REPORT on the proposal for a directive of the European Parliament and of the Council on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security

    16.10.2008 - (COM(2007)0766 – C6‑0467/2007 – 2007/0280(COD)) - ***I

    Committee on the Internal Market and Consumer Protection
    Rapporteur: Alexander Graf Lambsdorff

    Procedure : 2007/0280(COD)
    Document stages in plenary
    Document selected :  
    A6-0415/2008

    DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

    on the proposal for a directive of the European Parliament and of the Council on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security

    (COM(2007)0766 – C6‑0467/2007 – 2007/0280(COD))

    (Codecision procedure: first reading)

    The European Parliament,

    –   having regard to the Commission proposal to the European Parliament and the Council (COM(2007)0766),

    –   having regard to Article 251(2), Article 47(2) and Articles 55 and 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6‑0467/2007),

    –   having regard to Rule 51 of its Rules of Procedure,

    –   having regard to the report of the Committee on the Internal Market and Consumer Protection and the opinion of the Committee on Foreign Affairs (A6‑0415/2008),

    1.  Approves the Commission proposal as amended;

    2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

    3.  Instructs its President to forward its position to the Council and Commission.

    Amendment  1

    Proposal for a directive

    Recital -1 (new)

    Text proposed by the Commission

    Amendment

     

    (-1) In its resolution of 17 November 2005 on the Green Paper on defence procurement1 the European Parliament called on the Commission to draft a directive taking particular account of the security interests of the Member States, further developing the common foreign and security policy, promoting greater European cohesion, preserving the role of the Union as a 'civil power' and, in addition to the actual procurement of goods, covering such aspects as research and development, maintenance and repair, retrofitting and training, in which connection special attention should be devoted to SMEs, which are strongly represented in this sector.

     

    _________

    1 OJ C 280 E, 18.11.2006, p. 463.

    Amendment  2

    Proposal for a directive

    Recital 1

    Text proposed by the Commission

    Amendment

    (1) The gradual establishment of a European defence equipment market is essential for strengthening the defence industrial and technological base in Europe and developing the military capabilities required to implement the European Security and Defence Policy (ESDP).

    (1) The gradual establishment of a European defence equipment market is essential for strengthening the defence industrial and technological base in Europe and developing the military capabilities required to implement the European Security and Defence Policy (ESDP). The reasons for this and the considerations underlying the Community law bases - further to the Commission's Green Paper of 23 September 2004 on defence procurement (COM(2004)0608) - are set out in more detail in the Commission Communication of 6 December 2005 on the results of the consultation on that Green Paper (COM(2005)0626) and in the Commission's Interpretative Communication of 7 December 2006 on the application of Article 296 of the Treaty in the field of defence procurement (COM(2006)0779) and the Commission Communication of 5 December 2007 on a Strategy for a stronger and more competitive European defence industry (COM(2007)0764).

    Justification

    The consideration set out in recital 1 is the result of a comprehensive Europe-wide process of opinion-forming which should be briefly documented here, in view of its importance for the development described.

    Amendment  3

    Proposal for a directive

    Recital 1 a (new)

    Text proposed by the Commission

    Amendment

     

    (1a) Public service contracts as logistics services have the potential to reduce costs in the defence sector. Better-developed supply chains can significantly lower the environmental impact of the sector.

    Justification

    Private service providers like logistics experts or logistic co-operation models like private finance initiatives can lower the costs as well as the environmental impact of the sector significantly by implementing more efficient logistics systems like supply chain management through combining transportation, warehousing and the handling of information flow in the most efficient way.

    Amendment  4

    Proposal for a directive

    Recital 6 a (new)

    Text proposed by the Commission

    Amendment

     

    (6a) In the interests of legal certainty, the scope of this Directive in the field of defence should be defined in accordance with the list of arms, munitions and war material adopted by the Council in its Decision of 15 April 1958. On account of the rapid technological development, as well as the evolving procurement policy in defence markets, the list contained in that Decision should, for purposes of its application, be interpreted in an up-to-date manner in the light of the current technical possibilities and procurement methods, in so far as necessary.

    Amendment  5

    Proposal for a directive

    Recital 6 b (new)

    Text proposed by the Commission

    Amendment

     

    (6b) A modern interpretation of the list of arms, munitions and war material of 15 April 1958, which may be necessary, is particularly to be found in the Common Military List of the European Union1, which is the basis for the Code of Conduct on Arms Exports.

     

    1 OJ C 98, 18.4.2008, p. 1.

    Amendment 6

    Proposal for a directive

    Recital 7 a (new)

    Text proposed by the Commission

    Amendment

     

    (7a) In order to limit the Member States' use of Article 296 of the Treaty to substantiated and justified exceptional cases, the Commission requires an administrative instrument which enables it to take pre-emptive action before an irreversible stage of the procurement procedure has been reached, without making necessary a procedure pursuant to Article 226 of the Treaty. The Commission should use this new procedure only on condition that the case is urgent and there is a manifest irregularity.

    Amendment  7

    Proposal for a directive

    Recital 8 a (new)

    Text proposed by the Commission

    Amendment

     

    (8a) In light of the need for an independent and competitive European defence technological and industrial base, Member States retain the power to decide whether or not to invite bidders from third countries. If contracting authorities wish to invite bidders from third countries, this should be done on the basis of mutual, equitable and fair market access.

    Amendment  8

    Proposal for a directive

    Recital 10

    Text proposed by the Commission

    Amendment

    (10) Public defence and security contracts often contain sensitive information which, for security reasons, needs to be protected from unauthorised access. In the military field, the Member States have systems for classifying this information. The picture is more varied, however, when it comes to non-military security matters. The recommendation is, therefore, to make use of a concept which takes into account the diversity of practices in the Member States and can encompass both the military and non-military fields. At any rate, public procurement in these fields should not, where appropriate, affect the obligations arising from Commission Decision 2001/844/EC of 29 November 2001 amending its internal Rules of Procedure or Council Decision 2001/264/EC adopting the Council’s security regulations.

    (10) Public defence and security contracts often contain sensitive information which, for security reasons, needs to be protected from unauthorised access. In the military field, the Member States have systems for classifying this information. The picture is more varied, however, when it comes to non-military security matters. The recommendation is, therefore, to make use of a concept which takes into account the diversity of practices in the Member States and can encompass both the military and non-military fields. At any rate, public procurement in these fields should not, where appropriate, affect the obligations arising from Commission Decision 2001/844/EC of 29 November 2001 amending its internal Rules of Procedure or Council Decision 2001/264/EC adopting the Council’s security regulations. In addition, Article 296(1)(a) of the Treaty allows any Member State, in substantiated and justified exceptional cases, to exclude public defence and security procurement from the scope of this Directive.

    Justification

    This addition clarifies that this directive is without prejudice to Article 296(1)(a) of the Treaty and that the Member States remain free to use the exemption therein provided for in substantiated and justified exceptional cases.

    Amendment  9

    Proposal for a directive

    Recital 19 a (new)

    Text proposed by the Commission

    Amendment

     

    (19a) Subcontracting widens the participation of economic operators in the performance of public contracts and is favourable to the development of small and medium-sized enterprises. It may be appropriate to complement the tenderer's right to subcontract with the possibility that the awarding authority or the Member State recommend that a certain share of the public contract be subcontracted to third parties.

     

    When contracting authorities or a Member State recommends that the tenderer sub-contract a share of the public contract, and the successful tenderer follows this recommendation, the subcontracts which form part of this share are to be awarded in compliance with Community law following a transparent competition, so that all interested undertakings have the same opportunity to benefit from the advantages of subcontracting. In other cases, it is appropriate to allow contracting authorities or Member States to require competition between sub-contractors when they are selected, for instance when this is justified by the structure of the market. At the same time, the proper functioning of the successful tenderer's supply chain should not be jeopardised. The successful tenderer can decline the recommendation by the contracting authority or the Member State, if there is no undertaking that can execute the contract in a manner comparable to the successful tenderer in terms of capacity, price or quality.

     

     

    Justification

    For small and medium enterprises access to the defence market is synonymous to access to the prime contractors' supply chains. The directive should ensure that competition is enhanced not only at the level of prime contractors, but also at the level of subcontractors.

    Amendment  10

    Proposal for a directive

    Recital 41

    Text proposed by the Commission

    Amendment

    (41) The award of public contracts to economic operators who have participated in a criminal organisation or who have been found guilty of corruption or fraud to the detriment of the financial interests of the European Communities, of money laundering, the financing of terrorism or of terrorist and terrorism-related offences should be avoided. Where appropriate, the contracting authorities should ask candidates or tenderers to supply relevant documents and, where they have doubts concerning the personal situation of a candidate or tenderer, they may seek the cooperation of the competent authorities of the Member State concerned. Such economic operators should be excluded as soon as the contracting authority has knowledge of a judgment concerning such offences rendered in accordance with national law that has the force of res judicata. If national law contains provisions to this effect, non-compliance with public procurement legislation on unlawful agreements, which has been the subject of a final judgment or a decision having equivalent effect, may be considered an offence concerning the professional conduct of the economic operator concerned or grave misconduct.

    (41) The award of public contracts to economic operators who have participated in a criminal organisation or who have been found guilty of corruption or fraud to the detriment of the financial interests of the European Communities, of money laundering, the financing of terrorism or of terrorist and terrorism-related offences should be avoided. Where appropriate, the contracting authorities should ask candidates or tenderers to supply relevant documents and, where they have doubts concerning the personal situation of a candidate or tenderer, they may seek the cooperation of the competent authorities of the Member State concerned. Such economic operators should be excluded as soon as the contracting authority has knowledge of a judgment concerning such offences rendered in accordance with national law that has the force of res judicata. If national law contains provisions to this effect, non-compliance with public procurement legislation on unlawful agreements, which has been the subject of a final judgment or a decision having equivalent effect, may be considered an offence concerning the professional conduct of the economic operator concerned or grave misconduct. In some Member States, undertakings which have taken internal remedial measures are again regarded as suitable and reliable. Such remedial procedures should, however, be subject to strict requirements: the undertakings must immediately take complete staffing and organisational measures which exclude the possibility of any repetition of violations of the law.

    Justification

    Undertakings in the sectors of defence and security should have the same possibility as under public procurement law in general to restore their reliability by taking internal remedial measures which provide guarantees that the law will not be violated in future. At the same time this will provide a strong incentive to adopt and enforce internal compliance rules. In order to achieve the aim of ensuring that tenderers are reliable, strict requirements should apply to such procedures.

    Amendment 11

    Proposal for a directive

    Recital 46 a (new)

    Text proposed by the Commission

    Amendment

     

    (46a) In order to ensure transparency in the award of certain public contracts in the sensitive arms and security market and to prevent discrimination and ensure that the contract is duly awarded to the undertaking which makes the best offer, it should be possible to seek judicial redress in relation to contracts which fall within the scope of this Directive.

    Amendment 12

    Proposal for a directive

    Recital 46 b (new)

    Text proposed by the Commission

    Amendment

     

    (46b) The provisions governing review procedures have the purpose of providing the tenderers concerned with effective legal protection. To this end, a minimum standstill period should be introduced during which the conclusion of the contract in question is suspended, irrespective of whether conclusion occurs at the time of signature of the contract or not.

