22 Amendments of Sabine WILS related to 2011/0437(COD)
Amendment 2 #
Proposal for a directive
Recital 1
Recital 1
(1) The absence of clearCurrent rules at Union level governing the award of concession contracts gives rise toprovide adequate 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. All economic operators can use their rights within the Internal Market and miss out onto benefit from important business opportunities, while public authorities may not findare able to make 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 services to the citizen.
Amendment 3 #
Proposal for a directive
Recital 2
Recital 2
(2) Public procurement plays a key role in the Europe 2020 strategy4 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 4 #
Proposal for a directive
Recital 5
Recital 5
Amendment 6 #
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 is 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 operatorwhen the Member State or the contracting authority grants an economic operator for remuneration the right to exploit certain public domains or resources, such as tenancy or land lease contracts whereby the State or contracting authority or entity establishes only general conditions for their use without acquiring specific works or servicesfor land at maritime and inland ports and in which, as a rule, only general conditions for their use are established without the contracting authority becoming the recipient of specific services provided by the contract partner.
Amendment 11 #
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 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 prejudicgranted. 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 12 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) In accordance with Article 14 of the Treaty on the Functioning of the European Union in conjunction with Protocol 26 on services of general interest, national, regional or local competent authorities should have wide discretion in deciding whether to award contracts for services of general interest.
Amendment 13 #
Proposal for a directive
Recital 17
Recital 17
(17) There is considerable legal uncertainty as to how far cooperation between public authorities should be covered by concession award rules. The relevant case-law of the Court of Justice of the European Union (ECJ) on cooperation among contracting authorities is interpreted differently between Member States and even between contracting authorities or certain contracting entities. It is therefore necessary to clarify in what cases concessions concluded between such authorities are not subject to the application of public concession award rules. Such clarification should be guided by the principles set out in the relevant case-law of the Court of Justice. The sole fact that both parties to an agreement are themselves contracting authorities or contracting entities under Art. 4 (1) (1) does not as such rule out the application of concession award rules. However, tECJ. The application of concession award rules should not interfere with the freedom of public authorities to decide how to organise the way they carry out their public service tasks. Concessions awarded to controlled entities or cooperation for the joint execution of the public service tasks of the participating contracting authorities or entities should therefore be exempted from the application of the rules if the conditions set out in this Directive are fulfilled. This Directive should aim to ensure that any exempted public-public cooperation does not cause a, while providing to citizens services of public interest, is not considered as a source of possible distortion of competition in relation to private economic operators. Neither should the participation of a contracting authority as a tenderer in a procedure for the award of a public contract cause any distortion of competition.
Amendment 14 #
Proposal for a directive
Recital 20
Recital 20
Amendment 15 #
Proposal for a directive
Recital 21
Recital 21
(21) In the light of the results of the evaluation conducted by the Commission on the reform of public procurement rules it is appropriate toServices of general interest that address citizens' basic needs shall be excluded from the full application of this Directive only those services which have a limited cross-border dimension, namely the so-called services to the person such as certainsuch as municipal water supply, wastewater treatment and disposal, refuse handling services and services such as social, health and educational services. These services are provided within a particular context that varies widely amongst Member States, due to different cultural traditions. A specific regime should therefore be established for concession for these services which takes into account the fact that they are newly regulated. An obligation to publish a prior information notice and a concession award notice of any concession with a value equal to or greater than thresholds established in this Directive is an adequate way to provide information on business opportunities to potential tenderers as well as on the number and type of contracts awarded to all interested parties. Furthermore, Member States should put in place appropriate measures with reference to the award of concession contracts for these services aimed at ensuring compliance with the principles of transparency and equal treatment of economic operators while allowing contracting authorities and contracting entities to take into account the specificities of the services in question. Member States should ensure that contracting authorities and contracting entities may take into account the need to ensure quality, continuity, accessibility, availability and comprehensiveness of the services, the specific needs of different categories of users, the involvement and empowerment of users and innovation.
Amendment 19 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2 a. This Directive shall not affect the right of public authorities at any level to decide whether they shall perform public functions themselves, by using their own internal resources without being obliged to award concessions to other external economic operators. These tasks may be performed in cooperation with other public contracting authorities.
Amendment 23 #
Proposal for a directive
Article 2 – paragraph 2 – subparagraph 1
Article 2 – paragraph 2 – subparagraph 1
The right to exploit the works or services as referred to in points 2, 4 and 7 of the first paragraph shall imply the transfer to the concessionaire of the substantial share of the operating risk. The concessionaire shall be deemed to assume the substantial share of the operating risk where it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject-matter of the concession.
Amendment 24 #
Proposal for a directive
Article 2 – paragraph 2 – subparagraph 2 – introductory part
Article 2 – paragraph 2 – subparagraph 2 – introductory part
That economicoperating risk may consist in either of the following:
Amendment 31 #
Proposal for a directive
Article 8 – paragraph 5 a (new)
Article 8 – paragraph 5 a (new)
5 a. This Directive shall not apply to service concessions relating to services of general economic interest and services of general interest such as: (a) water services; (b) wastewater services; (c) refuse collection services; (d) energy services; (e) social services according to the voluntary European quality framework for social services adopted by the Social Protection Committee in the sectors of health and social protection, statutory social insurance, emergency and disaster response services.
Amendment 32 #
Proposal for a directive
Article 16
Article 16
The duration of the concession shall be limited to the time estimated, among other factors, to be necessary for the concessionaire to recoup the investments made in operating the works or services together with a reasonable return on invested capitalaking into account other objective criteria such as the public interest for high-quality provision or environmentally and socially sustainable performance of the service.
Amendment 34 #
Proposal for a directive
Article 17
Article 17
Amendment 38 #
Proposal for a directive
Article 36 – paragraph 7 – subparagraph 1 – introductory part
Article 36 – paragraph 7 – subparagraph 1 – introductory part
Member States mayshall provide that contracting authorities or contracting entities exclude from participation in a concession award any economic operator if one of the following conditions is fulfilled:
Amendment 39 #
Proposal for a directive
Article 36 – paragraph 7 – subparagraph 1 – point c a (new)
Article 36 – paragraph 7 – subparagraph 1 – point c a (new)
(c a) Breaches of social security provisions, employment, tax or environmental law.
Amendment 41 #
Proposal for a directive
Article 39 – paragraph 3
Article 39 – paragraph 3
Amendment 42 #
Proposal for a directive
Article 39 – paragraph 4 – introductory part
Article 39 – paragraph 4 – introductory part
4. Member States mayshall provide that contracting authorities and contracting entities shall base the award of concessions on the criterion of the most economically advantageous tender, in compliance with paragraph 2. Those criteria may include, in addition to price or costs, any of the following criteria
Amendment 45 #
Proposal for a directive
Article 41 – paragraph 1
Article 41 – paragraph 1
1. In the concession documents, the contracting authority or contracting entity may ask or may be required by a Member State to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors providing all relevant information concerning subcontractors' names and legal representatives.
Amendment 46 #
Proposal for a directive
Article 41 – paragraph 2
Article 41 – paragraph 2
2. Paragraph 1 shall be without prejudice to the question of the principal economic operator's liability and the subcontractor's liability. Without prejudice to this provision, the principal economic operator and the subcontractor(s) shall be jointly and severally liable.
Amendment 52 #
Proposal for a directive
Annex X
Annex X