Activities of Françoise CASTEX related to 2011/0437(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on the award of concession contracts
Amendments (120)
Amendment 50 #
Proposal for a directive
Citation 1
Citation 1
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 14, Article 53 (1), Article 62 and Article 114 as well as Protocol No 26 thereof,
Amendment 51 #
Proposal for a directive
Recital 1
Recital 1
(1) The absence of clear rules at Union level governing the award of concession contracts gives rise to legal uncertainty and to obstacles to the free provision of services and causes distortions in the functioning of the Internal Market. As a result, economic operators, in particular Small and Medium Enterprises (SMEs), are being deprived of their rights within the Internal Market and miss out on important business opportunities, while public authorities may not find the best use of public money so that EU citizens benefit from quality services at best prices. An adequate legal framework for the award of concessions would ensure effective and non-discriminatory access to the market to all Union economic operators and legal certainty, favouring public investments in infrastructures and strategic servicervices of general economic interest to the citizen.
Amendment 52 #
Proposal for a directive
Recital 3
Recital 3
(3) This Directive should not in any way affectmust guarantee the freedom of Member States or public authorities to decide on the direct provision of works or services to the public or on the outsourcing of such provision to third parties. Member States or public authorities should remain free to define the characteristics of the service to be provided, including any conditions regarding the quality or price of the services, in order to pursue their public policy objectives
Amendment 56 #
Proposal for a directive
Recital 5
Recital 5
(5) Certain coordinationSpecific provisions shouldmust also be introduced for the award of works and services concessions awarded in the water, energy, transport and postal services sectors givenconcessions for services of general economic interest, where objectives and particular tasks are laid down by thate national authorities may influence the behaviour of entities operating in those sectors and taking into account the closed nature of the markets in which they operate, due to the existence of special or exclusive rights granted by the Member State, who have full freedom of choice in their management and who may grant special or exclusive rights concerning the supply to, provision or operation of networks for providing the services concerned.
Amendment 57 #
Proposal for a directive
Recital 6
Recital 6
(6) Concessions armay be contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. The concessions may also concern delegation of management of services, particularly services of general economic interest, for a specific activity in a defined area. Therefore, these are not public 'purchases' or acquisitions' or 'public contracts'. By contrast, certain State acts such as authorisations or licences whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources, such as land lease contracts whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services.
Amendment 58 #
Proposal for a directive
Recital 7
Recital 7
(7) Difficulties related to the interpretation of the concepts of concession and public contract have been source of continued legal uncertainty among stakeholders and have given rise to numerous judgments of the Court of Justice of the European Union on this subject. Therefore, the definition of concession should be clarified, in particular by referring to the concept of substantial operating risk. TIn a general way, the main feature of a concession, the right to exploit the works or services, always implies the transfer to the concessionaire of an economic risk involving the possibility that it will not recoup the investments made and the costs incurred in operating the works or services awarded. Moreover, in respect of concessions of services of general interest, the delegation of management entailed implies rigorous implementation by the concessionaires of the particular tasks conferred on them, particularly the values clearly laid down in Protocol 26 attached to the TEU and the TFEU: a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights. The application of specific rules governing the award of concessions would not be justified if the contracting authority or entity relieved the contractor of any potential loss, by guaranteeing a minimal revenue, equal or higher to the costs that the contractor has to incur in relation with the performance of the contract. At the same time it should be made clear that certain arrangements which are fully paid by a contracting authority or a contracting entity should qualify as concessions where the recoupement of the investments and costs incurred by the operator for execution the work or providing the service depends on the actual demand for or the availability of the service or asset.
Amendment 60 #
Proposal for a directive
Recital 9
Recital 9
(9) The notion of special or exclusive rights is central to the definition of the scope of this Directive, since entities which are neither contracting entities pursuant to Article 4 (1) (1) nor public undertakings are subject to its provisions only to the extent that they exercise one of the activities covered on the basis of such rights. It is therefore appropriate to clarify that rights which have been granted by means of a procedure based on objective criteria, notably pursuant to Union legislation, and for which adequate publicity has been ensured do not constitute special or exclusive rights for the purposes of this Directive. This legislation should include Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas, Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity, 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, Directive 94/22/EC of the European Parliament and of the Council of 20 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons and Regulation (EC) No 1370/2007of 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. The increasingly diverse forms of public action made it necessary to define more clearly the notion of procurement itself. The Union rules on concessions refer to the acquisition of works or services for a consideration consisting in exploitation of those works or services. The notion of acquisition should be understood broadly in the sense of obtaining the benefits of the works or services in question not requiring in all cases a transfer of ownership to contracting authorities or contthe delegation of management for a fixed period of time, for a specific activity and in a defined area, for a consideracting entities. Furthermore, the mere financing of an activity, which is frequently linked to the obligation to reimburse the amounts received where they are not used for the purposes intended, does not usually fall under this Directiveon consisting of the exploitation of those works and services at the concessionaire's risk.
