposal for a directive of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sector (COM(2011)0895– C7-0007/2012 – 2011/0439(COD))

Rapporteur: Eva Lichtenberger

SHORT JUSTIFICATION

Public procurement plays an important role in the overall economic performance of the European Union. Public authorities spend around 18 % of GDP on supplies, works and services. Given the volume of purchases, public procurement can be used as a powerful lever for achieving a Single Market fostering smart, sustainable and inclusive growth.

Public procurement plays also a key role in the Europe 2020 strategy as one of the market- based instruments to be used to achieve the objectives of improving the business environment and conditions for business to innovate and of encouraging wider use of green procurement supporting the shift towards a resource efficient and low-carbon economy. At the same time, the Europe 2020 strategy stresses that public procurement policy must ensure the most efficient use of public funds and that procurement markets must be kept open Union-wide.

The Rapporteur welcomes the Commission's proposal to modernise the public procurement directives. The legislative proposal should result in simpler and more flexible procurement procedures for contracting authorities and provide easier access for companies, especially SMEs. The revision of the legislation should strike a balance between simplification of the rules, sound and effective procedures related to innovative and sustainable award criteria, while also securing a wider use of e-procurement. Contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency, non-discrimination and equal treatment. These criteria should guarantee that tenders are assessed in conditions of effective competition, also where contracting authorities require high-quality works, supplies and services that are optimally suited to their needs, for instance where the award decision includes factors linked to the production process.

The Rapporteur strongly believes that contracting authorities should use as award criterion the ‘most economically advantageous and sustainable tender’ (MEAST) and discard the

PE483.470v03-00 214/296 RR\926628EN.doc EN alternative criterion based on the ‘lowest cost’. Given that price is also taken into account in the MEAST, contracting authorities will be able to make the most appropriate choices in relation to their specific needs, including the consideration of cost, strategic societal goals, innovative solutions and social and environmental criteria. Public procurement should be used as a means to foster innovation. Public purchasers must be encouraged to buy innovative products and services in order to achieve the goals of sustainable development. New innovative solutions and ideas are necessary in particular in the filed of transport, and public procurement should be used as a tool to meet such needs.

Life cycle considerations should be upgraded, and the social and environmental effects of the entire production process must be taken into consideration. Contracting authorities should have further possibilities to impose demands on the production process and not only on the product. This will lead to more sustainable procurement, including in the transport sector. For all procurement intended for use by persons, it is necessary that contracting authorities lay down technical specifications so as to take into account accessibility criteria for people with disabilities or design for all users. This is particularly crucial in the area of public transport and tourism. The provisions on subcontracting should be strengthened. A tenderer must be required to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors. Furthermore, it has to be possible for the main contractor and all of the subcontractors involved to be made liable in the event of failure to comply with legislation. There is need for a control system which covers all parts of the contractors' chain.

The Rapporteur has tabled a number of amendments to address the issues outlined above. In some cases, it was considered necessary to delete some provisions proposed by the Commission, as the Rapporteur considers that certain issues can be addressed more effective1ly in national legislation, taking into account sectoral and regional specificities, in line with the principles of subsidiarity and better regulation.

Last but not least, the Rapporteur would like to stress the need to ensure legal certainty and consistency of the public procurement directives with current Union legislation in the field of transport and postal services.

AMENDMENTS

The Committee on Transport and Tourism calls on the Committee on the Internal Market and Consumer Protection, as the committee responsible, to incorporate the following amendments in its report:

Amendment 1 Proposal for a directive Recital 8 a (new)

Text proposed by the Commission Amendment

(8a) This Directive shall be without prejudice to Union legislation in sectors

RR\926628EN.doc 215/296 PE483.470v03-00 EN which have been regulated in a comprehensive manner, in particular in the field of transport and postal services.

Amendment 2 Proposal for a directive Recital 8 b (new

Text proposed by the Commission Amendment

(8b) Care needs to be taken to ensure that the social aspect of postal services in rural areas is not neglected when opening this market up to competition.

Amendment 3 Proposal for a directive Article 1 – paragraph 2 – subparagraph 1

Text proposed by the Commission Amendment

Procurement within the meaning of this Public procurement within the meaning of Directive is the purchase or other forms of this Directive is a contract concluded for acquisition of works, supplies or services pecuniary interest for the acquisition of by one or more contracting entities from works, supplies or services by one or more economic operators chosen by those contracting entities from economic contracting entities, provided that the operators chosen by those contracting works, supplies or services are intended for entities, provided that the works, supplies the pursuit of one of the activities referred or services are intended for the pursuit of to in Articles 5 to 11. one of the activities referred to in Articles 5 to 11.

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

Text proposed by the Commission Amendment

An entirety of works, supplies and/or deleted services, even if purchased through different contracts, constitutes a single procurement within the meaning of this Directive, if the contracts are part of one single project.

Amendment 5

PE483.470v03-00 216/296 RR\926628EN.doc EN Proposal for a directive Article 2 – paragraph 1 – point 22

Text proposed by the Commission Amendment

(22) ‘life cycle’ means all consecutive (22) ‘life cycle’ means monetising, and/or interlinked stages, including wherever possible, the full costs production, transport, use and associated to the public procurement, maintenance, throughout the existence of including maintenance and resource a product or a works or the provision of a (including energy) efficiency costs, end- service, from raw material acquisition or of- life recycling costs, and social impact generation of resources to disposal, costs where these relate to performance of clearance and finalisation; the contract. Efficient design, planning and use of electronic means can also be included in life cycle monetisation. For the purposes of public procurement, the life cycle runs from the point of purchase throughout the lifetime of the works, supplies or services and forms an integral and in-dissociable part of the calculation of what constitutes the Most Economically Advantageous Tender.

Justification

While contracting authorities shall, in the interest of the taxpayer, be responsible for ensuring that value for money is secured as regards whatever solution is selected through public procurement, and that this does not end up costing more to society or the environment overall on the long run, this responsibility can only reasonably run from the point of purchase.

Amendment 6 Proposal for a directive Article 10 – paragraph 1 – introductory part

Text proposed by the Commission Amendment

1. This Directive shall apply to activities 1. This Directive shall apply, without relating to the provision of: prejudice to Directive 97/67/EC, to activities relating to the provision of:

Amendment 7 Proposal for a directive Article 10 – paragraph 2 – point b

Text proposed by the Commission Amendment

(b) ‘postal services’ means services (b) ‘postal services’ means services consisting of the clearance, sorting, routing consisting of the clearance, sorting, routing

RR\926628EN.doc 217/296 PE483.470v03-00 EN and delivery of postal items. This shall and delivery of domestic postal items and include both services falling within as well services falling within the scope of the as services falling outside the scope of the universal service set up in conformity with universal service set up in conformity with Directive 97/67/EC; Directive 97/67/EC;

Justification

Seeks to exempt postal services that do not form part of the universal service from the obligations under this directive. Given that those services are offered on a competitive market, an obligation to carry out tendering would lead to a competitive disadvantage as compared with market competitors.

Amendment 8 Proposal for a directive Article 27 – paragraph 1

Text proposed by the Commission Amendment

1. Contracts intended to enable an activity 1. Contracts intended to enable an activity mentioned in Articles 5 to 11 to be carried mentioned in Articles 5 to 11 to be carried out shall not be subject to this Directive if out shall not be subject to this Directive if the Member State or the contracting the Member State or the contracting entities having introduced the request entities having introduced the request pursuant to Article 28 can demonstrate pursuant to Article 28 can demonstrate that, in the Member State in which it is that, in the Member State in which it is performed, the activity is directly exposed performed, the activity, or its specific to competition on markets to which access sectors or segments, is directly exposed to is not restricted; nor shall design contests competition on markets to which access is that are organised for the pursuit of such an not restricted; nor shall design contests that activity in that geographic area be subject are organised for the pursuit of such an to this Directive. Such competition activity in that geographic area be subject assessment, which will be made in the light to this Directive. Such competition of the information available to the assessment, which will be made in the light Commission and for the purposes of this of the information available to the Directive, is without prejudice to the Commission and for the purposes of this application of competition law. Directive, is without prejudice to the application of competition law.

Justification

Some sectors of the railway market are already directly exposed to competition and freely accessible, and for this reason should not fall within the scope of this Directive.

Amendment 9 Proposal for a directive Article 27 – paragraph 3 – first subparagraph

PE483.470v03-00 218/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

For the purposes of paragraph 1, access to For the purposes of paragraph 1, access to a market shall be deemed not to be a market shall be deemed not to be restricted if the Member State has restricted if the Member State has implemented and applied the Union implemented and applied the Union legislation listed in Annex III. legislation listed in Annex III or if the Member State has extended to the market in question the application of principles established by this legislation.

Amendment 10 Proposal for a directive Article 28 – paragraph 1 – first subparagraph

Text proposed by the Commission Amendment

Where a Member State or, where the Where a Member State or, where the legislation of the Member State concerned legislation of the Member State concerned provides for it, a contracting entity provides for it, a contracting entity considers that, on the basis of the criteria considers that, on the basis of the criteria set out in Article 27(2) and (3), a given set out in Article 27(2) and (3), a given activity is directly exposed to competition activity is completely or partially, even on markets to which access is not with regard to single sectors or segments restricted, it may submit a request to of it, directly exposed to competition on establish that this Directive does not apply markets to which access is not restricted, it to the award of contracts or the may submit a request to establish that this organisation of design contests for the Directive does not apply to the award of pursuit of that activity. contracts or the organisation of design contests for the pursuit of that activity or of a single sector or segment of it.

Justification

Some sectors of the railway market are already directly exposed to competition and freely accessible, and for this reason should not fall within the scope of this Directive.

Amendment 11 Proposal for a directive Article 28 – paragraph 1 – second subparagraph

Text proposed by the Commission Amendment

RR\926628EN.doc 219/296 PE483.470v03-00 EN authority that is competent in relation to authority that is competent in relation to the activity concerned. This position shall the activity concerned or a single sector or thoroughly analyse the conditions for the segment of it. This position shall possible applicability of Article 27(1) to thoroughly analyse the conditions for the the activity concerned in accordance with possible applicability of Article 27(1) to its paragraphs 2 and 3. the activity concerned in accordance with its paragraphs 2 and 3.

Justification

Some sectors of the railway market are already directly exposed to competition and freely accessible, and for this reason should not fall within the scope of this Directive.

Amendment 12 Proposal for a directive Article 28 – paragraph 2 – first subparagraph 1

Text proposed by the Commission Amendment

Upon request submitted in accordance with Upon request submitted in accordance with paragraph 1 of this Article, the paragraph 1 of this Article, the Commission may, by way of an Commission may, by way of an implementing decision adopted within the implementing decision adopted within the periods set out in paragraph 4 of this periods set out in paragraph 4 of this Article, establish whether an activity Article, establish whether an activity, or a referred to in Articles 5 to 11 is directly single sector or segment of it, referred to exposed to competition on the basis of the in Articles 5 to 11 is directly exposed to criteria set out in Article 27. Those competition on the basis of the criteria set implementing decisions shall be adopted in out in Article 27. Those implementing accordance with the advisory procedure decisions shall be adopted in accordance referred to in Article 100(2). with the advisory procedure referred to in Article 100(2).

Justification

Some sectors of the railway market are already directly exposed to competition and freely accessible, and for this reason should not fall within the scope of this Directive.

Amendment 13 Proposal for a directive Article 28 – paragraph 2 – second subparagraph – introductory part

Text proposed by the Commission Amendment

Contracts intended to enable the activity Contracts intended to enable the activity concerned to be carried out and design concerned, or a single sector or segment contests that are organised for the pursuit of it, to be carried out and design contests

PE483.470v03-00 220/296 RR\926628EN.doc EN of such an activity shall cease to be subject that are organised for the pursuit of such an to this Directive in any of the following activity, or a single sector or segment of it, cases: shall cease to be subject to this Directive in any of the following cases:

Justification

Some sectors of the railway market are already directly exposed to competition and freely accessible, and for this reason should not fall within the scope of this Directive.

Amendment 14 Proposal for a directive Article 36 – paragraph 1 – subparagraph 3

Text proposed by the Commission Amendment

For the purposes of this Article, ‘private deleted interests’ means any family, emotional life, economic, political or other shared interests with the candidates or the tenderers, including conflicting professional interests.

Justification

This issue can be addressed more effectively in national legislation.

Amendment 15 Proposal for a directive Article 36 – paragraph 3 – subparagraph 1 – point a

Text proposed by the Commission Amendment

(a) that staff members referred to in deleted paragraph 2(a) are required to disclose any conflict of interests in relation to any of the candidates or tenderers, as soon as they become aware of such conflicts, in order to enable the contracting authority to take remedial action,

Justification

This issue can be addressed more effectively in national legislation.

RR\926628EN.doc 221/296 PE483.470v03-00 EN Amendment 16 Proposal for a directive Article 36 – paragraph 3 – subparagraph 2

Text proposed by the Commission Amendment

In the event of a conflict of interests, the In the event of a conflict of interests, the contracting authority shall take appropriate contracting authority shall take appropriate measures. Those measures may include measures. the recusal of the staff member in question from involvement in the affected procurement procedure or the re- assignment of the staff member's duties and responsibilities. Where a conflict of interests cannot be effectively remedied by other means, the candidate or tenderer concerned shall be excluded from the procedure.

Justification

The precise nature of such measures should be decided at national level.

Amendment 17 Proposal for a directive Article 37 – paragraph 1 – point a

Text proposed by the Commission Amendment

(a) unduly influence the decision-making deleted process of the contracting entity or obtain confidential information that may confer upon them undue advantages in the procurement procedure;

Amendment 18 Proposal for a directive Article 37 – paragraph 1 – point b

Text proposed by the Commission Amendment

(b) enter into agreements with other deleted candidates and tenderers aimed at distorting competition, or

PE483.470v03-00 222/296 RR\926628EN.doc EN Amendment 19 Proposal for a directive Article 37 – paragraph 1 – point c

Text proposed by the Commission Amendment

(c) deliberately provide misleading deleted information that may have a material influence on decisions concerning exclusion, selection or award.

