Procedure : 2012/0060(COD)
Document stages in plenary
Document selected : A7-0454/2013

Texts tabled :

A7-0454/2013

Debates :

PV 14/01/2014 - 10
CRE 14/01/2014 - 10

Votes :

PV 15/01/2014 - 10.11
CRE 15/01/2014 - 10.11

Texts adopted :

P7_TA(2014)0027

REPORT     ***I
PDF 822kWORD 929k
10 December 2013
PE 516.711v03-00 A7-0454/2013

on the proposal for a regulation of the European Parliament and of the Council on the access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries

(COM(2012)0124 – C7-0084/2012 – 2012/0060(COD))

Committee on International Trade

Rapporteur: Daniel Caspary

Rapporteur of the opinion (*):

Frank Engel, Committee on the Internal Market and Consumer Protection

(*) Associated committee - Rule 50 of the Rules of Procedure

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 OPINION OF THE COMMITTEE ON THE INTERNAL MARKET AND CONSUMER PROTECTION(*)
 OPINION OF THE COMMITTEE ON DEVELOPMENT
 OPINION OF THE COMMITTEE ON EMPLOYMENT AND SOCIAL AFFAIRS
 OPINION OF THE COMMITTEE ON LEGAL AFFAIRS
 PROCEDURE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a regulation of the European Parliament and of the Council on the access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries

(COM(2012)0124 – C7-0084/2012 – 2012/0060(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–   having regard to the Commission proposal to Parliament and the Council (COM(2012)0124),

–   having regard to Article 294(2) and Article 207 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0084/2012),

–   having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–   having regard to Rule 55 of its Rules of Procedure,

–   having regard to the report of the Committee on International Trade and the opinions of the Committee on Internal Market and Consumer Protection, the Committee on Development, the Committee on Employment and Social Affairs and the Committee on Legal Affairs (A7-0454/2013),

1.  Adopts its position at first reading hereinafter set out;

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

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

Amendment  1

Proposal for a regulation

Title 1

Text proposed by the Commission

Amendment

Proposal for a

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the access of third-country goods and services to the Union's internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries

on the access of third-country goods and services to the Union's internal market in public procurement and concessions and procedures supporting negotiations on access of Union goods and services to the public procurement markets and to the concessions of third countries

(Text with EEA relevance)

(Text with EEA relevance)

Justification

Alignment with the European Parliament's position in the trilogue negotiations on the Public Procurement and the Concessions Directive.

Amendment  2

Proposal for a regulation

Citation 3 a (new)

Text proposed by the Commission

Amendment

 

- Having regard to the revised public procurement directives (2011/0438(COD), 2011/0349(COD) and 2011/0437(COD);

Amendment  3

Proposal for a regulation

Citation 3 b (new)

Text proposed by the Commission

Amendment

 

- Having regard to the revised Plurilateral Agreement on Government Procurement (GPA);

Amendment  4

Proposal for a regulation

Recital 1

Text proposed by the Commission

Amendment

(1) Article 21 of the Treaty on European Union provides that the Union is to define and pursue common policies and actions, and work for a high degree of cooperation in all fields in international relations in order, inter alia, to encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade.

(1) Article 21 of the Treaty on European Union provides that the Union is to define and pursue common policies and actions, and work for a high degree of cooperation in all fields in international relations in order, inter alia, to safeguard its values, fundamental interests, security, independence and integrity and to encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade.

Amendment  5

Proposal for a regulation

Recital 5

Text proposed by the Commission

Amendment

(5) Within the context of the World Trade Organisation and through its bilateral relations the Union advocates an ambitious opening of international public procurement markets of the Union and its trading partners, in a spirit of reciprocity and mutual benefit.

(5) Within the context of the World Trade Organisation and through its bilateral relations the Union advocates an ambitious opening of international public procurement and concessions markets of the Union and its trading partners, in a spirit of reciprocity and mutual benefit.