Amendment 62 #
Proposal for a directive
Recital 11
Recital 11
(11) To ensure a real opening up of the market and a fair balance in the application of concession award rules in the water, energy, transport and postal services sectors it is necessary for the entities covered to be clearly identified on a basis other than their legal status. It should be ensured, therefore, that the equal treatment of contracting entities operating in the public sector and those operating in the private sector is not prejudicedin the light of the particular tasks laid down by the public authorities. It is also necessary to ensure, in keeping with Article 345 of the Treaty, that the rules governing the system of property ownership in Member States are not prejudiced.
Amendment 63 #
Proposal for a directive
Recital 15
Recital 15
Amendment 64 #
Proposal for a directive
Recital 17
Recital 17
Amendment 65 #
Proposal for a directive
Recital 20
Recital 20
Amendment 67 #
Proposal for a directive
Recital 22
Recital 22
(22) Given the importance of the cultural context and the sensitivity of these services, Member States shouldall be given wide discretion to organise the choice of the service providers in the way they consider most appropriate. The rules of this Directive do not prevent Member States to apply specific quality criteria for the choice of service providers, such as the criteria set out in the voluntary European Quality Framework for Social Services of the European Union's Social Protection Committee. Member States and/or public authorities remain free to provide these services themselves or to organise social services, such as all services of general economic interest, in a way that does not entail the conclusion of concessions, for 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 authority or contracting entity, without any limits or quotas, provided such system ensures sufficient advertising and complies with the principles of transparency and non- discrimination.
Amendment 68 #
Proposal for a directive
Recital 23
Recital 23
(23) In order to make it possible for all interested operators to submit their applications and tenders, contracting authorities and contracting entities, the grantor should be obliged to respect a minimum time limit for the receipt of such applications.
Amendment 69 #
Proposal for a directive
Recital 24
Recital 24
(24) The choice and application of proportional, non-discriminatory and fair selection criteria to economic operators is crucial for their effective access to the economic opportunities related to concessions. In particular, the possibility for a candidate to rely on the capacities of other entities can be decisive to enable the participation of small and medium sized enterprises. Therefore, it is appropriate to provide that the selection criteria should relate exclusively to the technical, financial and economic capacity of operators, but also, as regards services of general economic interest, their compliance with environmental, social and cohesion- related provisions, as well as with the objectives of a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights, should be announced in the concession notice and cannot preclude an economic operator from relying on the capacities of other entities, regardless of the legal nature of its links with those entities, if the latter proves to the contracting authority or entity that it will have at its disposal the necessary resources.
Amendment 70 #
Proposal for a directive
Recital 29
Recital 29
(29) In technical specifications and in award criteria, contracting authorities and contracting entities should be allowed to refer to a specific production process, a specific mode of provision of services, or a specific process for any other stage of the life cycle of a product or service, provided that they are linked to the subject-matter of the concession. In order to better integrate social considerations in the award of concessions, procurergranting authorities may also be allowed to include, in the award criteria, characteristics related to the working conditions. However, where the contracting authorities or contracting entities use the most economically advantageous tender, such criteria may only relate to the working conditions of the persons directly participating in the process of production or provision in question. Those characteristics may only concern the protection of health of the staff involved in the production process, and safeguarding their employment and working conditions and compliance with collective agreements for them, or the favouring of social integration of disadvantaged persons or members of vulnerable groups amongst the persons assigned to performing the contract, including accessibility for persons with disabilities. In this case, any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff members in their working environment. They should be applied in accordance with Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services and in a way that does not discriminate directly or indirectly against economic operators from other Member States or from third countries parties to the Agreement or to Free Trade Agreements, based on compliance with ILO standards, to which the Union is party. Contracting authorities and contracting entities should, also where they use the criterion of the most economically advantageous tender, be allowed to use as an award criterion the organisation, qualification and experience of the staff assigned to performing the concession in question, as this may affect the quality of concession performance and, as a result, the economic value of the tender.
Amendment 71 #
Proposal for a directive
Recital 34
Recital 34
(34) It is necessary to clarify the conditions under which modifications of a concession during its execution require a new award procedure, taking into account the relevant case-law of the Court of Justice of the European Union. Any concession in force may be modified by means of an additional agreement. A new award procedure is required, however, in case of material changes to the initial concession, demonstrating the intention of the parties to renegotiate essential terms or conditions of that concession. This is notably the case if the amended conditions would have had an influence on the outcome of the procedure, had they been part of the initial procedure. An exceptional and temporary extension of the term of the concession strictly aimed at ensuring the continuity of the provision of the service pending the award of a new concession should not normally qualify as a material change to the initial concession.
Amendment 72 #
Proposal for a directive
Recital 35
Recital 35
Amendment 73 #
Proposal for a directive
Recital 36
Recital 36
(36) In line with the principles of equal treatment and transparency, the successful tenderer should not be replaced by another economic operator without reopening the concession to competition. However, the successful tenderer performing the concession may undergo certain structural changes during the performance of the concession, such as purely internal reorganisations, mergers and acquisitions or insolvency or be substituted on the basis of a contractual clause known to all tenderers and in line with the principles of equal treatment and transparency. Such structural changes should not automatically require new award procedures for all concessions performed by that undertaking.