    Amendment 13

    Proposal for a directive

    Article 1 – paragraph 1 – introductory wording

    Text proposed by the Commission

    Amendment

    This Directive shall apply to public contracts awarded in the fields of defence and security for:

    This Directive shall apply to public contracts relating to the supply of goods and services which are used in order to guarantee the security and defence of the Union or its Member States and entailing, requiring or containing sensitive information, and public works and services contracts strictly related to such supply. These comprise public contracts for:

    Justification

    All contracts covered by this Directive involve sensitive information. It therefore seems sensible to place this information in the introductory part.

    Amendment 14

    Proposal for a directive

    Article 1 – paragraph 1 – point a

    Text proposed by the Commission

    Amendment

    (a) the supply of arms, munitions and/or war material, referred to in the Council Decision of 15 April 1958 and, where necessary, public works and services contracts strictly related to these supplies;

    (a) the supply of arms, munitions and/or war material, including, but not limited to, the list of military equipment referred to in the Council Decision of 15 April 1958;

    Justification

    The amendment clarifies the scope of the directive.

    Amendment 15

    Proposal for a directive

    Article 1 – paragraph 1 – point d

    Text proposed by the Commission

    Amendment

    (d) works, supplies and/or services involving, entailing and/or containing sensitive information, and which are necessary for the security of the EU and its Member States, in the fields of protection against terrorism or organised crime, border protection and crisis management operations.

    (d) works, supplies and/or services which are necessary for the security of the EU and/or in order to protect the security interests of the Member States.

    Justification

    Avoiding a definitive list of all possible sources of danger will provide Member States with a formula which will remain valid for a long time. Lists of individually itemised threats are inevitably incomplete, as new threats cannot be foreseen. Such a procedure would make it necessary to update the Directive too often.

    Amendment 16

    Proposal for a directive

    Article 2 – paragraph 1 – point 5

    Text proposed by the Commission

    Amendment

    5. "Public supply contracts": public contracts other than works contracts having as their object the purchase, lease, rental or hire-purchase, with or without the option to buy, of products;

    5. "Public supply contracts": public contracts other than works contracts having as their object the purchase, lease, rental or hire-purchase, with or without the option to buy, of products; a public contract which has as its object the supply of products and at the same time comprises delivery and installation services connected with their supply shall be regarded as a public supply contract;

    Justification

    Clarification.

    Amendment 17

    Proposal for a directive

    Article 2 – paragraph 1 – point 6

    Text proposed by the Commission

    Amendment

    6. "Public service contracts": public contracts having as their object the provision of services mentioned in Annex I;

    6. "Public service contracts": public contracts having as their object the provision of services referred to in Annex I; a public contract relating to both the supply of goods and the provision of services as referred to in Annex I shall be regarded as a public service contract if the value of the services to be provided exceeds that of the goods covered by the contract; a public contract for the services referred to in Annex I and including services referred to in Division 45 of the CPV which are provided in a secondary capacity in addition to the main performance shall be regarded as a public service contract;

    Justification

    Clarification.

    Amendment 18

    Proposal for a directive

    Article 2 – paragraph 1 – point 7

    Text proposed by the Commission

    Amendment

    7. "Sensitive information": any information (namely, knowledge that can be communicated in any form) or material determined to require protection against unauthorised disclosure for security reasons;

    7. "Sensitive information": any information (namely, knowledge that can be communicated in any form) or material determined by a Member State to require protection against unauthorised disclosure for security reasons;

    Justification

    The additional stipulation that the contracting authority should indicate the need for protection is intended to make it clear that 'sensitive information' refers to information held by the public authorities which is in need of protection, rather than operational and business secrets of undertakings.

    Amendment 19

    Proposal for a directive

    Article 2 – paragraph 1 – point 10

    Text proposed by the Commission

    Amendment

    10. "Crisis": any man-made situation in a Member State or third country presenting a direct physical threat to persons or institutions in that country;

    10. "Crisis": any situation in a Member State or third country in which a harmful event has occurred which clearly exceeds the dimensions of harmful events in everyday life and which substantially endangers or restricts the life and health of many people, has a substantial impact on property values or requires measures in order to supply the population with necessities; a crisis shall also be deemed to have arisen if the occurrence of such a harmful event is deemed to be impending; armed conflicts and wars shall be regarded as crises for the purposes of this Directive;

    Justification

    The proposed definition is too vague. A crisis as defined in this Directive which can give rise to a negotiated procedure without the publication of a contract notice pursuant to Article 20 of this Directive means a substantial harmful event which has either happened or is threatening to happen to the Union, its Member States or one or more third countries.

    Amendment  20

    Proposal for a directive

    Article 7 – paragraph 3

    Text proposed by the Commission

    Amendment

    3. No works project or proposed purchase of a certain quantity of supplies and/or services may be subdivided to prevent its coming within the scope of this Directive.

    3. No works project or proposed purchase of a certain quantity of supplies and/or services may be extended in time or partitioned to create essentially identical separate partial contracts or otherwise subdivided to prevent its coming within the scope of this Directive.

    Justification

    This is intended to prevent authorities from dividing contracts which extend over a relatively long period of time into separate contracts relating to different periods in such a way that they fall below the thresholds above which a public procurement procedure is required.

    Amendment  21

    Proposal for a directive

    Article 8 – point a

    Text proposed by the Commission

    Amendment

    (a) pursuant to an international agreement concluded in conformity with the Treaty between a Member State and one or more third countries and covering supplies or works intended for the joint implementation or exploitation of a work by the signatory States or services intended for the joint implementation or exploitation of a project by the signatory States. All agreements shall be communicated to the Commission which, with the agreement of the Member State(s) concerned, may consult the Advisory Committee for Public Contracts referred to in Article 41;

    (a) pursuant to an international agreement concluded in conformity with the Treaty between one or more Member States, of the one part, and one or more third countries, of the other part, and covering supplies or works intended for the joint implementation or exploitation of a work by the signatory States or services intended for the joint implementation or exploitation of a project by the signatory States. All agreements shall be communicated to the Commission, which may consult the Advisory Committee for Public Contracts referred to in Article 41;

    Justification

    More precise formulation of the conditions under which a derogation is permitted.

    Amendment  22

    Proposal for a directive

    Article 8 – point b

    Text proposed by the Commission

    Amendment

    (b) pursuant to the particular procedure of an international organisation.

    (b) pursuant to the particular procedure of an international organisation, in so far as that organisation is carrying out a cooperation project in the field of defence or security as an awarder of public contracts acting on the instructions of the Member States involved.

    Justification

    More precise formulation of the conditions under which a derogation is permitted.

    Amendment  23

    Proposal for a directive

    Article 9 – paragraph - 1 (new)

    Text proposed by the Commission

    Amendment

     

    This Directive shall not apply if in the opinion of a Member State the disclosure of information which is necessary in order to award a contract is contrary to the essential security interests of that Member State.

    Justification

    This amendment will improve legal certainty and is intended to make it possible for those who accept public contracts to invoke secondary law in relation to the conditions for a derogation.

    Amendment  24

    Proposal for a directive

    Article 9 - point b a (new)

    Text proposed by the Commission

    Amendment

     

    (ba) contracts for the supply of military equipment by the government of a Member State to the government of another Member State or by the government of a third country to a government of a Member State, and, where necessary, works and services contracts directly related to such contracts.

    Justification

    Contracts between Member States within the field covered by the Directive are complex and contracts may not always be linked to the supply of defence equipment, as in the case of services in the area of training, etc. It would therefore be appropriate for cooperation between Member States to be included in the specific exclusions.

    Amendment  25

    Proposal for a directive

    Article 10 - paragraph 1 - subparagraphs 2 to 5

    Text proposed by the Commission

    Amendment

    When a public contract contains sensitive technical specifications that may only be communicated to the successful tenderer, these must not be set out in the contract notice, contract documents or additional documents provided that knowledge of such specifications is not required in order to prepare tenders.

    When a public contract contains sensitive technical specifications that may only be communicated to the successful tenderer, these specifications may not be set out in the contract notice, contract documents or additional documents, provided that knowledge of the details of such specifications is not required in order to prepare tenders.

    In this case, these technical specifications are entered in the reports referred to in Article 28 before the contract documents are sent to the candidates.

    In this case, the contract notice shall inform the candidates of the situation, giving general information as to the nature or type of the missing sensitive technical specifications. Subsequently, these technical specifications shall be entered in the reports referred to in Article 28 before the contract documents are sent to the candidates.

    Such technical specifications may only deal with explanations of clarifications of the tender and have no significant technical or financial impact on the subject-matter of the public contract.

    Such technical specifications may only deal with explanations of clarifications of the tender and have no significant technical or financial impact on the subject-matter of the public contract.

    After awarding the contract by applying the award criteria, the contracting authority shall send the successful tenderer the sensitive technical specifications that were not set out in the contract documents or additional documents so that the successful tenderer can adapt his bid accordingly.

    After awarding the contract by applying the award criteria, the contracting authority shall send the successful tenderer the sensitive technical specifications that were not set out in the contract documents or additional documents so that the successful tenderer can take those specifications into account in the performance of the contract.

    Justification

    It is a fundamental point of procurement law that bidders be given enough information to enable them to make informed decisions (i) as to whether to bid; and (ii) on what terms to bid. Unless the contract notice at least identifies the fact that there is undisclosed information (on the assumption that adapting a tender to take account of this at the final stage could involve the tenderer in unforeseen costs or time delays) bidders will not have an accurate picture of the contract they are bidding for. The aim of the amendment is therefore to ensure that sufficient information is provided to allow a fair process in these particular, but not uncommon, circumstances. The last part relates to procedures after contracts award. There is therefore no question of adapting a bid. The new language is intended simply to make clear the purpose of disclosing the sensitive information to the successful tenderer.

    Amendment  26

    Proposal for a directive

    Article 12 - paragraph 1

    Text proposed by the Commission

    Amendment

    In the contract documents, the contracting authority may ask or may be required by a Member State to ask the tenderer to indicate in his tender any share of the contract he may intend to subcontract to third parties and any proposed subcontractors.

    In the contract documents, the contracting authority may ask or may be required by a Member State to ask the tenderer to indicate in the tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors, and to confirm that the selection procedure for subcontractors will be undertaken in a transparent and non-discriminatory manner.

    Amendment  27

    Proposal for a directive

    Article 14 – points a, b and c

    Text proposed by the Commission

    Amendment

    (a) proof that the subcontractors already identified possess the capabilities required to protect the confidentiality of the sensitive information to which they have access or which they are required to produce when carrying out their subcontracting activities,

    (a) sufficient information about proposed subcontractors to enable the contracting authority to determine whether each subcontractor possesses the capabilities required to protect the confidentiality of, and to safeguard, the sensitive information to which they will have access or which they are required to produce when carrying out their subcontracting activities,

    (b) a commitment to provide the same proof for any new subcontractors that may be involved during performance of the contract,

    (b) a commitment to provide the same information about any new subcontractors that may be involved during performance of the contract,

    (c) a commitment to keep all sensitive information confidential for the entire duration of the contract and after termination or conclusion of the contract.

    (c) a commitment to protect the confidentiality of, and to safeguard, all sensitive information in the possession of the tenderer for the entire duration of the contract and after termination or conclusion of the contract.

    Justification

    A contractor is not in a position to prove whether subcontractors possess the capabilities required to protect the confidentiality of information but must provide the contracting authority with adequate information on the subject.

    Amendment  28

    Proposal for a directive

    Article 14 – paragraph 2 a (new)

    Text proposed by the Commission

    Amendment

     

    Within one year of publication of this Directive in the Official Journal of the European Union, the Commission shall submit to the European Parliament and to the Council a proposal for an EU security of information system that will allow the exchange of information between contracting authorities and European undertakings.