Justification

Alignment with the European Parliament's position in the trilogue negotiations on the Public Procurement and the Concessions Directive.

Amendment  6

Proposal for a regulation

Recital 5 a (new)

Text proposed by the Commission

Amendment

 

(5a) Public procurement forms an important part of the Union's gross domestic product and should therefore be used to strengthen the Union's potential for innovation and industrial production. With a view to a sustainable industry policy strategy in the Union, unfair tenders comprising goods and/or services originating outside the Union should therefore be excluded. At the same time, reciprocity and fair conditions for the market access of Union industries should be ensured.

Amendment  7

Proposal for a regulation

Recital 5 a (new)

Text proposed by the Commission

Amendment

 

(5a) Union trade policy should help to reduce poverty worldwide by promoting improved working conditions, health and safety at work and fundamental rights.

Amendment  8

Proposal for a regulation

Recital 6

Text proposed by the Commission

Amendment

(6) Many third countries are reluctant to open their public procurement markets to international competition, or to open those markets further than what they have already done. As a result, Union economic operators face restrictive procurement practices in many of the trading partner of the Union. Those restrictive procurement practices result in the loss of substantial trading opportunities.

(6) Many third countries are reluctant to open their public procurement and their concessions markets to international competition, or to open those markets further than what they have already done. As a result, Union economic operators face restrictive procurement practices in many of the trading partner of the Union. Those restrictive procurement practices result in the loss of substantial trading opportunities.

Justification

Alignment with the European Parliament's position in the trilogue negotiations on the Public Procurement and the Concessions Directive.

Amendment  9

Proposal for a regulation

Recital 8

Text proposed by the Commission

Amendment

(8) In accordance with Article 207 TFEU the common commercial policy in the field of public procurement is to be based on uniform principles.

(8) In accordance with Article 207 TFEU the common commercial policy in the field of public procurement and concessions is to be based on uniform principles.

Amendment  10

Proposal for a regulation

Recital 9

Text proposed by the Commission

Amendment

(9) In the interest of legal certainty for Union and third-country economic operators and contracting authorities/entities, the international market access commitments undertaken by the Union vis-à-vis third countries in the field of public procurement should be reflected in the legal order of the EU, thereby ensuring effective application thereof. The Commission should issue guidance on the application of the existing international market access commitments of the European Union. This guidance should be updated on a regular basis and provide easy to use information.

(9) In the interest of legal certainty for Union and third-country economic operators and contracting authorities/entities, the international market access commitments undertaken by the Union vis-à-vis third countries in the field of public procurement and concessions should be reflected in the legal order of the EU, thereby ensuring effective application thereof. The Commission should issue guidance on the application of the existing international market access commitments of the European Union. This guidance should be updated on a regular basis and provide easy to use information.

Justification

Following the negotiations on the public procurement directives and the directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation. At international level, only works concessions are currently regulated.

Amendment  11

Proposal for a regulation

Recital 9 b (new)

Text proposed by the Commission

Amendment

 

(9b) The Commission should ensure that it does not fund programmes for which international public contracts are awarded or implemented in a manner inconsistent with the principles laid down in the public procurement directives (2011/0438(COD), 2011/0349(COD) and 2011/0437(COD).

Amendment  12

Proposal for a regulation

Recital 10

Text proposed by the Commission

Amendment

(10) The objectives of improving the access of EU economic operators to the public procurement markets of certain third countries protected by restrictive procurement measures and preserving equal conditions of competition within the European Single Market require that the treatment of third-country goods and services not covered by the international commitments of the Union be harmonised throughout the European Union.

(10) The objectives of improving the access of EU economic operators to the public procurement and concessions markets of certain third countries protected by restrictive procurement measures and preserving equal conditions of competition within the European Single Market require that the treatment of third-country goods and services not covered by the international commitments of the Union be harmonised throughout the European Union.

Justification

Alignment with the European Parliament's position in the trilogue negotiations on the Public Procurement and the Concessions Directive.