Amendment 74 #
Proposal for a directive
Recital 37
Recital 37
(37) Contracting authorities or contracting entitiesThe grantor should have the possibility to provide for modifications to a concession in the concession contract itself, by way of review clauses which should not give them unlimited discretion. This Directive should therefore set out to what extent modifications may be provided for in the initial concession.
Amendment 75 #
Proposal for a directive
Recital 38
Recital 38
(38) In order to adapt to rapid technical and economic developments, the power to adopt implementing acts in accordance with Article 2901 of the Treaty should be delegated to the Commisson the Function in respect of a number of non-essential elements of this Directive. In fact, the technical details and characteristics of the devices for electronic receipt should be kept up to date with technological developments and administrative needs; it is also necessary to empower the Commission to make mandatory technical standards for electronic communication to ensure the interoperability of technical formats, processes and messaging in concession award procedures conducted using electronic means of communication taking into account technological developments and administrative needs. Furthermore, the list of legislative acts of the Union establishing common methodologies for the calculation of life- cycle cosg of the European Union should be conferred on the Commission in order to update CPV reference numbers, including those given in Annexes I to X, where changes to the CPV nomenclature make that necessary. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up implementing acts, should be quickly adapted to incorporate the measures adopted on a sectoral basis. In order to satisfy these needs, the Commission should be empowered to keep the list of legislative acts including LCC methodologies up-to dateensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.
Amendment 76 #
Proposal for a directive
Recital 41
Recital 41
Amendment 77 #
Proposal for a directive
Recital 42
Recital 42
Amendment 78 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Directive establishes rules on the procedures for procurement by contracting authorities and by contracting entities with respect tothe award of works or services concessions whose value is estimated to be not less than the thresholds laid down in Article 5.
Amendment 79 #
Proposal for a directive
Article 1 – paragraph 2 – introductory part
Article 1 – paragraph 2 – introductory part
2. This Directive applies to the acquisition of works or services, including supplies which are incidental to the subject matter of a concession, from economic operators chosen by either of the following:or to the delegation to them of the management of a service of general economic interest for a fixed period of time, for a specific activity and in a defined area.
Amendment 80 #
Proposal for a directive
Article 1 – paragraph 2 – point a
Article 1 – paragraph 2 – point a
Amendment 81 #
Proposal for a directive
Article 1 – paragraph 2 – point b
Article 1 – paragraph 2 – point b
Amendment 82 #
Proposal for a directive
Article 1 a (new)
Article 1 a (new)
Article 1a Principle of free administration by public authorities This Directive recognises the principle of free administration by contracting authorities and contracting entities in accordance with national legislation in force and Protocol No 26 annexed to the Treaty on the Functioning of the European Union. They shall be free to decide on the management method they deem to be the most appropriate in order to execute the works and provide the services for which they are responsible, in accordance with the legal and procedural arrangements they deem to be the most effective.
Amendment 84 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(1) 'concessions' means public works concessions, worksservices concessions or concessions for services concessionsof general economic interest.
Amendment 86 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) a 'public (a) a 'works concession' means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, where the consideration for the works to be carried out consistsy means of which one or more contracting authorities or contracting entities confer execution of works for which they are responsible on one or more economic operators, consideration for that conferral being either solely the right to exploit the works that are the subject of the contract or that right together with payment; (b) a 'services concession' means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities confer management of a service for which they are responsible on one or more economic operators, consideration for that conferral being either solely in the right to exploit the worksservice that areis the subject of the contract or in that right together with payment.;
Amendment 87 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
Amendment 89 #
Proposal for a directive
Article 2 – paragraph 1 – point 7
Article 2 – paragraph 1 – point 7
Amendment 90 #
Proposal for a directive
Article 2 – paragraph 1 – point 7 a (new)
Article 2 – paragraph 1 – point 7 a (new)
(7a) ‘concession for a service of general economic interest’ means a contract on the initiative of a contracting authority which involves delegation of management to a third economic operator whose object is to provide a service of general economic interest for a fixed period of time, for a specific activity and in a defined area, consideration for which being the right to exploit the service that is the subject of the contract and generate revenue from users.
