115 Amendments of Margarida MARQUES related to 2012/0060(COD)
Amendment 104 #
Proposal for a regulation
Title 1
Title 1
Amendment 108 #
Proposal for a regulation
Recital 5
Recital 5
Amendment 111 #
(6) Within the context of the WTO and through its bilateral relations, the Union advocates an ambitious opening of international public procurement markets of the Union and its trading partners, in a spirit of reciprocity and mutual benefit.
Amendment 114 #
Proposal for a regulation
Recital 6 a (new)
Recital 6 a (new)
(6a) The plurilateral WTO Agreement on Government Procurement and EU trade agreements that include provisions on procurement provide for market access for Union economic operators only to the procurement markets of third countries that are parties to these agreements.
Amendment 117 #
Proposal for a regulation
Recital 7
Recital 7
(7) If thea third country concerned is a Party to the WTO Agreement on Government Procurement or has concluded a trade agreement with the EU that includes provisions on public procurement, the Commission should follow the consultation mechanisms and/or dispute settlement procedures set out in thatose agreements when the restrictive practices relate to procurement covered by market access commitments undertaken by the country concernedat third country towards the Union.
Amendment 121 #
(8) Many third countries are reluctant to open their public procurement and their concessions markets to international competition, or to open those markets further than what they have already done. As a result, Union economic operators face restrictive procurement practices in many of the trading partners of the Union. Those restrictive procurement practices result in the loss of substantial trading opportunities.
Amendment 125 #
Proposal for a regulation
Recital 10
Recital 10
(10) Regulation (EU) No 654/2014 of the European Parliament and of the Council174 lays down rules and procedures in order to ensure the exercise of the Union's rights under international trade agreements concluded by the Union. No such rules and procedures exist for the treatment of economic operators, goods and services not covered by such international agreements. _________________ 174 Regulation (EU) No 654/2014 of the European Parliament and of the Council of 15 May 2014 concerning the exercise of the Union's rights for the application and enforcement of international trade rules and amending Council Regulation (EC) No 3286/94 laying down Community procedures in the field of common commercial policy in order to ensure the exercise of the Community’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization (OJ L 189, 27.6.2014, p. 50.)
Amendment 130 #
Proposal for a regulation
Recital 11
Recital 11
(11) In the interest of legal certainty for Union and third-country economic operators, contracting authorities and contracting entiternational market access commitments undertaken by the Union towards third countries in the field of procurement and concessions require, inter alia, the equal treatment of economic operators from those countries. Consequently, measures adopted under this Regulation can only apply to economic operators, goods or services from countries that are not parties to the plurilateral WTO Agreement on Government Procurement or to bilateral or multilateral trade agreements with the Union that include commitments on access to procurement and concessions markets, or from countries that are parties, the international market access commitments undertaken by the Union towardso such agreements but only regarding procurement procedures for goods, services or concessions that are not covered by those agreements. Irrespective of the application of measures adopted under this Regulation, and in accordance with the Communication from the Commission of 24 July 2019 on ‘Guidance on the participation of third- countries in the field of public procurement and concessions should be reflected in the legal order of the EU, thy bidders and goods in the EU procurement market’ and with Directives 2014/23/EU, 2014/24/EU and 2014/25/EU of the European Parliament and of the Council, economic operators from third countries which do not have any agreement providing for the opening of the Union’s procurement market or whose goods, services and works are not covered by ensuring effective application thereof. such an agreement, do not have secured access to procurement procedures in the Union and could be excluded.
Amendment 136 #
Proposal for a regulation
Recital 12
Recital 12
(12) The objeffectives of application of any measure adopted under this Regulation with a view to improving the access of Union economic operators to the public procurement and concessions markets of certain third countries protected by restrictive and discriminatory procurement measures or practices and of preserving equal conditions of competition within the internal market require to refer to the non-preferential rules of origin established in the EU customs legislation, so that contracting authorities and contracting entities know whether goods and services are covered by the international commitments of the Unionrequires a clear set of rules of origin for economic operators, goods and services.