    Justification

    Opening up fragmented national defence markets in the service of the European Security and Defence Policy will require assurance that classified information will be protected during the different phases of the procurement procedure and that competing EU defence companies will not be discriminated on a security of information basis because of their nationality or because of the duration of the process of release of classified information. The proposed directive should be complemented by an EU system on security of information.

    Amendment  29

    Proposal for a directive

    Article 15 – paragraph 1

    Text proposed by the Commission

    Amendment

    Provided that they are in conformity with Community law, the contracting authority may specify requirements to guarantee security of supply.

    Provided that they are in conformity with Community law, the contracting authority may specify requirements relating to its security of supply.

    Amendment  30

    Proposal for a directive

    Article 15 – paragraph 2

    Text proposed by the Commission

    Amendment

    To this end, the contracting authority may require of the tenderer that the tender submitted contain the following:

    To this end, the contracting authority may require of the tenderer that the tender submitted contain the following:

    (a) evidence that it will be able to honour its obligations regarding the export, transfer and transit of goods associated with the contract, including by means of a commitment from the Member State(s) concerned,

    (a) certification or documentation regarding the export, transfer and transit of goods which confirms that the products and services or any deliverable resulting from those products or services are not subject to restrictions regarding disclosure, transfer or use by the originating Member State resulting from export control or security arrangements,

    (b) evidence that the organisation and location of its supply chain will allow it to comply with the contracting authority's requirements concerning the security of supply set out in the specifications,

    (b) certification or documentation which demonstrates the extent to which the organisation and location of its supply chain will allow it to comply with the contracting authority's requirements concerning the security of supply set out in the specifications,

    (c) a commitment to meet additional needs required by the contracting authority as a result of an emergency, crisis or armed conflict,

    (c) a commitment to meet additional needs required by the contracting authority as a result of a crisis, under terms to be agreed between the contracting authority and the contractor,

    (d) a commitment from its national authorities not to obstruct the fulfilment of any additional needs required by the contracting authority as the result of an emergency, crisis or armed conflict,

    (d) a commitment from its national authorities not to obstruct the fulfilment of any additional needs required by the contracting authority as the result of a crisis, or other indicative documents to that effect,

    (e) a commitment to carry out the maintenance, modernisation or adaptation of the supplies covered by this contract,

    (e) a commitment to carry out the maintenance, modernisation or adaptation of the supplies covered by the contract, under terms to be agreed between the contracting authority and the contractor,

     

    (ea) a commitment that the contracting authority will obtain a license for the production of spare parts, components, specific fittings, specific tests for equipment, including the design and transfer of know-how, and instructions in the event that the contractor is no longer able to supply and transport them.

    Justification

    Despite the interest in guaranteed security of supply for the contracting authority, it is often not possible for candidates/contractors to provide binding evidence regarding security of supply.

    Despite the interest in guaranteed security of supply for the contracting authority, it is often not possible for candidates/contractors to give an unconditional and binding commitment regarding security of supply. According to the amendment of the definition of 'crisis' in Article 2(10), an armed conflict is a crisis for the purposes of the Directive.

    It is important to ensure security of supply for the contracting authority in the event that the contractor is no longer able to supply such items.

    Amendment  31

    Proposal for a directive

    Article 15 - paragraph 3

    Text proposed by the Commission

    Amendment

    The requirements shall be explained in the specifications or contract documents.

    The requirements shall be explained in the specifications or contract documents. A tenderer may not be required to obtain a commitment from a Member State that would restrict that Member State’s freedom to apply its national export licensing criteria in the circumstances prevailing at the time of an export transfer or transit licensing decision.

    Justification

    The guarantees required by the Commission text of Article 15 are in many cases impossible for industry to obtain.

    Amendment  32

    Proposal for a directive

    Article 15 – paragraph 3 a (new)

    Text proposed by the Commission

    Amendment

     

    The contracting authorities shall work to increase the level of mutual confidence amongst them. For this purpose and within one year of publication of this Directive in the Official Journal of the European Union, the Commission shall submit to the European Parliament and to the Council a proposal for a common regime of appropriate guarantees, backed up by verification possibilities, with a view to a stable security of supply.

    Justification

    The effectiveness of the proposed directive will be reinforced by greater mutual confidence among contracting authorities in particular in circumstances of pressing operational urgency. This will require that contracting authorities will have and provide assurance that when placing contracts with suppliers they are entitled to expect that these suppliers are and remain reliable and competitive sources of supply. A common regime of appropriate guarantees, backed up by verification possibilities, for a stable security of supply is proposed. The mutual assistance article (article 28A.7) of the Lisbon Treaty is meaningless without a solid security of supply between Member States.

    Amendment  33

    Proposal for a directive

    Article 19 - paragraph 1 - subparagraph 1

    Text proposed by the Commission

    Amendment

    1. When a contract is particularly complex, the contracting authority, should it consider that recourse to the restricted procedure or the negotiated procedure with publication of a contract notice will not enable it to award the contract, may make use of the competitive dialogue in accordance with this Article.

    1. When contracts are particularly complex, Member States may decide that, where the contracting authorities consider that recourse to the restricted procedure or the negotiated procedure with publication of a contract notice will not enable them to award the contract, the contracting authorities may make use of the competitive dialogue in accordance with this Article.

    Justification

    The Member States should have the power of discretion when incorporating the provisions of the directive concerning the competitive dialogue into national law, as is the case under Article 29(1) of Directive 2004/18/EC.

    Amendment  34

    Proposal for a directive

    Article 20 - paragraph 1 - subparagraph 1

    Text proposed by the Commission

    Amendment

    1. Contracting authorities may award public contracts by a negotiated procedure without prior publication of a contract notice in the cases set out in paragraphs 2 to 6 below.

     

    1. Contracting authorities may award public contracts by a negotiated procedure without prior publication of a contract notice in the cases set out in paragraphs 2 to 6. Contracting authorities shall explicitly justify the use of this procedure by referring to the cases set out in paragraphs 2 to 6.

    Justification

    Using the negotiated procedure without prior publication of a contract notice should remain exceptional and based on precise motivation, in order to avoid the use of this procedure in a protectionist way. Therefore the contracting authorities should clearly and explicitly justify on which ground(s) this procedure is being used.

    Amendment  35

    Proposal for a directive

    Article 20 - paragraph 2

    Text proposed by the Commission

    Amendment

    2. For public works contracts, public supply contracts and public service contracts, the negotiated procedure without prior publication of a contract notice may be applied in the following circumstances:

    2. For public works contracts, public supply contracts and public service contracts, the negotiated procedure without prior publication of a contract notice may be applied:

    a) when the periods laid down for the restricted procedure and negotiated procedure with publication of a contract notice are incompatible with the urgency of a crisis or armed conflict;

    when the periods laid down for the restricted procedure and negotiated procedure with publication of a contract notice are incompatible with the urgency of one or more crises;

    b) when, for technical reasons, or for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator.

    when, for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator;

    .

    – when, following a restricted procedure, a negotiated procedure with prior publication of a contract notice or a competitive dialogue, no tender has been submitted or none of the tenders submitted are suitable, or when there is no candidate, provided that the original terms of the contract have not been substantially altered and that a report thereon has been forwarded to the Commission.

    Justification

    Using the negotiated procedure without prior publication of a contract notice should remain exceptional and based on precise motivation, in order to avoid the use of this procedure in a protectionist way. The urgency of a crisis or armed conflict can be a valid ground, but not the protection of exclusive rights. Using this procedure for such purpose is not proportionate and involves the risk of protectionist behaviour by contracting authorities.

    To limit the risks of abusive use of the negotiated procedure without publication of a contract notice. It is unclear what are the "technical" reasons that can justify the use of this procedures.

    Καθώς, είναι δυνατόν να υπαρξουν αντιστοιχες περιπτώσεις κατά την εφαρμογή της παρούσας Οδηγίας, θα πρέπει να παραμένει η δυνατότητα στην αναθέτουσα αρχή να προχωρήσει στην διαδικασία διαπραγμάτευσης χωρίς δημισίευση σε περιπτωση που αποτύχουν είτε η κλειστή διαδικασία, είτε η διαδικασία με δημοσίευση είτε και ο ανταγωνιστικός διάλογος.

    Amendment  36

    Proposal for a directive

    Article 20 - paragraph 5 - subparagraph 2

    Text proposed by the Commission

    Amendment

    However, the aggregate value of contracts awarded for additional works or services may not exceed 50% of the amount of the original contract.

    However, the aggregate value of contracts awarded for additional works or services may not exceed 25% of the amount of the original contract.

    Justification

    To reduce tenderers' incentives to submit low tenders with the perspective of renegotiating after the contract is being awarded. To limit resulting opportunities for corruption practices.

    Amendment  37

    Proposal for a directive

    Article 21 – paragraph 2 – subparagraph 4

    Text proposed by the Commission

    Amendment

    The term of a framework agreement may not exceed five years, save in exceptional cases duly justified, in particular, by the subject of the framework agreement.

    The term of a framework agreement may not exceed four years, save in exceptional cases duly justified, in particular, by the subject of the framework agreement.

    Justification

    As Directive 2004/18/EC likewise provides for a term of no more than four years, four years seem an appropriate term in this Directive too.

    Amendment  38

    Proposal for a directive

    Article 22 - paragraph 4 - subparagraph 3

    Text proposed by the Commission

    Amendment

    Certain information on the contract award or the conclusion of the framework agreement may be withheld from publication where release of such information would impede law enforcement or otherwise be contrary to the public interest, would harm the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them.

    Certain information on the contract award or the conclusion of the framework agreement may be withheld from publication where release of such information would impede law enforcement or otherwise be contrary to defence and security interests, would harm the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them.

    Justification

    To ensure that the contracting authority cannot publish information that would be detrimental to the Member States' defence and security interests.

    Amendment  39

    Proposal for a directive

    Article 26 - paragraph 1 - subparagraph 1 a (new)

    Text proposed by the Commission

    Amendment

     

    The communication of the award decision to each tenderer and candidate concerned shall be accompanied by the following:

     

    (a) a summary of the reasons applicable, as referred to in paragraph 2; and

     

    (b) a precise statement of the exact standstill period applicable pursuant to the provisions of national law transposing Article [38c](2).

    Justification

    Amendment necessitated by the inclusion in the Directive of the possibility of judicial redress.

    Amendment  40

    Proposal for a directive

    Article 26 – paragraph 3

    Text proposed by the Commission

    Amendment

    3. Contracting authorities may decide to withhold certain information on the contract award or the conclusion of the framework agreements, referred to in subparagraph 1, where release of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them.

    3. Contracting authorities may decide to withhold certain information on the contract award or the conclusion of the framework agreements, referred to in paragraph 1, where release of such information would impede law enforcement or otherwise be contrary to defence and security interests or would prejudice the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them.

    Justification

    Clarification taking account of the particular features of arms and security procurement.

    Amendment  41

    Proposal for a directive

    Article 28 - paragraph 1 - point e a (new)

    Text proposed by the Commission

    Amendment

     

    (ea) in the case of a competitive dialogue, the circumstances which justify use of this procedure;

    Justification

    To ensure greater transparency, when a competitive dialogue is opened, the reasons for which it has been opened should also be set out.

