79 Amendments of Andreas SCHWAB related to 2011/0437(COD)
Amendment 250 #
Proposal for a directive
Recital 2
Recital 2
(2) Public procurement plays a key role in the Europe 2020 strategy as one of the market-based instruments to be used to achieve a smart, sustainable and inclusive growth while ensuring the most efficient use of public funds. The award of works concessions is presently subject to basic rules of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts while the award of services concessions with a cross-border interest is subject to the principles of the Treaty, and in particular the principle of free movement of goods, freedom of establishment and freedom to provide services as well as to the principles deriving therefrom such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. There is a risk of legal uncertainty related to different interpretations of the principles of the Treaty by national legislators and of wide disparities among the legislations of different Member States. Such risk has been confirmed by the extensive case law of the Court of Justice of the European Union but which has only partially addressed certain aspects of the award of concession contracts. Hence, a uniform concretisation of the Treaty principles across all Member States and the elimination of discrepancies in their understanding following therefrom is necessary at the Union level in order to eliminate persisting distortions of the Internal Market.
Amendment 270 #
Proposal for a directive
Recital 6
Recital 6
(6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or licences, or approval requirements for the provision of social services, whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources, such as land lease contracts whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services.
Amendment 276 #
Proposal for a directive
Recital 6
Recital 6
(6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or licences, or approval requirements for the provision of social services, whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources, such as land leasetenancy contracts whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services. The general conditions contained in both tenancy and land lease contracts are rules concerning the transfer of the rented property to the tenant, the use thereof (e.g. a description of the rented property, provisions on permissible uses of the rented property, provisions on the optimum use of the rented property such as performance indicators and environmental standards), the respective obligations of the landlord and the tenant with regard to the maintenance of the rented property, the duration of the lease and repossession by the landlord of the rented property, the rent and other costs borne by the tenant, including penalties.
Amendment 280 #
Proposal for a directive
Recital 6
Recital 6
(6) Concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists, normally, in the right to exploit the works or services that are the subject of the contract. The execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable. By contrast, certain State acts such as authorisations or licences whereby the State or a public authority establishes the conditions for the exercise of an economic activity, should not qualify as concessions. The same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources, such as land lease contracts whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services. Simple approvals or the right to use public goods or a public domain are not services concessions.
Amendment 285 #
Proposal for a directive
Recital 8
Recital 8
(8) Where sector specific regulation provides for a guarantee to the concessionaire on breaking even on investments and costs incurred for operating the contract, such contract should not qualify as a concession within the meaning of this Directive. A distinction should nevertheless be established with cases where the operating risk is limited from the outset. This does not prevent a concession from being accepted (see the case-law of the ECJ in case WAZV Gotha (C-206/08)).
Amendment 289 #
Proposal for a directive
Recital 8 a (new)
Recital 8 a (new)
(8a) An operating risk must stem from the factors which are outside the control of the parties and thus can not result from inappropriate performance of the contract by any of the parties to the contract. An operating risk may consist in either a demand or an availability risk or in both a demand and an availability risk. Demand risk is to be understood as the risk on actual demand for the works or services which are the object of the contract. Availability risk is to be understood as the risk on the supply of the works or services which are the object of the contract, in particular the risk that the supply of the services will not match demand and the risk of liability for harm or damage resulting from inadequacy of the works or services. It is sufficient (for the contract to be categorised as a concession) that the supplier assumes all, or at least a significant share, of the operating risk faced by the contracting authority, even if that risk is, from the outset, very limited on account of the detailed rules of public law governing that service.
Amendment 294 #
Proposal for a directive
Recital 10
Recital 10
Amendment 315 #
Proposal for a directive
Recital 15 a (new)
Recital 15 a (new)
(15a) On the other hand, service contracts in the fields of civil protection, emergency response and everyday hazard prevention should be excluded from the scope of the Directive. These fields include, in particular, emergency rescue work, which forms part of everyday hazard prevention and should be defined as separate from ambulance services. In order to ensure successful civil protection and emergency response as part of everyday hazard prevention in the interests of the general public, it should be sufficient to apply the principles of primary law.
Amendment 319 #
Proposal for a directive
Recital 17 a (new)
Recital 17 a (new)
(17a) The duration of the concession should be limited so that market foreclosure is avoided and there is no long-term prevention of competition.
Amendment 389 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. Exclusively the conditions laid down in this Directive shall apply to the procedures followed by contracting authorities or contracting entities as referred to in Article 1(1) when concluding concessions. The provisions of the directive on public procurement and the directive on the procurement procedures of entities operating in the water, energy, transport and postal services sectors shall not apply to concessions referred to in paragraph 1, even in a corresponding form.