Amendment  13

Proposal for a regulation

Recital 11

Text proposed by the Commission

Amendment

(11) For this purpose rules of origin should be established so that contracting authorities/entities know whether goods and services are covered by the international commitments of the European Union. The origin of a good should be determined in accordance with Article 22 to 26 of Regulation (EC) No 2913/1992 of the European Parliament and of the Council of 12 October 1992 establishing the Community Customs Code12. According to this Regulation goods should be considered to be Union goods when they are wholly obtained or produced in the Union. Goods whose production involved one or more third countries should be deemed to originate in the country where they underwent their last, substantial, economically justified processing or working in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing an important stage of manufacture. The origin of a service should be determined on the basis of the origin of the natural or legal person providing it. The guidance referred to in recital 9 should cover the application in practice of the rules of origin.

(11) For this purpose rules of origin should be established so that contracting authorities/entities know whether goods and services are covered by the international commitments of the European Union. The origin of a good should be determined in accordance with Articles 59 to 63 of Regulation (EU) No 952/2013 of the European Parliament and of the Council, including the additional provisions to be adopted under Article 65. According to this Regulation goods should be considered to be Union goods when they are wholly obtained or produced in the Union. Goods whose production involved one or more third countries should be deemed to originate in the country where they underwent their last, substantial, economically justified processing or working in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing an important stage of manufacture. The origin of a service should be determined on the basis of the origin of the natural or legal person providing it. The determination of the origin of a service should be made in line with the principles of the WTO General Agreement on Trade in Services (GATS). The provisions determining the rules of origin of services should prevent the circumvention of restrictions on access to the Union public procurement market through the establishment of "letterbox" companies. The guidance referred to in recital 9 should cover the application in practice of the rules of origin.

_____________

 

12OJ L 302, 19.10.1992, p. 1

 

Justification

By this amendment the rapporteur would like to stress the importance of preventing circumvention of market restrictions through letterbox companies (in particular with regard to Article 3).

Amendment  14

Proposal for a regulation

Recital 12

Text proposed by the Commission

Amendment

(12) The Commission should assess whether to approve that contracting authorities/entities within the meaning of Directives [2004/17/EC, 2004/18/EC and Directive [.] of the European Parliament and the Council of [….]….on the award of concession contracts13] exclude, for contracts with an estimated value equal or above EUR 5.000.000 from procedures for the award of contracts goods and services not covered by the international commitments undertaken by the European Union.

(12) The Commission should assess whether to approve that contracting authorities/entities within the meaning of Directives [2004/17/EC, 2004/18/EC and Directive [....] of the European Parliament and the Council of [....]....on the award of concession contracts13] exclude, for procedures for the award of contracts or concessions with an estimated value equal or above EUR 5 000 000 from procedures for the award of contracts goods and services not covered by the international commitments undertaken by the European Union. This does not concern procedures for the award of contract goods and services originating in the countries of the European Economic Area as defined by the relevant rules of origin, as well as contract goods and services originating in countries that benefit from the "Everything But Arms" arrangement as listed in Annex IV to Regulation (EU) No 978/2012 of the European Parliament and of the Council1, as well as contract goods and services originating in developing countries considered to be vulnerable due to a lack of diversification and insufficient integration within the international trading system as defined in Annex VII to Regulation (EU) No 978/2012.

________________

________________

13 OJ L….

13 OJ L….

 

13a Regulation (EU) No 978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008 (OJ L 303, 31.10.2012, p. 1).

Justification

By this amendment the rapporteur would like to clarify which third countries shall not covered by the scope of this regulation.

Amendment  15

Proposal for a regulation

Recital 13

Text proposed by the Commission

Amendment

(13) For the sake of transparency, contracting authorities/entities intending to make use of their power in accordance with this Regulation to exclude tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services from procedures for the award of contracts should inform economic operators thereof in the contract notice published in the Official Journal of the European Union.

