32 Amendments of Daniel CASPARY related to 2012/0060(COD)
Amendment 47 #
Proposal for a regulation
Title 1
Title 1
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the access of third-country goods and services to the Union's internal market in public procurement and concessions and procedures supporting negotiations on access of Union goods and services to the public procurement markets and to the concessions of third countries (Text with EEA relevance)
Amendment 53 #
Proposal for a regulation
Recital 5
Recital 5
(5) Within the context of the World Trade Organisation and through its bilateral relations the Union advocates an ambitious opening of international public procurement and concessions markets of the Union and its trading partners, in a spirit of reciprocity and mutual benefit.
Amendment 56 #
Proposal for a regulation
Recital 6
Recital 6
(6) 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 partner of the Union. Those restrictive procurement practices result in the loss of substantial trading opportunities.
Amendment 58 #
Proposal for a regulation
Recital 8
Recital 8
(8) In accordance with Article 207 TFEU the common commercial policy in the field of public procurement and concessions is to be based on uniform principles.
Amendment 60 #
Proposal for a regulation
Recital 9
Recital 9
(9) In the interest of legal certainty for Union and third-country economic operators and contracting authorities/entities, the international market access commitments undertaken by the Union vis-à-vis third countries in the field of public procurement and concessions should be reflected in the legal order of the EU, thereby ensuring effective application thereof. The Commission should issue guidance on the application of the existing international market access commitments of the European Union. This guidance should be updated on a regular basis and provide easy to use information.
Amendment 64 #
Proposal for a regulation
Recital 10
Recital 10
(10) The objectives of improving the access of EU economic operators to the public procurement and concessions markets of certain third countries protected by restrictive procurement measures and preserving equal conditions of competition within the European Single Market require that the treatment of third-country goods and services not covered by the international commitments of the Union be harmonised throughout the European Union.
Amendment 65 #
Proposal for a regulation
Recital 12
Recital 12
(12) The Commission should assess whether to approve that contracting authorities/entities within the meaning of Directives [2004/17/EC, 2004/18/EC and Directive [….] of the European Parliament and the Council of [….]….on the award of concession contracts13 ] exclude, for contractprocedures for the award of contracts or concessions with an estimated value equal or above EUR 5.000.000 from procedures for the award of contracts goods and services not covered by the international commitments undertaken by the European Union. __________________ 13 OJ L…. OJ L….
Amendment 66 #
Proposal for a regulation
Recital 13
Recital 13
(13) For the sake of transparency, contracting authorities/entities intending to make use of their power in accordance with this Regulation to exclude tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services from procedures for the award of contracts or concessions should inform economic operators thereof in the contract notice published in the Official Journal of the European Union.
Amendment 69 #
Proposal for a regulation
Recital 15
Recital 15
(15) For contracts and concessions with an estimated value equal or above EUR 5.000.000 the Commission should approve the intended exclusion if the international agreement concerning market access in the field of public procurement and concessions between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union. Where such an agreement does not exist, the Commission should approve the exclusion where the third country maintains restrictive procurement measures in the field of procurement or the award of leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. A lack of substantial reciprocity should be presumed where restrictive procurement measures in the field of procurement or the award of result in serious and recurring discriminations of EU economic operators, goods and services.
Amendment 72 #
Proposal for a regulation
Recital 16
Recital 16
(16) When assessing whether a lack of substantial reciprocity exists, the Commission should examine to what degree the laws on public procurement lawand concessions of the country concerned ensure transparency in line with international standards in the field of public procurement and concessions preclude any discrimination against Union goods, services and economic operators. In addition, it should examine to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operators.