Amendment 20 Proposal for a directive Article 39 – paragraph 3

Text proposed by the Commission Amendment

3. Member States may provide that 3. Member States may provide that contracting entities may apply a negotiated contracting entities may apply a negotiated procedure without prior call for procedure without prior call for competition only in the specific cases and competition only in the specific cases and circumstances referred to expressly in circumstances referred to expressly in Article 42. Article 42, provided that they ensure the equal treatment of all tenderers.

Amendment 21 Proposal for a directive Article 45 – paragraph 1 – third subparagraph

Text proposed by the Commission Amendment

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

Amendment 22 Proposal for a directive Article 45 – paragraph 4

Text proposed by the Commission Amendment

4. Where a framework agreement is deleted concluded with more than one economic operator, it may be performed in one of the two following ways: (a) following the terms and conditions of

RR\926628EN.doc 223/296 PE483.470v03-00 EN the framework agreement, without reopening competition, where it sets out all the terms governing the provision of the works, services and supplies concerned and the objective conditions for determining which of the economic operators, party to the framework agreement, shall perform them; the latter conditions shall be indicated in the procurement documents; (b) where not all the terms governing the provision of the works, services and supplies are laid down in the framework agreement, through reopening competition amongst the economic operators parties to the framework agreement.

Amendment 23 Proposal for a directive Article 45 – paragraph 5

Text proposed by the Commission Amendment

5. The competition referred to in deleted paragraph (4)(b) shall be based on the same terms as applied for the award of the framework agreement and, where necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure: (a) for every contract to be awarded, contracting entities shall consult in writing the economic operators capable of performing the contract; (b) contracting entities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject- matter of the contract and the time needed to send in tenders; (c) tenders shall be submitted in writing, and their content shall not be opened until the stipulated time limit for reply has

PE483.470v03-00 224/296 RR\926628EN.doc EN expired; (d) contracting entities shall award each contract to the tenderer that has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.

Amendment 24 Proposal for a directive Article 45 – paragraph 5 a (new)

Text proposed by the Commission Amendment

5a. This Article shall be without prejudice to the provisions of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service and Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70.

Amendment 25 Proposal for a directive Article 54 – paragraph 1 – subparagraph 4

Text proposed by the Commission Amendment

For all procurement, the subject of which is For all procurement, the subject of which is intended for use by persons, whether intended for use by persons, whether general public or staff of the contracting general public or staff of the contracting entity, those technical specifications shall, entity, those technical specifications shall, except in duly justified cases, be drawn up except in duly justified cases that shall be so as to take into account accessibility stated in the call for competition, be criteria for people with disabilities or drawn up so as to take into account design for all users. accessibility criteria for people with disabilities or design for all users.

RR\926628EN.doc 225/296 PE483.470v03-00 EN Amendment 26 Proposal for a directive Article 54 – paragraph 1 a (new)

Text proposed by the Commission Amendment

1a. Technical specifications may also include, as appropriate, requirements relating to: (a) performance, including levels of environmental and climate performance and performance in terms of socially sustainable production process; (b) life cycle; (c) socially sustainable production process; (d) the organisation, qualification and experience of the staff assigned to performing the contract in question; (e) safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions; (f) rules relating to design and costing, the test, inspection and acceptance conditions for works and methods or techniques of construction and all other technical conditions which the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they involve.

Amendment 27 Proposal for a directive Article 69 – paragraph 2 – point c

Text proposed by the Commission Amendment

(c) any tenderer that has made an deleted admissible tender of the characteristics and relative advantages of the tender selected, as well as the name of the

PE483.470v03-00 226/296 RR\926628EN.doc EN successful tenderer or the parties to the framework agreement;

Amendment 28 Proposal for a directive Article 70 – paragraph 5

Text proposed by the Commission Amendment

5. Contracting entities may decide not to 5. Contracting authorities may not award a award a contract to the tenderer submitting contract to the tenderer submitting the best the best tender where they have established tender where they have established that the that the tender does not comply, at least in tender does not comply with obligations an equivalent manner, with obligations established by Union or national established by Union legislation in the field legislation in the field of social, labour, of social and labour law or environmental health, safety or environmental law, law or of the international social and collective agreements applicable in the environmental law provisions listed in place where the work, service or supply is Annex XIV. to be performed, or by the international social and environmental law provisions listed in Annex XIV.

Amendment 29 Proposal for a directive Article 76 – paragraph 2 – subparagraph 2 – point b

Text proposed by the Commission Amendment

(b) for service contracts and contracts (b) for service contracts and contracts involving the design of works, the involving the design of works, the organisation, qualification and experience organisation, qualification and experience of the staff assigned to performing the of the staff assigned to performing the contract in question may be taken into contract in question may be taken into consideration, with the consequence that, consideration; following the award of the contract, such staff may only be replaced with the consent of the contracting entity which must verify that replacements ensure equivalent organisation and quality;

Amendment 30 Proposal for a directive Article 76 – paragraph 3 a (new)

RR\926628EN.doc 227/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

3 a. Award criteria shall ensure effective and fair competition and shall be accompanied by requirements that allow the information provided by the tenderers to be effectively verified by the contracting authority in order to determine whether the tenderers meet the award criteria.

Amendment 31 Proposal for a directive Article 79 – title

Text proposed by the Commission Amendment

Abnormally low tenders Price of the tender

Amendment 32 Proposal for a directive Article 79 – paragraph 1 – introductory part

Text proposed by the Commission Amendment

1. The contracting entity shall request 1. The contracting entity shall request economic operators to explain the price or economic operators to explain in a detailed costs charged, where all of the following manner the price or costs charged for their conditions are fulfilled: tender.

Amendment 33 Proposal for a directive Article 79 – paragraph 1 – point a

Text proposed by the Commission Amendment

(a) the price or cost charged is more than deleted 50 % lower than the average price or costs of the remaining tenders;

Justification

This issue can be addressed more effectively in national legislation, taking into account sectoral and regional specificities.

PE483.470v03-00 228/296 RR\926628EN.doc EN Amendment 34 Proposal for a directive Article 79 – paragraph 1 – point b

Text proposed by the Commission Amendment

(b) the price or cost charged is more than deleted 20 % lower than the price or costs of the second lowest tender;

Justification

This issue can be addressed more effectively in national legislation, taking into account sectoral and regional specificities.

Amendment 35 Proposal for a directive Article 79 – paragraph 1 – point c

Text proposed by the Commission Amendment

Justification

This issue can be addressed more effectively in national legislation, taking into account sectoral and regional specificities.

Amendment 36 Proposal for a directive Article 79 – paragraph 2

Text proposed by the Commission Amendment

2. Where tenders appear to be abnormally 2. Where tenders appear to be abnormally low for other reasons, contracting entities low, contracting authorities shall request may also request such explanations. additional explanations before rejecting a tender.

Amendment 37 Proposal for a directive Article 79 – paragraph 3 – point c a (new)

RR\926628EN.doc 229/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(ca) compliance with obligations established by Union or national legislation in the field of social, labour, health, safety or environmental law, collective agreements applicable in the place where the work, service or supply is to be performed, or by the international social and environmental law provisions listed in Annex XIV;

Amendment 38 Proposal for a directive Article 81 – paragraph 1

Text proposed by the Commission Amendment

1. In the procurement documents, the 1. In the procurement documents, the contracting entity may ask, or may be contracting authority may ask the tenderer required by a Member State to ask, the to indicate in its tender any share of the tenderer to indicate in its tender any share contract it may intend to subcontract to of the contract it may intend to subcontract third parties and any proposed to third parties and any proposed subcontractors. Any change in the subcontractors. subcontracting chain and any new subcontractor shall be indicated without delay to the contracting authority.

Amendment 39 Proposal for a directive Article 81 – paragraph 2

Text proposed by the Commission Amendment

2. Member States may provide that, at the 2. Member States may provide that, at the request of the subcontractor and where the request of the subcontractor and where the nature of the contract so allows, the nature of the contract so allows, the contracting entity shall transfer due contracting entity may transfer, in duly payments directly to the subcontractor for justified cases, due payments directly to services, supplies or works provided to the the subcontractor for services, supplies or main contractor. In such case, Member works provided to the main contractor. The States shall put in place appropriate arrangements concerning that mode of mechanisms permitting the main payment shall be set out in the procurement contractor to object to undue payments. documents. The arrangements concerning that mode of payment shall be set out in the procurement

PE483.470v03-00 230/296 RR\926628EN.doc EN documents.

Justification

Directive 2011/7/EU of the European Parliament and of the Council on combating late payment in commercial transactions shall apply (as of March 2013) to transactions between undertakings and public authorities, and transactions between undertakings (B2B).

Amendment 40 Proposal for a directive Article 82 – paragraph 2 – point a

Text proposed by the Commission Amendment

(a) the modification introduces conditions deleted which, had they been part of the initial procurement procedure, would have allowed for the selection of other candidates than those initially selected or would have allowed for awarding the contract to another tenderer;

Amendment 41 Proposal for a directive Article 82 – paragraph 4

Text proposed by the Commission Amendment

4. Where the value of a modification can 4. Where the value of a modification can be expressed in monetary terms, the be expressed in monetary terms, the modification shall not be considered to be modification shall not be considered to be substantial within the meaning of substantial within the meaning of paragraph 1, where its value does not paragraph 1, where its value does not exceed the thresholds set out in Article 12 exceed the thresholds set out in Article 12 and where it is below 5% of the price of and where it is below 10% of the price of the initial contract, provided that the the initial contract, provided that the modification does not alter the overall modification does not alter the overall nature of the contract. Where several nature of the contract. Where several successive modifications are made, the successive modifications are made, the value shall be assessed on the basis of the value shall be assessed on the basis of the cumulative value of the successive cumulative value of the successive modifications. modifications.

Amendment 42 Proposal for a directive Article 93

RR\926628EN.doc 231/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

Article 93 deleted Public oversight 1. Member States shall appoint a single independent body responsible for the oversight and coordination of implementation activities (hereinafter 'the oversight body'). Member States shall inform the Commission of their designation. All contracting authorities shall be subject to such oversight. 2. The competent authorities involved in the implementation activities shall be organised in such a manner that conflicts of interests are avoided. The system of public oversight shall be transparent. For this purpose, all guidance and opinion documents and an annual report illustrating the implementation and application of rules laid down in this Directive shall be published. The annual report shall include the following: (a) an indication of the success rate of small and medium-sized enterprises (SMEs) in public procurement; where the percentage is lower than 50 % in terms of values of contracts awarded to SMEs, the report shall provide an analysis of the reasons therefore; (b) a global overview of the implementation of sustainable procurement policies, including on procedures taking into account considerations linked to the protection of the environment, social inclusion including accessibility for persons with disabilities, or fostering innovation; (c) centralized data about reported cases of fraud, corruption, conflict of interests and other serious irregularities in the field of public procurement, including

PE483.470v03-00 232/296 RR\926628EN.doc EN those affecting projects cofinanced by the budget of the Union. 3. The oversight body shall be responsible for the following tasks: (a) monitoring the application of public procurement rules and the related practice by contracting authorities and in particular by central purchasing bodies; (b) providing legal advice to contracting authorities on the interpretation of public procurement rules and principles and on the application of public procurement rules in specific cases; (c) issuing own-initiative opinions and guidance on questions of general interest pertaining to the interpretation and application of public procurement rules, on recurring questions and on systemic difficulties related to the application of public procurement rules, in the light of the provisions of this Directive and of the relevant case-law of the Court of Justice of the European Union; (d) establishing and applying comprehensive, actionable 'red flag' indicator systems to prevent, detect and adequately report instances of procurement fraud, corruption, conflict of interest and other serious irregularities; (e) drawing the attention of the national competent institutions, including auditing authorities, to specific violations detected and to systemic problems; (f) examining complaints from citizens and businesses on the application of public procurement rules in specific cases and transmitting the analysis to the competent contracting authorities, which shall have the obligation to take it into account in their decisions or, where the analysis is not followed, to explain the reasons for disregarding it; (g) monitoring the decisions taken by national courts and authorities following a ruling given by the Court of Justice of

RR\926628EN.doc 233/296 PE483.470v03-00 EN the European Union on the basis of Article 267 of the Treaty or findings of the European Court of Auditors establishing violations of Union public procurement rules related to projects cofinanced by the Union; the oversight body shall report to the European Anti-Fraud Office any infringement to Union procurement procedures where these were related to contracts directly or indirectly funded by the European Union. The tasks referred to in point (e) shall be without prejudice to the exercise of rights of appeal under national law or under the system established on the basis of Directive 89/665/EEC. Member States shall empower the oversight body to seize the jurisdiction competent according to national law for the review of contracting authorities' decisions where it has detected a violation in the course of its monitoring and legal advising activity. 4. Without prejudice to the general procedures and working methods established by the Commission for its communications and contacts with Member States, the oversight body shall act as a specific contact point for the Commission when it monitors the application of Union law and the implementation of the budget from the Union on the basis of Article 17 of the Treaty on the European Union and Article 317 of the Treaty on the Functioning of the European Union. It shall report to the Commission any violation of this Directive in procurement procedures for the award of contracts directly or indirectly funded by the Union. The Commission may in particular refer to the oversight body the treatment of individual cases where a contract is not yet concluded or a review procedure can still be carried out. It may also entrust the oversight body with the monitoring activities necessary to ensure the

PE483.470v03-00 234/296 RR\926628EN.doc EN implementation of the measures to which Member States are committed in order to remedy a violation of Union public procurement rules and principles identified by the Commission. The Commission may require the oversight body to analyse alleged breaches to Union public procurement rules affecting projects co-financed by the budget of the Union. The Commission may entrust the oversight body to follow- up certain cases and to ensure that the appropriate consequences of breaches to Union public procurement rules affecting projects co-financed are taken by the competent national authorities which will be obliged to follow its instructions. 5. The investigation and enforcement activities carried out by the oversight body to ensure that contracting authorities’ decisions comply with this Directive and the principles of the Treaty shall not replace or prejudge the institutional role of the Commission as guardian of the Treaty. When the Commission decides to refer the treatment of an individual case pursuant to paragraph 4, it shall also retain the right to intervene in accordance with the powers conferred to it by the Treaty. 6. Contracting authorities shall transmit to the national oversight body the full text of all concluded contracts with a value equal to or greater than (a) 1 000 000 EUR in the case of public supply contracts or public service contracts; (b) 10 000 000 EUR in the case of public works contracts. 7. Without prejudice to the national law concerning access to information, and in accordance with national and EU legislation on data protection, the oversight body shall, upon written request, give unrestricted and full direct access, free of charge, to the concluded contracts

RR\926628EN.doc 235/296 PE483.470v03-00 EN referred to in paragraph 6. Access to certain parts of the contracts may be refused where their disclosure would impede law enforcement or otherwise be contrary to the public interest, would harm the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them. Access to the parts that may be released shall be given within a reasonable delay and no later than 45 days from the date of the request. The applicants filing a request for access to a contract shall not need to show any direct or indirect interest related to that particular contract. The recipient of information should be allowed to make it public. 8. A summary of all the activities carried out by the oversight body in accordance with paragraphs 1 to 7 shall be included in the annual report referred to in paragraph 2.