(13) For the sake of transparency, contracting authorities/entities intending to make use of their power in accordance with this Regulation to exclude tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services from procedures for the award of contracts or concessions should inform economic operators thereof in the contract notice published in the Official Journal of the European Union.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  16

Proposal for a regulation

Recital 15

Text proposed by the Commission

Amendment

(15) For contracts with an estimated value equal or above EUR 5.000.000 the Commission should approve the intended exclusion if the international agreement concerning market access in the field of public procurement between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union. Where such an agreement does not exist, the Commission should approve the exclusion where the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. A lack of substantial reciprocity should be presumed where restrictive procurement measures result in serious and recurring discriminations of EU economic operators, goods and services.

(15) For contracts and concessions with an estimated value equal or above EUR 5 000 000 the Commission should approve the intended exclusion if the international agreement concerning market access in the field of public procurement and concessions between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union. Where such an agreement does not exist, the Commission should approve the exclusion where the third country maintains restrictive procurement measures in the field of procurement or the award of concessions leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. A lack of substantial reciprocity should be presumed where restrictive procurement measures in the field of procurement or the award of concessions result in serious and recurring discriminations of EU economic operators, goods and services or if the non-observance of international labour law provisions listed in Annex XI to the Directive on public procurement [...] 2013 and in Annex XIV to the Directive on procurement by entities operating in the water, energy, transport and postal services sectors [...] (2013) by public authorities have led to serious difficulties encountered by European undertakings and reported to the Commission, when those European undertakings have tried to secure the award of contracts and concessions in third countries.

Justification

By this amendment the rapporteur would like to forge a closer link between procedure set out in Article 6 and Article 8.

Amendment  17

Proposal for a regulation

Recital 16

Text proposed by the Commission

Amendment

(16) When assessing whether a lack of substantial reciprocity exists, the Commission should examine to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union goods, services and economic operators. In addition, it should examine to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operators.

(16) When assessing whether a lack of substantial reciprocity exists, the Commission should examine to what degree the laws on public procurement and concessions of the country concerned ensure transparency in line with international standards in the field of public procurement and concessions preclude any discrimination against Union goods, services and economic operators. In addition, it should examine to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operator or to what degree the non-observance of international labour law provisions listed in Annex XI to the Directive on public procurement [...] 2013 and in Annex XIV to the Directive on procurement by entities operating in the water, energy, transport and postal services sectors [...] (2013) by public authorities have led to serious difficulties encountered by European undertakings and reported to the Commission, when these European undertakings have tried to secure the award of contracts and concessions in third countries.

Amendment  18

Proposal for a regulation

Recital 16 a (new)

Text proposed by the Commission

Amendment

 

(16a) When assessing tenders comprising goods and/or services originating outside the Union, contracting authorities and the Commission should ensure the compliance with the criteria for fair trade, as well as for the compliance with labour rights and environmental standards as laid down in Article 15(2) of and Annex 11 to the Directive on public procurement [...] (2013) XXX.

Amendment  19

Proposal for a regulation

Recital 17

Text proposed by the Commission

Amendment

(17) The Commission should be able to prevent the possible negative impact of an intended exclusion on on-going trade negotiations with the country concerned. Therefore, the Commission may, where a country is engaging in substantive negotiations with the Union concerning market access in the field of public procurement and the Commission considers that there is a reasonable prospect of removing the restrictive procurement practices in the near future, it should be able to adopt a implementing act providing that goods and services from that country should not be excluded from procedures for the award of contracts for a period of one year.

(17) The Commission should be able to prevent the possible negative impact of an intended exclusion on on-going trade negotiations with the country concerned. Therefore, the Commission may, where a country is engaging in substantive negotiations with the Union concerning market access in the field of public procurement and/or concessions the Commission considers that there is a reasonable prospect of removing the restrictive procurement and/or concessions practices in the near future, it should be able to adopt a implementing act providing that goods and services from that country should not be excluded from procedures for the award of contracts for a period of one year.