Amendment 138 #
Proposal for a regulation
Recital 13
Recital 13
(13) The origin of a good should be determined in accordance with Article 22s 59 to 262 of Council Regulation (EECU) No 2913/199218 952/20135 of the European Parliament and of the Council. _________________ 18Council 5Regulation (EECU) No 2913/1992 of 12 October 1992 establishing the Community952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 302, 9.10.1992269, 10.10.2013, p. 1)
Amendment 140 #
(14) The origin of a service should be determined on the basis of the origin of the natural or legal person providing it. The origin of a legal person should be considered to be the country under the laws of which a legal person is constituted or organised and in the territory of which the legal person is engaged in substantive business operations. The criterion of substantive business operations should not allow the potential circumvention of any measure adopted under this Regulation by the creation of letterbox companies. The term ‘substantive business operations’ is a concept used in the WTO General Agreement on Trade in Services. In Union law it is equivalent to the term ‘effective and continuous link with the economy’ and is closely linked to the right of establishment set out in Article 49 of the Treaty on the Functioning of the European Union. The Commission regularly publishes guidelines based on the case law related to the right of establishment, addressing, inter alia, the concept of effective or stable and continuous link with the economy. Article 86 of Directive 2014/25/EU also refers to the concept of “direct and effective link with the economy” which is equivalent to the concept of ‘substantive business operations’.
Amendment 142 #
Proposal for a regulation
Recital 15
Recital 15
Amendment 147 #
Proposal for a regulation
Recital 16
Recital 16
Amendment 158 #
Proposal for a regulation
Recital 17
Recital 17
(17) When assessing whether restrictive and/or discriminatory procurement measures or practices exist in a third countryspecific measures or practices exist in a third country that could result in the impairment of access of Union goods, services or economic operators to the procurement or concession markets, the Commission should examine to what degree laws on public, rules or other measures on procurement and concessions of the country concerned ensure transparency in line with international standards in the field of public procurement, and do not result in serious and preclude any discriminaurring restrictions against Union goods, services andor economic operators. In addition, it should examine to what degree individual contracting authorities or contracting entities maintain or adopt discriminatoryrestrictive practices against Union goods, services andor economic operators.
Amendment 167 #
Proposal for a regulation
Recital 19
Recital 19
(19) The Commission should be able, on its own initiative or at the application of interested parties or a Member State, to initiate at any time an investigation into restrictive procurement measures or practices allegedly adopted or maintained by a third country. . Such investigative procedures should be without prejudice to Regulation (EU) No 654/2014 of the European Parliament and of the Council , if it considers that such an investigation is in the interest of the Union.
Amendment 172 #
Proposal for a regulation
Recital 19 a (new)
Recital 19 a (new)
(19a) The determination whether an investigation is in the interest of the Union should be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry, users, consumers, workers and social partners. The Commission is in any case responsible of determining the interest of the Union, and should weigh up the consequences of starting an investigation against its impact, and the potential measures that could be adopted under this Regulation on EU’s broader interests. The general objective of opening third-country markets and improving market access opportunities for Union economic operators should be taken into account. The objective of limiting any unnecessary administrative burden for contracting authorities and contracting entities as well as economic operators should also be taken into account.
Amendment 176 #
Proposal for a regulation
Recital 19 b (new)
Recital 19 b (new)
(19b) Given the overall policy objective of the Union to support the economic growth of least developed countries (LDCs) and their integration into global value chains, it would not be in the Union’s interest to start an investigation against such countries under this Regulation, unless there are reasonable indications of circumvention of any adopted IPI measures. Consequently, this Regulation is not intended to apply to LDCs benefitting from the "Everything But Arms" arrangement as defined in Regulation (EU) No 978/2012.
Amendment 183 #
Proposal for a regulation
Recital 20
Recital 20
(20) If the existence of a restrictive and/or discriminatory procurement measure or practice in a third country is confirmedWhen conducting the investigation, the Commission should invite the third country concerned to enter into consultations with a view to eliminating any restrictive measures or practices and improving the tendering opportunities for Union economic operators, goods and services in respect of public procurementregarding procurement and concessions markets in that country.
Amendment 185 #
Proposal for a regulation
Recital 22
Recital 22
(22) If the investigation confirms the existence of restrictive measures or practices and the consultations with the country concerned do not lead to sufficient satisfactory corrective actions that result in improvements to the tendering opportunities for Union economic operators, goods and services within a reasonable timeframe, the Commission, where appropriate, should be able to adopt, where appropriate, price adjustment measure applying to tenders submitted by economic operators originating in that country and/or including goods and services originating in that country under this Regulation measures (‘IPI measures’) in the form of a score adjustment or of exclusion of tenders.
Amendment 193 #
Proposal for a regulation
Recital 23
Recital 23
(23) SuchA score adjustment measures should be applied only for the purpose of the evaluation of tenders comprising goods or servicesubmitted by economic operators originating in the country concerned. To avoid circumvention of those measures, it may also be necessary to target certain foreign-controlled or owned legal persons that, although established in the European Union, are not engaged in substantive business operations that have a direct and effective link withIt should not affect the price actually due to be paid under the economy of at least one Member State . Appropriate measures should not be disproportionate to the restrictive procurement practices to which they respondtract to be concluded with the successful tenderer.