Amendment 91 #
Proposal for a directive
Article 2 – paragraph 1 – point 8
Article 2 – paragraph 1 – point 8
Amendment 92 #
Proposal for a directive
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
Amendment 93 #
Proposal for a directive
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
Amendment 94 #
Proposal for a directive
Article 2 – paragraph 1 – point 11
Article 2 – paragraph 1 – point 11
Amendment 95 #
Proposal for a directive
Article 2 – paragraph 1 – point 13
Article 2 – paragraph 1 – point 13
Amendment 96 #
Proposal for a directive
Article 2 – paragraph 1 – point 14
Article 2 – paragraph 1 – point 14
Amendment 98 #
Proposal for a directive
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. For the purposes of this Directive , "Contracting entities" are entities which award a concession for the purpose of pursuing one of the activities as referred to in Annex III and which are one of the following:
Amendment 99 #
Proposal for a directive
Article 4 – paragraph 1 – point 2
Article 4 – paragraph 1 – point 2
Amendment 100 #
Proposal for a directive
Article 4 – paragraph 1 – point 3
Article 4 – paragraph 1 – point 3
Amendment 101 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
Amendment 102 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
Amendment 103 #
Proposal for a directive
Article 5
Article 5
Amendment 104 #
Proposal for a directive
Article 6 – title
Article 6 – title
Amendment 105 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
1. The calculation of the estimated value of a concession shall be based on the total amount payable, net of VAT, as estimated by the contracting authority or the contracting entity, including any form of option and any extension of the duration of the concessionits aggregate turnover net of tax, over the duration of the contract, as estimated by the grantor. This estimate shall be valid at the moment at which the concession notice is sent, or, in cases where such notice is not foreseen, at the moment at which the grantor commences the concession award procedure. Where the value is modified following negotiations during the award procedure, the valid estimate shall be that indicated when the contract is signed.
Amendment 107 #
Proposal for a directive
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
1a. This Directive shall apply to concessions the value of which is equal to or greater than EUR 10 000 000.
Amendment 108 #
Proposal for a directive
Article 6 – paragraph 2 – subparagraph 1
Article 6 – paragraph 2 – subparagraph 1
The estimated value of a concession shall be calculated as the value of an entirety of works and/or services, even if purchased through different contracts, where the contracts are part of one single project. Indications for the existence of one single project consist in overall prior planning and conception by the contracting authority or contracting entity, which are part of one single concession project, including studies. The single nature of a project may in particular be demonstrated by the existence of overall prior planning and conception by the grantor, by the fact that the different elements purchasedof the project fulfil a single economic and technical function or by the fact that they are otherwise logically interlinked.
Amendment 109 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. The choice of the method used to calculate the estimatedestimation of the value of a concession shall not be made with the intention of excluding it from the scope of this Directive. A works project or an entirety of services shall not be subdivided with the effect of preventing it from falling within the scope of this Directive, unless justified by objective reasons.
Amendment 110 #
Proposal for a directive
Article 6 – paragraph 3 a (new)
Article 6 – paragraph 3 a (new)
3a. The estimated value of the concession shall be calculated in accordance with an objective method specified in the concession notice.
Amendment 111 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
Amendment 112 #
Proposal for a directive
Article 6 – paragraph 5
Article 6 – paragraph 5
Amendment 113 #
Proposal for a directive
Article 6 – paragraph 6
Article 6 – paragraph 6
Amendment 114 #
Proposal for a directive
Article 6 – paragraph 7
Article 6 – paragraph 7
Amendment 115 #
Proposal for a directive
Article 6 – paragraph 8
Article 6 – paragraph 8
Amendment 116 #
Proposal for a directive
Article 6 – paragraph 9
Article 6 – paragraph 9
Amendment 117 #
Proposal for a directive
Article 6 – paragraph 9 – subparagraph 1
Article 6 – paragraph 9 – subparagraph 1
Amendment 118 #
Proposal for a directive
Article 6 – paragraph 9 – subparagraph 2
Article 6 – paragraph 9 – subparagraph 2
Amendment 119 #
Proposal for a directive
Article 6 – paragraph 10
Article 6 – paragraph 10
Amendment 120 #
Proposal for a directive
Article 7
Article 7
Amendment 121 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. This Directive shall not apply to services concessions awarded by a contracting authority or by a contracting entity to an economic operator which is a contracting entity or an association of thereof,concerning the management of network infrastructure related to the activities set out in Annex III or to services concessions for an activity set out in Annex III which, when this Directive enters into force, are the subject of a nationally regulated tariff laid down in law or regulation where such concessions are awarded to an economic operator on the basis of an exclusive right that economic operatothe latter enjoys pursuant to applicable and published national law, regulation or administrative provision, and which has been granted in accordance with the Treaty and Union sectoral legislation concerning the management of networks infrastructure related to the activities set out in annex III.
Amendment 122 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
Amendment 123 #
Proposal for a directive
Article 8 – paragraph 2 a (new)
Article 8 – paragraph 2 a (new)
2a. This Directive shall not apply to services concessions awarded in the area of air transport services based on the granting of an operating licence within the meaning of Regulation (EC) No 1008/2008 of the European Parliament and of the Council, or relating to public passenger transport service within the meaning of Regulation (EC) No 1370/2007 of the European Parliament and of the Council.