Amendment 43 Proposal for a directive Article 94 – paragraph 1 – second subparagraph

Text proposed by the Commission Amendment

Contracting entities shall document the Contracting entities shall document the progress of all procurement procedures, progress of all procurement procedures, whether or not the procedures are whether or not the procedures are conducted by electronic means. To that conducted by electronic means. To that end, they shall document all stages in the end, they shall document all stages in the procurement procedure, including all procurement procedure, including all communications with economic operators communications with economic operators, and internal deliberations, preparation of preparation of the tenders, dialogue or the tenders, dialogue or negotiation if any, negotiation if any, selection and award of selection and award of the contract. the contract.

Amendment 44 Proposal for a directive Article 98 – paragraph 2

PE483.470v03-00 236/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

2. The delegation of power referred to in 2. The delegation of power referred to in Articles 4, 35, 33, 38, 25, 65, 70, 77, 85 Articles 4, 35, 33, 38, 25, 65, 70, 77, 85 and 95 shall be conferred on the and 95 shall be conferred on the Commission for an indeterminate period Commission for a period of five years from of time from the [date of entry into force of the [date of entry into force of the present this Directive]. Directive]. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

Amendment 45 Proposal for a directive Annex III – point D – point 1

Text proposed by the Commission Amendment

Rail Freight transport Rail transport

Justification

Not only rail freight market but also part of the rail passenger market has been opened to competition.

Amendment 46 Proposal for a directive Annex III – point D – point 2

Text proposed by the Commission Amendment

Rail passenger transport deleted None

RR\926628EN.doc 237/296 PE483.470v03-00 EN PROCEDURE

Opinion by TRAN Date announced in plenary 19.1.2012

Rapporteur Eva Lichtenberger Date appointed 27.2.2012 Discussed in committee 10.7.2012 6.9.2012 Date adopted 18.9.2012

Result of final vote +: 38 –: 3 0: 0

Members present for the final vote Magdi Cristiano Allam, Inés Ayala Sender, Georges Bach, Erik Bánki, Izaskun Bilbao Barandica, Philip Bradbourn, Antonio Cancian, Michael Cramer, Luis de Grandes Pascual, Christine De Veyrac, Saïd El Khadraoui, Ismail Ertug, Carlo Fidanza, Knut Fleckenstein, Jacqueline Foster, Mathieu Grosch, Jim Higgins, Juozas Imbrasas, Dieter-Lebrecht Koch, Georgios Koumoutsakos, Werner Kuhn, Jörg Leichtfried, Eva Lichtenberger, Marian-Jean Marinescu, Gesine Meissner, Hubert Pirker, Dominique Riquet, Vilja Savisaar-Toomast, Olga Sehnalová, Brian Simpson, Keith Taylor, Silvia-Adriana Ţicău, Giommaria Uggias, Dominique Vlasto, Artur Zasada, Roberts Zīle Substitute(s) present for the final vote Spyros Danellis, Nathalie Griesbeck, Zita Gurmai, Sabine Wils, Janusz Władysław Zemke

PE483.470v03-00 238/296 RR\926628EN.doc EN

18.10.2012

OPINION OF THE COMMITTEE ON REGIONAL DEVELOPMENT

for the Committee on the Internal Market and Consumer Protection

Rapporteur: Ramona Nicole Mănescu

SHORT JUSTIFICATION

Transparent and credible public procurement plays a particularly important role in the efficiency of public spending and also in the impact of public investment on the economy, particularly on sustainable growth and innovation.

The public procurement regime is by nature highly complex, in particular for small local authorities and SMEs, and a broader access to clear information and advice concerning EU rules on public procurement for contracting authorities, in particular at regional and local level and SMEs alike should be a must. The objective of further developing EU procurement law must be to make procurement procedures simultaneously simpler, cheaper and more SME- and investment-friendly.

The Commission and the Member States share a great responsibility of ensuring the training and the consultation needed to inform and assist regional and local authorities and SMEs, and also to involve other interested parties, in order to ensure that there is effective informed participation in public procurement, thus reducing the frequency of errors and irregularities and developing the required expertise among the contracting authorities of local and regional authorities in the field of public procurement.

Indeed, SMEs have a huge potential for job creation, growth and innovation, and in order to derive maximum benefit from the economic and innovative potential of SMEs in the context of procurement procedures, these should be encouraged to participate in public procurement procedures organised by local and regional authorities.

As your Rapporteur, with the support of the Committee, has made clear in her opinion on the modernisation of public procurement, public procurement should not follow the lowest price principle but should take into account the sustainable and economically most advantageous tender, including life-cycle cost. This rule should be further strengthened in the

RR\926628EN.doc 239/296 PE483.470v03-00 EN It should be made clear, however, that the effectiveness and efficiency of any rules enacted at European level on public is conditional upon a sound and as much simplified as possible transposition of those rules into the laws of the Member States. Member States, with the assistance and monitoring of the Commission, should therefore ensure that fragmentation of rules across the Union is avoided, and that simplification of regimes is not hampered, due to the quite very complex and detailed nature of the rules contained in the proposed directives.

Legal and practical clarification of the directives in order to avoid further failures in applying the public procurement rules is crucial. In this context, your Rapporteur hopes that the serious failures to comply with public procurement rules repeatedly identified by the Court of Auditors in the implementation of projects under the ERDF and the Cohesion Fund, mainly due to the complexity of public procurement procedures, the lack of consistency between them and those on which the use of the Structural Funds and Cohesion Fund is based and the incorrect implementation of EU legislation into national law, will be finally solved and duly taken into account in the framework of the interpretation and application of future public procurement rules.

AMENDMENTS

The Committee on Regional Development calls on the Committee on the Internal Market and Consumer Protection, as the committee responsible, to incorporate the following amendments in its report:

Amendment 1

Proposal for a directive Recital 2

Text proposed by the Commission Amendment

PE483.470v03-00 240/296 RR\926628EN.doc EN transparency. In view of the nature of the transparency. In view of the nature of the sectors affected by such coordination, the sectors affected by such coordination, the latter should, while safeguarding the latter should, while safeguarding the application of those principles, establish a application of those principles, establish a framework for sound commercial practice framework for sound commercial practice and should allow maximum flexibility. and should allow maximum flexibility at every level of the public procurement procedure, particularly favouring small and medium-sized enterprises. Public procurement rules have to respect the distribution of competences as enshrined in Article 14 TFEU and the Protocol No 26 thereof. The application of those rules should not interfere with the freedom of public authorities to decide how they carry out their public service tasks.

Justification

Adaption to the new provisions of the Lisbon Treaty.

Amendment 2

Proposal for a directive Recital 4

Text proposed by the Commission Amendment

RR\926628EN.doc 241/296 PE483.470v03-00 EN in particular the participation of small and and encouraging in particular access for medium-sized enterprises in public small and medium-sized enterprises in procurement and to enable procurers to public procurement procedures and to make better use of public procurement in enable procurers to make better use of support of common societal goals. There is public procurement in support of common also a need to clarify basic notions and societal goals, without prejudice to the concepts to ensure better legal certainty latter autonomy of decision on what to and to incorporate certain aspects of related procure and to buy. There is also a need to well-established case-law of the Court of clarify basic notions and concepts to ensure Justice of the European Union. transparency, fairness and better legal certainty and to incorporate certain aspects of related well-established case-law of the Court of Justice of the European Union.

Justification

Procurers autonomy to decide what to buy should not be interfered with.

Amendment 3

Proposal for a directive Recital 13

Text proposed by the Commission Amendment

(13) Illicit conduct by participants in a (13) Illicit conduct by participants in a procurement procedure, such as attempts to procurement procedure, such as attempts to unduly influence the decision-making unduly influence the decision-making process or to enter into agreements with process or to enter into agreements with other candidates to manipulate the outcome other candidates to manipulate the outcome of the procedure can result in violations of of the procedure can result in violations of the basic principles of Union law and in the basic principles of Union law and in serious distortions of competition. serious distortions of competition. Economic operators should therefore be Economic operators should therefore be required to submit a declaration on honour required to submit a declaration on honour that they do not engage in such illicit that they do not engage in such illicit activities and be excluded if this activities and will be excluded from both declaration proves to be false. the corresponding and subsequent procurement procedures within the EU if this declaration proves to be false.

Amendment 4

Proposal for a directive Recital 25

PE483.470v03-00 242/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

(25) Research and innovation, including (25) Research and innovation, including eco-innovation and social innovation, are eco-innovation and social innovation, are among the main drivers of future growth among the main drivers of future growth and have been put at the centre of the and have been put at the centre of the Europe 2020 strategy for smart, sustainable Europe 2020 strategy for smart, sustainable and inclusive growth. Contracting entities and inclusive growth. Contracting entities should make the best strategic use of public should make the best strategic use of public procurement to spur innovation. Buying procurement to spur research and innovative goods and services plays a key innovation, particularly at regional and role in improving the efficiency and quality local level. Buying innovative goods and of public services while addressing major services plays a key role in improving the societal challenges. It contributes to efficiency and quality of public services achieving best value for money as well as while addressing major societal challenges. wider economic, environmental and It contributes to achieving best value for societal benefits in terms of generating new money as well as wider economic, ideas, translating them into innovative environmental and societal benefits in products and services and thus promoting terms of generating new ideas, translating sustainable economic growth. This them into innovative products and services directive should contribute to facilitating and thus promoting sustainable economic procurement of innovation and help growth. This directive should contribute to Member States in achieving the Innovation facilitating procurement of innovation and Union targets. A specific procurement help Member States in achieving the procedure should therefore be provided for Innovation Union targets. A specific which allows contracting entities to procurement procedure should therefore be establish a long-term innovation provided for which allows contracting partnership for the development and entities to establish a long-term innovation subsequent purchase of a new, innovative partnership for the development and product, service or works provided it can subsequent purchase of a new, innovative be delivered to agreed performance levels product, service or works provided it can and costs. The partnership should be be delivered to agreed performance levels structured in such a way that it can provide and costs. The partnership should be the necessary “market-pull” incentivising structured in such a way that it can provide the development of an innovative solution the necessary “market-pull” incentivising without foreclosing the market. the development of an innovative solution without foreclosing the market.

Amendment 5

Proposal for a directive Recital 27

Text proposed by the Commission Amendment

(27) Electronic means of information and (27) Electronic means of information and communication can greatly simplify the communication in particular can greatly

RR\926628EN.doc 243/296 PE483.470v03-00 EN publication of contracts and increase the simplify the publication of contracts and efficiency and transparency of procurement increase the efficiency and transparency of processes. They should become the procurement processes by reducing standard means of communication and obstructive regulatory complexity. They information exchange in procurement should become the standard means of procedures. The use of electronic means communication and information exchange also leads to time savings. As a result, in procurement procedures. The use of provision should be made for reducing the electronic means also leads to time savings. minimum periods where electronic means As a result, provision should be made for are used, subject, however, to the condition reducing the minimum periods where that they are compatible with the specific electronic means are used, subject, mode of transmission envisaged at Union however, to the condition that they are level. Moreover, electronic means of compatible with the specific mode of information and communication including transmission envisaged at Union level. adequate functionalities can enable Moreover, electronic means of information contracting authorities to prevent, detect and communication including adequate and correct errors that occur during functionalities can enable contracting procurement procedures. authorities to prevent, detect and correct errors that occur during procurement procedures.

Amendment 6

Proposal for a directive Recital 28

Text proposed by the Commission Amendment

(28) There is a strong trend emerging (28) There is a strong trend emerging across Union public procurement markets across Union public procurement markets towards the aggregation of demand by towards the aggregation of demand by public purchasers, with a view to obtaining public purchasers, with a view to obtaining economies of scale, including lower prices economies of scale, including lower prices and transaction costs, and to improving and and transaction costs, and to improving and professionalising procurement professionalising procurement management. This can be achieved by management. This can be achieved by concentrating purchases either by the concentrating purchases either by the number of contracting entities involved or number of contracting entities involved or by volume and value over time. However, by volume and value over time. However, the aggregation and centralisation of the aggregation and centralisation of purchases should be carefully monitored in purchases should be carefully monitored in order to avoid excessive concentration of order to avoid excessive concentration of purchasing power and collusion, and to purchasing power and collusion, and to preserve transparency and competition, as preserve transparency and competition, as well as market access opportunities for well as to enhance market access small and medium-sized enterprises. opportunities for small and medium-sized enterprises by encouraging greater flexibility and suppleness in public

PE483.470v03-00 244/296 RR\926628EN.doc EN procurement procedures.