Amendment 433 #
Proposal for a directive
Article 2 – paragraph 2 – subparagraph 2
Article 2 – paragraph 2 – subparagraph 2
Amendment 454 #
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 ofequal to the estimated turnover of the concessionaire, net of value added tax, taking account of work and services, including supplies, carried out in the course of executing the concession.
Amendment 458 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
Amendment 460 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
Amendment 465 #
Proposal for a directive
Article 6 – paragraph 5
Article 6 – paragraph 5
Amendment 471 #
Proposal for a directive
Article 6 – paragraph 6
Article 6 – paragraph 6
Amendment 475 #
Proposal for a directive
Article 6 – paragraph 7
Article 6 – paragraph 7
Amendment 477 #
Proposal for a directive
Article 6 – paragraph 8
Article 6 – paragraph 8
Amendment 501 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point a
Article 8 – paragraph 5 – subparagraph 1 – point a
(a) the acquisition or rental, rental or leasing by the contracting authority or contracting entity, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon; however financial service concessions awarded at the same time as, before or after the contract of acquisition or rental, in whatever form, shall be subject to this Directive;
Amendment 512 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point d
Article 8 – paragraph 5 – subparagraph 1 – point d
(d) financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council, central bank services and operatransactions conducted with the European Financial Stability Facility (EFSF) as well as operations to raise money or capital for the contracting authority;
Amendment 520 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point g a (new)
Article 8 – paragraph 5 – subparagraph 1 – point g a (new)
(ga) civil protection, disaster prevention, emergency response and rescue and everyday hazard prevention services.
Amendment 544 #
Proposal for a directive
Article 11 – paragraph 4 – point a
Article 11 – paragraph 4 – point a
(a) to service concessions provided that at least 80 % of the average total turnover of the affiliated undertaking with respect to services in generalthat are the subject of service concessions for the preceding three years derives from the provision of services to undertakings with which it is affiliated;
Amendment 546 #
Proposal for a directive
Article 11 – paragraph 4 – point b
Article 11 – paragraph 4 – point b
(b) works concessions provided that at least 80 % of the average total turnover of the affiliated undertaking with respect to works in generalthat are the subject of service concessions for the preceding three years derives from the provision of works to undertakings with which it is affiliated.
Amendment 569 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point b
Article 15 – paragraph 1 – subparagraph 1 – point b
(b) that least 90% of the activities ofgal person primarily carries out activities for the controlling contracting authority or entity or for other legal persons controlled by that contracting authority or entity; it is assumed that the legal person areprimarily carrieds out activities for the controlling contracting authority or entity , or for other legal persons controlled by that contracting authority or entity, where it carries out at least 90 % of its activities which are the subject of the contract for that legal person or those legal persons;
Amendment 583 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point c
Article 15 – paragraph 1 – subparagraph 1 – point c
(c) there is no private participation in the controlled legal person, except where this is a mandatory statutory requirement in the relevant Member States.
Amendment 590 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 2
Article 15 – paragraph 1 – subparagraph 2
Amendment 593 #
Proposal for a directive
Article 15 – paragraph 2
Article 15 – paragraph 2
2. Paragraph 1 also applies where a controlled entity which is a contracting authority or contracting entity as referred to in paragraph 1 subparagraph 1 of Article 4 awards a concession to its controlling entityunit(s), or to another legal person controlled by the same contracting authority, provided that there is no private participation in the legal person being awarded the public concession.
Amendment 609 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 1 – point b
Article 15 – paragraph 3 – subparagraph 1 – point b
(b) that least 90% of the activities of that legal person are carried outgal person primarily carries out activities for the controlling contracting authority or entity or for othe controllingr legal persons controlled by the same contracting authoritiesy or entities as referred to in paragraph 1 subparagraph 1 of Article 4 or other legal persons controlled by the same contracting authority or entityy; it is assumed that the legal person primarily carries out activities for the controlling contracting authority or entity, of for other legal persons controlled by the same contracting authority or entity, where it carries out at least 90 % of its activities which are the subject of the contract for that legal person or those legal persons;
Amendment 622 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 1 – point c
Article 15 – paragraph 3 – subparagraph 1 – point c
(c) there is no private participation in the controlled legal person, except where this is a mandatory statutory requirement in the relevant Member States.