Amendment 124 #
Proposal for a directive
Article 8 – paragraph 3 – subparagraph 1 – introductory part
Article 8 – paragraph 3 – subparagraph 1 – introductory part
This Directive shall not apply to concessions which the contracting authority or a contracting entitygrantor is obliged to award or organise in accordance with procurementconcession award procedures set out in:
Amendment 125 #
Proposal for a directive
Article 8 – paragraph 3 – subparagraph 1 – point a
Article 8 – paragraph 3 – subparagraph 1 – point a
(a) an international agreement concluded in conformity with the Treaty between a Member State and one or more third countries and covering works, supplies or services intended for the joint implementation or exploitation of a project by the signatory States;
Amendment 126 #
Proposal for a directive
Article 8 – paragraph 3 – subparagraph 2
Article 8 – paragraph 3 – subparagraph 2
Amendment 127 #
Proposal for a directive
Article 8 – paragraph 3 – subparagraph 3
Article 8 – paragraph 3 – subparagraph 3
Amendment 129 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Amendment 130 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
Amendment 131 #
Proposal for a directive
Article 11 – paragraph 3 – point a
Article 11 – paragraph 3 – point a
Amendment 132 #
Proposal for a directive
Article 11 – paragraph 4
Article 11 – paragraph 4
Amendment 133 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
Amendment 134 #
Proposal for a directive
Article 14
Article 14
Amendment 135 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point a
Article 15 – paragraph 1 – subparagraph 1 – point a
Amendment 136 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point b
Article 15 – paragraph 1 – subparagraph 1 – point b
Amendment 138 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point c
Article 15 – paragraph 1 – subparagraph 1 – point c
Amendment 139 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 2
Article 15 – paragraph 1 – subparagraph 2
Amendment 141 #
Proposal for a directive
Article 15 – paragraph 2
Article 15 – paragraph 2
Amendment 142 #
Proposal for a directive
Article 15 – paragraph 2
Article 15 – paragraph 2
Amendment 143 #
Proposal for a directive
Article 15 – paragraph 2
Article 15 – paragraph 2
Amendment 144 #
Proposal for a directive
Article 15 – paragraph 3
Article 15 – paragraph 3
Amendment 146 #
Proposal for a directive
Article 15 – paragraph 4
Article 15 – paragraph 4
Amendment 150 #
Proposal for a directive
Article 15 – paragraph 5
Article 15 – paragraph 5
Amendment 154 #
Proposal for a directive
Article 17 – title
Article 17 – title
Social and otherservices, specific services and services of general economic interest
Amendment 155 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
Concessions for social and other specific services listed in Annex X falling within the scope of this Directive, and services of general economic interest shall be subject to the obligation of paragraph 3 of Art. 26 and of paragraph 1 of Article 27.
Amendment 156 #
Proposal for a directive
Article 17 – paragraph 1 a (new)
Article 17 – paragraph 1 a (new)
In accordance with Protocol No 26 annexed to the Treaty on the Functioning of the European Union, public authorities have wide discretion to define services of general economic interest and services relating to particular public service tasks and to lay down the organisational arrangements for carrying out those particular tasks. The precise activity or activities, objectives, special public service tasks and duration and area concerned shall be clearly laid down in specifications or in a mandating act in accordance with each Member State’s legislation. On this basis, public authorities shall be free to select concessionaires and to select concessions and the award criteria for them, and shall comply with the obligations laid down in Articles 26(3) and 27(1).
Amendment 157 #
Proposal for a directive
Article 25
Article 25
Amendment 158 #
Proposal for a directive
Article 27 – paragraph 2
Article 27 – paragraph 2
2. The obligation referred to in paragraph 1 shall also apply to those services concessions the estimated value of which, as calculated according to the method referred to in Article 6 (5), is equal to or higher than 2 510 000 000 EUR with the sole exception of social services, services of general economic interest and other specific services as referred to in Article 17.
Amendment 159 #
Proposal for a directive
Article 39 – paragraph 1
Article 39 – paragraph 1
1. Concessions shall be awarded on the basis of objective criteria which ensure compliance with the principles of transparency, non-discrimination and equal treatment and which ensure that tenders are assessed in conditions of effective competition permittingwith a view to identifying an overall economic advantage for the contracting authority or the contracting entity, environmental, social and cohesion-related advantage.
Amendment 160 #
Proposal for a directive
Article 39 – paragraph 1 a (new)
Article 39 – paragraph 1 a (new)
1a. For concessions for services of general economic interest, the objectives of a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights shall also be taken into consideration.
Amendment 161 #
Proposal for a directive
Article 39 – paragraph 2 – subparagraph 2
Article 39 – paragraph 2 – subparagraph 2
Amendment 162 #
Proposal for a directive
Article 39 – paragraph 4 – introductory part
Article 39 – paragraph 4 – introductory part
4. Member States may provide that contracting authorities and contracting entities shall base the award of concessions on the criterion of the most economically advantageous tender, in economic, environmental, social and cohesion-related terms, in compliance with paragraph 2. Those criteria may include, in addition to price or costs, any of the following criteria
Amendment 242 #
Proposal for a directive
Citation 1 a (new)
Citation 1 a (new)
Having regard to Article 14 of the Treaty on the Functioning of the European Union and to Protocol 26 to the Treaty,
Amendment 243 #
Proposal for a directive
Citation 1 b (new)
Citation 1 b (new)
Having regard to Article 4(2) of the Treaty on the Functioning of the European Union,
Amendment 248 #
Proposal for a directive
Recital 1
Recital 1
(1) The absence of clear rules at Union level governing the award of concession contracts gives rise to legal uncertainty and to obstacles to the free provision of services and causes distortions in the functioning of the Internal Market. As a result, economic operators, in particular Small and Medium Enterprises (SMEs), are being deprived of their rights within the Internal Market and miss out on important business opportunities, while public authorities may not find the best use of public money so that EU citizens benefit from quality services at best prices. An adequate legal framework for the award of concessions would ensure effective and non-discriminatory access to the market to all Union economic operators and legal certainty, favouring public investments in infrastructures and strategic servicervices of general economic interest to the citizen.