Justification

Alignment with the European Parliament's position in the trilogue negotiations on the Public Procurement and the Concessions Directive.

Amendment  20

Proposal for a regulation

Recital 18

Text proposed by the Commission

Amendment

(18) In view of the fact that the access of third country goods and services to the public procurement market of the Union falls within the scope of the common commercial policy, Member States or their contracting authorities/entities should not be able to restrict the access of third country goods or services to their tendering procedures by any other measure than the ones provided for in this Regulation.

(18) In view of the fact that the access of third country goods and services to the public procurement market of the Union and to concessions falls within the scope of the common commercial policy, Member States or their contracting authorities/entities should not be able to restrict the access of third country goods or services to their tendering procedures by any other measure than the ones provided for in this Regulation or by relevant Union law.

Justification

It is not yet possible to say what provisions the future regulation will contain. It is therefore too early to decide that the regulation will constitute the sole legal basis for restricting access for products and services from third countries to the EU procurement market. A broader reference to ‘EU law’ includes the provisions of Articles 58 and 59 of Directive 2004/17/EC and excludes any national measures that are not consistent with EU legislation.

Amendment  21

Proposal for a regulation

Recital 19

Text proposed by the Commission

Amendment

(19) In view of the greater difficulty for contracting authorities/entities to assess, in the context of tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services, the explanations of tenderers it is appropriate to provide for an increased transparency in the treatment of abnormally low tenders. In addition to the rules provided by Article 69 of the Directive on public procurement and Article 79 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors the contracting authority/entity that intends to accept such an abnormally low tender, should inform the other tenderers of this in writing including the reasons for the abnormally low character of the price or costs charged. This allows these tenderers to contribute to a more accurate assessment as to whether the successful tenderer will be able to fully perform the contract under the conditions spelled out in the tender documentation. Therefore, this additional information would achieve a more level playing field on the EU public procurement market.

(19) In view of the greater difficulty for contracting authorities/entities to assess, in the context of tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services, the explanations of tenderers it is appropriate to provide for an increased transparency in the treatment of abnormally low tenders. Tenders that appear abnormally low in relation to the works, supplies or services might be based on technically, economically or legally unsound assumptions or practices. In addition to the rules provided by Article 69 of Directive 20XX/XXX/EU of the European Parliament and of the Council13a and Article 79 of Directive 20XX/XXX/EU of the European Parliament and of the Council13b the contracting authority/entity that intends to accept such an abnormally low tender, should inform the other tenderers of this in writing including the reasons for the abnormally low character of the price or costs charged. Where the tenderer cannot provide a sufficient explanation, the contracting authority should be entitled to reject the tender. This allows these tenderers to contribute to a more accurate assessment as to whether the successful tenderer will be able to fully perform the contract under the conditions spelled out in the tender documentation. Therefore, this additional information would achieve a more level playing field on the EU public procurement market.

 

_________________

 

13a Directive 20XX/XXX/EU of the European Parliament and of the Council on public procurement (OJ XXX) (2011/0438(COD)).

 

13b Directive 20XX/XXX/EU of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sectors (OJ XXX) (2011/0439(COD)).

Amendment  22

Proposal for a regulation

Recital 20

Text proposed by the Commission

Amendment

(20) The Commission should be able, on its own initiative or at the application of interested parties or a Member State, to initiate at any time an external procurement investigation into restrictive procurement practices allegedly maintained by a third country. In particular it shall take into account the fact that the Commission has approved a number of intended exclusions concerning a third country pursuant to Article 6(2) of this Regulation. Such investigative procedures should be without prejudice to Council Regulation (EC) No 3286/94 of 22 December 1994 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community's rights under international trade rules, in particular those established under the auspices of the World Trade Organization14.