    Amendment  42

    Proposal for a directive

    Article 28 - paragraph 1 - point i

    Text proposed by the Commission

    Amendment

    i) the name of the successful tenderer and the reasons why his tender was selected and, if known, the share of the contract or framework agreement which the successful tenderer intends, or will have, to subcontract to third parties;

    i) the name of the successful tenderer and the reasons why the tender was selected and, if known, the share of the contract or framework agreement which the successful tenderer intends, or will have, to subcontract to third parties; confirmation that the selection procedure was undertaken in a transparent and non-discriminatory manner;

    Amendment  43

    Proposal for a directive

    Article 28 - paragraph 3

    Text proposed by the Commission

    Amendment

    3. The report, or the main features of it, shall be communicated to the Commission if it so requests.

    3. The report, or the main features of it, shall be communicated to the Commission.

    Amendment  44

    Proposal for a directive

    Article 30 - paragraph 1 - subparagraph 3

    Text proposed by the Commission

    Amendment

     

     

    They may provide for derogation from the requirement referred to in the first subparagraph for overriding requirements in the general interest.

    However, Member States may decide to admit candidates or tenderers convicted for any reason listed in the first subparagraph if they prove to the satisfaction of the contracting authority that they have taken all specific technical, organisational and personnel-related measures to eliminate the reasons for the action or actions for which they were convicted , and that such measures are fully operational and effective at the time the tender is submitted.

    Justification

    The presence of a derogation to these requirements seriously undermines their credibility. It also creates opportunity for corruption practices. Therefore, no possibility for derogation should be provided.

    Die Bestimmung setzt einen Anreiz für die wünschenswerte Durchführung von Selbstreinigungsmaßnahmen. Die betroffenen Unternehmen werden durch ihre Maßnahmen Best-Practice-Beispiele für Vorkehrungen gegen die genannten Straftaten für den gesamten Geschäftsverkehr setzen. Der europäische Wettbewerb wird in Märkten mit wenigen Anbietern wie dem Rüstungsmarkt gefördert, weil nicht einzelne Unternehmen wegen einzelnen Verstößen dauerhaft von der Teilnahme an Ausschreibungen ausgeschlossen werden.

    Amendment  45

    Proposal for a directive

    Article 30 - paragraph 2 - point d

    Text proposed by the Commission

    Amendment

    d) has been guilty of grave professional misconduct proven by any means which the contracting authority can justify such as, for example, the breach of his obligations regarding security of information during a previous public contract;

    d) has been guilty of grave professional misconduct through intent or gross negligence proven by any means which the contracting authority can justify such as, for example, breach of obligations regarding security of information or security of supply during a previous public contract;

    Justification

    It should be possible to exclude any contractor from participation in the contract not only for a breach of confidentiality but also for failure to safeguard supplies as part of defence contracts.

    Amendment  46

    Proposal for a directive

    Article 30 – paragraph 4 a (new)

    Text proposed by the Commission

    Amendment

     

    4a. Economic operators may be excluded from participation in the procurement procedure if information is available about them, including from protected data sources, indicating that the products which they manufacture or supply display dubious characteristics which give rise to doubts about the suitability of the economic operator.

    Justification

    This relates to cases in which the products covered by a tender do formally comply with the requirements previously stated for them but the contracting authority has information, particularly from so-called protected data sources (i.e. intelligence) indicating that the product contains elements which, if implemented by the contracting authority, would permit manipulation, e.g. because a 'reserved' part of an IT product could subsequently be abused to intervene in, control or reprogram the system.

    Amendment  47

    Proposal for a directive

    Article 37 a (new)

    Text proposed by the Commission

    Amendment

     

    Article 37a

     

    Use of electronic auctions

     

    1. Member States may allow contracting authorities to use electronic auctions.

     

    2. In negotiated procedures, the contracting authorities may decide that the award of a public contract shall be preceded by an electronic auction when the contract specifications can be established with precision.

     

    In the same circumstances, an electronic auction may be held on the reopening of competition among the parties to a framework agreement as provided for in the second subparagraph of Article 21(4).

     

    The electronic auction shall be based:

     

    - either solely on prices when the contract is awarded to the lowest price,

     

    - or on prices and/or on the new values of the features of the tenders indicated in the specification when the contract is awarded to the most economically advantageous tender.

     

    3. Contracting authorities which decide to hold an electronic auction shall state that fact in the contract notice.

     

    The specifications shall include, inter alia, the following details:

     

    (a) the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages;

     

    (b) any limits on the values which may be submitted, as they result from the specifications relating to the subject of the contract;

     

    (c) the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them;

     

    (d) the relevant information concerning the electronic auction process;

     

    (e) the conditions under which the tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding;

     

    (f) the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection.

     

    4. Before proceeding with an electronic auction, contracting authorities shall make a full initial evaluation of the tenders in accordance with the award criterion/criteria set and with the weighting fixed for them.

     

    All tenderers who have submitted admissible tenders shall be invited simultaneously by electronic means to submit new prices and/or new values. The invitation shall contain all relevant information concerning individual connection to the electronic equipment being used and shall state the date and time of the start of the electronic auction. The electronic auction may take place in a number of successive phases. The electronic auction may not start sooner than two working days after the date on which invitations are sent out.

     

    5. When the contract is to be awarded on the basis of the most economically advantageous tender, the invitation shall be accompanied by the outcome of a full evaluation of the relevant tenderer, carried out in accordance with the weighting provided for in the first subparagraph of Article 37(2).

     

    The invitation shall also state the mathematical formula to be used in the electronic auction to determine automatic rerankings on the basis of the new prices and/or new values submitted. That formula shall incorporate the weighting of all the criteria fixed to determine the most economically advantageous tender, as indicated in the contract notice or in the specifications; for that purpose, any ranges shall, however, be reduced beforehand to a specified value.

     

    Where variants are authorised, a separate formula shall be provided for each variant.

     

    6. Throughout each phase of an electronic auction the contracting authorities shall instantaneously communicate to all tenderers at least sufficient information to enable them to ascertain their relative rankings at any moment. They may also communicate other information concerning other prices or values submitted, provided that that is stated in the specifications. They may also at any time announce the number of participants in that phase of the auction. In no case, however, may they disclose the identities of the tenderers during any phase of an electronic auction.

     

    7. Contracting authorities shall close an electronic auction in one or more of the following manners:

     

    (a) in the invitation to take part in the auction they shall indicate the date and time fixed in advance;

     

    (b) when they receive no more new prices or new values which meet the requirements concerning minimum differences. In that event, the contracting authorities shall state in the invitation to take part in the auction the time which they will allow to elapse after receiving the last submission before they close the electronic auction;

     

    (c) when the number of phases in the auction, fixed in the invitation to take part in the auction, has been completed.

     

    When the contracting authorities have decided to close an electronic auction in accordance with point (c), possibly in combination with the arrangements laid down in point (b), the invitation to take part in the auction shall indicate the timetable for each phase of the auction.

     

    8. After closing an electronic auction, contracting authorities shall award the contract in accordance with Article 37 on the basis of the results of the electronic auction.

     

    Contracting authorities may not have improper recourse to electronic auctions nor may they use them in such a way as to prevent, restrict or distort competition or to change the subject-matter of the contract, as put up for tender in the published contract notice and defined in the specification.

    (This amendment is almost identical to Article 54 of Directive 2004/18, except for paragraph 1, paragraph 7 subparagraph 2 and the cross-references.)

    Justification

    Electronic auctions are relevant to the scope of this Directive. They have been used for example to purchase gun mounts, or ship outfitting services. The text proposed is identical to Article 54 of the 2004/18 Directive on electronic auctions

    Amendment  48

    Proposal for a directive

    Title II a (new) [after Article 38]

    Text proposed by the Commission

    Amendment

    TITLE IIA

     

    Review procedures

    Justification

    The inclusion of a review procedure, along the lines of Directive 2007/66/EC, in this Directive is intended to achieve genuine market opening, provide effective legal protection for tenderers and ensure transparency and non-discrimination in the award of contracts without prejudice to Member States' need to protect secret information.

    Amendment  49

    Proposal for a directive

    Article 38 a (new)

    Text proposed by the Commission

    Amendment

     

    Article 38a

     

    Scope and availability of review procedures

     

    1. Member States shall take the measures necessary to ensure that, as regards contracts, including framework contracts, falling within the scope of this Directive, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles [38a] to [38h], on the grounds that such decisions have infringed Community law in the field of public procurement or national rules transposing that law.

     

    2. Member States shall ensure that there is no discrimination between undertakings claiming harm in the context of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing Community law and other national rules.

     

    3. Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.

     

    4. Member States may require that the person wishing to use a review procedure has notified the contracting authority of the alleged infringement and of his intention to seek review, provided that this does not affect the standstill period in accordance with Article [38c](2) or any other time limits for applying for review in accordance with Article [38e].

     

    5. Member States may require that the person concerned first seek review with the contracting authority. In that case, Member States shall ensure that the submission of such an application for review results in immediate suspension of the possibility to conclude the contract.

     

    Member States shall decide on the appropriate means of communication, including fax or electronic means, to be used for the application for review provided for in the first subparagraph.

     

    The suspension referred to in the first subparagraph shall not end before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contracting authority has sent a reply if fax or electronic means are used, or, if other means of communication are used, before the expiry of either at least 15 calendar days with effect from the day following the date on which the contracting authority has sent a reply, or at least 10 calendar days with effect from the day following the date of the receipt of a reply.

    (This amendment is based on Article 1 of Directive 89/665/EEC, as amended by Directive 2007/66/EC.)

    Justification

    The inclusion of a review procedure, along the lines of Directive 2007/66/EC, in this Directive is intended to achieve genuine market opening, provide effective legal protection for tenderers and ensure transparency and non-discrimination in the award of contracts without prejudice to Member States' need to protect secret information.

    Amendment  50

    Proposal for a directive

    Article 38 b (new)

    Text proposed by the Commission

    Amendment

     

    Article 38b

     

    Requirements for review procedures

     

    1. Member States shall ensure that the measures taken concerning the review procedures specified in Article [38a] include provision for powers to:

     

    (a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;

     

    (b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure;

     

    (c) award damages to persons harmed by an infringement.

     

    2. The powers specified in paragraph 1 and Articles [38f] and [38g] may be conferred on separate bodies responsible for different aspects of the review procedure.

     

    3. When a body of first instance, which is independent of the contracting authority, reviews a contract award decision, Member States shall ensure that the contracting authority cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period referred to in Article [38c](2) and Article [38f](4) and (5).

     

    4. Except where provided for in paragraph 3 of this Article and Article [38a](5), review procedures need not necessarily have an automatic suspensive effect on the contract award procedures to which they relate.

     

    5. Member States may provide that the body responsible for review procedures may take into account the probable consequences of interim measures for the interests of defence and security, and may decide not to grant such measures when their negative consequences could exceed their benefits. A decision not to grant interim measures shall not prejudice any other claim of the person seeking such measures.

     

    6. Member States may provide that where damages are claimed on the grounds that a decision was taken unlawfully, the contested decision must first be set aside by a body having the necessary powers.

     

    7. Except where provided for in Articles [38f], [38g] and [38h], the effects of the exercise of the powers referred to in paragraph 1 of this Article on a contract concluded subsequent to its award shall be determined by national law.

     

    Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract in accordance with Article [38a](5), paragraph 3 of this Article or Articles [38c] to [38h], the powers of the review body shall be limited to awarding damages to any person harmed by an infringement.

     

    8. Member States shall ensure that decisions taken by bodies responsible for review procedures can be effectively enforced.

     

    9. Where bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 234 of the EC Treaty and independent of both the contracting authority and the review body.