Amendment 255 #
Proposal for a directive
Recital 3
Recital 3
(3) TAccording to Article 4 of the Treaty on the European Union, the Directive respects national identities, inherent to their fundamental structures, political and constitutional, inclusive of regional and local self-government. According to Article 14 of the Treaty on the Functioning of the European Union and Protocol 26 on Services of General Interest, this Directive should not in any way affect the freedom of Member States or public authorities to decide on the direct provision of works or services to the public or on the outsourcing of such provision to third parties. Member States or public authorities inclusive of the sub-state authorities should remain free to define the characteristics of the service to be provided, including any conditions regarding the quality or price of the services, in order to pursue their public policy objectives
Amendment 266 #
Proposal for a directive
Recital 5
Recital 5
(5) Certain coordinationSpecific provisions shouldmust also be introduced for the award of works and services concessions awarded in the water, energy, transport and postal services sectors givenconcessions for services of general economic interest, where objectives and particular tasks are laid down by thate national authorities may influence the behaviour of entities operating in those sectors and taking into account the closed nature of the markets in which they operate, due to the existence of special or exclusive rights granted by the Member State, who have full freedom of choice in their management and who may grant special or exclusive rights concerning the supply to, provision or operation of networks for providing the services concerned.
Amendment 278 #
Proposal for a directive
Recital 6
Recital 6
(6) Concessions armay be contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. Concessions may also concern the delegation of the management of services, particularly services of general economic interest, for a fixed period of time, for a specific activity and in a defined area. These are not therefore public ‘purchases’, ‘acquisitions’ or ‘public contracts’. By contrast, certain State acts such as authorisations or licences whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources, such as land lease contracts whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services.
Amendment 283 #
Proposal for a directive
Recital 7
Recital 7
(7) Difficulties related to the interpretation of the concepts of concession and public contract have been source of continued legal uncertainty among stakeholders and have given rise to numerous judgments of the Court of Justice of the European Union on this subject. Therefore, the definition of concession should be clarified, in particular by referring to the concept of substantial operating risk. TIn general, the main feature of a concession, the right to exploit the works or services, always implies the transfer to the concessionaire of an economic risk involving the possibility that it will not recoup the investments made and the costs incurred in operating the works or services awarded. Moreover, in respect of concessions for services of general interest, the delegation of management entailed implies rigorous implementation by concessionaires of the particular tasks awarded to them, particularly the values clearly laid down in Protocol 26 annexed to the TEU and the TFEU: a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights. The application of specific rules governing the award of concessions would not be justified if the contracting authority or entity relieved the contractor of any potential loss, by guaranteeing a minimal revenue, equal or higher to the costs that the contractor has to incur in relation with the performance of the contract. At the same time it should be made clear that certain arrangements which are fully paid by a contracting authority or a contracting entity should qualify as concessions where the recoupement of the investements and costs incurred by the operator for execution the work or provididng the service depends on the actual demand for or the availability of the service or asset.
Amendment 291 #
Proposal for a directive
Recital 9
Recital 9
(9) The notion of special or exclusive rights is central to the definition of the scope of this Directive, since entities which are neither contracting entities pursuant to Article 4 (1) (1) nor public undertakings are subject to its provisions only to the extent that they exercise one of the activities covered on the basis of such rights. It is therefore appropriate to clarify that rights which have been granted by means of a procedure based on objective criteria, notably pursuant to Union legislation, and for which adequate publicity has been ensured do not constitute special or exclusive rights for the purposes of this Directive. This legislation should include Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas, Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity, 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, Directive 94/22/EC of the European Parliament and of the Council of 20 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons and Regulation (EC) No 1370/2007of 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. The increasingly diverse forms of public action made it necessary to define more clearly the notion of procurement itself. The Union rules on concessions refer to the acquisition of works or services for a consideration consisting in exploitation of those works or services. The notion of acquisition should be understood broadly in the sense of obtaining the benefits of the works or services in question not requiring in all cases a transfer of ownership to contracting authorities or contracting entities. Furthermore, the mere financing of an activity, which is frequently linked to the obligation to reimburse the amounts received where they are not used for the purposes intended, does not usually fall under this Directivethe delegation of management for a fixed period of time, for a specific activity and in a defined area, for a consideration consisting in the exploitation of those works and services at the concessionaire's risk.