Amendment 628 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 2 – point a
Article 15 – paragraph 3 – subparagraph 2 – point a
(a) the decision-making bodies of the controlled legal person are composed of representatives of allthe participating contracting authorities or contracting entities as referred to in paragraph 1 subparagraph 1 of Article 4;
Amendment 640 #
Proposal for a directive
Article 15 – paragraph 4 – point a
Article 15 – paragraph 4 – point a
(a) the agreement establishes a genuine co- operation between the participating contracting authorities or entities aimed at carrying out jointly their public service tasks and involving mutual rights and obligations of the parties;
Amendment 647 #
Proposal for a directive
Article 15 – paragraph 4 – point b
Article 15 – paragraph 4 – point b
(b) the agreement is governed only by considerations relating topublic interest considerations; these shall also include auxiliary services essential to the provision of services in the public interest;
Amendment 661 #
Proposal for a directive
Article 15 – paragraph 4 – point d
Article 15 – paragraph 4 – point d
(d) the agreement does not primarily involve financial transfers between the participating contracting authorities or entities, other than those corresponding to the reimbursement of actual costs of the works, services or supplies;
Amendment 666 #
Proposal for a directive
Article 15 – paragraph 4 – point e
Article 15 – paragraph 4 – point e
(e) there is no private participation in any of the contracting authorities or entities involved except where this is a mandatory statutory requirement in the relevant Member States.
Amendment 678 #
Proposal for a directive
Article 15 – paragraph 5 – subparagraph 2
Article 15 – paragraph 5 – subparagraph 2
Amendment 721 #
Proposal for a directive
Article 22 – paragraph 4 – subparagraph 1
Article 22 – paragraph 4 – subparagraph 1
Amendment 739 #
Proposal for a directive
Article 26 – paragraph 5 – subparagraph 1 – introductory part
Article 26 – paragraph 5 – subparagraph 1 – introductory part
By way of derogation from paragraph 1, the contracting authorities and entities shall not be required to publish a concession notice in any of the following cases:cases covered by Article 30 of the Public Procurement Directive [formerly Directive 2004/18/EC of 31 March 2004].
Amendment 742 #
Proposal for a directive
Article 26 – paragraph 5 – subparagraph 1 – point a
Article 26 – paragraph 5 – subparagraph 1 – point a
Amendment 744 #
Proposal for a directive
Article 26 – paragraph 5 – subparagraph 1 – point b
Article 26 – paragraph 5 – subparagraph 1 – point b
Amendment 747 #
Proposal for a directive
Article 26 – paragraph 5 – subparagraph 1 – point c
Article 26 – paragraph 5 – subparagraph 1 – point c
Amendment 752 #
Proposal for a directive
Article 26 – paragraph 5 – subparagraph 2
Article 26 – paragraph 5 – subparagraph 2
Amendment 763 #
Proposal for a directive
Article 28
Article 28
Amendment 765 #
Proposal for a directive
Article 29
Article 29
Amendment 766 #
Proposal for a directive
Article 30
Article 30
Amendment 787 #
Proposal for a directive
Article 35 – paragraph 5
Article 35 – paragraph 5
Amendment 788 #
Proposal for a directive
Article 35 – paragraph 7
Article 35 – paragraph 7
Amendment 789 #
Proposal for a directive
Article 35 – paragraph 8
Article 35 – paragraph 8
Amendment 805 #
Proposal for a directive
Article 36 – paragraph 2
Article 36 – paragraph 2
Amendment 814 #
Proposal for a directive
Article 36 – paragraph 5 – subparagraph 1 – introductory part
Article 36 – paragraph 5 – subparagraph 1 – introductory part
Any candidate or tenderer that has been the subject of a conviction by a final judgment for one of the reasons listed belowin Article 55(1) of the public procurement directive [previously Directive 2004/18/EC of 31 March 2004], applied mutatis mutandis, shall be excluded from participation in a concession:
Amendment 815 #
Proposal for a directive
Article 36 – paragraph 5 – subparagraph 1 – point a
Article 36 – paragraph 5 – subparagraph 1 – point a
Amendment 816 #
Proposal for a directive
Article 36 – paragraph 5 – subparagraph 1 – point b
Article 36 – paragraph 5 – subparagraph 1 – point b
Amendment 817 #
Proposal for a directive
Article 36 – paragraph 5 – subparagraph 1 – point c
Article 36 – paragraph 5 – subparagraph 1 – point c
Amendment 819 #
Proposal for a directive
Article 36 – paragraph 5 – subparagraph 1 – point d
Article 36 – paragraph 5 – subparagraph 1 – point d
d) terrorist offences or offences linked to terrorist activities, as defined in Articles 1 and 3 of Framework Decision 2002/475/JHA respectively, or inciting, aiding or abetting or attempting to commit an offence, as referred to in Article 4 of that Framework Decision;eleted
Amendment 820 #
Proposal for a directive
Article 36 – paragraph 5 – subparagraph 1 – point e
Article 36 – paragraph 5 – subparagraph 1 – point e
Amendment 823 #
Proposal for a directive
Article 36 – paragraph 5 – subparagraph 2
Article 36 – paragraph 5 – subparagraph 2
Amendment 825 #
Proposal for a directive
Article 36 – paragraph 6
Article 36 – paragraph 6
6. Any economic operator shall be excluded from participation in a concession where the contracting authority or contracting entity is aware of a decision having the force of res judicata establishing that it has not fulfilled obligations relating to the payment of taxes or social security contributions in accordance with the legal provisions of the country in which it is established or with those of the Member State of the contracting authority or entityon the basis of the application mutatis mutandis of Article 55(2) of the public procurement directive [previously Directive 2004/18/EC of 31 March 2004].