     

    The members of such an independent body shall be appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal. At least the President of this independent body shall have the same legal and professional qualifications as members of the judiciary. The independent body shall take its decisions in a procedure in which both sides are heard, and these decisions shall, by means determined by each Member State, be legally binding.

     

    In addition, Member States may ensure that the members of review bodies at all instances are individually authorised to handle sensitive information. Member States may establish or designate a special review body to take sole responsibility for reviews in the fields of security and defence.

    (This amendment is based on Article 2 of Directive 89/665/EEC, as amended by Directive 2007/66/EC.)

    Justification

    This amendment is intended to complete the requirements of the review procedure.

    Amendment  51

    Proposal for a directive

    Article 38 c (new)

    Text proposed by the Commission

    Amendment

     

    Article 38c

     

    Standstill period

     

    1. Member States shall ensure that the persons referred to in Article [38a](3) have sufficient time for effective review of the contract award decisions taken by contracting authorities, by adopting the necessary provisions respecting the minimum conditions set out in paragraph 2 of this Article and in Article [38e].

     

    2. A contract may not be concluded following the decision to award a contract falling within the scope of this Directive before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.

     

    Tenderers shall be deemed to be concerned if they have not yet been definitively excluded. An exclusion is definitive if it has been notified to the tenderers concerned and has either been considered lawful by an independent review body or can no longer be subject to a review procedure.

     

    Candidates shall be deemed to be concerned if the contracting authority has not made available information about the rejection of their application before the notification of the contract award decision to the tenderers concerned.

    (This amendment is based on Article 2a of Directive 89/665/EEC, as amended by Directive 2007/66/EC.)

    Justification

    The inclusion of a review procedure in this Directive is intended to achieve genuine market opening, provide effective legal protection for tenderers and ensure transparency and non-discrimination in the award of contracts without prejudice to Member States' need to protect secret information.

    Amendment  52

    Proposal for a directive

    Article 38 d (new)

    Text proposed by the Commission

    Amendment

     

    Article 38d

     

    Derogations from the standstill period

     

    Member States may provide that the periods referred to in Article [38c](2) do not apply in the following cases:

     

    (a) if this Directive does not require prior publication of a contract notice in the Official Journal of the European Union;

     

    (b) if the only tenderer concerned within the meaning of Article [38c](2) is the one who is awarded the contract and there are no candidates concerned;

     

    (c) in the case of a contract based on a framework agreement as provided for in Article 21. If this derogation is invoked, Member States shall ensure that the contract is ineffective in accordance with Articles [38f] and [38h] if:

     

    - there is an infringement of the second subparagraph of Article 21(4), and

     

    - the estimated value of the contract is equal to or exceeds the thresholds set out in Article 6.

    (This amendment is based on Article 2b of Directive 89/665/EEC, as amended by Directive 2007/66/EC.)

    Justification

    The inclusion of a review procedure in this Directive is intended to achieve genuine market opening, provide effective legal protection for tenderers and ensure transparency and non-discrimination in the award of contracts without prejudice to Member States' need to protect secret information.

    Amendment  53

    Proposal for a directive

    Article 38 e (new)

    Text proposed by the Commission

    Amendment

     

    Article 38e

     

    Time limits for applying for review

     

    Where a Member State provides that any application for review of a contracting authority's decision taken in the context of, or in relation to, a contract award procedure falling within the scope of this Directive must be made before the expiry of a specified period, this period shall be at least 10 calendar days with effect from the day following the date on which the contracting authority's decision is sent to the tenderer or candidate if fax or electronic means are used or, if other means of communication are used, this period shall be either at least 15 calendar days with effect from the day following the date on which the contracting authority's decision is sent to the tenderer or candidate or at least 10 calendar days with effect from the day following the date of the receipt of the contracting authority's decision. The communication of the contracting authority's decision to each tenderer or candidate shall be accompanied by a summary of the relevant reasons. In the case of an application for review concerning decisions referred to in Article [38b](1)(b) that are not subject to a specific notification requirement, the time period shall be at least 10 days from the date of publication of the decision in question.

    (This amendment is based on Article 2c of Directive 89/665/EEC, as amended by Directive 2007/66/EC.)

    Justification

    The inclusion of a review procedure in this Directive is intended to achieve genuine market opening, provide effective legal protection for tenderers and ensure transparency and non-discrimination in the award of contracts without prejudice to Member States' need to protect secret information.

    Amendment  54

    Proposal for a directive

    Article 38 f (new)

    Text proposed by the Commission

    Amendment

     

    Article 38f

     

    Ineffectiveness

     

    1. Member States shall ensure that a contract is considered ineffective by a review body independent of the contracting authority or that its ineffectiveness is the result of a decision of such a review body in any of the following cases:

     

    (a) if the contracting authority has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union without this being permissible in accordance with this Directive;

     

    (b) in case of an infringement of Article [38a](5), Article [38b](3) or Article [38c](2), if this infringement has deprived the tenderer applying for review of the possibility to pursue pre-contractual remedies where such an infringement is combined with another infringement of this Directive, if that infringement has affected the chances of the tenderer applying for a review to obtain the contract;

     

    (c) in the cases referred to in the second subparagraph of Article [38d](c), if Member States have invoked the derogation from the standstill period for contracts based on a framework agreement.

     

    2. The consequences of a contract being considered ineffective shall be provided for by national law. National law may provide for the retroactive cancellation of all contractual obligations or limit the scope of the cancellation to those obligations which still have to be performed. In the latter case, Member States shall provide for the application of alternative penalties within the meaning of Article [38g](2).

     

    3. Member States may provide that the review body independent of the contracting authority may not consider a contract ineffective, even though it has been awarded illegally on the grounds mentioned in paragraph 1, if the review body finds, after having examined all relevant aspects, that justified essential security interests of the Member State concerned require that the validity of the contract should be maintained. In this case, Member States shall provide for alternative penalties within the meaning of Article [38g](2), which shall be applied instead.

     

    Economic interests in the effectiveness of a contract may only be considered as essential security interests if in exceptional circumstances ineffectiveness would lead to disproportionate consequences.

     

    However, economic interests directly linked to the contract concerned shall not constitute essential security interests. Economic interests directly linked to the contract include, inter alia, the costs resulting from the delay in the execution of the contract, the costs resulting from the launching of a new procurement procedure, the costs resulting from the change of the economic operator performing the contract and the costs of legal obligations resulting from the ineffectiveness.

     

    4. Member States shall provide that paragraph 1(a) does not apply where:

     

    – the contracting authority considers that the award of a contract without prior publication of a contract notice in the Official Journal of the European Union is permissible in accordance with this Directive,

     

    – the contracting authority has published in the Official Journal of the European Union a notice as described in Article [38j] expressing its intention to conclude the contract, and

     

    – the contract has not been concluded before the expiry of a period of at least 10 calendar days with effect from the day following the date of the publication of this notice.

     

    5. Member States shall provide that paragraph 1(c) does not apply where:

     

    – the contracting authority considers that the award of a contract is in accordance with the second subparagraph of Article 21(4),

     

    – the contracting authority has sent a contract award decision, together with a summary of the relevant reasons as referred to in Article 26(2), subject to Article 26(3), to the tenderers concerned, and

     

    – the contract has not been concluded before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.

    (This amendment is based on Article 2d of Directive 89/665/EEC, as amended by Directive 2007/66/EC.)

    Justification

    The inclusion of a review procedure in this Directive is intended to achieve genuine market opening, provide effective legal protection for tenderers and ensure transparency and non-discrimination in the award of contracts without prejudice to Member States' need to protect secret information.

    Amendment  55

    Proposal for a directive

    Article 38 g (new)

    Text proposed by the Commission

    Amendment

     

    Article 38g

     

    Infringements of this Directive and alternative penalties

     

    1. In the case of an infringement of Article [38a](5), Article [38b](3) or Article [38c](2) which is not covered by Article [38f](1)(b), Member States shall provide for ineffectiveness in accordance with Article [38f](1), (2) and (3), or for alternative penalties. Member States may provide that the review body independent of the contracting authority shall decide, after having assessed all relevant aspects, whether the contract should be considered ineffective or whether alternative penalties should be imposed.

     

    2. Alternative penalties must be effective, proportionate and dissuasive. They shall comprise the following:

     

    - the imposition of fines on the contracting authority; or

     

    - the shortening of the duration of the contract.

     

    Member States may confer on the review body broad discretion to take into account all the relevant factors, including the seriousness of the infringement, the behaviour of the contracting authority and, in the cases referred to in Article [38f](2), the extent to which the contract remains in force.

     

    The award of damages does not constitute an appropriate penalty for the purposes of this paragraph.

    (This amendment is based on Article 2e of Directive 89/665/EEC, as amended by Directive 2007/66/EC.)

    Justification

    The inclusion of a review procedure in this Directive is intended to achieve genuine market opening, provide effective legal protection for tenderers and ensure transparency and non-discrimination in the award of contracts without prejudice to Member States' need to protect secret information.

    Amendment  56

    Proposal for a directive

    Article 38 h (new)

    Text proposed by the Commission

    Amendment

     

    Article 38h

     

    Time limits

     

    1. Member States may provide that the application for review in accordance with Article [38f](1) must be made:

     

    (a) before the expiry of at least 30 calendar days with effect from the day following the date on which

     

    - the contracting authority published a contract award notice in accordance with Articles 22(4), 23 and 24, provided that this notice includes justification of the decision of the contracting authority to award the contract without prior publication of a contract notice in the Official Journal of the European Union; or

     

    - the contracting authority informed the tenderers and candidates concerned of the conclusion of the contract, provided that this information contains a summary of the relevant reasons as referred to in Article 26(2), subject to Article 26(3). This option also applies to the cases referred to in Article [38d](c); and

     

    (b) in any case, before the expiry of a period of at least 6 months with effect from the day following the date of the conclusion of the contract.

     

    2. In all other cases, including applications for a review in accordance with Article [38g](1), the time limits for the application for a review shall be determined by national law, subject to Article [38e].

    (This amendment is based on Article 2f of Directive 89/665/EEC, as amended by Directive 2007/66/EC.)

    Justification

    The inclusion of a review procedure in this Directive is intended to achieve genuine market opening, provide effective legal protection for tenderers and ensure transparency and non-discrimination in the award of contracts without prejudice to Member States' need to protect secret information.

    Amendment  57

    Proposal for a directive

    Article 38 i (new)

    Text proposed by the Commission

    Amendment

     

    Article 38i

     

    Corrective mechanism

     

    1. The Commission may invoke the procedure provided for in paragraphs 2 to 5 when it considers that a serious infringement of Community law in the field of public procurement has been committed during a contract award procedure falling within the scope of this Directive.

     

    2. The Commission shall notify the Member State and the contracting authority concerned of the reasons which have led it to conclude that a serious infringement has been committed and request its correction. It shall allow the Member State concerned a reasonable period within which to reply, having regard to the circumstances of the case in question.

     

    3. Within the period referred to in paragraph 2, the Member State concerned shall communicate to the Commission:

     

    (a) its confirmation that the infringement has been corrected;

     

    (b) a reasoned submission as to why no correction has been made; or

     

    (c) a notice to the effect that the contract award procedure has been suspended either by the contracting authority on its own initiative or on the basis of the powers specified in Article [38b](1)(a).

     

    4. In a submission communicated pursuant to paragraph 3(b), it may in particular be indicated that the alleged infringement is already the subject of judicial proceedings or of another procedure or review pursuant to Article [38b](9). In this case the Member State shall inform the Commission of the outcome of those proceedings, or that procedure or review, as soon as it is known.