(20) The Commission should be able, on its own initiative or at the application of interested parties or a Member State, to initiate at any time an external investigation into restrictive procurement and concessions practices allegedly maintained by a third country. Such investigative procedures should be without prejudice to Council Regulation (EC) No 3286/94 of 22 December 1994 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community's rights under international trade rules, in particular those established under the auspices of the World Trade Organization14..

________________

________________

14.OJ L 349, 31.12.1994

14.OJ L 349, 31.12.1994

Justification

Alignment with provisions to forge a closer link between the procedure set out in Article 6 and Article 8.

Amendment  23

Proposal for a regulation

Recital 21

Text proposed by the Commission

Amendment

(21) Where the Commission has, on the basis of information available to it, reason to believe that a third country has adopted or maintains a restrictive procurement practice, it should be able to start an investigation. If the existence of a restrictive procurement practice in a third country is confirmed the Commission should invite the country concerned to enter into consultations with a view to improving the tendering opportunities for economic operators, goods and services in public procurement in that country.

(21) Where the Commission has, on the basis of information available to it, reason to believe that a third country has adopted or maintains a restrictive procurement and concession practice, it should be able to start an investigation. If the existence of a restrictive procurement practice in a third country is confirmed the Commission should invite the country concerned to enter into consultations with a view to improving the tendering opportunities for economic operators, goods and services in public procurement in that country.

Justification

Alignment with the European Parliament's position in the trilogue negotiations on the Public Procurement and the Concessions Directive.

Amendment  24

Proposal for a regulation

Recital 22

Text proposed by the Commission

Amendment

(22) If the consultations with the country concerned do not lead to sufficient improvement in the tendering opportunities for EU economic operators, goods and services, the Commission should take appropriate restrictive measures.

(22) If the consultations with the country concerned do not lead to sufficient improvement in the tendering opportunities for EU economic operators, goods and services within a reasonable timeframe or remedial/corrective measures taken by the third country concerned are not considered satisfactory, the Commission should take appropriate restrictive measures.

Justification

By this amendment the rapporteur would like to avoid an endless consultation procedure (aligning recital with the deletion of Article 9(3(, subparagraph 3).

Amendment  25

Proposal for a regulation

Recital 23

Text proposed by the Commission

Amendment

(23) Such measures may entail the mandatory exclusion of certain third-country goods and services from public procurement procedures in the European Union, or may subject tenders made up of goods or services originating in that country to a mandatory price penalty. To avoid circumvention of these measures, it may also be necessary to exclude certain foreign-controlled or owned juridical persons established in the European Union, that are not engaged in substantive business operations such that it has a direct and effective link with the economy of a Member State concerned. Appropriate measures should not be disproportionate to the restrictive procurement practices to which they respond.

(23) Such measures may entail the mandatory exclusion of certain third-country goods and services from public procurement procedures or procedures for the award of concessions in the European Union, or may subject tenders made up of goods or services originating in that country to a mandatory price penalty. To avoid circumvention of these measures, it may also be necessary to exclude certain foreign-controlled or owned juridical persons established in the European Union, that are not engaged in substantive business operations such that it has a direct and effective link with the economy of a Member State concerned. Appropriate measures should not be disproportionate to the restrictive procurement practices to which they respond and should apply for a maximum period of five years, which can be extended for another five years.

Justification

By this amendment the rapporteur would like to limit the mandatory exclusion of certain third-country goods and services to 5 years.

Amendment  26

Proposal for a regulation

Recital 24 a (new)

Text proposed by the Commission

Amendment

 

(24a) It is also imperative that, in view of an appropriate integration of environmental, social and labour requirements, contracting authorities take relevant measures to ensure compliance with obligations in the fields of environmental, social and labour law that apply at the place where the works are executed and result from international obligations, laws, regulations, decrees and decisions, at both national and Union level, as well as from collective agreements.

Amendment  27

Proposal for a regulation

Recital 26

Text proposed by the Commission

Amendment

(26) In the light of the overall policy of the Union with regard to least-developed countries as provided for, inter alia, in Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences from 1 January 2009, it is appropriate to assimilate goods and services from these countries to Union goods and services.