Amendment 842 #
Proposal for a directive
Article 36 – paragraph 8
Article 36 – paragraph 8
8. Any candidate or tenderer that is in one of the situations referred to in paragraphs 5 to 7 may provide the contracting authority or contracting entity, on the basis of the application mutatis mutandis of the public procurement directive [previously Directive 2004/18/EC of 31 March 2004], with evidence demonstrating its reliability despite the existence of the relevant ground for exclusion.
Amendment 862 #
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 economic efficiency and which ensure that tenders are assessed in conditions of effective competition permitting to identify an overall economic advantage for the contracting authority or the contracting entity.
Amendment 865 #
Proposal for a directive
Article 39 – paragraph 4
Article 39 – paragraph 4
Amendment 883 #
Proposal for a directive
Article 40 – paragraph 3
Article 40 – paragraph 3
Amendment 885 #
Proposal for a directive
Article 41
Article 41
Amendment 938 #
Proposal for a directive
Article 49 – paragraph 1 – subparagraph 1
Article 49 – paragraph 1 – subparagraph 1
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 June 20145 at the latest. Member States shall ensure that these provisions do not cover concessions awarded prior to that date. They shall forthwith communicate to the Commission the text of those provisions.
Amendment 939 #
Proposal for a directive
Article 50 – paragraph 1
Article 50 – paragraph 1
1. References to paragraph 3(a) and (b) of Article 1 of Directive 2004/17/EC and paragraphs 3 and 4 of Article 1 and Title III of Directive 2004/18/EC Directive shall be construed as references to this Directive.
Amendment 941 #
Proposal for a directive
Article 50 – paragraph 1 a (new)
Article 50 – paragraph 1 a (new)
2. Services concessions for the purpose of pursuing the activity referred to in paragraph 3 of Annex III which are presently operated by affiliated undertakings, as defined in Article 11, can be extended without the provisions of this Directive being applicable, provided that 100 % of the total turnover of the affiliated undertaking with respect to services concerning the activity referred to in paragraph 3 of Annex III for the preceding three years derives from the provision of services to undertakings with which it is affiliated. Such extensions may take place within 3 years from the date referred to in paragraph 1 of Article 49. The resulting contracts will be valid as long as the aforementioned conditions are met and will come to end, at the latest, 5 years after the date referred to in paragraph 1 of Article 49.
Amendment 954 #
Proposal for a directive
Annex 3 – paragraph 1 – point 6
Annex 3 – paragraph 1 – point 6
6. Activities relating to the exploitation of a geographical area for the purpose of the provision of airports and maritime or inland ports or other terminal facilitiesgeneral infrastructure to carriers by air, sea or inland waterway.
Amendment 956 #
Proposal for a directive
Annex 4 – point 2
Annex 4 – point 2
Amendment 957 #
Proposal for a directive
Annex 4 – point 7
Annex 4 – point 7
Amendment 958 #
Proposal for a directive
Annex 4 – point 10 – point a
Annex 4 – point 10 – point a
Amendment 959 #
Proposal for a directive
Annex 4 – point 10 – point b
Annex 4 – point 10 – point b
Amendment 960 #
Proposal for a directive
Annex 4 – point 15
Annex 4 – point 15
Amendment 961 #
Proposal for a directive
Annex 4 – point 18
Annex 4 – point 18
Amendment 963 #
Proposal for a directive
Annex 4 – point 19
Annex 4 – point 19
Amendment 967 #
Proposal for a directive
Annex 5 – point I – point 10
Annex 5 – point I – point 10
Amendment 971 #
Proposal for a directive
Annex 5 – point I – point 11
Annex 5 – point I – point 11
Amendment 974 #
Proposal for a directive
Annex 5 – point I – point 13
Annex 5 – point I – point 13
Amendment 976 #
Proposal for a directive
Annex 5 – point I – point 17
Annex 5 – point I – point 17
Amendment 979 #
Proposal for a directive
Annex 6 – point 6
Annex 6 – point 6
Amendment 984 #
Proposal for a directive
Annex 9 – point 2
Annex 9 – point 2
Amendment 985 #
Proposal for a directive
Annex 9 – point 3
Annex 9 – point 3