Amendment 197 #
Proposal for a regulation
Recital 23 a (new)
Recital 23 a (new)
(23a) IPI measures should apply to procurement procedures falling under the scope of this Regulation, including framework agreements and dynamic purchasing systems. IPI measures should also apply in the case of specific contracts awarded under a dynamic purchasing system, when those dynamic purchasing systems were subject to an IPI measure. However, they should not apply to such contracts below a certain threshold with a view to limiting the overall administrative burden for contracting authorities and contracting entities. In order to avoid a possible double application of IPI measures, such measures should not apply to contracts awarded based on a framework agreement, once they have already been applied at the stage of concluding that framework agreement.
Amendment 200 #
Proposal for a regulation
Recital 23 b (new)
Recital 23 b (new)
(23b) In the light of the overall policy objective of the Union to support small and medium-sized enterprises (SMEs), the Commission and contracting authorities and contracting entities should duly consider the effects of this Regulation, with a view to preventing an overburdening of SMEs. The Commission in cooperation with the Member States should make available guidelines for best practices to achieve this objective, in order to ensure the efficiency of this Regulation and the consistency of its implementation.
Amendment 202 #
Proposal for a regulation
Recital 23 c (new)
Recital 23 c (new)
(23c) To avoid possible circumvention of an IPI measure, it will also be necessary to impose additional contractual obligations on any successful tenderer. Those obligations should apply only in case of procurement procedures to which an IPI measure is applicable, as well as to contracts awarded based on a framework agreement where such contracts are equal or above a certain threshold and when that framework agreement was subject to an IPI measure.
Amendment 205 #
Proposal for a regulation
Recital 24
Recital 24
Amendment 213 #
Proposal for a regulation
Recital 25
Recital 25
Amendment 217 #
Proposal for a regulation
Recital 26
Recital 26
Amendment 225 #
Proposal for a regulation
Recital 27
Recital 27
(27) It is imperative that contracting authorities and contracting entities have access to a range of high-quality products meeting their purchasing requirements at a competitive price. Therefore contracting authorities and contracting entities should be able not to apply price adjustment, on an exceptional basis, not to apply IPI measures limiting access of non- covered goods and services in casef there are no Union and/or covered goods or services available which meet the requirements of the contracting authority or contracting entity or where such action relates to safeguarding essential public policy needs, for example in the fields of health andregarding public safeecurity, or where the application of the measure would lead to a disproportionate increase in the price or costs of the contractpublic health emergencies.
Amendment 229 #
Proposal for a regulation
Recital 28
Recital 28
(28) In case of misapplication of IPI measures by contracting authorities or contracting entities of exceptions to price adjustment measures limiting access of non-covered goods and services, the Commission should be able to apply the corrective mechanism of Article 3 of, which negatively affects the chances to participate in the procurement procedure of economic operators having such a right, Council Directives 89/665/EEC20 or Article 8 of Council Directive 92/13/EEC21 . In addition, contracts concluded with an economic operator by contracting authorities or contracting entiti and 92/13/EEC should be applicable. The affected economic operator could therefore initiate a review procedure according to the national law implementing these Directives, in violation of price adjustment measures limiting access of non-covered goods and services should be ineffectivef, for example, a competing economic operator should have been excluded. The Commission should also be able to apply the corrective mechanism according to Article 3 of Council Directive 89/665/EEC19 or Article 8 of Council Directive 92/13/EEC20. _________________ 2019Council Directive 89/665/EEC 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 contracts (OJ L 395, 30.12.1989, p. 33). 2120Council Directive 92/13/EEC coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 76, 23.3.1992, p. 14).
Amendment 233 #
Proposal for a regulation
Recital 30
Recital 30
(30) The examination procedure should be used for the adoption of implementing acts regarding the adoption, withdrawal, or suspension or reinstatement of a the price adjustment measuren IPI measure and the Commission should be assisted by the Committee set up under the Trade Barriers Regulation. If necessary and for matters affecting the Union’s legal framework on public procurement, the Commission may also seek the advice of the Advisory Committee on Public Procurement established by Council Decision 71/306/EEC.
