70 Amendments of Sabine VERHEYEN related to 2011/0437(COD)
Amendment 246 #
Proposal for a directive
Recital 1
Recital 1
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 261 #
Proposal for a directive
Recital 5
Recital 5
Amendment 267 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) In keeping with the European Parliament resolutions of 14 January 2004, 10 March 2004 and 31 May 2006, the water sector should not be liberalised but should be modernised. It should therefore be excluded from the scope of this Directive.
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 277 #
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. This also applies to agreements opening up general and non- discriminatory access to the market to all economic operators meeting the conditions established beforehand by the contracting authority, without any limits or quotas. Town planning contracts are also not concessions.
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 293 #
Proposal for a directive
Recital 10
Recital 10
Amendment 301 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) The entities covered by the Directive should not be identified on the basis of 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 prejudiced. 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 328 #
Proposal for a directive
Recital 20
Recital 20
Amendment 330 #
Proposal for a directive
Recital 20
Recital 20
Amendment 342 #
Proposal for a directive
Recital 22
Recital 22
(22) Given the importance of the cultural context and the sensitivity of these services, Member States should bare 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 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 or concluding agreements with 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 376 #
Proposal for a directive
Recital 39
Recital 39
Amendment 390 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. This Directive shall not apply where a contracting authority performs its public interest tasks with its own resources or in cooperation with other contracting authorities.
Amendment 415 #
Proposal for a directive
Article 2 – paragraph 1 – point 7
Article 2 – paragraph 1 – point 7
(7) 'services concession' means a contract for pecuniary interest concluded in writing between one or more economic operators and 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 provided consists either solely in the right to exploit the services that are subject of the contract or in that right together with payment. Member State procedures based on the principle that all service providers capable of meeting the conditions established beforehand by law shall be authorised to provide the service are not services concessions, in so far as they comply with the general principles of equal treatment, transparency and non- discrimination.
Amendment 418 #
Proposal for a directive
Article 2 – paragraph 1 – point 7 a (new)
Article 2 – paragraph 1 – point 7 a (new)
(7a) "services concession" means a contract for pecuniary interest concluded in writing between one or more economic operators and 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 provided consists either solely in the right to exploit the services that are subject of the contract or in that right together with payment; Member State procedures based on the principle that all service providers capable of meeting the conditions established beforehand by law, regardless of their legal form, shall be authorised to provide the service shall not be considered services concessions, in so far as they comply with the general principles of equal treatment, transparency and non- discrimination.
Amendment 419 #
Proposal for a directive
Article 2 – paragraph 1 – point 7 b (new)
Article 2 – paragraph 1 – point 7 b (new)
(7b) "services concession" means a contract for pecuniary interest concluded in writing between one or more economic operators and 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 provided consists either solely in the right to exploit the services that are subject of the contract or in that right together with payment; approvals or the simple approval for the use of a public good or public domain are not services concessions within the meaning of this Directive.
Amendment 425 #
Proposal for a directive
Article 2 – paragraph 1 – point 14
Article 2 – paragraph 1 – point 14
(14) ‘life cycle’ means all consecutive and/or interlinked stages, including production, transport, use and maintenance, throughout the existence of a product or a works or the provision of a service, from raw material acquisition or generation of resources to disposal, and clearance and finalisation.
Amendment 437 #
Proposal for a directive
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
2a. 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 operating risk. The concessionaire shall be deemed to assume 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. This shall also apply where the operating risk is limited from the outset.
Amendment 443 #
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 446 #
Proposal for a directive
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
a) concessions concluded by contracting entities for the pursuit of one of the activities referred to in Annex III and relating to a network or geographically restricted area with at least 100 000 connected customers, or with at least 100 000 inhabitants;
Amendment 484 #
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 networks infrastructure related to the activities set out in Annex III, if (a) the services concession is awarded to an economic operator on the basis of an exclusive right that economic operator enjoys pursuant to applicable and published national law, regulation or administrative provision, and which has been graor (b) the services concession relates to an activity which, when this Directive entedrs in accordance with the Treaty and Union sectoral legislation concerning the management of networks infrastructureto force, is the subject of a nationally regulated tariff laid down in law or regulation, or (c) the services concession is awarded to an economic operator on the basis of an exclusive right that economic operator enjoys pursuant to applicable and published law, regulation or administrative provision, or in respect of services to which regulated to the activities set out in annex III, non- discriminatory access is available when this Directive enters into force.