     

    5. Where notice has been given that a contract award procedure has been suspended in accordance with paragraph 3(c), the Member State shall notify the Commission when the suspension is lifted or another contract procedure relating in whole or in part to the same subject matter is begun. That notification shall confirm that the alleged infringement has been corrected or include a reasoned submission as to why no correction has been made.

    (This amendment is based on Article 3 of Directive 89/665/EEC, as amended by Directive 2007/66/EC.)

    Justification

    The inclusion of a review procedure in this Directive is intended to achieve genuine market opening, provide effective legal protection for tenderers and ensure transparency and non-discrimination in the award of contracts without prejudice to Member States' need to protect secret information.

    Amendment  58

    Proposal for a directive

    Article 38 j (new)

    Text proposed by the Commission

    Amendment

     

    Article 38j

     

    Content of a notice for voluntary ex-ante transparency

     

    The notice referred to in the second indent of Article [38f](4), the format of which shall be adopted by the Commission in accordance with the advisory procedure referred to in Article 41(2), shall contain the following information:

     

    (a) the name and contact details of the contracting authority;

     

    (b) a description of the object of the contract;

     

    (c) a justification of the decision of the contracting authority to award the contract without prior publication of a contract notice in the Official Journal of the European Union;

     

    (d) the name and contact details of the economic operator in favour of whom a contract award decision has been taken;

     

    (e) where appropriate, any other information deemed useful by the contracting authority.

    (This amendment is based on Article 3a of Directive 89/665/EEC, as amended by Directive 2007/66/EC.)

    Justification

    The inclusion of a review procedure in this Directive is intended to achieve genuine market opening, provide effective legal protection for tenderers and ensure transparency and non-discrimination in the award of contracts without prejudice to Member States' need to protect secret information.

    Amendment  59

    Proposal for a directive

    Article 41 – paragraph 3 – subparagraph 2

    Text proposed by the Commission

    Amendment

    With regard to the revision of the thresholds laid down in Article 6, the time limits laid down in Article 5a, paragraphs (3c), (4b) and (4e) of Decision 1999/468/EC shall be set at two weeks, in view of the time constraints resulting from the calculation and publication methods laid down in the second subparagraph of Article 78(1) and Article 78(4) of Directive 2004/18/EC.

    With regard to the revision of the thresholds laid down in Article 6, the time limits laid down in Article 5a, paragraphs (3c), (4b) and (4e) of Decision 1999/468/EC shall be set at one month, in view of the time constraints resulting from the calculation and publication methods laid down in the second subparagraph of Article 78(1) and Article 78(4) of Directive 2004/18/EC.

    Amendment  60

    Proposal for a directive

    Article 44

    Directive 2004/18/EC

    Article 10

     

    Text proposed by the Commission

    Amendment

    This Directive shall apply to public contracts awarded in the fields of defence and security with the exception of contracts to which Directive XXXX/X/EC applies. It shall not apply to public contracts excluded from the scope of Directive XXXX/X/EC pursuant to Articles 8 and 9 thereof.

    Without prejudice to Article 296 of the Treaty, this Directive shall apply to public contracts awarded in the fields of defence and security with the exception of contracts to which Directive XXXX/X/EC applies. It shall not apply to public contracts excluded from the scope of Directive XXXX/X/EC pursuant to Articles 8 and 9 thereof.

    Justification

    Clarification.

    Amendment  61

    Proposal for a directive

    Article 45 a (new)

    Text proposed by the Commission

    Amendment

     

    Article 45a

     

    Reporting

     

    1. The Commission shall report to the European Parliament by ...* on the measures taken by Member States to transpose this Directive, in particular Articles 39 and 40 thereof.

     

    2. The Commission shall, beginning not later than ...**, regularly submit a report to the European Parliament and to the Council on the implementation of this Directive and its impact on developments in the European defence equipment market and the European defence technological and industrial base.

     

    ________      

    * Twelve months from the date of transposition of this Directive.

    ** Five years from the date of entry into force of this Directive.

    Amendment  62

    Proposal for a directive

    Annex I – table – row 2 – column 3

    Text proposed by the Commission

    Amendment

    From 60110000-2 to 60183000-4 (except 60160000-7, 60161000-4), and from 64120000-3 to 64121200-2

    60100000-9, from 60110000-2 to 60183000-4 (except 60160000-7, 60161000-4), from 63100000-0 to 63111000-0, from 63120000-6 to 63121100-4, 63122000-0, from 63520000-0 to 63700000-6, and from 64120000-3 to 64121200-2

    Justification

    In order to ensure that the inclusion of public works, supply and/or service contracts which is provided for in this Directive is complete, the Annex must be expanded.

    Amendment  63

    Proposal for a directive

    Annex I – table – row 3 – column 3

    Text proposed by the Commission

    Amendment

    From 60410000-5 to 60424120-3 (except 60411000-2, 60421000-5), and 60500000-3

    60400000-2, from 60410000-5 to 60424120-3 (except 60411000-2, 60421000-5), 60500000-3, from 63100000-0 to 63111000-0, from 63120000-6 to 63121100-4, 63122000-0, 63520000-0, 63521000-7, 63524000-8, and 63700000-6

    Justification

    In order to ensure that the inclusion of public works, supply and/or service contracts which is provided for in this Directive is complete, the Annex must be expanded.

    Amendment  64

    Proposal for a directive

    Annex I - row 4 a (new)

    Text proposed by the Commission

    Amendment

     

    (4a)

    Rail transport services

    60200000-0, 60220000-6

    Justification

    Logistics is not only transport of goods, but adds value with a mix of services like transportation, warehousing and storage, total supply chain management, and the handling of information flow. Therefore, certain specific logistic related services should be included in the legislative proposal to avoid flaws in the future public procurement rules in the fields of defence and security.

    Amendment  65

    Proposal for a directive

    Annex I - row 4 b (new)

    Text proposed by the Commission

    Amendment

     

    (4b)

    Water trans-port services

    60600000-4, 60620000-0, from 60640000-6 to 60651200-8, 60651600-2

    Justification

    Logistics is not only transport of goods, but adds value with a mix of services like transportation, warehousing and storage, total supply chain management, and the handling of information flow. Therefore, certain specific logistic related services should be included in the legislative proposal to avoid flaws in the future public procurement rules in the fields of defence and security.

    EXPLANATORY STATEMENT

    Background

    European arms markets are characterised by their fragmentation. Since the 1990s the realisation has been growing within the EU that this fragmentation has adverse economic consequences. There are a number of reasons for this state of affairs:

    a)  In response to geopolitical developments, over the last 20 years defence expenditure has fallen by half (the so-called peace dividend), leading to reductions in the turnover generated and the number of people employed by arms manufacturers and cutbacks in investment in the areas of research and technology. No increase in defence spending is likely in the immediate future. In detailed terms, that spending breaks down as follows[1]:

    In 2006 defence spending by the EU-26[2] amounted to € 201 billion (ranging between € 47 bn in the United Kingdom and € 35 m in Malta). This amount includes € 110 bn for expenditure on personnel and € 91 for defence material procurement. The figure of € 91 bn breaks down further into spending of € 39 bn on investment, including research and development, € 43 bn on operations and maintenance and € 9 bn for other expenditure items, including infrastructure and building measures.

    A comparison of these figures with US spending in this area gives the following picture[3]: in 2006 the USA spent a total of € 491 bn, or 4.7% of GDP, on defence. Expenditure on operations and maintenance totalled some € 169 bn and investment some € 141 bn.

    b)  The cost of developing new weapons systems has risen so much that even the larger Member States have difficulty in bearing the financial burden involved.[4]

    c)  The restructuring of armed forces following the end of the Cold War has led to traditional items of equipment being ordered in smaller numbers and created requirements for qualitatively different defence capabilities.

    The aim is therefore to achieve greater cost efficiency, thereby benefiting both national budgets and the arms industry, and, just as importantly, to provide the armed forces with the best possible equipment.

    The establishment of a European security and defence policy makes it necessary to build up the necessary capacities, for which purpose a high-performance European industry is needed. The establishment of a European defence technology and defence industry base and a European market for the procurement of material is intended to contribute to this. The two can supply the capabilities required to meet global defence tasks and cope with the new challenges in the area of security.

    Article 296 of the EC Treaty

    In principle, defence procurement falls within the scope of Directive 2004/18/EC (Article 10), subject to the provisions of Article 296 TEC, which provides for a derogation from EU procurement rules on grounds of national security. In practice, however, the Member States systematically invoke Article 296 TEC in order to exclude almost all military procurement from the scope of Community law. The situation is little different on the economically increasingly important market in sensitive non-military security equipment. In both cases, the Member States frequently invoke Article 14 of Directive 2004/18/EC in order to circumvent Community rules. Accordingly, most contracts in this area are awarded on the basis of national rules and procedures. According to statistics, over the period between 2000 and 2004 the EU-15 States published only 13% of all contracts for defence equipment in the Official Journal, with the figures for individual Member States ranging between 2% (in Germany) and 24% (in France)[5]. Thus derogations which according to Community law ought to be exceptional are in fact the rule.

    This practice by the Member States violates the case law of the Court of Justice of the EC, which has established that Article 296 of the EC Treaty may be invoked only in limited and justified exceptional cases.[6] In an interpretative communication, the Commission has drawn the necessary conclusions from this case law and explained how it proposes to proceed in such cases in future.[7]

    Directive on Defence Procurement

    The proposal for a directive under consideration here (COM(2007) 766) is designed to allay the Member States' misgivings as to whether the existing Directive 2004/18/EC takes sufficient account of the specific nature of military procurement. The proposal for a directive was presented on 5 December 2007 together with the proposal for a directive on transfers of defence-related products within the Community (COM(2007) 765) and a Commission communication.[8] Both directives aim to establish a common arms market, but using instruments which must be considered separately.

    The aim of the proposal for a directive is to establish a uniform European legal framework which enables the Member States to apply Community law without jeopardising their security interests. The hope is that, as a result, they will less frequently feel obliged to invoke Article 296 TEC. To put it another way, Article 296 TEC remains in force, but its use is to be restricted to genuinely exceptional cases, as provided for in the EC Treaty and as called for by the European Court of Justice. Article 296 TEC would then only apply in those cases when the special provisions of the new directive are not sufficient to safeguard the Member States' security interests.

    Your rapporteur endorses the aims of the proposal for a directive. On the basis of the aims of the resolution on the Green Paper on Defence Procurement[9] of 17 November 2005, in which the European Parliament had called upon the Commission to draft a directive taking particular account of the security interests of the Member States, further developing the Common Foreign and Security Policy, promoting greater European cohesion, preserving the role of the Union as a 'civil power' and devoting special attention to SMEs, which are strongly represented in this sector, this report devotes particular attention to the following points:

    In view of the frequent overlapping of procurement on the defence and security market, the rapporteur agrees with the Commission that both the defence and security fields should be included in the scope of the proposal for a directive. As, however, all contracts falling within its scope involve sensitive information, it is proposed that the scope be uniformly defined in Article 1. In order to do justice to the problem that the list of arms, munitions and/or war material of 1958, which defines the scope for defence contracts, is no longer up to date, it is proposed that a contemporary interpretation be provided by using, in particular, the EU's annually updated common military list.

    The provision for derogations pursuant to Article 296(1)(a) of the EC Treaty remains in force notwithstanding this proposal for a directive, but is incorporated in Article 9 of the proposal for a directive in a form appropriate to public procurement law in order to improve legal certainty and prevent abusive or avoidable application of Article 296 of the Treaty.