Amendment 235 #
Proposal for a regulation
Recital 30 a (new)
Recital 30 a (new)
(30a) Information received pursuant to this Regulation should only be used for the purpose for which it was requested and with due respect to the applicable Union and national data protection and confidentiality requirements. Regulation (EC) No 1049/2001 as well as Article 28 of Directive 2014/23/EU, Article 21 of Directive 2014/24/EU and Article 39 of Directive 2014/25/EU, should apply accordingly.
Amendment 238 #
Proposal for a regulation
Recital 32
Recital 32
(32) Regular reporting by the Commission should make it possible to monitor the applicaIn line with the Interinstitutional Agreement of 13 April 2016 on Better Law-Making9a and with a view, inter alia, to reduce administrative burdens, in particular on Member States, the Commission should regularly review the scope, functioning and efficiency of the procedures established by this Regulationis Regulation. The Commission should report on its assessment to the European Parliament and the Council. The review may be followed up by appropriate legislative proposals.
Amendment 241 #
Proposal for a regulation
Recital 33
Recital 33
Amendment 242 #
Proposal for a regulation
Recital 33 a (new)
Recital 33 a (new)
(33a) It is also imperative that, in view of an appropriate integration of environmental, social and labour requirements, Member States take relevant measures to ensure compliance with obligations in the fields of environmental, social and labour law that apply at the place where the works are executed and result from international obligations, laws, regulations, decrees and decisions, at both national and Union level, as well as from collective agreements.
Amendment 244 #
Proposal for a regulation
Article 1 – paragraph 1 – subparagraph 1
Article 1 – paragraph 1 – subparagraph 1
This Regulation establishes measures intended to improve the access of Union economic operators, goods and services to the public procurement and concessions markets of third countries, in respect of non-covered procurement. It lays down procedures for the Commission to undertake investigations into alleged restrictive and discriminatory procurement measures or practices adopted or maintained by third countrithird country measures or practices against Union economic operators, goods and services, and to enter into consultations with the third countries concerned.
Amendment 248 #
Proposal for a regulation
Article 1 – paragraph 1 – subparagraph 2
Article 1 – paragraph 1 – subparagraph 2
Amendment 252 #
Proposal for a regulation
Article 1 – paragraph 3
Article 1 – paragraph 3
Amendment 256 #
Proposal for a regulation
Article 1 – paragraph 4
Article 1 – paragraph 4
Amendment 260 #
Proposal for a regulation
Article 1 – paragraph 4 a (new)
Article 1 – paragraph 4 a (new)
4a. The application of this Regulation shall be without prejudice to any international obligations of the Union or measures that Member States and their contracting authorities and contracting entities may take in accordance with the acts mentioned in paragraph 2.
Amendment 262 #
Proposal for a regulation
Article 1 – paragraph 5
Article 1 – paragraph 5
Amendment 268 #
Proposal for a regulation
Article 1 – paragraph 5 a (new)
Article 1 – paragraph 5 a (new)
5a. This Regulation shall apply only to procurement procedures launched after its entry into force. An IPI measure shall only apply to procurement procedures which are covered by the IPI measure and have been launched at any moment between the entry into force of that IPI measure and its expiry, withdrawal or suspension. A reference to the application of this Regulation and any applicable IPI measure shall be included by contracting authorities and contracting entities in the procurement documents for procedures falling within the scope of an IPI measure.
Amendment 269 #
Proposal for a regulation
Article 1 – paragraph 5 b (new)
Article 1 – paragraph 5 b (new)
5b. Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X of the Directive 2014/24/EU and of the Paris Agreement.