(26) In the light of the overall policy objective of the Union to support the economic growth of developing countries and their integration into the global value chain, which is the basis for the establishment by the Union of a generalised system of preferences as outlined in the European Parliament and Council Regulation (EU) No 978/2012, it is appropriate to assimilate goods and services from least-developed countries benefitting from the "Everything But Arms" arrangement as well as goods and services from developing countries considered to be vulnerable due to a lack of diversification and insufficient integration within the international trading system as defined respectively in Annexes IV and VII to Regulation (EU) No 978/2012, to Union goods and services.

Justification

By this amendment the rapporteur would like to exclude LDCs and potential GSP+ beneficiary countries out of the scope of the regulation.

Amendment  28

Proposal for a regulation

Recital 27

Text proposed by the Commission

Amendment

(27) In order to reflect in the legal order of the European Union the international market access commitments undertaken in the field of public procurement after the adoption of this Regulation, the Commission should be empowered to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union amendments to the list of international agreements annexed to this Regulation. It is of particular importance that the Commission should carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and the Council.

(27) In order to reflect in the legal order of the European Union the international market access commitments undertaken in the field of public procurement and concessions after the adoption of this Regulation, the Commission should be empowered to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union amendments to the list of international agreements annexed to this Regulation. It is of particular importance that the Commission should carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  29

Proposal for a regulation

Recital 30

Text proposed by the Commission

Amendment

(30) The Commission should report at least every three years on the application of this Regulation.

(30) The Commission should report at least every three years on the application of this Regulation. In its report, the Commission should assess the functioning of this Regulation as well as the progress made in achieving reciprocity in the opening of public procurement markets. Together with the second report on the application of this Regulation, due at the latest six years following this Regulation's entry into force, the Commission should either submit a proposal to improve this Regulation or set out the reasons why, in the Commission's view, no changes to this Regulation are needed. In the event that the Commission neither submits a proposal nor sets out the reasons why no changes are needed to this Regulation, this Regulation should cease to apply.

Justification

By this amendment the rapporteur would like to introduce a review clause.

Amendment  30

Proposal for a regulation

Recital 31

Text proposed by the Commission

Amendment

(31) In accordance with the principle of proportionality, it is necessary and appropriate for achievement of the basic objective of establishing a common external policy in the field of public procurement to lay down rules on the treatment of goods and services not covered by the international commitments of the European Union. This Regulation on the access of third-country economic operators, goods and services does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with the third paragraph of Article 5 of the Treaty on European Union,

(31) In accordance with the principle of proportionality, it is necessary and appropriate for achievement of the basic objective of establishing a common external policy in the field of public procurement and concessions to lay down rules on the treatment of goods and services not covered by the international commitments of the European Union. This Regulation on the access of third-country economic operators, goods and services does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with the third paragraph of Article 5 of the Treaty on European Union,

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  31

Proposal for a regulation

Article 1 – paragraph 1

Text proposed by the Commission

Amendment

1. This Regulation lays down rules on the access of third-country goods and services to the award of contracts for the execution of works or a work, the supply of goods and the provision of services by Union contracting authorities/entities, and establishes procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries.

1. This Regulation lays down rules on the access of third-country goods and services to the award of contracts for the execution of works or a work, the supply of goods and the provision of services by Union contracting authorities/entities, and establishes procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries. Member States or their contracting authorities/entities may restrict the access of third country goods and services to their tendering procedures only by measures provided for in this Regulation or by relevant Union law.

Amendment  32

Proposal for a regulation

Article 1 – paragraph 2 – subparagraph 2

Text proposed by the Commission

Amendment

This Regulation shall apply to the award of contracts where the goods or services are procured for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods or in the provision of services for commercial sale.