Amendment 73 #
Proposal for a regulation
Recital 13
Recital 13
(13) The origin of a good should be determined in accordance with Article 22 to 26 of Council Regulation (EEC) No 2913/199218 In order to allow the contracting authorities and entities to know whether certain goods and services are covered by the international commitments of the Union, it is necessary to establish the rules of origin that apply. The origin of a good should be determined in accordance with Articles 59 to 63 of Regulation (EU) No 952/2013 of the European Parliament and of the Council18a including the additional provisions to be adopted under Article 65 thereof. The origin of a service should be determined on the basis of the origin of the natural or legal person providing it. The determination of the origin of a service should be made in line with the principles of the WTO General Agreement on Trade in Services (GATS). The provisions determining the rules of origin of services should prevent the circumvention of restrictions on access to the Union public procurement market through the establishment of ‘letterbox’ companies. _________________ 18Council aRegulation (EECU) No 2913/1992952/2013 of the European Parliament and of the Council of 129 October 1992 establishing the Community2013 laying down the Union Customs Code (OJ L 302, 9.10.1992269, 10.10.2013, p. 31)
Amendment 79 #
Proposal for a regulation
Recital 17
Recital 17
(17) The Commission should be able to prevent the possible negative impact of an intended exclusion on on-going trade negotiations with the country concerned. Therefore, the Commission may, where a country is engaging in substantive negotiations with the Union concerning market access in the field of public procurement and/or concessions the Commission considers that there is a reasonable prospect of removing the restrictive procurement and/or concessions practices in the near future, it should be able to adopt a implementing act providing that goods and services from that country should not be excluded from procedures for the award of contracts for a period of one year.
Amendment 84 #
Proposal for a regulation
Recital 18
Recital 18
(18) In view of the fact that the access of third country goods and services to the public procurement market of the Union and to its concessions falls within the scope of the common commercial policy, Member States or their contracting authorities/entities should not be able to restrict the access of third country goods or services to their tendering procedures by any other measure than the ones provided for in this Regulation.
Amendment 87 #
Proposal for a regulation
Recital 20
Recital 20
(20) 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 external procurement investigation into restrictive procurement and concessions practices allegedly maintained by a third country. In particular it shall take into account the fact that the Commission has approved a number of intended exclusions concerning a third country pursuant to Article 6(2) of this Regulation. Such investigative procedures should be without prejudice to Council Regulation (EC) No 3286/94 of 22 December 1994 laying down Community procedures in the field of the 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 Organization14 . __________________ 14 OJ L 349, 31.12.1994 OJ L 349, 31.12.1994
Amendment 89 #
Proposal for a regulation
Recital 21
Recital 21
(21) Where the Commission has, on the basis of information available to it, reason to believe that a third country has adopted or maintains a restrictive procurement and concession practice, it should be able to start an investigation. If the existence of a restrictive procurement practice in a third country is confirmed the Commission should invite the country concerned to enter into consultations with a view to improving the tendering opportunities for economic operators, goods and services in public procurement in that country.
Amendment 93 #
Proposal for a regulation
Recital 23
Recital 23
(23) Such measures may entail the mandatory exclusion of certain third- country goods and services from public procurement procedures or procedures for the award of concessions in the European Union, or may subject tenders made up of goods or services originating in that country to a mandatory price penalty. To avoid circumvention of these measures, it may also be necessary to exclude certain foreign-controlled or owned juridical persons established in the European Union, that are not engaged in substantive business operations such that it has a direct and effective link with the economy of a Member State concerned. Appropriate measures should not be disproportionate to the restrictive procurement practices to which they respond.
Amendment 94 #
Proposal for a regulation
Recital 24
Recital 24
(24) Price adjustment measures should not have a negative impactThe Commission should be able to prevent the possible negative impact of an intended exclusion on on-going trade negotiations with the country concerned. Therefore, where a country is engaging in substantive negotiations with the Union concerning market access in the field of public procurement, the Commission may suspend the measures during the negotiations or concessions, and the Commission considers that there is a reasonable prospect of removing the restrictive procurement or concessions practices in the near future, the Commission should be able to adopt an implementing act to withdraw the restrictive measure adopted or suspend its application for a period of time.
Amendment 97 #
Proposal for a regulation
Recital 27
Recital 27
(27) In order to reflect in the legal order of the European Union the international market access commitments undertaken in the field of public procurement and concessions after the adoption of this Regulation, the Commission should be empowered to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union amendments to the list of international agreements annexed to this Regulation. It is of particular importance that the Commission should carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and the Council.