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 525 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point g b (new)
Article 8 – paragraph 5 – subparagraph 1 – point g b (new)
(gb) drinking water production, distribution and supply services, sewage treatment and disposal services and the construction, maintenance and operation of the infrastructure used for those purposes.
Amendment 529 #
Proposal for a directive
Article 8 – paragraph 5 – subparagraph 1 – point g c (new)
Article 8 – paragraph 5 – subparagraph 1 – point g c (new)
(gc) electricity, gas and heat supply services and the construction, maintenance and operation of the infrastructure used for those purposes.
Amendment 539 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. Contracting entities shall notify the Commission or the national oversight bodybody with responsibility in this field, if there is one, at their request of any activities which they regard as excluded. The Commission may periodically publish in the Official Journal of the European Union for information purposes, lists of the categories of activities which it considers to be covered by this exclusion. In so doing, the Commission shall respect any sensitive commercial aspects that the contracting entities may point out when forwarding this information.
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 547 #
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 turnoverctivities of the affiliated undertaking with respect to works in general for the preceding three years derives from the provision of works to undertakings with which it is affiliated.
Amendment 556 #
Proposal for a directive
Article 13 – paragraph 1 – introductory part
Article 13 – paragraph 1 – introductory part
Contracting entities shall notify to the Commission or the national oversight bodybody with responsibility in this field, if there is one, at their request, the following information regarding the application of paragraphs 2 and 3 of Article 11 and of Article 12.
Amendment 558 #
Proposal for a directive
Article 13 – paragraph 1 – point c
Article 13 – paragraph 1 – point c
(c) proof deemed necessary by the Commission or the national oversight bodybody with responsibility in this field, if there is one, that the relationship between the undertaking or joint venture to which the concessions are awarded and the contracting entity complies with the requirements of Articles 11 or 12.
Amendment 564 #
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 similar to that which it exercises over its own departments; 100 % ownership by the contracting authority or entity is not a mandatory requirement for establishing control within the meaning of this paragraph.
Amendment 572 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point b
Article 15 – paragraph 1 – subparagraph 1 – point b
(b) at least 980% of the activities of that legal person that are the subject of the concession are carried out for the controlling contracting authority or entity or for other legal persons controlled by that contracting authority or entity; activities carried out for the controlling contracting authority or entity or for other legal persons controlled by that contracting authority or entity also include activities carried out for third parties where the service forms part of the contracting authority’s statutory remit;
Amendment 577 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point b a (new)
Article 15 – paragraph 1 – subparagraph 1 – point b a (new)
(ba) ) at least 80% of the average total turnover of the legal person that is the subject of the concession are carried out for the controlling contracting authority or entity or for other legal persons controlled by that contracting authority or entity;
Amendment 578 #
Proposal for a directive
Article 15 – paragraph 1 – subparagraph 1 – point c
Article 15 – paragraph 1 – subparagraph 1 – point c
Amendment 587 #
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 603 #
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 similar to that which it exercises over its own departments; 100 % ownership by the contracting authority or entity is not a mandatory requirement for establishing control within the meaning of this paragraph.
Amendment 612 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 1 – point b
Article 15 – paragraph 3 – subparagraph 1 – point b
(b) at least 9080 % of the activities of that legal person which are the subject of the contract are 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; activities 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 include activities carried out for third parties where the service forms part of the contracting authority’s statutory remit or is performed for other contracting authorities.