Amendment 7

Proposal for a directive Recital 34

Text proposed by the Commission Amendment

RR\926628EN.doc 245/296 PE483.470v03-00 EN Amendment 8

Proposal for a directive Recital 43

Text proposed by the Commission Amendment

(43) Contracts should be awarded on the (43) Contracts should be awarded on the basis of objective criteria that ensure basis of objective criteria that ensure compliance with the principles of compliance with the principles of transparency, non-discrimination and equal transparency, non-discrimination and equal treatment. Those criteria should guarantee treatment. Those criteria should guarantee that tenders are assessed in conditions of that tenders are assessed in conditions of effective competition, also where effective competition, while ensuring that contracting entities require high-quality entities may also require high-quality works, supplies and services that are works, supplies and services that are optimally suited to their needs. As a result, optimally suited to their needs as long as contracting entities should be allowed to they are linked to the subject matter of the adopt as award criteria either "the most contract. As a result, contracting entities economically advantageous tender" or "the should be allowed to adopt as award lowest cost", taking into account that in criteria preferably "the most economically, the latter case they are free to set socially and environmentally adequate quality standards by using advantageous tender" in line with the technical specifications or contract principle of cost-effectiveness and performance conditions. adequate quality.

Amendment 9

Proposal for a directive Recital 44

Text proposed by the Commission Amendment

(44) Where contracting entities choose to (44) Where contracting entities award a award a contract to the most economically contract to the most economically advantageous tender, they must determine advantageous tender, they must determine the award criteria on the basis of which the award criteria on the basis of which they will assess tenders in order to identify they will assess tenders in order to identify which one offers the best value for money. which one offers the best value for money. The determination of those criteria depends The determination of those criteria depends on the subject-matter of the contract, since on the subject-matter of the contract, since they must allow the level of performance they must allow the level of performance offered by each tender to be assessed in the offered by each tender to be assessed in the light of the subject-matter of the contract, light of the subject-matter of the contract, as defined in the technical specifications, as defined in the technical specifications, and the value for money of each tender to and the value for money of each tender to be measured. Furthermore, the chosen be measured. Furthermore, the chosen award criteria should not confer an award criteria should not confer an

PE483.470v03-00 246/296 RR\926628EN.doc EN unrestricted freedom of choice on the unrestricted freedom of choice on the contracting entity and they should ensure contracting entity and they should ensure the possibility of effective competition and the possibility of effective competition and be accompanied by requirements that allow be accompanied by requirements that allow the information provided by the tenderers the information provided by the tenderers to be effectively verified. to be effectively verified.

Amendment 10

Proposal for a directive Recital 57

Text proposed by the Commission Amendment

(57) The evaluation has shown that (57) The evaluation has shown that Member States do not consistently and Member States do not consistently and systematically monitor the implementation systematically promote and monitor the and the functioning of public procurement implementation and the functioning of rules. This has a negative impact on the public procurement rules. This has a correct implementation of provisions negative impact on the correct stemming from those directives, which is a implementation of provisions stemming major source of cost and uncertainty. from those directives, which is a major Several Member States have appointed a source of cost and uncertainty. Several national central body dealing with public Member States have appointed a national procurement issues, but the functions that central body dealing with public such bodies are empowered with vary procurement issues, but the tasks entrusted considerably across Member States. to such bodies vary considerably across Clearer, more consistent and authoritative Member States. Clearer, more consistent monitoring and control mechanisms would and authoritative information, monitoring increase knowledge of the functioning of and control mechanisms would increase procurement rules, legal certainty for knowledge of the functioning of businesses and contracting entities, and procurement rules, improve legal certainty contribute to establish a level playing field. for businesses and contracting authorities, Such mechanisms could serve as tools for and contribute to establishing a level detection and early resolution of problems, playing field. Such mechanisms could especially with regard to projects cofunded serve as tools for the prevention, detection by the Union, and for the identification of and early resolution of problems, structural deficiencies. There is in particularly in the case of projects particular a strong need to coordinate cofunded by the Union, and for the those mechanisms to ensure consistent identification of structural deficiencies. It application, controls and monitoring of is vital that those mechanisms be public procurement policy, as well as coordinated to ensure consistent systematic assessment of the outcomes of application, control and monitoring of procurement policy across the Union. public procurement policy, as well as systematic assessment of its outcomes across the Union.

RR\926628EN.doc 247/296 PE483.470v03-00 EN Amendment 11

Proposal for a directive Recital 59

Text proposed by the Commission Amendment

Justification

It is particularly important to enhance the role of SMEs in the field of public procurement.

Amendment 12

Proposal for a directive Recital 60

Text proposed by the Commission Amendment

(60) Monitoring, oversight and support (60) Monitoring, oversight and support structures or mechanisms exist already at structures or mechanisms exist already at national level and can of course be used to national level and can of course be used to ensure monitoring, implementation and ensure monitoring, implementation and control of public procurement and to control of public procurement and to provide the required support to contracting provide the required support at all stages entities and economic operators. of the public procurement process to contracting entities, and particularly local and regional authorities, and to economic operators, and particularly small and medium-sized enterprises.

PE483.470v03-00 248/296 RR\926628EN.doc EN Amendment 13

Proposal for a directive Recital 61 a (new)

Text proposed by the Commission Amendment

(61a) The way this Directive is transposed is of utmost importance to the efforts of simplification, as well as to ensure an uniform approach to the interpretation and application of the EU rules on public procurement, thus contributing to the necessary legal certainty required by contracting authorities, in particular at sub-central level, and by SMEs alike. The Commission and the Member States should therefore ensure that transposition of this Directive is done having also in mind the major impact of the public procurement national legislation on the process of accessing the European Union funds. Therefore it is of utmost importance for the Member States to avoid as much as possible any fragmentation in the interpretation and application, while contributing as well to the simplification at national level.

Justification

It is necessary to ensure that transposition does not hamper the efforts of simplification and harmonisation, in order to avoid the fragmentation of rules across the Union, which would affect mostly SMEs and smaller contacting authorities, at regional and local level.

Amendment 14

Proposal for a directive Recital 61 b (new)

Text proposed by the Commission Amendment

(61b) The Commission should encourage the Member States to conduct regular training and awareness-raising campaigns and engage in consultation targeted at regional and local authorities and SMEs, and also to involve other

RR\926628EN.doc 249/296 PE483.470v03-00 EN interested parties, in order to ensure there is informed participation in public procurement and reduce the frequency of errors and to develop the required expertise among the contracting authorities of local and regional administrations in order to implement innovative procurement.

Amendment 15

Proposal for a directive Article 2 – paragraph 1 – point 4 – point a

Text proposed by the Commission Amendment

(a) It is established for or has the specific (a) It is established for or has the specific purpose of meeting needs in the general purpose of meeting needs in the general interest, not having an industrial or interest, not having an industrial or commercial character; for that purpose, a commercial character; body which operates in normal market conditions, aims to make a profit, and bears the losses resulting from the exercise of its activity does not have the purpose of meeting needs in the general interest, not having an industrial or commercial character;

Justification

Going back to the current definition from Directive 2004/17/EC, Article 2.1 (a) this definition is approved and will avoid legal uncertainty.

Amendment 16

Proposal for a directive Article 12 – paragraph 1 a (new)

Text proposed by the Commission Amendment

The value of the thresholds will be adjusted according to changes in the harmonized European Economic Area Index of Consumer Prices on a yearly basis.

PE483.470v03-00 250/296 RR\926628EN.doc EN Justification

A fixed value for thresholds does not reflect constant changes in real purchasing power. To link and adjust the thresholds according to a well-established index would be an appropiate action.

Amendment 17

Proposal for a directive Article 14 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

Justification

Member States should be consulted before the revision of the thresholds in certain sectors and types of contracts.

Amendment 18

Proposal for a directive Article 19 – paragraph 1 - point b

Text proposed by the Commission Amendment

(b) arbitration and conciliation services; (b) arbitration and conciliation services, including dispute adjudication services;

Justification

"Dispute adjudication services" is a specific conciliation service linked to the use of the international FIDIC conditions of contracts for building and engineering works, adopted by the World Bank.

Amendment 19

Proposal for a directive Article 19 a (new)

RR\926628EN.doc 251/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

Article 19a Service contracts awarded on the basis of exclusive rights This Directive shall not apply to service contacts awarded to an entity which is itself a contracting authority within the meaning of Article 2(1) or to an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to the published legislation in force, regulation or administrative provision which is compatible with the Treaty.

Justification

To reintroduce Article 25 from the current Directive 2004/17/EC. This Article is important for operations of services of general economic interest it excludes public service contracts that are based on an exclusive right enshrined in public law, regulations or administrative provision, compatible with the Treaty. The ECJ has applied this provision in C-360/96.

Amendment 20

Proposal for a directive Article 21 – paragraph 1 – point b

Text proposed by the Commission Amendment

(b) at least 90 % of the activities of that (b) the activities in their entirety of that legal person are carried out for the legal person are carried out for the controlling contracting authority or for controlling contracting authority or for other legal persons controlled by that other legal persons controlled by that contracting authority; contracting authority or with respect to the provision of services of general interest;

Justification

The provision of Services of general interest (SGI) is not profit-oriented, but aimed to fulfil the citizen's needs. Therefore activities in the field of SGIs have to be taken into account.

Amendment 21

Proposal for a directive Article 21 – paragraph 2

PE483.470v03-00 252/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

Amendment 22

Proposal for a directive Article 21 – paragraph 3 – subparagraph 1 – point b

Text proposed by the Commission Amendment

(b) at least 90 % of the activities of that (b) at least 80 % of the activities of that legal person are carried out for the legal person, which are subject to the controlling contracting authorities or other contract, are carried out for the controlling legal persons controlled by the same contracting authorities or other legal contracting authorities; persons controlled by the same contracting authorities;

Amendment 23

Proposal for a directive Article 21 – paragraph 3 – subparagraph 2 – point a

Text proposed by the Commission Amendment

(a) the decision-making bodies of the (a) the decision-making bodies of the controlled legal person are composed of controlled legal person are composed of representatives of all participating representatives of all participating contracting authorities; contracting authorities whereas contracting authorities can appoint mutual representatives only;

Justification

It is a common practice to appoint mutual representatives. There is no reason to prohibit this efficient mode of mutually agreed collaboration.

Amendment 24

RR\926628EN.doc 253/296 PE483.470v03-00 EN Proposal for a directive Article 21 – paragraph 4 – point a

Text proposed by the Commission Amendment

(a) the agreement establishes a genuine (a) the purpose of the partnership is the co-operation between the participating provision of a public-service task contracting authorities aimed at carrying conferred on all participating public out jointly their public service tasks and authorities, or the provision of an involving mutual rights and obligations of ancillary task necessary to deliver the the parties; public service task conferred on all the public authorities;

Amendment 25

Proposal for a directive Article 21 – paragraph 4 – point b

Text proposed by the Commission Amendment

(b) the agreement is governed only by deleted considerations relating to the public interest;

Amendment 26

Proposal for a directive Article 21 – paragraph 4 – point c

Text proposed by the Commission Amendment

Justification

This clarification is necessary in order not to create legal disputes.

PE483.470v03-00 254/296 RR\926628EN.doc EN Amendment 27

Proposal for a directive Article 21 – paragraph 5 – subparagraph 2

Text proposed by the Commission Amendment

Amendment 28

Proposal for a directive Article 29 – title

Text proposed by the Commission Amendment

Principles of procurement Purpose and principles of procurement

Justification

Some Member States indicated that a reference to the purpose of the directive should be included.

Amendment 29

Proposal for a directive Article 29 – paragraph 2 a (new)

Text proposed by the Commission Amendment

The purpose of this Directive is to safeguard the efficiency of the use of public funds, promote high-quality procurement, strengthen competition and the functioning of the public procurement markets and safeguard equal opportunities for companies and other providers in offering supply, service and public works contracts under competitive bidding for public procurement.

RR\926628EN.doc 255/296 PE483.470v03-00 EN Justification

Some Member States indicated that a reference to the purpose of the directive should be included.

Amendment 30

Proposal for a directive Article 30 – paragraph 2 – subparagraph 2

Text proposed by the Commission Amendment

Contracting entities may establish specific Contracting entities may establish specific conditions for the performance of the conditions for the performance of the contract by a group, provided that those contract by a group, provided that those conditions are justified by objective conditions are justified by objective reasons and proportionate. Those reasons and proportionate. Those conditions may require a group to assume a conditions may require a group to assume a specific legal form once it has been specific legal form once it has been awarded the contract, to the extent that this awarded the contract, if and to the extent change is necessary for the satisfactory that this change is strictly necessary for the performance of the contract. satisfactory performance of the contract.

Justification

This requirement should be limited as much as possible in order to avoid any unnecessary burdens on businesses and especially SMEs.

Amendment 31

Proposal for a directive Article 31 – paragraph 1

Text proposed by the Commission Amendment

Member States may reserve the right to Member States may reserve the right to participate in procurement procedures to participate in procurement procedures to: sheltered workshops and economic operators whose main aim is the social and professional integration of disabled and disadvantaged workers or provide for such contracts to be performed in the context of sheltered employment programmes, provided that more than 30% of the employees of those workshops, economic operators or programmes are disabled or disadvantaged workers. a) sheltered workshops, or provide for such

PE483.470v03-00 256/296 RR\926628EN.doc EN 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 of the seriousness of their disabilities, cannot carry on occupations under normal conditions or easily find employment on the ordinary market; b) social enterprises or programmes whose main aim is the social and professional integration of disadvantaged workers, provided that more than 30% of the employees of those enterprises or programmes are disabled and/or disadvantaged persons. 'Disadvantaged persons' include amongst others: the unemployed, people experiencing particular difficulty in achieving integration, people at risk of exclusion, members of vulnerable groups and members of disadvantaged minorities.

Amendment 32

Proposal for a directive Article 32 – paragraph 2

Text proposed by the Commission Amendment

2. Unless otherwise provided in this 2. Unless otherwise provided in this Directive or in the national law concerning Directive or in the national law concerning access to information, and without access to information, and without prejudice to the obligations relating to the prejudice to the obligations relating to the advertising of awarded contracts and to the advertising of awarded contracts and to the information to candidates and tenderers set information to candidates and tenderers set out in Articles 64 and 69 of this directive out in Articles 64 and 69 of this directive the contracting entity shall not disclose the contracting entity shall not disclose any information forwarded to it by economic information forwarded to it by economic operators which they have designated as operators either they have designated it as confidential, including, but not limited to, confidential or not, including, but not technical or trade secrets and the limited to, technical or trade secrets and the confidential aspects of tenders. confidential aspects of tenders, unless it is absolutely necessary for the purpose of this directive or of the applicable national law.