Amendment 270 #
Proposal for a regulation
Article 2 – paragraph 1 – point a
Article 2 – paragraph 1 – point a
(a) 'economic operator' means any natural or legal person or public entity or group of such persons and/or entities, including any temporary association of undertakings, which submits a tender for the ex economic operator as defined in Direcution of works and/or a work, the supply of goods or the provision of services on the marketves 2014/23/EU, 2014/24/EU and 2014/25/EU respectively;
Amendment 274 #
Proposal for a regulation
Article 2 – paragraph 1 – point a a (new)
Article 2 – paragraph 1 – point a a (new)
Amendment 277 #
Proposal for a regulation
Article 2 – paragraph 1 – point a b (new)
Article 2 – paragraph 1 – point a b (new)
(ab) 'estimated value’ means estimated value as calculated in accordance with Directives 2014/23/EU, 2014/24/EU and 2014/25/EU respectively;
Amendment 278 #
Proposal for a regulation
Article 2 – paragraph 1 – point a c (new)
Article 2 – paragraph 1 – point a c (new)
(ac) 'score adjustment measure’ means the relative diminution by a given percentage of the score of a tender resulting from its evaluation by a contracting authority or a contracting entity on the basis of the contract award criteria defined in the procurement documents. For the purposes of contract award criteria, Member States shall integrate environmental, social and labour requirements that apply at the place where the works are executed and result from international obligations, laws, regulations, decrees and decisions, at both national and Union level, as well as from collective agreements. In cases where price or cost is the only contract award criterion, the score adjustment measure means the relative increase, for the purpose of the evaluation of tenders, by a given percentage of the price offered by a tenderer;
Amendment 281 #
Proposal for a regulation
Article 2 – paragraph 1 – point b
Article 2 – paragraph 1 – point b
(b) ‘contracting authority’ means ‘a contracting authority’ as defined in Article 2(1) of Directive 2014/24/EUDirectives 2014/23/EU, 2014/24/EU and 2014/25/EU respectively;
Amendment 282 #
Proposal for a regulation
Article 2 – paragraph 1 – point c
Article 2 – paragraph 1 – point c
(c) ‘contracting entity’ means a 'contracting entity' as defined in Article 4(1) of Directive 2014/25/EU and Article 7 of Directive 2014/23/EU ;
Amendment 284 #
Proposal for a regulation
Article 2 – paragraph 1 – point d
Article 2 – paragraph 1 – point d
Amendment 286 #
Proposal for a regulation
Article 2 – paragraph 1 – point e
Article 2 – paragraph 1 – point e
Amendment 290 #
Proposal for a regulation
Article 2 – paragraph 1 – point f
Article 2 – paragraph 1 – point f
(f) ‘restrictive and/or discriminatory procurementthird country measure or practice’ means any legislative, regulatory or administrative measure, procedure or practice, or combination thereof, adopted or maintained by public authorities or individual contracting authorities or contracting entities in a third country, that result in a serious and recurrent impairment of access of Union goods, services and/or economic operators to the public procurement or concession market of that countrys.
Amendment 291 #
Proposal for a regulation
Article 2 – paragraph 1 – point f a (new)
Article 2 – paragraph 1 – point f a (new)
(fa) ‘IPI measure’ means a measure adopted by the Commission in accordance with this Regulation limiting the access of economic operators and/or goods and services originating in the third country to the Union procurement or concessions market in the area of non-covered procurement;
Amendment 293 #
Proposal for a regulation
Article 2 – paragraph 1 – point f b (new)
Article 2 – paragraph 1 – point f b (new)
(fb) ‘non-covered procurement’ means procurement procedures for goods, services or concessions regarding which the Union has not undertaken market access commitments in an international agreement in the field of procurement or concessions;
Amendment 296 #
Proposal for a regulation
Article 2 – paragraph 1 – point f c (new)
Article 2 – paragraph 1 – point f c (new)
(fc) ‘contract’ means public contracts as defined in Directive 2014/24/EU, concessions as defined in Directive 2014/23/EU and supply, works and service contracts as defined in Directive 2014/25/EU;
Amendment 297 #
Proposal for a regulation
Article 2 – paragraph 1 – point f d (new)
Article 2 – paragraph 1 – point f d (new)
(fd) ‘tenderer’ means a tenderer as defined in Directives 2014/23/EU, 2014/24/EU and 2014/25/EU respectively;
Amendment 301 #
Proposal for a regulation
Article 2 – paragraph 1 – point h
Article 2 – paragraph 1 – point h
Amendment 303 #
Proposal for a regulation
Article 2 – paragraph 1 – point h a (new)
Article 2 – paragraph 1 – point h a (new)
(ha) 'Union interest' means a determination as to whether the Union's interest calls for intervention shall be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry and users and consumers. Measures may not be applied where the authorities, on the basis of all the information submitted, can clearly conclude that it is not in the Union's interest to apply such measures. (See mutatis mutandis Article 21 Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (codification))
Amendment 304 #
Proposal for a regulation
Article 2 – paragraph 1 – point h a (new)
Article 2 – paragraph 1 – point h a (new)
(ha) ‘Evidence’ means any information, certificate, supporting document, statement and other means of proof aimed at proving compliance with the obligations set out in Art. 7.1 (c). This may refer to: (i) certificates of origin, supplier declarations or import declarations for goods originating in third countries; (ii) description of manufacturing processes (including samples, descriptions or photographs) for goods to be supplied; and (iii) extract of relevant registers or of financial statements for the origin of services, including a VAT identification number;
Amendment 308 #
Proposal for a regulation
Article 2 – paragraph 2
Article 2 – paragraph 2
2. For the purpose of this Regulation, except for Articles 5(3) and 5(7), the execution of works and/or a work within the meaning of Directives 2014/253/EU, 2014/24/EU and Directive 2014/235/EU shall be considered as the provision of a service.