    As regards security of information and supply, it is important to contracting authorities to obtain from tenderers commitments which are as reliable as possible. However, a tenderer cannot in every case provide proof or a definitive commitment, particularly regarding the conduct of a subcontractor or in relation to a transit entitlement. In the draft report, therefore, amendments are proposed which will make it easier for tenderers to comply with the requirements in practice.

    A further essential element in the draft report is the introduction of a review procedure. This has the purpose of affording tenderers effective legal protection, promotes transparency and non-discrimination in the award of contracts, and thus contributes to genuine market opening. The system of legal remedies provided for in this proposal for a directive basically adopts the same approach as the standard legal remedy directives, but at the same time takes account of the special interests of the Member States in relation to the award of defence and security contracts.

    • [1]  Information from the European Defence Agency. See http://www.eda.europa.eu/facts.aspx.
    • [2]  Denmark is not involved in the work of the European Defence Agency.
    • [3]  http://www.eda.europa.eu/genericitem.aspx?area=Facts&id=310.
    • [4]  See Burkard Schmitt, ‘From cooperation to integration, Defence and Aerospace Industries in Europe’, Chaillot Paper 40, Paris, July 2000, p. 6 et seq.
    • [5]  Impact assessment concerning the proposal for a directive COM(2007) 766, Annex 11, p. 78: Rates of publication in the OJEU of defence contracts.
    • [6]  CJEC, C-414/1997, COM/Spain; cf. also CJEC, C-337/2005, COM/Italy.
    • [7]  Interpretative communication on the application of Article 296 of the Treaty on the establishment of the European Communities (TEC) in the field of defence procurement, COM(2006) 779.
    • [8]  A strategy for a stronger and more competitive European defence industry, COM(2007) 764.
    • [9]  Defence Procurement, COM(2004) 0608. Report on the Green Paper on defence procurement, Committee on the Internal Market and Consumer Protection, Rapporteur Joachim Würmeling, A6-0288/2005.

    OPINION of the Committee on Foreign Affairs (12.9.2008)

    for the Committee on the Internal Market and Consumer Protection

    on the proposal for a directive of the European Parliament and of the Council on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security
    (COM(2007)0766 – C6‑0467/2007 – 2007/0280(COD))

    Rapporteur: Karl von Wogau

    SHORT JUSTIFICATION

    The opinion strongly supports the establishment of an open, transparent and competitive European Defence Equipment Market (EDEM) at the service of the European Security and Defence Policy (ESDP) and of the Member States.

    The creation of a defence market at European level will improve the transparency of defence procurement in the Union, result in better equipment for our soldiers and civilians in ESDP missions, enhance the competitiveness of the European defence industry and lead to better spending of taxpayers' money in the field of security and defence.

    The Committee on Foreign Affairs (AFET) and its Subcommittee on Security and Defence (SEDE) believes that the proposed directive is a step in the right direction.

    The proposed directive addresses the specific character of defence public procurement: awarding authorities may use the negotiated procedure with prior publication as a standard procedure, they may also require from candidates specific clauses for security of information (in order to ensure the confidentiality of sensitive information) and for security of supply ( in order to ensure on-time delivery in case of crisis).

    The use of Article 296 will be limited to truly exceptional cases, as stipulated by the Treaty and the Court. This will enhance legal certainty for awarding authorities.

    National procurement rules will be coordinated, which streamlines the regulatory patchwork in these fields and reduces industries' administrative costs.

    The principles of the Treaty, in particular transparency, non-discrimination and openness will be implemented in defence and security markets. This will improve the efficiency of defence spending and lead to better value for money.

    This will bring better equipment for the forces participating in the operations launched under the framework of the European Security and Defence Policy.

    AFET and its Subcommittee on Security and Defence propose the following concrete changes aimed at improving the proposed directive:

    a)  The scope of the proposed defence procurement directive is defined on the basis of the 1958 Council list (Decision defining the list of products -arms, munitions and war material- to which the provisions of Article 223(1b) -now Article 296- of the Treaty apply). This list is not an EU public document and hence unavailable as a matter of law. Furthermore, the list, besides being too broad and general, has never been updated since its adoption 50 years ago.

    b)  If the 1958 Council list were to be used, this should be done with the agreement by the Council to update the list and make it public.

    c)  A possible alternative would be to use the Common Military List covered by the EU Code on Arms Exports adopted by the Council on 7 July 2000 and regularly updated by the Council, which is as well the basis for scope of the proposed directive on simplifying terms and conditions of transfers of defence-related products within the Community (Amendment to Article 1).

    d)  In order to reinforce mutual confidence among Member States and in order to take into account the specific character of the defence market, it is essential that Member States concur on a common vision on security of supply and on security of information, and that the prescribed negotiated procedure with prior publication is permitted, thus satisfying the requirement for more flexibility in the award of defence contracts.

    e)  Concerning the security of information, opening up fragmented national defence markets in the service of the European Security and Defence Policy will require that contracting authorities and suppliers have and provide assurance that classified information will be protected during the different phases of the procurement procedure and that EU defence companies will not be discriminated on a security of information basis because of their nationality or the duration of the process of release of classified information. As a result the proposed directive should be subsequently complemented by an EU system on security of information (Amendment to Article 14).

    f)  Concerning the security of supply, opening up fragmented national defence markets in the service of the European Security and Defence Policy will require that contracting authorities have and provide assurance that when placing contracts with suppliers they are entitled to expect that these suppliers are and remain reliable and competitive sources of supply. Special emphasis should be put on building-up confidence among contracting authorities in particular in circumstances of pressing operational urgency. A common regime of appropriate guarantees, backed up by verification possibilities, for a stable security of supply is proposed. The mutual assistance article (article 28A.7[1]) of the Lisbon Treaty would become an empty shell without a solid security of supply between Member States (Amendment to Article 15).

    g)  A regular annual reporting of the Commission to the EP and the Council on the implementation of this directive is proposed. This will provide for a better accountability of the implementation process (Amendment on Article 40 a (new)).

    The European Commission has avoided the issue of offsets by not mentioning them. A Commission staff working paper[2] accompanying the proposed directive concluded that it was advisable to leave up to Member States the issue of keeping possible offset requirements compatible with EU law. Current policies of juste retour and off-setting in the field of security and defence procurement may lead to a lower quality of the equipment thus increasing the security risks of persons deployed on ESDP missions. These practices can also delay the procurement procedures and lead to higher cost of the equipment. The European Parliament[3] insists that the practice of offsets and juste retour has to be abolished. Your draftsman accepts the reasoning of the European Commission to not examine at this stage the issue of offsets in the proposed directive, nevertheless he holds the view that in future this issue should be raised at European level in view of abolishing this practice.

    AMENDMENTS

    The Committee on Foreign Affairs calls on the Committee on the Internal Market and Consumer Protection, as the committee responsible, to incorporate the following amendments in its report:

    Amendment  1

    Proposal for a directive

    Recital 37

    Text proposed by the Commission

    Amendment

    (37) Verification of the suitability and the selection of candidates should be carried out in transparent conditions. For this purpose, non-discriminatory criteria should be indicated which the contracting authorities may use when selecting competitors and the means which economic operators may use to prove they have satisfied those criteria. In the same spirit of transparency, the contracting authority should be required, as soon as a contract is put out to competition, to indicate the selection criteria it will use and the level of specific competence it may or may not demand of the economic operators before admitting them to the procurement procedure.

    (37) Verification of the suitability and the selection of candidates should be carried out in transparent conditions. For this purpose, non-discriminatory criteria should be indicated which the contracting authorities may use when selecting competitors and the means which economic operators may use to prove they have satisfied those criteria. In the same spirit of transparency, the contracting authority should be required, as soon as a contract is put out to competition, to indicate the selection criteria it will use and the level of specific competence it may or may not demand of the economic operators before admitting them to the procurement procedure. In the selection of candidates, contracting authorities should take into account the need for autonomy and operational sovereignty from a European perspective, the need to sustain European industrial and technological pre-eminence where this is economically valuable and the need for reciprocity of market access vis-à-vis third states.

    Justification

    This amendment reflects the growing consensus among Member States about the need to develop a "truly European Defence Technological and Industrial Base" ('A Strategy for the European Defence Technological And Industrial Base', EDA Steering Board, 14 May 2007). Within the EDA framework, Member States have decided to identify "key technologies" that Europe "must seek to preserve or develop" and have claimed that "military capability need is the prime criterion" but that "the needs of autonomy and operational sovereignty, and the need to sustain pre-eminence where this is economically valuable" should also be considered. This amendment aims to include some of the useful political work done at the level of the EDA in this Directive, in order to improve EU policy coherence in this field.

    Amendment  2

    Proposal for a directive

    Article 1 – point a

    Text proposed by the Commission

    Amendment

    a) the supply of arms, munitions and/or war material, referred to in the Council Decision of 15 April 1958 and, where necessary, public works and services contracts strictly related to these supplies;

    a) the supply of any product specifically designed for military use and referred to in the Common List of military equipment covered by the EU Code of Conduct on Arms Exports and, where necessary, public works and services contracts strictly related to these supplies;

    Justification

    The Council Decision of 15 April 1958 is not an EU officially public document and hence unavailable as a matter of law. Furthermore, the list has never been updated since its adoption 50 years ago. A better alternative would be to use the Common Military List covered by the EU Code on Arms Exports adopted by the Council on 7 July 2000 and regularly updated by the Council, which is as well the basis for scope of the proposed directive on simplifying terms and conditions of transfers of defence-related products within the Community.

    Amendment  3

    Proposal for a directive

    Article 3

    Text proposed by the Commission

    Amendment

    Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.

    Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way. When dealing with economic operators, contracting authorities shall take into account the need to sustain European industrial and technological pre-eminence where this is economically valuable and strategically important and the need for reciprocity of market access vis-à-vis third states.

    Justification

    This amendment reflects the growing consensus among Member States about the need to develop a "truly European Defence Technological and Industrial Base" ('A Strategy for the European Defence Technological And Industrial Base', EDA Steering Board, 14 May 2007). Within the EDA framework, Member States have decided to identify "key technologies" that Europe "must seek to preserve or develop" and have claimed that "military capability need is the prime criterion" but that "the needs of autonomy and operational sovereignty, and the need to sustain pre-eminence where this is economically valuable" should also be considered. This amendment aims to include some of the useful political work done at the level of the EDA in this Directive, in order to improve EU policy coherence in this field.

    Amendment  4

    Proposal for a directive

    Article 14

    Text proposed by the Commission

    Amendment

    When the public contracts involve, entail and/or contain sensitive information, the contracting authority shall specify in the contract documents all measures and requirements needed to ensure the security of such information at the requisite level.

    1. When the public contracts involve, entail and/or contain sensitive information, the contracting authority shall specify in the contract documents all measures and requirements needed to ensure the security of such information at the requisite level.

    To this end, the contracting authority may require of the tenderer that the tender submitted contain the following particulars:

    To this end, the contracting authority may require of the tenderer that the tender submitted contain the following particulars:

    a) proof that the subcontractors already identified possess the capabilities required to protect the confidentiality of the sensitive information to which they have access or which they are required to produce when carrying out their subcontracting activities,

    a) proof that the subcontractors already identified possess the capabilities required to protect the confidentiality of the sensitive information to which they have access or which they are required to produce when carrying out their subcontracting activities,

    b) a commitment to provide the same proof for any new subcontractors that may be involved during performance of the contract,

    b) a commitment to provide the same proof for any new subcontractors that may be involved during performance of the contract,

    c) a commitment to keep all sensitive information confidential for the entire duration of the contract and after termination or conclusion of the contract.

    c) a commitment to keep all sensitive information confidential for the entire duration of the contract and after termination or conclusion of the contract.