Amendment 299 #
Proposal for a directive
Recital 11
Recital 11
(11) To ensure a real opening up of the market and a fair balance in the application of concession award rules in the water, energy, transport and postal services sectors it is necessary for the entities covered to be clearly identified on a basis other than their legal status. It should be ensured, therefore, that the equal treatment of contracting entities operating in the public sector and those operating in the private sector is not prejudicedin the light of the particular tasks laid down by the public authorities. It is also necessary to ensure, in keeping with Article 345 of the Treaty, that the rules governing the system of property ownership in Member States are not prejudiced.
Amendment 343 #
Proposal for a directive
Recital 22
Recital 22
(22) Given the importance of the cultural context and the sensitivity of these services, Member States shouldall be given wide discretion to organise the choice of the service providers in the way they consider most appropriate. The rules of this Directive do not prevent Member States to apply specific quality criteria for the choice of service providers, such as the criteria set out in the voluntary European Quality Framework for Social Services of the European Union's Social Protection Committee . Member States and/or public authorities remain free to provide these services themselves or to organise social services, such as all services of general economic interest, in a way that does not entail the conclusion of concessions, for 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 authority or contracting entity, without any limits or quotas, provided such system ensures sufficient advertising and complies with the principles of transparency and non- discrimination.
Amendment 346 #
Proposal for a directive
Recital 23
Recital 23
(23) In order to make it possible for all interested operators to submit applications and tenders, contracting authorities and contracting entities, the grantor should be obliged to respect a minimum time limit for the receipt of such applications.
Amendment 348 #
Proposal for a directive
Recital 24
Recital 24
(24) The choice and application of proportional, non-discriminatory and fair selection criteria to economic operators is crucial for their effective access to the economic opportunities related to concessions. In particular, the possibility for a candidate to rely on the capacities of other entities can be decisive to enable the participation of small and medium sized enterprises. Therefore, it is appropriate to provide that the selection criteria should relate exclusively to the technical, financial and economic capacity of operators, but also, as regards services of general economic interest, their compliance with environmental, social and cohesion- related provisions, as well as with the objectives of a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights, should be announced in the concession notice and cannot preclude an economic operator from relying on the capacities of other entities, regardless of the legal nature of its links with those entities, if the latter proves to the contracting authority or entity that it will have at its disposal the necessary resources.
Amendment 359 #
Proposal for a directive
Recital 29
Recital 29
(29) In technical specifications and in award criteria, contracting authorities and contracting entities should be allowed to refer to a specific production process, a specific mode of provision of services, or a specific process for any other stage of the life cycle of a product or service, provided that they are linked to the subject-matter of the concession. In order to better integrate social considerations in the award of concessions, procurergranting authorities may also be allowed to include, in the award criteria, characteristics related to the working conditions. However, where the contracting authorities or contracting entities use the most economically advantageous tender, such criteria may only relate to the working conditions of the persons directly participating in the process of production or provision in question. Those characteristics may only concern the protection of health of the staff involved in the production process, and safeguarding their employment and working conditions and compliance with collective agreements for them, or the favouring of social integration of disadvantaged persons or members of vulnerable groups amongst the persons assigned to performing the contract, including accessibility for persons with disabilities. In this case, any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff members in their working environment. They should be applied in accordance with Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services and in a way that does not discriminate directly or indirectly against economic operators from other Member States or from third countries parties to the Agreement or to Free Trade Agreements, based on compliance with ILO standards, to which the Union is party. Contracting authorities and contracting entities should, also where they use the criterion of the most economically advantageous tender, be allowed to use as an award criterion the organisation, qualification and experience of the staff assigned to performing the concession in question, as this may affect the quality of concession performance and, as a result, the economic value of the tender.
Amendment 367 #
Proposal for a directive
Recital 34
Recital 34
(34) It is necessary to clarify the conditions under which modifications of a concession during its execution require a new award procedure, taking into account the relevant case-law of the Court of Justice of the European Union. Any concession in force may be modified by means of a supplementary agreement. A new award procedure is required in, however, in the case of material changes to the initial concession, demonstrating the intention of the parties to renegotiate essential terms or conditions of that concession. This is notably the case if the amended conditions would have had an influence on the outcome of the procedure, had they been part of the initial procedure. An exceptional and temporary extension of the term of the concession strictly aimed at ensuring the continuity of the provision of the service pending the award of a new concession should not normally qualify as a material change to the initial concession.
Amendment 370 #
Proposal for a directive
Recital 35
Recital 35
(35) Contracting authorities and contracting entitieGrantors can be faced with external circumstances that they could not foresee when they awarded the concession. In this case, a certain degree of flexibility is needed to adapt the concession to these circumstances without a new award procedure. The notion of circumstances that a diligent contracting authority or contracting entity could not foresee refers to those circumstances which could not be predicted despite reasonably diligent preparation of the initial award by the contracting authority or contracting entity, taking into account its available means, the nature and characteristics of the specific project, good practice in the field in question and the need to ensure an appropriate relationship between the resources spent in preparing the award and its foreseeable value. However, this cannot apply in cases where a modification results in an alteration of the nature of the overall procurement, for instance by replacing the works, supplies or services to be procured by something different or by fundamentally changing the type of procurement since, in such a situation, a hypothetical influence on the outcome may be assumed.