Amendment 310 #
Proposal for a regulation
Article 3 – title
Article 3 – title
Amendment 312 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
Amendment 314 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
Amendment 315 #
Proposal for a regulation
Article 3 – paragraph 3 – point a
Article 3 – paragraph 3 – point a
(a) in the case of a natural person, the country of which the person is a national or where hethat person has a right of permanent residence;
Amendment 318 #
Proposal for a regulation
Article 3 – paragraph 3 – point b – point i
Article 3 – paragraph 3 – point b – point i
(i) if the service is not provided through a commercial presence within the Union, the country under the laws of which the legal person is constituted or otherwise organised and in the territory of which the legal person is engaged in substantive business operations, entailing a direct and effective link with the economy of the country concerned;
Amendment 320 #
Proposal for a regulation
Article 3 – paragraph 3 – point b – point ii
Article 3 – paragraph 3 – point b – point ii
Amendment 322 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 2
Article 3 – paragraph 3 – subparagraph 2
Amendment 324 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 3
Article 3 – paragraph 3 – subparagraph 3
Amendment 326 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 3 a (new)
Article 3 – paragraph 3 – subparagraph 3 a (new)
Where an economic operator is a group of natural or legal persons and/or public entities, and at least one of such persons or entities originates from the third country whose economic operators and goods and services are subject to the IPI measure, the IPI measure shall equally apply to tenders submitted by that group. This shall not apply in cases in which such persons' or entities' participation in a group amounts to less than 15% of the value of the tender in question, unless that person or entity is necessary for fulfilling the majority of at least one of the selection criteria in a procurement procedure.
Amendment 327 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 3 b (new)
Article 3 – paragraph 3 – subparagraph 3 b (new)
Contracting authorities or contracting entities may at any time during the procurement procedure request the economic operator to submit, supplement, clarify or complete the information or documentation related to the verification of the economic operator's origin within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency. Tenders from economic operators that fail to provide such information or documentation may be rejected in accordance with the rules applicable to the award procedure.
Amendment 328 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 3 c (new)
Article 3 – paragraph 3 – subparagraph 3 c (new)
For the application of the additional contractual obligations upon the successful tenderer set out in Article 7, the origin of a good shall be determined in accordance with Articles 59 to 62 of Council Regulation (EEC) No 952/2013, while the origin of a service shall be determined on the basis of the origin of the economic operator providing it.
Amendment 330 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 4
Article 3 – paragraph 3 – subparagraph 4
Amendment 333 #
Proposal for a regulation
Chapter 2 – title
Chapter 2 – title
Amendment 337 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
Tenders shall be exempted from this Regulation where more than 50% of the total value of the tender is made up of goods and/or servicesthey have been submitted by an economic operator originating in least- developed countries listed in Annex IV to Regulation (EU) No 978/201227 , and in developing countries considered to be vulnerable due to a lack of diversification and insufficient integration within the international trading system as defined in Annex VII to Regulation (EU) No 978/2012. _________________ 27Regulation (EU) No 978/2012 of the European Parliament and of the Council applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008 (OJ L 303, 31.10.2012, p. 1).
Amendment 341 #
Proposal for a regulation
Article 5
Article 5
Amendment 344 #
Investigations, consultations and price adjustment measure, measures and contractual obligations
Amendment 347 #
Proposal for a regulation
Article 6 – title
Article 6 – title
Investigations and consultations
Amendment 350 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 1
Article 6 – paragraph 1 – subparagraph 1
Amendment 355 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 1 a (new)
Article 6 – paragraph 1 – subparagraph 1 a (new)
Upon publication of the notice, the Commission shall invite the third country concerned to submit its views, provide information and enter into consultations with the Commission in order to remove the alleged third country measure or practice. The Commission shall regularly inform Member States, within the Committee set up by Article 7 of the Council Regulation (EU) 2015/1843 (Trade Barriers Regulation), the interested parties and the European Parliament.