Amendment 616 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 1 – point b a (new)
Article 15 – paragraph 3 – subparagraph 1 – point b a (new)
(ba) at least 80 % of the activities of that legal person, subject to the contract, are carried out for the controlling contracting authorities or other legal persons controlled by the same contracting authorities;
Amendment 617 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 1 – point c
Article 15 – paragraph 3 – subparagraph 1 – point c
Amendment 625 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 2
Article 15 – paragraph 3 – subparagraph 2
Amendment 641 #
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 obligatis governed by considerations relating to the public interest; this principle shall also apply to ancillary services essential to the provisions of the partiservices in the public interest;
Amendment 642 #
Proposal for a directive
Article 15 – paragraph 4 – point a a (new)
Article 15 – paragraph 4 – point a a (new)
Amendment 644 #
Proposal for a directive
Article 15 – paragraph 4 – point b
Article 15 – paragraph 4 – point b
Amendment 649 #
Proposal for a directive
Article 15 – paragraph 4 – point b a (new)
Article 15 – paragraph 4 – point b a (new)
(ba) the task is carried out solely by the public authorities concerned without the involvement of active private capital;
Amendment 652 #
Proposal for a directive
Article 15 – paragraph 4 – point c
Article 15 – paragraph 4 – point c
Amendment 659 #
Proposal for a directive
Article 15 – paragraph 4 – point d
Article 15 – paragraph 4 – point d
Amendment 662 #
Proposal for a directive
Article 15 – paragraph 4 – point e
Article 15 – paragraph 4 – point e
Amendment 670 #
Proposal for a directive
Article 15 – paragraph 5 – subparagraph 1
Article 15 – paragraph 5 – subparagraph 1
Amendment 721 #
Proposal for a directive
Article 22 – paragraph 4 – subparagraph 1
Article 22 – paragraph 4 – subparagraph 1
Amendment 740 #
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 referred to in Article 30 of the Public Procurement Directive [replacing Directive 2004/18/EC].
Amendment 741 #
Proposal for a directive
Article 26 – paragraph 5 – subparagraph 1 – point a
Article 26 – paragraph 5 – subparagraph 1 – point a
Amendment 743 #
Proposal for a directive
Article 26 – paragraph 5 – subparagraph 1 – point b
Article 26 – paragraph 5 – subparagraph 1 – point b
Amendment 746 #
Proposal for a directive
Article 26 – paragraph 5 – subparagraph 1 – point c
Article 26 – paragraph 5 – subparagraph 1 – point c
Amendment 799 #
Proposal for a directive
Article 36 – paragraph 1 – subparagraph 2
Article 36 – paragraph 1 – subparagraph 2
Contracting authorities shall limit any conditions for participation to those that are appropriate to ensure that a candidate or tenderer has the legal and financial capacities and the commercial and technical abilities to perform the concession to be awarded. All requirements shall be related and strictly proportionate to the subject-matter of the contract, and shall takinge into account the need to ensure genuine competition.
Amendment 804 #
Proposal for a directive
Article 36 – paragraph 2
Article 36 – paragraph 2
Amendment 826 #
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 ofrequirement to pay 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 entity.
Amendment 852 #
Proposal for a directive
Article 38 – paragraph 1
Article 38 – paragraph 1
1. Where contracting authorities and contracting entities resort to a concession, the time limit for the submission of applications for the concession shall be not less than 52 calendar days from the date on which the concession notice was sent.
Amendment 864 #
Proposal for a directive
Article 39 – paragraph 2 – subparagraph 2
Article 39 – paragraph 2 – subparagraph 2
Those criteria shall ensure effective competition and shall be accompanied by requirements which allow the information provided by the tenderers to be effectively verified. Contracting authorities and contracting entities shall verify effectively on the basis ofin what they regard as an appropriate manner, whether the information and proof provided by the tenderers, whether the tenders meet the award criteria meets the award criteria. In so doing they shall comply with the principles of transparency and equal treatment of tenderers.
Amendment 885 #
Proposal for a directive
Article 41
Article 41
Amendment 894 #
Proposal for a directive
Article 42
Article 42
Amendment 928 #
Proposal for a directive
Article 44
Article 44
Amendment 932 #
Proposal for a directive
Article 45
Article 45
Amendment 942 #
Proposal for a directive
Annex 3 – paragraphs 2, 3 and 4
Annex 3 – paragraphs 2, 3 and 4
Amendment 955 #
Proposal for a directive
Annex 4 – point 2
Annex 4 – point 2
Amendment 962 #
Proposal for a directive
Annex 4 – point 19
Annex 4 – point 19