RR\926628EN.doc 257/296 PE483.470v03-00 EN Justification

For businesses, and especially SMEs, it is important that no information at all is disclosed, unless there is a justification to do otherwise.

Amendment 33

Proposal for a directive Article 40 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

The minimum time limit for the receipt of The minimum time limit for the receipt of tenders shall be 40 days from the date on tenders shall be 52 days from the date on which the contract notice was sent. which the contract notice was sent.

Justification

New time limits are too short in practical terms, and in particular for SMEs, and could limit competition

Amendment 34

Proposal for a directive Article 41 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

The minimum time limit for the receipt of The minimum time limit for the receipt of requests to participate shall, as a general requests to participate shall, as a general rule, be fixed at no less than 30 days from rule, be fixed at no less than 37 days from the date on which the contract notice or the the date on which the contract notice or the invitation to confirm interest is sent and invitation to confirm interest is sent and may in no case be less than 15 days. may in no case be less than 15 days.

Justification

New time limits are too short in practical terms, and in particular for SMEs, and could limit competition.

PE483.470v03-00 258/296 RR\926628EN.doc EN Amendment 35

Proposal for a directive Article 41 – paragraph 2 – subparagraph 3

Text proposed by the Commission Amendment

Where it is not possible to reach agreement Where it is not possible to reach agreement on the time limit for the receipt of tenders, on the time limit for the receipt of tenders, the contracting entity shall fix a time limit the contracting entity shall fix a time limit which shall in no case be less than 10 days which shall in no case be less than 20 days from the date on which the invitation to from the date on which the invitation to tender is sent. tender is sent.

Justification

New time limits are too short in practical terms, and in particular for SMEs, and could limit competition.

Amendment 36

Proposal for a directive Article 42 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

The minimum time limit for the receipt of The minimum time limit for the receipt of requests to participate shall, as a general requests to participate shall, as a general rule, be fixed at no less than 30 days from rule, be fixed at no less than 37 days from the date on which the contract notice or, the date on which the contract notice or, where a periodic indicative notice is used where a periodic indicative notice is used as a means of calling for competition, the as a means of calling for competition, the invitation to confirm interest is sent and invitation to confirm interest is sent and may in no case be less than 15 days. may in no case be less than 15 days.

Justification

New time limits are too short in practical terms, and in particular for SMEs, and could limit competition.

Amendment 37

Proposal for a directive Article 42 – paragraph 2 – subparagraph 3

Text proposed by the Commission Amendment

Where it is not possible to reach agreement Where it is not possible to reach agreement

RR\926628EN.doc 259/296 PE483.470v03-00 EN on the time limit for the receipt of tenders, on the time limit for the receipt of tenders, the contracting entity shall fix a time limit the contracting entity shall fix a time limit which shall in no case be less than 10 days which shall in no case be less than 20 days from the date on which the invitation to from the date on which the invitation to tender is sent. tender is sent.

Justification

New time limits are too short in practical terms, and in particular for SMEs, and could limit competition.

Amendment 38

Proposal for a directive Article 44 – paragraph 4

Text proposed by the Commission Amendment

For the purposes of point (g) of deleted paragraph 1 of this Article, the basic project shall indicate the extent of possible additional works or services and the conditions under which they will be awarded. As soon as the first project is put up for tender, notice shall be given that this procedure might be adopted and the total estimated cost of subsequent works or services shall be taken into consideration by the contracting entities when they apply Articles 12 and 13.

Justification

Possible additional works or services to the basic project will be indicated via the instrument of an "Option". Therefore an additional declaration is redundant.

Amendment 39

Proposal for a directive Article 45 – paragraph 1 – subparagraph 3

Text proposed by the Commission Amendment

The term of a framework agreement shall A framework agreement shall not exceed not exceed four years, save in exceptional the term put in place by national cases duly justified, in particular by the provisions of the individual Member subject of the framework agreement. States. The term of a framework agreement regarding the maintenance is

PE483.470v03-00 260/296 RR\926628EN.doc EN based on the life cycle of the work or supply.

Amendment 40

Proposal for a directive Article 47 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

Contracting entities may use electronic Only for standardised services and auctions in which new prices, revised supplies contracting entities may use downwards, and/or new values concerning electronic auctions in which new prices, certain elements of tenders are presented. revised downwards, and/or new values concerning certain elements of tenders are presented. Service contracts and works' contracts having as their subject-matter intellectual property, such as the design of works, may not be the objects of electronic auctions.

Amendment 41

Proposal for a directive Article 52 – paragraph 5 – subparagraph 1 - introductory part

Text proposed by the Commission Amendment

In the absence of an agreement In the absence of an agreement determining the applicable public determining the applicable public procurement law, the national legislation procurement law under paragraph 3, the governing the contract award shall be national legislation governing the contract determined following the rules set out award shall be determined following the below: rules set out below:

Justification

Like in paragraph 6, the concrete situation of a lack of agreement to which this paragraph applies should be specified as well.

RR\926628EN.doc 261/296 PE483.470v03-00 EN Amendment 42

Proposal for a directive Article 53 – paragraph 2 – subparagraph 2

Text proposed by the Commission Amendment

Such measures shall include the Such measures shall include the communication to the other candidates and communication to the other candidates and tenderers of any relevant information tenderers of any relevant information exchanged in the context of or resulting exchanged in the context of or resulting from the involvement of the candidate or from the involvement of the candidate or tenderer in the preparation of the tenderer in the preparation of the procurement procedure and the fixing of procurement procedure and the fixing of adequate time limits for the receipt of adequate time limits for the receipt of tenders. The candidate or tenderer tenders. The candidate or tenderer concerned shall only be excluded from the concerned shall only be excluded from the procedure where there are no other means procedure where the contracting authority to ensure compliance with the duty to proves that there are no other means to observe the principle of equal treatment. ensure compliance with the duty to observe the principle of equal treatment.

Justification

To the legitimate mean of allowing companies that are involved with regards to a decision of exclusion founded on the risk of competition distortion, to be heard; the last subparagraph of point 2 reverses the burden of proof so that it falls on the company in question. Indeed in order to challenge a decision to exclude, the company must "prove" that its participation does not distort competition. In the absence of relevant proof, the decision to exclude will then be legitimised. In fact, it is up to the contracting authority, upon its intention to announce the exclusion of a company, to supply proof that the participation of such company would distort competition. The company in question should be able to challenge such a decision, provided that the inverted proof, that its participation would not distort competition, cannot fall under its responsibility.

Amendment 43

Proposal for a directive Article 54 – paragraph 1 – subparagraph 3

Text proposed by the Commission Amendment

The technical specifications shall also The technical specifications shall also specify whether the transfer of intellectual specify whether the transfer of intellectual property rights will be required. property rights will be required and if so, the conditions of remuneration for the acquisition of such rights.

PE483.470v03-00 262/296 RR\926628EN.doc EN Justification

Promoting the innovation of companies relies on the confidence of the operators towards the internal market, and in particular when it comes to protecting their property rights. In order to ensure a perfect coherence between the European regulation ensuring the protection of intellectual property rights, such as the Directive 2004/48/EC of 29 April 2009 on measures and procedures on the reinforcement of intellectual property rights and the " public procurement" directives, it is important to underline that the acquisition of intellectual property rights must be based on the remuneration of the right holder.

Amendment 44

Proposal for a directive Article 61 – paragraph 1

Text proposed by the Commission Amendment

1. Contracting entities may make known 1. Contracting entities shall make known their intentions of planned procurement their intentions of planned procurement through the publication of a periodic through the publication of a periodic indicative notice as soon as possible after indicative notice as soon as possible after the beginning of the budgetary year. Those the beginning of the budgetary year. Those notices shall contain the information set notices shall contain the information set out in part A, section I of Annex VI. They out in part A, section I of Annex VI. They shall be published either by the shall be published either by the Commission or by the contracting entities Commission or by the contracting entities on their buyer profiles in accordance with on their buyer profiles in accordance with point 2(b) of Annex IX. Where the notice point 2(b) of Annex IX. Where the notice is published by the contracting entities on is published by the contracting entities on their buyer profile, they shall send a notice their buyer profile, they shall send a notice of the publication of the periodic indicative of the publication of the periodic indicative notice on a buyer profile in accordance notice on a buyer profile in accordance with point 3 of Annex IX. with point 3 of Annex IX.

Justification

The publication of prior information notices should be mandatory, for the sake of transparency and of full information to businesses, and in particular SMEs, giving them time to prepare tenders well in advance.

Amendment 45

Proposal for a directive Article 70 – paragraph 5

Text proposed by the Commission Amendment

5. Contracting entities may decide not to 5. Contracting entities may decide not to award a contract to the tenderer submitting award a contract to the tenderer submitting

RR\926628EN.doc 263/296 PE483.470v03-00 EN the best tender where they have the best tender where the tender does not established that the tender does not comply with obligations established by comply, at least in an equivalent manner, Union or national legislation, regulations with obligations established by Union and other binding provisions in the field legislation in the field of social and labour of social and labour law or environmental law or environmental law or of the law or collective agreements which apply international social and environmental law in the place where the work, service or provisions listed in Annex XIV. supply is performed or by the international social and environmental law provisions listed in Annex XIV and provided they are linked to the subject matter of the contract.

Amendment 46

Proposal for a directive Article 76 – paragraph 1 – subparagraph 1 – introductory part

Text proposed by the Commission Amendment

Without prejudice to national laws, Without prejudice to national laws, regulations or administrative provisions on regulations or administrative provisions on the remuneration of certain services, the the remuneration of certain services, the criteria on which contracting entities shall criteria on which contracting entities shall base the award of contracts shall be one of base the award of contracts shall be: the following:

Amendment 47

Proposal for a directive Article 76 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

PE483.470v03-00 264/296 RR\926628EN.doc EN referred to in point (b);

Amendment 48

Proposal for a directive Article 76 – paragraph 2 – subparagraph 2 – point a

Text proposed by the Commission Amendment

(a) quality, including technical merit, (a) quality, including technical merit, aesthetic and functional characteristics, aesthetic and functional characteristics, accessibility, design for all users, accessibility, design for all users, environmental characteristics and environmental and social characteristics, innovative character; contributing to sustainable growth and employment, and innovative character;

Justification

More effective social criteria in the spirit of the EU2020 Strategy, in order to contribute more effectively to sustainable growth, should be included.

Amendment 49

Proposal for a directive Article 76 – paragraph 3

Text proposed by the Commission Amendment

3. Member States may provide that the 3. Member States may provide that the award of certain types of contracts shall be award of certain types of contracts shall be based on the most economically based on the most economically advantageous tender referred to in point advantageous tender and the principle of (a) of paragraph 1 and in paragraph 2. cost-effectiveness and adequate quality, in line with the arrangements set out in paragraph 1 and paragraph 2.

Amendment 50

Proposal for a directive Article 76 – paragraph 5 – subparagraph 1

Text proposed by the Commission Amendment

In the case referred to in point (a) of In the case referred to in paragraph 1, the paragraph 1, the contracting entity shall contracting entity shall specify the relative specify the relative weighting which it weighting which it gives to each of the gives to each of the criteria chosen to criteria chosen to determine the most

RR\926628EN.doc 265/296 PE483.470v03-00 EN determine the most economically economically advantageous tender. advantageous tender.

Amendment 51

Proposal for a directive Article 79 – paragraph 3 – point b

Text proposed by the Commission Amendment

(b) the technical solutions chosen or any (b) the technical solutions chosen and/or exceptionally favourable conditions any exceptionally favourable conditions available to the tenderer for the supply of available to the tenderer for the supply of the goods or services or for the execution the goods or services or for the execution of the work; of the work;

Justification

Reinstatement of the wording of the current directive.

Amendment 52

Proposal for a directive Article 81 – paragraph 2

Text proposed by the Commission Amendment

2. Member States may provide that, at the 2. Member States may provide that, at the request of the subcontractor and where the request of the subcontractor and where the nature of the contract so allows, the nature of the contract so allows, the contracting entity shall transfer due contracting entity shall transfer due payments directly to the subcontractor for payments directly to the subcontractor for services, supplies or works provided to the services, supplies or works provided to the main contractor. In such case, Member main contractor. In such case, Member States shall put in place appropriate States shall put in place appropriate mechanisms permitting the main contractor mechanisms permitting the main contractor to object to undue payments. The to object to undue payments ex-post and arrangements concerning that mode of provide for regulation that allow the payment shall be set out in the procurement contracting authority to take over the documents. main contractor's signatory status without re-tendering if necessary, in order to ensure legal certainty. The arrangements concerning that mode of payment shall be set out in the procurement documents.

PE483.470v03-00 266/296 RR\926628EN.doc EN Justification

If necessary, (ex: in case of an insolvent main contractor) the contracting authority has to be able to bring the mandate to a termination without losing legal certainty. Therefore national provisions should make it possible to take over the signatory status and renegotiate disputed terms of the contracts. In addition the right to object undue payments for the main contractor should be permitted only after fulfilment of the contract, otherwise sub-contractors would eventually block competition.

Amendment 53

Proposal for a directive Article 82 – paragraph 3 – subparagraph 2

Text proposed by the Commission Amendment

However, the first subparagraph shall not However, the first subparagraph shall not apply in the event of universal or partial apply in the event of universal or partial succession into the position of the initial succession into the position of the initial contractor, following corporate contractor, following corporate restructuring operations or insolvency, of restructuring operations, transfer of capital another economic operator that fulfils the or assets, insolvency or on the basis of a criteria for qualitative selection initially contractual clause, of another economic established provided that this does not operator that fulfils the criteria for entail other substantial modifications to the qualitative selection initially established contract and is not aimed at circumventing provided that this does not entail other the application of this Directive. substantial modifications to the contract and is not aimed at circumventing the application of this Directive.

Justification

It is perfectly legitimate for the contracting authority to, under the Court's control, oppose a substitution of contractual partner because the new contracting party would not submit the same financial and competence guarantees as that which it is replacing, for the proper performance of the contract - unchanged terms - in progress.