Amendment 360 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. The assessment by the Commission of whether the alleged restrictive and/or discriminatory procurement measures or practices have been adopted or are maintained by the third country concerned shall be made on the basisinvestigation and consultations shall be concluded within a period of six months after the date of the publication in the Official Journal of the informitiation supplied by interested parties and Member States, of facts collected by the Commission during its investigation, or both. The assessment shall be concluded within a period of eight months after the initiation of the investigation. In duly justified cases, this period may be extended by four monthnotice. In duly justified cases, the Commission may, before the end of the initial six months, extend that period by three months, by publishing a notice in the Official Journal of the European Union and informing the third country, interested parties and Member States.
Amendment 364 #
Proposal for a regulation
Article 6 – paragraph 2 a (new)
Article 6 – paragraph 2 a (new)
2a. Upon conclusion of the investigation and consultations, the Commission shall make publicly available a report recording the main findings of the investigation and a proposed course of action. The Commission shall present the report to the European Parliament.
Amendment 368 #
Proposal for a regulation
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Where the Commission concludes as a result offinds, following its investigation that the alleged restrictive and/or discriminatory procurementthird country measures or practices areis not maintained or that ithey does not result in restrictions toserious and recurrent impairment of access byof Union economic operators or Union goods andor services to the public procurement or concession markets of the third country concerned, the Commission shall terminate the investigation. and publish a notice of termination in the Official Journal of the European Union.
Amendment 370 #
Proposal for a regulation
Article 6 – paragraph 4
Article 6 – paragraph 4
Amendment 374 #
Proposal for a regulation
Article 6 – paragraph 4 a (new)
Article 6 – paragraph 4 a (new)
Amendment 375 #
Proposal for a regulation
Article 7
Article 7
Amendment 387 #
Proposal for a regulation
Article 8
Article 8
Amendment 429 #
Proposal for a regulation
Article 8 a (new)
Article 8 a (new)
Amendment 433 #
Proposal for a regulation
Article 9
Article 9
Authorities or entities concerned The Commission shall determine the contracting authorities or entities or categories of contracting authorities or entities, listed by Member State, whose procurement is concerned by the measure. To provide the basis for this determination, each Member State shall submit a list of appropriate contracting authorities or entities or categories of contracting authorities or entities. The Commission shall ensure that an appropriate level of action is taken and that a fair distribution of the burden among Member States is achieved.rticle 9 deleted
Amendment 439 #
Proposal for a regulation
Article 9 a (new)
Article 9 a (new)
Article 9a Additional contractual obligations upon the successful tenderer 1. In the case of procurement procedures to which an IPI measure is applicable, as well as in the case of contracts awarded based on a framework agreement where the estimated value of those contracts is equal or above the respective values set out in Article 8 of Directive 2014/23/EU, Article 4 of Directive 2014/24/EU and Article 15 of Directive 2014/25/EU and when those framework agreements were subject to the IPI measure, contracting authorities and contracting entities shall also include, among the conditions of the contract with the successful tenderer: (a) a commitment not to subcontract more than 25% of the total value of the contract to economic operators originating in a third country which is subject to an IPI measure; (b) for contracts whose subject matter covers the supply of goods, a commitment that, for the duration of the contract, goods and/or services supplied or provided in the execution of the contract and originating in the third country which is subject to the IPI measure represent no more than 25% of the total value of the contract, whether such goods and/or services are supplied or provided directly by the tenderer or by a subcontractor; (c) an obligation to provide upon request adequate evidence corresponding to points (a) and/or (b)to the contracting authority or the contracting entity at the latest upon completion of the execution of the contract; (d) a proportionate charge, in case of non-observance of the commitments referred in points (a) or (b) of 25% of the total value of the contract. 2. For the purposes of paragraph 1(c) it is sufficient to provide evidence that more than 75% of the total value of the contract originates in countries other than the third country subject to the IPI measure. The contracting authority or contracting entity shall request evidence in case of reasonable indications of incompliance with paragraph 1(a) and/or1(b) or if the contract is awarded to a group of economic operators comprising a legal person originating in the country subject to an IPI measure. 3. A reference to the additional conditions laid down in this Article shall be included by contracting authorities and contracting entities in the documents for procurement procedures to which an IPI measure is applicable.
Amendment 443 #
Proposal for a regulation
Article 10
Article 10
Amendment 449 #
Proposal for a regulation
Article 11
Article 11
Amendment 466 #
Proposal for a regulation
Article 12 – paragraph 1 – introductory part
Article 12 – paragraph 1 – introductory part
1. Contracting authorities and contracting entities may, on an exceptional basis, decide not to apply the price adjustmentIPI measure with respect to a procurement or a concession procedure if:
Amendment 470 #
Proposal for a regulation
Article 12 – paragraph 1 – point a
Article 12 – paragraph 1 – point a
Amendment 475 #
Proposal for a regulation
Article 12 – paragraph 1 – point a a (new)
Article 12 – paragraph 1 – point a a (new)
(aa) there are only tenders from economic operators originating in the country subject to an IPI measure, or only such tenders meet the tender requirements; or
Amendment 480 #
Proposal for a regulation
Article 12 – paragraph 1 – point a b (new)
Article 12 – paragraph 1 – point a b (new)
(ab) this is justified for overriding reasons relating to the public interest, public security or public health emergencies.