     

    2. Within one year of publication of this Directive in the Official Journal of the European Union, the Commission shall submit to the European Parliament and the Council a proposal for an EU security of information system that will allow the exchange of information between contracting authorities and European companies.

    Justification

    Opening up fragmented national defence markets in the service of the European Security and Defence Policy will require assurance that classified information will be protected during the different phases of the procurement procedure and that competing EU defence companies will not be discriminated on a security of information basis because of their nationality or because of the duration of the process of release of classified information. The proposed directive should be complemented by an EU system on security of information.

    Amendment  5

    Proposal for a directive

    Article 15

    Text proposed by the Commission

    Amendment

    Provided that they are in conformity with Community law, the contracting authority may specify requirements to guarantee security of supply.

    1. Provided that they are in conformity with Community law, the contracting authority may specify requirements to guarantee security of supply.

    To this end, the contracting authority may require of the tenderer that the tender submitted contain the following:

    To this end, the contracting authority may require of the tenderer that the tender submitted contain the following:

    a) evidence that it will be able to honour its obligations regarding the export, transfer and transit of goods associated with the contract, including by means of a commitment from the Member State(s) concerned,

    a) evidence that it will be able to honour its obligations regarding the export, transfer and transit of goods associated with the contract, including by means of a commitment from the Member State(s) concerned,

    b) evidence that the organisation and location of its supply chain will allow it to comply with the contracting authority's requirements concerning the security of supply set out in the specifications,

    b) evidence that the organisation and location of its supply chain will allow it to comply with the contracting authority's requirements concerning the security of supply set out in the specifications,

    c) a commitment to meet additional needs required by the contracting authority as a result of an emergency, crisis or armed conflict,

    c) a commitment to meet additional needs required by the contracting authority as a result of an emergency, crisis or armed conflict,

    d) a commitment from its national authorities not to obstruct the fulfilment of any additional needs required by the contracting authority as the result of an emergency, crisis or armed conflict,

    d) a commitment from its national authorities not to obstruct the fulfilment of any additional needs required by the contracting authority as the result of an emergency, crisis or armed conflict,

    e) a commitment to carry out the maintenance, modernisation or adaptation of the supplies covered by this contract,

    e) a commitment to carry out the maintenance, modernisation or adaptation of the supplies covered by this contract,

    f) a commitment to inform the contracting authority in due time of any change in its organisation or its industrial strategy that may affect its obligations to that authority.

    f) a commitment to inform the contracting authority in due time of any change in its organisation or its industrial strategy that may affect its obligations to that authority.

    The requirements shall be explained in the specifications or contract documents.

    The requirements shall be explained in the specifications or contract documents.

     

    2. The contracting authorities shall work to increase the level of mutual confidence amongst them. For this purpose and within one year of publication of this Directive in the Official Journal of the European Union, the Commission shall submit to the European Parliament and the Council a proposal for a common regime of appropriate guarantees, backed up by verification possibilities, for a stable security of supply.

    Justification

    The effectiveness of the proposed directive will be reinforced by greater mutual confidence among contracting authorities in particular in circumstances of pressing operational urgency. This will require that contracting authorities will have and provide assurance that when placing contracts with suppliers they are entitled to expect that these suppliers are and remain reliable and competitive sources of supply. A common regime of appropriate guarantees, backed up by verification possibilities, for a stable security of supply is proposed. The mutual assistance article (article 28A.7) of the Lisbon Treaty is meaningless without a solid security of supply between Member States.

    Amendment  6

    Proposal for a directive

    Article 20 – paragraph 5 – subparagraph 2

    Text proposed by the Commission

    Amendment

    However, the aggregate value of contracts awarded for additional works or services may not exceed 50% of the amount of the original contract.

    However, the aggregate value of contracts awarded for additional works or services may not exceed 30% of the amount of the original contract.

    Justification

    To reduce tenderers' incentives to submit low tenders with the perspective of renegotiating after the contract is being awarded. To limit resulting opportunities for corruption practices.

    Amendment  7

    Proposal for a directive

    Article 30 – paragraph 1 – subparagraph 3

    Text proposed by the Commission

    Amendment

    They may provide for a derogation from the requirement referred to in the first subparagraph for overriding requirements in the general interest.

    deleted

    Justification

    The presence of a derogation to these requirements seriously undermines their credibility. It also creates opportunity for corruption practices. Therefore, no possibility for derogation should be provided.

    Amendment  8

    Proposal for a directive

    Article 37 – paragraph 1 – point a

    Text proposed by the Commission

    Amendment

    a) when the award is made to the most economically advantageous tender from the point of view of the contracting authority, various criteria linked to the subject matter of the public contract in question: for example, quality, price, technical merit, functional characteristics, environmental characteristics, running costs, lifecycle costs, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery period or period of completion, security of supply, and interoperability; or

    a) when the award is made to the most economically advantageous tender from the point of view of the contracting authority, various criteria linked to the subject matter of the public contract in question: for example, quality, price, technical merit, functional characteristics, environmental characteristics, running costs, lifecycle costs, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery period or period of completion, security of supply, interoperability, the need for autonomy and operational sovereignty from a European perspective, the need to sustain European industrial and technological pre-eminence where this is economically valuable and the need for reciprocity of market access vis-à-vis third states; or

    Justification

    This amendment reflects the growing consensus among Member States about the need to develop a "truly European Defence Technological and Industrial Base" ('A Strategy for the European Defence Technological And Industrial Base', EDA Steering Board, 14 May 2007). Within the EDA framework, Member States have decided to identify "key technologies" that Europe "must seek to preserve or develop" and have claimed that "military capability need is the prime criterion" but that "the needs of autonomy and operational sovereignty, and the need to sustain pre-eminence where this is economically valuable" should also be considered. This amendment aims to include some of the useful political work done at the level of the EDA in this Directive, in order to improve EU policy coherence in this field.

    Amendment  9

    Proposal for a directive

    Article 40 a (new)

    Text proposed by the Commission

    Amendment

     

    Article 40a

    Reporting

    The Commission shall submit an annual assessment report to the European Parliament and the Council on the implementation of this Directive and its impact on the development of the European defence equipment market based on the statistical reports prepared by Member Sates in accordance with Article 40.

    Justification

    In order to permit assessing the results, a regular annual report of the Commission to the European Parliament and the Council on the implementation of this directive will provide for a better accountability of the implementation process.

    PROCEDURE

    Title

    Public contracts in the fields of defence and security

    References

    COM(2007)0766 – C6-0467/2007 – 2007/0280(COD)

    Committee responsible

    IMCO

    Opinion by

           Date announced in plenary

    AFET

    17.1.2008

     

     

     

    Drafts(wo)man

           Date appointed

    Karl von Wogau

    29.1.2008

     

     

    Discussed in committee

    9.6.2008

    16.7.2008

    9.9.2008

     

    Date adopted

    10.9.2008

     

     

     

    Result of final vote

    +:

    –:

    0:

    54

    6

    3

    Members present for the final vote

    Vittorio Agnoletto, Sir Robert Atkins, Christopher Beazley, Bastiaan Belder, Colm Burke, Véronique De Keyser, Giorgos Dimitrakopoulos, Michael Gahler, Jas Gawronski, Georgios Georgiou, Maciej Marian Giertych, Ana Maria Gomes, Alfred Gomolka, Klaus Hänsch, Jana Hybášková, Anna Ibrisagic, Ioannis Kasoulides, Metin Kazak, Helmut Kuhne, Vytautas Landsbergis, Johannes Lebech, Willy Meyer Pleite, Francisco José Millán Mon, Philippe Morillon, Annemie Neyts-Uyttebroeck, Baroness Nicholson of Winterbourne, Cem Özdemir, Ioan Mircea Paşcu, Béatrice Patrie, Alojz Peterle, Tobias Pflüger, João de Deus Pinheiro, Samuli Pohjamo, Bernd Posselt, Raül Romeva i Rueda, Libor Rouček, Christian Rovsing, Flaviu Călin Rus, José Ignacio Salafranca Sánchez-Neyra, Jacek Saryusz-Wolski, Marek Siwiec, István Szent-Iványi, Inese Vaidere, Geoffrey Van Orden, Marcello Vernola, Kristian Vigenin, Luis Yañez-Barnuevo García, Josef Zieleniec

    Substitute(s) present for the final vote

    Laima Liucija Andrikienė, Glyn Ford, Kinga Gál, Milan Horáček, Tunne Kelam, Alexander Graf Lambsdorff, Mario Mauro, Nickolay Mladenov, Rihards Pīks, Aloyzas Sakalas, Inger Segelström, Karl von Wogau

    Substitute(s) under Rule 178(2) present for the final vote

    Costas Botopoulos, Antonio Masip Hidalgo, Pierre Pribetich

    • [1]  "If a Member Sate is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter...".
    • [2]  Commission staff working paper SEC (2007)1599 dated 5.12.2007.
    • [3]  European Parliament resolution on the implementation of the ESS in the context of ESDP (PE 372.113v03-00, A6-0366/2006).

    PROCEDURE

    Title

    Public contracts in the fields of defence and security

    References

    COM(2007)0766 – C6-0467/2007 – 2007/0280(COD)

    Date submitted to Parliament

    5.12.2007

    Committee responsible

           Date announced in plenary

    IMCO

    17.1.2008

    Committee(s) asked for opinion(s)

           Date announced in plenary

    AFET

    17.1.2008

    ITRE

    17.1.2008

     

     

    Not delivering opinions

           Date of decision

    ITRE

    29.1.2008

     

     

     

    Rapporteur(s)

           Date appointed

    Alexander Graf Lambsdorff

    22.1.2008

     

     

    Discussed in committee

    26.3.2008

    28.5.2008

    2.6.2008

    14.7.2008

     

    9.9.2008

    7.10.2008

     

     

    Date adopted

    7.10.2008

     

     

     

    Result of final vote

    +:

    –:

    0:

    38

    0

    0

    Members present for the final vote

    Cristian Silviu Buşoi, Charlotte Cederschiöld, Gabriela Creţu, Mia De Vits, Janelly Fourtou, Evelyne Gebhardt, Hélène Goudin, Małgorzata Handzlik, Christopher Heaton-Harris, Anna Hedh, Iliana Malinova Iotova, Pierre Jonckheer, Alexander Graf Lambsdorff, Kurt Lechner, Catiuscia Marini, Arlene McCarthy, Nickolay Mladenov, Catherine Neris, Bill Newton Dunn, Zita Pleštinská, Karin Riis-Jørgensen, Zuzana Roithová, Heide Rühle, Leopold Józef Rutowicz, Salvador Domingo Sanz Palacio, Christel Schaldemose, Andreas Schwab, Marianne Thyssen, Jacques Toubon, Barbara Weiler, Marian Zlotea

    Substitute(s) present for the final vote

    Emmanouil Angelakas, Colm Burke, Giovanna Corda, Jan Cremers, Gisela Kallenbach, Manuel Medina Ortega, José Ribeiro e Castro, Gary Titley, Diana Wallis, Stefano Zappalà

    Substitute(s) under Rule 178(2) present for the final vote

    Den Dover