Amendment 54

Proposal for a directive Article 83 – point c

Text proposed by the Commission Amendment

(c) the Court of Justice of the European (c) the Court of Justice of the European Union finds, in a procedure under Article Union finds, in a procedure under Article 258 of the Treaty, that a Member State has 258 of the Treaty, that a Member State has failed to fulfil its obligations under the failed to fulfil its obligations under the

RR\926628EN.doc 267/296 PE483.470v03-00 EN Treaties due to the fact that a contracting Treaties due to the fact that a contracting entity belonging to that Member State has entity belonging to that Member State has awarded the contract in question without awarded the contract in question without complying with its obligations under the complying with its obligations under the Treaties and this Directive. Treaties and this Directive, subject to the right of compensation of the contractual partner.

Justification

The reference to "conditions established by national law" is not sufficient to overcome the lack of principle of compensation in the case of termination - without contractual fault - before the foreseen end of the contract. Also, the principle of compensation must be written in EU law in order to ensure its effectiveness in all Member States.

Amendment 55

Proposal for a directive Article 86 – paragraph 2

Text proposed by the Commission Amendment

2. Member States shall ensure that 2. Member States shall ensure that contracting entities may take into account contracting entities may take into account the need to ensure quality, continuity, the need to ensure universal access, accessibility, availability and quality, continuity, accessibility, comprehensiveness of the services, the affordability, availability, safety and specific needs of different categories of comprehensiveness of the services, the users, the involvement and empowerment specific needs of different categories of of users and innovation. Member States users, the involvement and empowerment may also provide that the choice of the of users and innovation. Member States service provider shall not be made solely may also provide that the choice of the on the basis of the price for the provision service provider shall not be made solely of the service. on the basis of the price for the provision of the service.

Justification

These characteristics of SGIs are essential and should be ensured as much as possible in this framework.

PE483.470v03-00 268/296 RR\926628EN.doc EN Amendment 56

Proposal for a directive Article 93 – paragraph 3 – point b

Text proposed by the Commission Amendment

(b) providing legal advice to contracting (b) providing general and specific legal entities on the interpretation of public advice and practical guidance to procurement rules and principles and on contracting entities on the interpretation the application of public procurement and on the application of public rules in specific cases; procurement rules and principles;

Justification

As a specialised and central body, the independent body should be responsible to provide legal advice and practical guidance in general terms and in specific cases to contracting authorities, both on the interpretation and on the application of rules and principles of public procurement.

Amendment 57

Proposal for a directive Article 93 – paragraph 3 – point d

Text proposed by the Commission Amendment

(d) establishing and applying (d) establishing and applying comprehensive, actionable 'red flag' comprehensive, actionable 'red flag' indicator systems to prevent, detect and indicator systems to prevent, detect and adequately report instances of procurement adequately report instances of procurement fraud, corruption, conflict of interest and fraud, corruption, conflict of interest or other serious irregularities; any irregularities;

Justification

To further reinforce the regularity of the procedures organised by contracting authorities and with a pedagogical objective, it is important to include here all types of irregularities, irrespective of how serious they are.

Amendment 58

Proposal for a directive Article 94 – paragraph 1 – subparagraph 1 - introductory part

Text proposed by the Commission Amendment

Contracting entities shall keep appropriate Contracting entities shall keep appropriate

RR\926628EN.doc 269/296 PE483.470v03-00 EN information on each contract, framework information on each contract, framework agreement and each time a dynamic agreement, where these are above the purchasing system is established. This thresholds, and each time a dynamic information shall be sufficient to permit purchasing system is established. This them at a later date to justify decisions information shall be sufficient to permit taken in connection with: them at a later date to justify decisions taken in connection with:

Justification

The need to draw up written reports in line with the provisions made in Art. 85 should only be necessary for "above threshold procurement". Doing so for "below threshold procurement" would lead to a lot of bureaucratic procedures. Such burdens have to be in a reasonable proportion to the monetary values at stake.

Amendment 59

Proposal for a directive Article 94 – paragraph 2

Text proposed by the Commission Amendment

2. The information shall be kept for at least 2. The information shall be kept for at least four years from the date of award of the four years from the date of award of the contract so that the contracting entity will contract so that the contracting entity will be able, during that period, to provide the be able, during that period, to provide the necessary information to the Commission necessary information to the Commission or the national oversight body where they or the national oversight body. so request it.

Justification

It doesn't make much sense to impose a reporting obligation of this nature if its is not for the purposes of mandatory submitting of its findings.

Amendment 60

Proposal for a directive Article 96 – paragraph 1

Text proposed by the Commission Amendment

PE483.470v03-00 270/296 RR\926628EN.doc EN shall also ensure that each contracting shall also ensure that each contracting entity can obtain competent assistance and entity can obtain competent assistance and advice on individual questions. advice on individual questions. Special attention and increased support should be provided in this respect to local authorities, and particularly to small local authorities.

Amendment 61

Proposal for a directive Article 96 – paragraph 2

Text proposed by the Commission Amendment

2. With a view to improving access to 2. With a view to improving access to public procurement for economic public procurement for economic operators, in particular SMEs, and in order operators, in particular SMEs, and in order to facilitate correct understanding of the to facilitate correct understanding of the provisions of this Directive, Member States provisions of this Directive, the shall ensure that appropriate assistance can Commission and the Member States shall be obtained, including by electronic means ensure that appropriate and timely or using existing networks dedicated to information and assistance can be business assistance. obtained, including by electronic means or using existing networks dedicated to business assistance.

Justification

The Commission should also participate in this effort, given the highly technical nature of the texts. Moreover, it is crucial that SMEs may obtain the information they need in due time.

Amendment 62

Proposal for a directive Article 96 – paragraph 4 a (new)

Text proposed by the Commission Amendment

4a. The notices referred to in Articles 61, 62, 63 and 64 shall include the information on the body or bodies as referred to in paragraph 4 of this Article.

Justification

There should be widespread and easy to find information on the bodies providing assistance

RR\926628EN.doc 271/296 PE483.470v03-00 EN to contracting authorities and businesses.

Amendment 63

Proposal for a directive Article 97 – paragraph 1 a (new)

Text proposed by the Commission Amendment

1a. Member States shall cooperate, with the assistance of the Commission, on the guidance to contracting authorities in assessing the existence or not of a cross- border interest in specific cases, in particular in order to increase spending efficiency in the implementation of programmes funded by cohesion policy instruments or other EU instruments.

Justification

This is in line with REGI opinion on the modernisation of public procurement, and in particular paragraphs 7 and 15 of that opinion.

Amendment 64

Proposal for a directive Annex XVII a (new)

Text proposed by the Commission Amendment

- The following legal services: 79112000-2 Legal representation services 79100000-5 Legal services 79110000-8 Legal advisory and representation services 79111000-5 Legal advisory services 79112100-3 Stakeholders representation services 79120000-1 Patent and copyright consultancy services 79121000-8 Copyright consultancy services 79121100-9 Software copyright

PE483.470v03-00 272/296 RR\926628EN.doc EN consultancy services 79130000-4 Legal documentation and certification services 79131000-1 Documentation services 79132000-8 Certification services 79140000-7 Legal advisory and information services

Justification

A specific treatment of services is only justified in so far as it applies to all services of the same type.

PROCEDURE

Opinion by REGI Date announced in plenary 19.1.2012

Rapporteur Ramona Nicole Mănescu Date appointed 26.1.2012 Date adopted 10.10.2012

Result of final vote +: 32 –: 7 0: 1

Members present for the final vote François Alfonsi, Luís Paulo Alves, Charalampos Angourakis, Jean- Jacob Bicep, Victor Boştinaru, John Bufton, Alain Cadec, Salvatore Caronna, Nikos Chrysogelos, Francesco De Angelis, Rosa Estaràs Ferragut, Danuta Maria Hübner, Filiz Hakaeva Hyusmenova, Vincenzo Iovine, María Irigoyen Pérez, Seán Kelly, Mojca Kleva, Constanze Angela Krehl, Petru Constantin Luhan, Elżbieta Katarzyna Łukacijewska, Ramona Nicole Mănescu, Vladimír Maňka, Iosif Matula, Erminia Mazzoni, Miroslav Mikolášik, Ana Miranda, Lambert van Nistelrooij, Jan Olbrycht, Markus Pieper, Monika Smolková, Ewald Stadler, Nuno Teixeira, Oldřich Vlasák, Kerstin Westphal, Hermann Winkler, Joachim Zeller Substitute(s) present for the final vote Karin Kadenbach, Lena Kolarska-Bobińska, Czesław Adam Siekierski, Giommaria Uggias

RR\926628EN.doc 273/296 PE483.470v03-00 EN

15.10.2012

OPINION OF THE COMMITTEE ON LEGAL AFFAIRS

for the Committee on the Internal Market and Consumer Protection

Rapporteur: Giuseppe Gargani

SHORT JUSTIFICATION

Public procurement contracts must be used to contribute to the achievement of the Single Market and to boost economic growth in the Member States. In Europe, public purchasers spend around 18% of GDP on supplies, works and services.

Your rappporteur takes the view that the updating of the Directives on procurement by entities operating in the water, energy, transport and postal services sectors should: - simplify procedures to the benefit of all economic operators; - facilitate SME participation; - ensure the best possible results in terms of value for money; - use public funds efficiently and transparently.

Your rapporteur explicitly welcomes the aims of the Commission's legislative proposal, which are to strengthen and update existing legislation governing procurement by entities operating in the water, energy, transport and postal services sectors in Europe.

More specifically, your rapporteur welcomes the substance of the proposal concerning the aim of strengthening the legal framework relating to procurement, so that this instrument can be used to boost public and private investment in infrastructure and strategic services. He also agrees with the need to innovate and to simplify procurement procedures, in addition to striking a fair balance between priorities against a background of budgetary austerity and the need to ensure that public purchasing is effective.

Your rapporteur takes the view that procurement should continue to be regulated in the sectors in which there is a partial opening of the markets in which the entities operate, given the existence of special or exclusive rights granted by the Member States concerning the supply to, provision or operation of networks for providing the service concerned.

However, he believes that a number of changes are necessary in order to achieve the best

PE483.470v03-00 274/296 RR\926628EN.doc EN possible outcome with regard to the achievement of the proposed aims:

- Legal services, which are typically based on trust, are governed by stringent ethical codes and are linked to the traditions of Member States, should be excluded from the proposal for a directive, since they call for an assessment of subjective elements relating to the specific requirements of the client.

- The inclusion of the postal sector in the proposal for a directive does not adequately take into account the changes which have taken place in Europe over the past few years, in particular the growth in competition in the market for such services, which is already the subject of Directive 2004/17/EC. In keeping with the rationale for the relevant rules and the evolution of case-law, this sector should therefore be excluded, given that there is already competition based on criteria such as the characteristics of the goods and services in question, the existence of alternatives, prices and the presence of several competitors.

- With reference to recent rulings of the Court of Justice of the European Union (Judgment of 10 April 2008, Case C-393/05, Fourth Chamber), an interpretation has been given of the definition of a body governed by public law which includes also commercial companies under public control. The 'industrial or commercial character', therefore, relates to the goals to be pursued and the needs to be met rather than to the type of organisation and activities.

- The stipulation that a framework agreement may not exceed four years, even for the special sectors, appears to be restrictive to the extent that it might hamper, in specific cases (assistance agreements and plant maintenance), the efficiency of the contracting authorities.

- The obligation to inform economic operators of the conduct and progress of negotiations with tenderers, if so requested by an economic operator, is too burdensome for contracting entities and infringes the tenderers' right to confidentiality.

- The compulsory and no longer optional establishment of a single independent body responsible for the oversight and coordination of implementation activities relating to the directives under Article 93(1) is of undoubted value. However, such oversight should not be an end in itself; it should ensure that the objectives of quality, cost-effectiveness, efficiency and transparency laid down in the directives are achieved and should not delay or hamper the activity of the public authorities.

AMENDMENTS

The Committee on Legal Affairs calls on the Committee on the Internal Market and Consumer Protection, as the committee responsible, to incorporate the following amendments into its report:

Amendment 1 Proposal for a directive Recital 10 a (new)

RR\926628EN.doc 275/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(10a) It is also appropriate to exclude contracts for other services than the postal one, as it has been noticed that the postal sector is enough competitive not to be included in the scope of this directive.

Amendment 2

Proposal for a directive Recital 16

Text proposed by the Commission Amendment

(16) The results of the Evaluation (16) The results of the Evaluation on the demonstrated that the exclusion of certain Impact and Effectiveness of EU Public services from the full application of this Procurement Legislation demonstrated directive should be reviewed. As a result, that the exclusion of certain services from the full application of the Directive is the full application of the Directive should extended to a number of services (such as be reviewed. As a result, the full hotel and legal services, which both application of this directive is extended to showed a particularly high percentage of a number of services. cross-border trade).

Justification

- Legal services, which are typically based on trust and linked to the traditions of Member States, should be excluded from the proposal for a directive, since they call for an assessment of subjective elements relating to the specific requirements of the client.

Amendment 3

Proposal for a directive Recital 26

Text proposed by the Commission Amendment

(26) In view of the detrimental effects on (26) In view of the detrimental effects on competition, negotiated procedures without competition, negotiated procedures without a call for competition should only be used a call for competition can only be used in in very exceptional circumstances. This very exceptional circumstances with exception should be limited to cases where adequate justification, to be sent to the publication is either not possible, for national governance authority as defined reasons of force majeure in line with the by Article 93. This exception should be standing case-law of the Court of Justice of limited to cases where publication is either

PE483.470v03-00 276/296 RR\926628EN.doc EN the European Union, or where it is clear not possible, for reasons of force majeure from the outset that publication would not in line with the standing case-law of the trigger more competition, not least because Court of Justice of the European Union, or there is objectively only one economic where it is clear from the outset that operator that can perform the contract. publication would not trigger more Only situations of objective exclusivity can competition, not least because there is justify the use of the negotiated procedure objectively only one economic operator without a call for competition, where the that can perform the contract. Only situation of exclusivity has not been situations of objective exclusivity can created by the contracting entity itself with justify the use of the negotiated procedure a view to the future procurement without a call for competition, where the procedure, and where there are no adequate situation of exclusivity has not been substitutes, the availability of which should created by the contracting entity itself with be assessed thoroughly. a view to the future procurement procedure, and where there are no adequate substitutes, the availability of which should be assessed thoroughly.