Amendment 98 #
Proposal for a regulation
Recital 31
Recital 31
(31) In accordance with the principle of proportionality, it is necessary and appropriate for achievement of the basic objective of establishing a common external policy in the field of public procurement and concessions to lay down rules on the treatment of goods and services not covered by the international commitments of the European Union. This Regulation on the access of third-country economic operators, goods and services does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with the third paragraph of Article 5 of the Treaty on European Union,
Amendment 104 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation lays down rules on the access of third-country goods and services to the award of contracts forand concessions for, depending on the kind of contract in question, the execution of works or a work, the supply of goods and the provision of services by Union contracting authorities/entities, and establishes procedures supporting negotiations on access of Union goods and services to the public procurement and concessions markets of third countries.
Amendment 106 #
Proposal for a regulation
Article 1 – paragraph 2 – subparagraph 2
Article 1 – paragraph 2 – subparagraph 2
This Regulation shall apply to the award of contracts where the goods or services are procured for governmental purposes and to the award of concessions for services provided for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods or in the provision of services for commercial sale.
Amendment 107 #
Proposal for a regulation
Article 2 – paragraph 1 – point a
Article 2 – paragraph 1 – point a
(a) ‘supplier’'economic operator' means any natural or legal person which offers on the market goodsor public entity or group of such persons and/or entities which offers the execution of works or a work, the supply of products or the provision of services on the market;
Amendment 109 #
Proposal for a regulation
Article 2 – paragraph 1 – point d
Article 2 – paragraph 1 – point d
(d) ‘covered goods or services’ means a good or service originating in a country with which the Union has concluded an international agreement in the field of public procurement and concessions including market access commitments and in respect of which the relevant agreement applies. Annex I to this Regulation contains a list of relevant agreements;
Amendment 114 #
Proposal for a regulation
Article 2 – paragraph 2 – point e
Article 2 – paragraph 2 – point e
(e) a ‘mandatory price penalty’ shall refer to an obligation for contracting entities to increase, subject to certain exceptions, the price of services and/or goods originating in certain third countries that have been offered in contract award procedures. or concession award procedures. (This amendment applies to the whole of the legislative text (addition of the reference to ‘concession award procedures’ whenever there is mention of ‘contract award procedures’, in the singular or the plural); adoption of the regulation will entail technical changes throughout the text.)
Amendment 117 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
When awarding contracts for the execution of works and/or a work, the supply of goods or the provision of services, or when awarding concessions for the execution of work or the provision of services, contracting authorities/entities shall treat covered goods and services equally to goods and services originating in the European Union.
Amendment 135 #
Proposal for a regulation
Article 6 – paragraph 2 – subparagraph 4 – point b
Article 6 – paragraph 2 – subparagraph 4 – point b
(b) a description of the object of the contract; or concession; (This amendment applies to the whole of the legislative text (addition of the reference to ‘concession award procedures’ whenever there is mention of ‘contract award procedures’, in the singular or the plural); adoption of the regulation will entail technical changes throughout the text.)
Amendment 148 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
Amendment 150 #
Proposal for a regulation
Article 6 – paragraph 4 – subparagraph 1 – point b
Article 6 – paragraph 4 – subparagraph 1 – point b
(b) where an agreement referred to in point (a) does not exist and the third country maintains restrictive procurement or concession award measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. (This amendment applies to the whole of the legislative text (addition of the reference to ‘concession award procedures’ whenever there is mention of ‘contract award procedures’, in the singular or the plural); adoption of the regulation will entail technical changes throughout the text.)
Amendment 157 #
Proposal for a regulation
Recital 17
Recital 17
(17) When assessing whether restrictive and/or discriminatory procurement 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 174 #
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 and consumers. The Commission 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 EU economic operators should be given special consideration. 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 431 #
Amendment 438 #
Proposal for a regulation
Article 9 a (new)
Article 9 a (new)