Amendment 372 #
Proposal for a directive
Recital 36
Recital 36
(36) In line with the principles of equal treatment and transparency, the successful tenderer should not be replaced by another economic operator without reopening the concession to competition. However, the successful tenderer performing the concession may undergo certain structural changes during the performance of the concession, such as purely internal reorganisations, mergers and acquisitions or insolvency or be substituted on the basis of a contractual clause known to all tenderers and in line with the principles of equal treatment and transparency. Such structural changes should not automatically require new award procedures for all concessions performed by that undertaking.
Amendment 379 #
Proposal for a directive
Recital 44 a (new)
Recital 44 a (new)
(44a) This Directive is without prejudice to the Member States’ power to award, define and organise the provision of a public service task in accordance with Protocol 29 annexed to the Treaties on the system of public broadcasting in the Member States.
Amendment 399 #
Proposal for a directive
Article 1 a (new)
Article 1 a (new)
Article 1a Principle of free administration by public authorities This Directive recognises the principle of free administration by contracting authorities and contracting entities in conformity with the national legislation in force. They shall be free to decide on the management method they deem to be the most appropriate in order to execute the works and provide the services for which they are responsible, in accordance with the legal and procedural arrangements they deem to be the most effective. Pursuant to Article 14 of the Treaty on the Functioning of the European Union, and Protocol 26 to that Treaty, this Directive shall have neither the objective nor the effect of laying down a specific legal form for the public authorities concerned.
Amendment 417 #
Proposal for a directive
Article 2 – paragraph 1 – point 7
Article 2 – paragraph 1 – point 7
(7) a 'services concession' means a contract for pecuniary interest concluded in writing between one or more economic operators andy means of which one or more contracting authorities or contracting entities and having as their object the provision of services other than those referred to in points 2 and 4 where the consideration for the services to be providedward the performance of services for which they are responsible to one or more economic operators, where the consideration for that award, constituting the mandating act, consists either solely in the right to exploitperform the services that aris the subject of the contract or in that right together with payment. The right to exploit the works or services shall imply the transfer to the concessionaire of the substantial economic risk in exploiting these works or services, defined as the risk of exposure to the vagaries of the market. The concessionaire shall be deemed to assume the substantial operating risk where, under normal conditions of exploitation, it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject of the concession.
Amendment 444 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. This Directive shall apply to the following concessions the value of which is equal to or greater than EUR 510 000 000:
Amendment 450 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. Services concessions the value of which is equal to or greater than EUR 2 55 000 000 but lower than EUR 510 000 000 other than social services and other specific services shall be subject to the obligation to publish a concession award notice in accordance with Articles 27 and 28.
Amendment 566 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point a
Article 15 – paragraph 1 – subparagraph 1 – point a
(a) such an authority or entity exercises over the legal person concerned a control which is similarequivalent to that which it exercises over its own departments, i.e. it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person. The Member States shall determine the conditions under which such control can be exercised;
Amendment 575 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point b
Article 15 – paragraph 1 – subparagraph 1 – point b
(b) at least 90%the bulk of the activities of that legal person areis carried out for the controlling contracting authority or entity or for other legal persons controlled by that contracting authority or entity
Amendment 598 #
Proposal for a directive
Article 15 – paragraph 2 – subparagraph 1 a (new)
Article 15 – paragraph 2 – subparagraph 1 a (new)
Not-for-profit legal persons operating in the social economy (associations, mutual associations, cooperatives, etc.) shall be exempt from the provisions of this Article;
Amendment 605 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 1 – point a
Article 15 – paragraph 3 – subparagraph 1 – point a
(a) the contracting authorities or entities as referred to in paragraph 1 subparagraph 1 of Article 4 exercise jointly over the legal person a control which is similarequivalent to that which it exercises over its own departments, i.e. they exercise a decisive influence over both strategic objectives and significant decisions of the controlled legal person. The Member States shall determine how such control can be exerted.
Amendment 614 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 1 – point b
Article 15 – paragraph 3 – subparagraph 1 – point b
(b) at least 90%the bulk of the activities of that legal person areis carried out for the controlling contracting authorities or entities as referred to in paragraph 1 subparagraph 1 of Article 4 or other legal persons controlled by the same contracting authority or entity; The Member States may specify the mandatory minimum proportion of turnover controlled by the contracting authority;
Amendment 633 #
Proposal for a directive
Article 15 – paragraph 4 a (new)
Article 15 – paragraph 4 a (new)
Amendment 940 #
Proposal for a directive
Article 50 – paragraph 1 – subparagraph 1 a (new)
Article 50 – paragraph 1 – subparagraph 1 a (new)
Member States shall put in place in their laws, regulations and administrative provisions a transitional period from 5 to 10 years for the implementation of the provisions of this Directive for any new concession contract.