Amendment 4

Proposal for a directive Recital 49

Text proposed by the Commission Amendment

(49) Tenders that appear abnormally low in (49) Tenders that appear abnormally low in relation to the works, supplies or services relation to the works, supplies or services might be based on technically, might be based on technically, economically or legally unsound economically or legally unsound assumptions or practices. In order to assumptions or practices. In order to prevent possible disadvantages during prevent possible disadvantages during contract performance, contracting entities contract performance, contracting entities should be obliged to ask for an explanation should be obliged to ask for an explanation of the price charged where a tender of the price charged where a tender significantly undercuts the prices significantly undercuts the prices demanded by other tenderers. Where the demanded by other tenderers. Where the tenderer cannot provide a sufficient tenderer cannot provide a sufficient explanation, the contracting entity should explanation, the contracting entity should be entitled to reject the tender. Rejection reject the tender. Rejection should be also should be mandatory in cases where the mandatory in cases where the contracting contracting entity has established that the entity has established that the abnormally abnormally low price results from non- low price results from non-compliance compliance with mandatory Union with national, international and legislation in the fields of social, labour or European Union legislation, in particular environmental law or international labour in the fields of social, labour or law provisions. environmental law.

RR\926628EN.doc 277/296 PE483.470v03-00 EN Amendment 5

Proposal for a directive Recital 50 a (new)

Text proposed by the Commission Amendment

(50a) In order to ensure the correct functioning of public procurement, the subcontracting instrument must be correctly regulated, in order to ensure that the public procurement is performed in accordance with the bid. Subcontracting should be limited to a maximum of three consecutive vertical subcontracts without prejudice to more restrictive national legislation in this field.

Amendment 6

Proposal for a directive Recital 56 a (new)

Text proposed by the Commission Amendment

(56a) Contracting entities should respect the delay of payment as established in Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions1. ______1 OJ L 48, 23.2.2011, p. 1.

Amendment 7

Proposal for a directive Article 1 – paragraph 2 a (new)

Text proposed by the Commission Amendment

2a. This Directive is without prejudice to the right of contracting entities, as defined in Article 4, to decide whether, how and to what extent they want to perform public functions themselves. Contracting entities

PE483.470v03-00 278/296 RR\926628EN.doc EN 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 contracting entities.

Amendment 8

Proposal for a directive Article 2 - point 4 - points a and b

Text proposed by the Commission Amendment

(a) It is established for or has the specific (a) it has legal personality; purpose of meeting needs in the general interest, not having an industrial or commercial character; for that purpose, a body which operates in normal market conditions, aims to make a profit, and bears the losses resulting from the exercise of its activity does not have the purpose of meeting needs in the general interest, not having an industrial or commercial character; (b) it has legal personality; (b) it is established for the specific purpose of meeting needs in the general interest, not having a merely industrial or commercial character;

RR\926628EN.doc 279/296 PE483.470v03-00 EN Justification

I punti a) e b) della proposta della Commissione sono diventati, per motivi legati alla coerenza legislativa del testo, rispettivamente i punti b) e a). Il punto a), nuovo punto b) è stato altresì emendato. In particolare, quest'ultima modifica si basa su recenti pronunce della Corte di Giustizia dell'Unione europea (Sentenza 10/04/2008 causa C - 393/05/ IV sez) nelle quali si riconosce un'interpretazione della definizione di organismo di diritto pubblico che comprende anche le società commerciali sotto controllo pubblico. Il carattere industriale o commerciale, riguarda, pertanto, le finalità da perseguire e i bisogni da soddisfare, piuttosto che il tipo di organizzazione e di attività.

Amendment 9

Proposal for a directive Article 2 – point 10

Text proposed by the Commission Amendment

(10) "supply contracts" means contracts (10) "supply contracts" means contracts having as their object the purchase, lease, having as their object the purchase, lease, rental or hire-purchase, with or without an rental or hire-purchase, with or without an option to buy, of products. A supply option to buy, of products. A supply contract may include, as an incidental contract may include an on-demand matter, siting and installation operations; contract involving multiple deliveries. A supply contract may include, as an incidental matter, siting and installation operations;

Justification

This definition of supply contracts should also include on-demand supply contracts involving multiple deliveries. This would govern a number of increasingly widespread contractual practices whereby supplies are provided in multiple deliveries according to the requirements of the contracting authorities throughout the duration of the contract.

Amendment 10

Proposal for a directive Article 10

Text proposed by the Commission Amendment

1. This Directive shall apply to activities 1. This Directive shall apply to activities relating to the provision of: relating to the provision of postal services. (a) postal services;

PE483.470v03-00 280/296 RR\926628EN.doc EN (b) other services than postal services, on condition that such services are provided by an entity which also provides postal services within the meaning of point (b) of paragraph 2 and provided that the conditions set out in Article 27(1) are not satisfied in respect of the services falling within point (b) of paragraph 2. 2. For the purpose of this Directive and 2. For the purpose of this Directive and without prejudice to Directive 97/67/EC: without prejudice to Directive 97/67/EC: (a) "postal item": means an item addressed (a) "postal item": means an item addressed in the final form in which it is to be carried, in the final form in which it is to be carried, irrespective of weight. In addition to items irrespective of weight. In addition to items of correspondence, such items also include of correspondence, such items also include for instance books, catalogues, newspapers, for instance books, catalogues, newspapers, periodicals and postal packages containing periodicals and postal packages containing merchandise with or without commercial merchandise with or without commercial value, irrespective of weight; value, irrespective of weight; (b) "postal services": means services (b) "postal services": means services consisting of the clearance, sorting, routing consisting of the clearance, sorting, routing and delivery of postal items. This shall and delivery of postal items. This shall include both services falling within as well include both services falling within as well as services falling outside the scope of the as services falling outside the scope of the universal service set up in conformity with universal service set up in conformity with Directive 97/67/EC; Directive 97/67/EC; (c) "other services than postal services": means services provided in the following areas: (i) mail service management services (services both preceding and subsequent to despatch, including "mailroom management services"); (ii) added-value services linked to and provided entirely by electronic means (including the secure transmission of coded documents by electronic means, address management services and transmission of registered electronic mail); (iii) services concerning postal items not included in point (a), such as direct mail bearing no address; (iv) financial services, as defined in the CPV under the reference numbers from 66100000-1 to 66720000-3 and in Article

RR\926628EN.doc 281/296 PE483.470v03-00 EN 19(c) and including in particular postal money orders and postal giro transfers; (v) philatelic services; (vi) logistics services (services combining physical delivery and/or warehousing with other non-postal functions).

Justification

Directive 2008/6/EC opened the postal sector up to competition also because it eliminated the remaining areas that were still reserved for the universal service provider. The postal sector has therefore gradually attained a satisfactory level of liberalisation. Non-postal services provided by postal operators, i.e. 'other services than postal services’, should therefore be excluded from the scope of the new directives.

Amendment 11

Proposal for a directive Article 19 – point b

Text proposed by the Commission Amendment

(b) arbitration and conciliation services; (b) legal, arbitration and conciliation services;

Justification

In view of the discretionary and trust-based nature of legal services, they should be excluded from the scope of this directive.

Amendment 12

Proposal for a directive Article 29 – paragraph 2 a (new)

Text proposed by the Commission Amendment

The details of procurement contracts shall be made public.

Amendment 13

Proposal for a directive Article 44 – paragraph 1 – point a

PE483.470v03-00 282/296 RR\926628EN.doc EN

Text proposed by the Commission Amendment

(a) where no tenders or no suitable tenders (a) where no tenders or no suitable tenders or no requests to participate have been or no requests to participate have been submitted in response to a procedure with a submitted in response to a procedure with a prior call for competition, provided that the prior call for competition, provided that the initial conditions of the contract are not initial conditions of the contract are not substantially altered; altered and providing adequate justifications to the oversight body referred to in Article 93;

Amendment 14

Proposal for a directive Article 58 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

1. Contracting entities may take account of 1. Contracting entities may take account of variants which are submitted by a tenderer variants which are submitted by a tenderer and meet the minimum requirements where they meet the minimum specified by the contracting entities. requirements specified by the contracting entities and do not exceed 1/6 of the overall price agreed upon.

Justification

An unscrupulous use of variants could distort competition and create problems of legal certainty. A specific provision should be introduced to provide for a maximum permissible price for variants. National legislation provides benchmarks in this regard, confirming the effectiveness of such a provision.

Amendment 15

Proposal for a directive Article 59 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

Contracting entities shall indicate, in the Contracting entities shall indicate, in the contract notice, in the invitation to confirm contract notice, in the invitation to confirm interest, or, where the means of calling for interest, or, where the means of calling for competition is a notice on the existence of competition is a notice on the existence of a qualification system, in the invitation to a qualification system, in the invitation to

RR\926628EN.doc 283/296 PE483.470v03-00 EN tender or to negotiate, whether tenders are tender or to negotiate, whether tenders are limited to one or more lots only. limited to one or more lots only and if they are not subdivided into lots, providing a specific explanation for this.

Amendment 16

Proposal for a directive Article 65 – paragraph 3

Text proposed by the Commission Amendment

3. Calls for competition within the meaning 3. Calls for competition within the meaning of Article 39(2) shall be published in full in of Article 39(2) shall be published in full in an official language of the Union as chosen an official language of the Union as chosen by the contracting entity. That language by the contracting entity. That language version shall constitute the sole authentic version shall constitute the sole authentic text. A summary of the important text. elements of each notice shall be published in the other official languages.

Justification

The requirement to publish a summary of the important elements of each notice in all the official languages of the EU is unsustainable owing to time constraints, costs and legal certainty.

Amendment 17

Proposal for a directive Article 69 - paragraph 2 - point d

Text proposed by the Commission Amendment

(d) any tenderer that has made an deleted admissible tender of the conduct and progress of negotiations and dialogue with tenderers.

Justification

The obligation to inform economic operators of the conduct and progress of negotiations with tenderers, if so requested by an economic operator, is too burdensome for contracting entities and infringes the tenderers' right to confidentiality.

PE483.470v03-00 284/296 RR\926628EN.doc EN Amendment 18

Proposal for a directive Article 70 – paragraph 7

Text proposed by the Commission Amendment

7. The Commission shall be empowered to 7. The Commission shall be empowered to adopt delegated acts in accordance with adopt delegated acts in accordance with Article 98 to amend the list in Annex XIV, Article 98 to complement the list in Annex where necessary due to the conclusion of XIV, where necessary due to the new international agreements or conclusion of new international agreements modification of existing international or modification of existing international agreements. agreements.

Amendment 19

Proposal for a directive Article 73 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

1. Where the objective rules and criteria for 1. Where the objective rules and criteria for the exclusion and selection of economic the exclusion and selection of economic operators requesting qualification in a operators requesting qualification in a qualification system include requirements qualification system include requirements relating to the economic and financial relating to the economic and financial capacity of the economic operator, or to its capacity of the economic operator, or to its technical and professional abilities, the technical and professional abilities, the economic operator may where necessary economic operator may where necessary rely on the capacity of other entities, rely only on the material capacity of other whatever the legal nature of the link entities, with due regard for the legal between itself and those entities. In this nature of the link between itself and those case the economic operator shall prove to entities. In this case the economic operator the contracting entity that those resources shall prove to the contracting entity that will be available to it throughout the period those resources will be available to it of the validity of the qualification system, throughout the period of the validity of the for example by producing an undertaking qualification system, for example by by those entities to that effect. In the case producing an undertaking by those entities of economic and financial standing, to that effect. Contracting entities shall contracting entities may require that the require that the economic operator and economic operator and those entities are those entities are jointly liable for the jointly liable for the execution of the execution of the contract. contract.

Justification

To ensure legal and economic certainty in the award and performance of contracts, the use of

RR\926628EN.doc 285/296 PE483.470v03-00 EN the opportunity to rely on the capacities of other entities should be restricted to the acquisition of only material requirements; joint liability should also be strengthened between economic operators and those on whom they rely for performance of the contract, by making it mandatory. This can only be achieved if there is a legal relationship between the two parties.

Amendment 20

Proposal for a directive Article 73 – paragraph 1 a (new)

Text proposed by the Commission Amendment

1a. The fulfilment of pooling requirements may not be used at the same time by the assisting and benefiting entities.

Amendment 21

Proposal for a directive Article 74 – paragraph 1 – subparagraph 1

Text proposed by the Commission Amendment

1. The objective rules and criteria for the 1. The objective rules and criteria for the exclusion and selection of economic exclusion and selection of economic operators requesting qualification in a operators requesting qualification in a qualification system and the objective rules qualification system and the objective rules and criteria for the exclusion and selection and criteria for the exclusion and selection of candidates and tenderers in open, of candidates and tenderers in open, restricted or negotiated procedures or in restricted or negotiated procedures or in innovation partnerships may include the innovation partnerships shall include the exclusion grounds listed in Article 55 of exclusion grounds listed in Article 55 of Directive 2004/18 on the terms and Directive [.../.../EU][on public conditions set out therein. procurement] on the terms and conditions set out therein.

Amendment 22

Proposal for a directive Article 74 – paragraph 1 – subparagraph 2

Text proposed by the Commission Amendment

Where the contracting entity is a deleted

PE483.470v03-00 286/296 RR\926628EN.doc EN contracting authority, those criteria and rules shall include the exclusion grounds listed in Article 55(1) and (2) of Directive 2004/18 on the terms and conditions set out in that Article.