Amendment 483 #
Proposal for a regulation
Article 12 – paragraph 1 – point b
Article 12 – paragraph 1 – point b
Amendment 486 #
Proposal for a regulation
Article 12 – paragraph 2
Article 12 – paragraph 2
2. Where a contracting authority or contracting entity intenddecides not to apply a price adjustmentn IPI measure , it shall indicate its intention in the contract notice that it publishes pursuant to Article 49 of Directive 2014/24/EU or Arform the Commission, in a manner to be decided by the respective Member State, no later than thirty calendar days after the publication of the contract noticle 69 of Directive 2014/25/EU or in the concession notice pursuant to Article 31 of Directive 2014/23/EU. It shall notify the Commission no later than ten calendar days after the publication of the contract noticethe award of the contract. The Commission may object to a non- application of an IPI measure if the notification lacks sufficient justification. If the Commission intends to object to the non-application of an IPI measure, it shall notify the contracting authority or contracting entity within the aforementioned time period.
Amendment 492 #
Proposal for a regulation
Article 12 – paragraph 3 – introductory part
Article 12 – paragraph 3 – introductory part
3. The notification shall contain the following information: information on the origin of the economic operators that have submitted a tender, due justification of the use of the exception and, where appropriate, any other information deemed useful by the contracting authority or contracting entity.
Amendment 495 #
Proposal for a regulation
Article 12 – paragraph 3 – point a
Article 12 – paragraph 3 – point a
Amendment 496 #
Proposal for a regulation
Article 12 – paragraph 3 – point b
Article 12 – paragraph 3 – point b
Amendment 498 #
Amendment 499 #
Proposal for a regulation
Article 12 – paragraph 3 – point d
Article 12 – paragraph 3 – point d
Amendment 502 #
Proposal for a regulation
Article 12 – paragraph 3 – point e
Article 12 – paragraph 3 – point e
Amendment 503 #
Proposal for a regulation
Article 12 – paragraph 3 – subparagraph 2
Article 12 – paragraph 3 – subparagraph 2
The Commission may ask the contracting authority or contracting entityMember State concerned for additional information.
Amendment 504 #
Proposal for a regulation
Article 12 – paragraph 4 – subparagraph 1
Article 12 – paragraph 4 – subparagraph 1
Amendment 507 #
Amendment 508 #
Proposal for a regulation
Article 12 – paragraph 4 – subparagraph 2 – point b
Article 12 – paragraph 4 – subparagraph 2 – point b
Amendment 509 #
Proposal for a regulation
Article 12 – paragraph 4 – subparagraph 2 – point c
Article 12 – paragraph 4 – subparagraph 2 – point c
Amendment 510 #
Proposal for a regulation
Article 12 – paragraph 4 – subparagraph 2 – point d
Article 12 – paragraph 4 – subparagraph 2 – point d
Amendment 511 #
Proposal for a regulation
Article 12 – paragraph 4 – subparagraph 2 – point e
Article 12 – paragraph 4 – subparagraph 2 – point e
Amendment 512 #
Proposal for a regulation
Article 13 – title
Article 13 – title
Amendment 514 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
Amendment 515 #
Proposal for a regulation
Article 13 – paragraph 2
Article 13 – paragraph 2
Amendment 518 #
Proposal for a regulation
Article 13 a (new)
Article 13 a (new)
Article 13a Remedies To ensure legal protection of economic operators having or having had an interest in obtaining a particular contract falling under the scope of this Regulation, Council Directive 89/665/EEC and Council Directive 92/13/EEC shall apply accordingly
Amendment 521 #
Proposal for a regulation
Article 15
Article 15
Amendment 523 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
Amendment 531 #
Proposal for a regulation
Article 17 a (new)
Article 17 a (new)
Article 17a Review No later than three years after the adoption of an implementing act or after the date of entry into force of this Regulation, whichever is the earliest, and every three years thereafter, the Commission shall review the scope, functioning and efficiency of this Regulation, and shall report its findings to the European Parliament and the Council.