Amendment 23

Proposal for a directive Article 76

Text proposed by the Commission Amendment

1. Without prejudice to national laws, 1. Without prejudice to national laws, regulations or administrative provisions on regulations or administrative provisions on the remuneration of certain services, the the remuneration of certain services, the criteria on which contracting entities shall criterion on which contracting entities base the award of contracts shall be one of shall base the award of contracts shall be the following: that of the most economically advantageous tender. (a) the most economically advantageous tender; (b) the lowest cost. Costs may be assessed, at the choice of the contracting entity, on the basis of the price only or using a cost-effectiveness approach, such as a life-cycle costing approach, under the conditions set out in Article 77. 2. The most economically advantageous 2. The contracting entity shall assess the tender referred to in point (a) of paragraph most economically advantageous tender 1) from the point of view of the referred to in paragraph 1) on the basis of contracting entity shall be identified on criteria linked to the subject-matter of the the basis of criteria linked to the subject- contract in question. matter of the contract in question. Those criteria shall include in addition to Those criteria shall include in addition to the price or costs referred to in point (b) of the price or costs, other criteria linked to paragraph 1, other criteria linked to the the subject-matter of the contract in subject-matter of the contract in question, question. such as: Costs may be assessed using a cost- effectiveness approach, such as a life- cycle costing approach, under the conditions set out in Article 77.

RR\926628EN.doc 287/296 PE483.470v03-00 EN Price/cost criterion may be the decisive award criterion in case of standardized products and services whose content can be predetermined by its own nature. Other criteria may include: (a) quality, including technical merit, (a) quality, including technical merit, aesthetic and functional characteristics, aesthetic and functional characteristics, accessibility, design for all users, accessibility, design for all users, environmental characteristics and environmental and social characteristics innovative character; and innovative character; (b) for service contracts and contracts (b) for service contracts and contracts involving the design of works, the involving the design of works, the organisation, qualification and experience organisation, qualification and experience of the staff assigned to performing the of the staff assigned to performing the contract in question may be taken into contract in question shall be taken into consideration, with the consequence that, consideration, with the consequence that, following the award of the contract, such following the award of the contract, such staff may only be replaced with the consent staff may only be replaced with the consent of the contracting entity which must verify of the contracting entity which must verify that replacements ensure equivalent that replacements ensure equivalent organisation and quality; organisation and quality (c) after-sales service and technical (c) after-sales service and technical assistance, delivery date and delivery assistance, delivery date and delivery period or period of completion, period or period of completion, commitments with regard to parts and commitments with regard to parts and security of supply; security of supply; (d) the specific process of production or (d) the specific process of production or provision of the requested works, supplies provision of the requested works, supplies or services or of any other stage of its life or services or of any other stage of its life cycle, as referred to in point 22 of Article cycle, as referred to in point 22 of Article 2, to the extent that those criteria are 2, to the extent that those criteria are specified in accordance with paragraph 4 specified in accordance with paragraph 4 and they concern factors directly involved and they concern factors directly involved in those processes and characterise the in those processes and characterise the specific process of production or provision specific process of production or provision of the requested works, supplies or of the requested works, supplies or services. services. 3. Member States may provide that the award of certain types of contracts shall be based on the most economically advantageous tender referred to in point (a) of paragraph 1 and in paragraph 2. 4. Award criteria shall not confer an 4. Award criteria shall ensure effective unrestricted freedom of choice on the competition and shall be accompanied by contracting entity. They shall ensure the requirements which allow the information possibility of effective competition and provided by the tenderers to be effectively

PE483.470v03-00 288/296 RR\926628EN.doc EN shall be accompanied by requirements verified. Contracting entities shall verify, which allow the information provided by on the basis of the information and proof the tenderers to be effectively verified. provided by the tenderers, whether the Contracting entities shall verify effectively, tenders meet the award criteria. on the basis of the information and proof provided by the tenderers, whether the tenders meet the award criteria. 5. In the case referred to in point (a) of 5. The contracting entity shall specify the paragraph 1, the contracting entity shall relative weighting which it gives to each of specify the relative weighting which it the criteria chosen to determine the most gives to each of the criteria chosen to economically advantageous tender. determine the most economically advantageous tender. Those weightings may be expressed by Those weightings may be expressed by providing for a range with an appropriate providing for a range with an appropriate maximum spread. maximum spread. Where weighting is not possible for Where weighting is not possible for objective reasons, the contracting entity objective reasons, the contracting entity shall indicate the criteria in descending shall indicate the criteria in descending order of importance. order of importance. The relative weighting or order of The relative weighting or order of importance shall be specified, as importance shall be specified, as appropriate, in the notice used as a means appropriate, in the notice used as a means of calling for competition, in the invitation of calling for competition, in the invitation to confirm interest, in the invitation to to confirm interest, in the invitation to tender or to negotiate, or in the tender or to negotiate, or in the specifications. specifications.

Amendment 24

Proposal for a directive Article 77 – paragraph 3 – subparagraph 1

Text proposed by the Commission Amendment

Whenever a common methodology for the Whenever a common methodology for the calculation of life-cycle costs is adopted as calculation of life-cycle costs is adopted as part of a legislative act of the Union, part of a legislative act of the Union, including by delegated acts pursuant to including by delegated acts pursuant to sector specific legislation, it shall be sector specific legislation, it shall be applied where life-cycle costing is applied in accordance with the award included in the award criteria referred to in criteria referred to in Article 76(1). Article 76 (1).

Amendment 25

RR\926628EN.doc 289/296 PE483.470v03-00 EN Proposal for a directive Article 81 – paragraph 2

Text proposed by the Commission Amendment

2. Member States may provide that, at the 2. Member States may provide that, if request of the subcontractor and where the requested by the subcontractor and where nature of the contract so allows, the the nature of the contract so allows, the contracting entity shall transfer due contracting entity shall transfer due payments directly to the subcontractor for payments directly to the subcontractor for services, supplies or works provided to the services, supplies or works provided to the main contractor. In such case, Member main contractor. In such case, Member States shall put in place appropriate States shall put in place appropriate mechanisms permitting the main contractor mechanisms permitting the main contractor to object to undue payments. The to object to undue payments. The arrangements concerning that mode of arrangements concerning that mode of payment shall be set out in the procurement payment shall be set out in the procurement documents. documents.

Amendment 26

Proposal for a directive Article 82 – paragraph 4

Text proposed by the Commission Amendment

4. Where the value of a modification can 4. Where the value of a modification can be expressed in monetary terms, the be expressed in monetary terms, the modification shall not be considered to be modification shall not be considered to be substantial within the meaning of substantial within the meaning of paragraph 1, where its value does not paragraph 1, where its value does not exceed the thresholds set out in Article 12 exceed the thresholds set out in Article 12 and where it is below 5% of the price of and where it is below 10% of the price of the initial contract, provided that the the initial contract, provided that the modification does not alter the overall modification does not alter the overall nature of the contract. Where several nature of the contract. Where several successive modifications are made, the successive modifications are made, the value shall be assessed on the basis of the value shall be assessed on the basis of the cumulative value of the successive cumulative value of the successive modifications. modifications.

Justification

The proposal limits to 5% of the value of the contract any modifications that might be made during the performance of the contract. This limitation is too restrictive. The limit should therefore be raised, so that it may not exceed 10% of the overall price.

PE483.470v03-00 290/296 RR\926628EN.doc EN Amendment 27

Proposal for a directive Article 86 – paragraph 2

Text proposed by the Commission Amendment

2. Member States shall ensure that 2. Member States shall ensure that contracting entities may take into account contracting entities may take into account the need to ensure quality, continuity, the need to ensure quality, continuity, accessibility, availability and accessibility, availability and comprehensiveness of the services, the comprehensiveness of the services, the specific needs of different categories of specific needs of different categories of users, the involvement and empowerment users, the involvement and empowerment of users and innovation. Member States of users and innovation and consumers’ may also provide that the choice of the protection and social inclusion. Member service provider shall not be made solely States may also provide that the choice of on the basis of the price for the provision the service provider shall not be made of the service. solely on the basis of the price for the provision of the service.

Amendment 28

Proposal for a directive Article 93 – paragraph 1

Text proposed by the Commission Amendment

1. Member States shall appoint a single 1. In accordance with their national or independent body responsible for the federal structure, Member States shall oversight and coordination of appoint one or more independent bodies implementation activities (hereinafter "the responsible for the oversight and oversight body"). Member States shall coordination of implementation activities inform the Commission of their (hereinafter "the oversight bodies"). designation. Member States shall inform the Commission of their designation. Member States that already have in place independent bodies can retain these bodies as long as they fulfil all responsibilities as stated below.

Amendment 29

Proposal for a directive Article 93 – paragraph 3 – subparagraph 1 – point f a (new)

RR\926628EN.doc 291/296 PE483.470v03-00 EN

Text proposed by the Commission Amendment

(fa) examining the reports issued by the contracting entities that intend to resort to a negotiated procedure without publication;

Amendment 30

Proposal for a directive Article 93 – paragraph 3 – subparagraph 1 – point b

Text proposed by the Commission Amendment

(b) providing legal advice to contracting deleted entities on the interpretation of public procurement rules and principles and on the application of public procurement rules in specific cases;

Justification

Legal services have always been based upon a relationship of trust with the professional in question, underpinned by the latter's professional skills and governed by stringent professional ethical codes. They cannot therefore be assigned to a public oversight body and neither should they fall within the scope of this directive.

Amendment 31

Proposal for a directive Article 93 – paragraph 3 – subparagraph 1 – point c

Text proposed by the Commission Amendment

(c) issuing own initiative opinions and (c) drawing up guidelines on questions of guidance on questions of general interest general interest pertaining to the pertaining to the interpretation and interpretation and application of public application of public procurement rules, on procurement rules, on recurring questions recurring questions and on systemic and on systemic difficulties related to the difficulties related to the application of application of public procurement rules, in public procurement rules, in the light of the the light of the provisions of this Directive provisions of this Directive and of the and of the relevant case-law of the Court of relevant case-law of the Court of Justice of Justice of the European Union; the European Union;

PE483.470v03-00 292/296 RR\926628EN.doc EN Justification

The new wording proposed is more relevant to the remit of the body, which is to monitor the implementation and application of the rules.

Amendment 32

Proposal for a directive Article 93 – paragraph 3 – subparagraph 3

Text proposed by the Commission Amendment

Member States shall empower the Member States shall empower the oversight body to seize the jurisdiction oversight body to seize the jurisdiction competent according to national law for the competent according to national law for the review of contracting entities' decisions review of contracting entities' decisions where it has detected a violation in the where it has detected a violation in the course of its monitoring and legal advising course of its monitoring activity. activity.

Amendment 33

Proposal for a directive Article 96 – paragraph 1

Text proposed by the Commission Amendment

1. Member States shall make available deleted technical support structures in order to provide legal and economic advice, guidance and assistance to contracting authorities in preparing and carrying out procurement procedures. Member States shall also ensure that each contracting authority can obtain competent assistance and advice on individual questions.

Justification

Amendment 34

RR\926628EN.doc 293/296 PE483.470v03-00 EN Proposal for a directive Annex 14 – indent 1 a (new)

Text proposed by the Commission Amendment

- Convention 94 on Labour Clauses in Public Contracts;

PE483.470v03-00 294/296 RR\926628EN.doc EN PROCEDURE

Opinion by JURI Date announced in plenary 19.1.2012

Rapporteur Giuseppe Gargani Date appointed 1.3.2012 Discussed in committee 26.4.2012 30.5.2012 19.6.2012 Date adopted 11.10.2012

Result of final vote +: 13 –: 9 0: 0

Members present for the final vote Luigi Berlinguer, Sebastian Valentin Bodu, Giuseppe Gargani, Lidia Joanna Geringer de Oedenberg, Gerald Häfner, Sajjad Karim, Klaus- Heiner Lehne, Antonio Masip Hidalgo, Bernhard Rapkay, Evelyn Regner, Francesco Enrico Speroni, Rebecca Taylor, Alexandra Thein, Rainer Wieland, Cecilia Wikström, Tadeusz Zwiefka Substitute(s) present for the final vote Piotr Borys, Eva Lichtenberger, József Szájer, Axel Voss Substitute(s) under Rule 187(2) present Sylvie Guillaume, Salvatore Tatarella for the final vote

RR\926628EN.doc 295/296 PE483.470v03-00 EN PROCEDURE

Title Procurement by entities operating in the water, energy, transport and postal services sectors References COM(2011)0895 – C7-0007/2012 – 2011/0439(COD) Date submitted to Parliament 20.12.2011 Committee responsible IMCO Date announced in plenary 19.1.2012

Committee(s) asked for opinion(s) INTA ECON EMPL ENVI Date announced in plenary 19.1.2012 19.1.2012 19.1.2012 19.1.2012 ITRE TRAN REGI JURI 19.1.2012 19.1.2012 19.1.2012 19.1.2012 LIBE 19.1.2012 Not delivering opinions ECON ENVI LIBE Date of decision 13.2.2012 24.1.2012 28.2.2012 Rapporteur(s) Marc Tarabella Date appointed 29.11.2011

Discussed in committee 25.1.2012 29.2.2012 20.3.2012 30.5.2012 18.9.2012 25.9.2012 10.10.2012 5.11.2012 23.1.2013 Date adopted 24.1.2013

Result of final vote +: 25 –: 5 0: 8

Members present for the final vote Preslav Borissov, Cristian Silviu Buşoi, Jorgo Chatzimarkakis, Birgit Collin-Langen, Lara Comi, Anna Maria Corazza Bildt, Cornelis de Jong, Christian Engström, Evelyne Gebhardt, Thomas Händel, Małgorzata Handzlik, Philippe Juvin, Sandra Kalniete, Hans-Peter Mayer, Claudio Morganti, Pier Antonio Panzeri, Phil Prendergast, Mitro Repo, Heide Rühle, Christel Schaldemose, Olle Schmidt, Andreas Schwab, Barbara Weiler Substitute(s) present for the final vote Raffaele Baldassarre, Adam Bielan, Françoise Castex, Frank Engel, Ashley Fox, Ildikó Gáll-Pelcz, Anna Hedh, Ian Hudghton, Constance Le Grip, Emma McClarkin, Raimon Obiols, Antonyia Parvanova, Olga Sehnalová, Marc Tarabella, Wim van de Camp Date tabled 7.2.2013

PE483.470v03-00 296/296 RR\926628EN.doc EN