This Regulation shall apply to the award of contracts where the goods or services are procured for governmental purposes and to the award of concessions for services provided for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods or in the provision of services for commercial sale.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation. There are no concessions for the supply of goods.

Amendment  33

Proposal for a regulation

Article 2 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) ‘supplier’ means any natural or legal person which offers on the market goods;

(a) 'economic operator' means any natural or legal person or public entity or group of such persons and/or entities which offers the execution of works or a work, the supply of products or the provision of services on the market;

Justification

Alignment with the European Parliament's position in the negotiations on the Public Procurement Directive.

Amendment  34

Proposal for a regulation

Article 2 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) ‘service provider’ means any natural or legal person which offers on the market the execution of works or a work, or services;

(b) 'tenderer' means an economic operator that has submitted a tender;

Justification

Alignment with the European Parliament's position in the negotiations on the Public Procurement Directive.

Amendment  35

Proposal for a regulation

Article 2 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d) ‘covered goods or services’ means a good or service originating in a country with which the Union has concluded an international agreement in the field of public procurement including market access commitments and in respect of which the relevant agreement applies. Annex I to this Regulation contains a list of relevant agreements;

(d) ‘covered goods or services’ means a good or service originating in a country with which the Union has concluded an international agreement in the field of public procurement and concessions including market access commitments and in respect of which the relevant agreement applies. Annex I to this Regulation contains a list of relevant agreements;

 

(This amendment applies to the whole of the legislative text (addition of the reference to concessions whenever public procurement is mentioned); adoption of the regulation will entail technical changes throughout the text.)

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  36

Proposal for a regulation

Article 2 – paragraph 2 – point b

Text proposed by the Commission

Amendment

(b) the term ‘economic operator’ shall cover equally the concepts of supplier and service provider;

deleted

Justification

Alignment with the European Parliament's position in the negotiations on the Public Procurement Directive.

Amendment  37

Proposal for a regulation

Article 2 – paragraph 2 – point c

Text proposed by the Commission

Amendment

(c) an economic operator who has submitted a tender shall be designated a ‘tenderer’;

deleted

Justification

Alignment with the European Parliament's position in the negotiations on the Public Procurement Directive.

Amendment  38

Proposal for a regulation

Article 2 – paragraph 2 – point e

Text proposed by the Commission

Amendment

(e) a ‘mandatory price penalty’ shall refer to an obligation for contracting entities to increase, subject to certain exceptions, the price of services and/or goods originating in certain third countries that have been offered in contract award procedures.

(e) a ‘mandatory price penalty’ shall refer to an obligation for contracting entities to increase, subject to certain exceptions, the price of services and/or goods originating in certain third countries that have been offered in contract award procedures or concession award procedures.

 

(This amendment applies to the entire legislative text under consideration (addition of the reference to ‘concession award procedures’ whenever there is mention of ‘contract award procedures’, in the singular or the plural); if it is adopted, technical adjustments will have to be made throughout the text.)

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1(2)). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  39

Proposal for a regulation

Article 2 – paragraph 1– point g a (new)

Text proposed by the Commission

Amendment

(ga) ‘lack of substantial reciprocity’ means the existence of any legislative, regulatory or administrative measure, procedure or practice, adopted or performed by public authorities or individual procuring entities in a third country, restricting access to public procurement or concession markets, in particular by a lack of transparency compared to international standards and discriminatory legislative provisions and administrative practices, which results in serious and recurrent discriminatory treatment against Union economic operators, goods or services.

 

A ‘lack of substantial reciprocity’ shall also be presumed, where the non-observance of international labour law provisions listed in Annex XI to the Directive on public procurement [...] 2013 and in Annex XIV to the Directive on procurement by entities operating in the water, energy, transport and postal services sectors [...] (2013) by public authorities have led to difficulties encountered by European undertakings and reported to the Commission, when those European undertakings have tried to secure the award of contracts and concessions in third countries.

Amendment  40

Proposal for a regulation

Article 3 – paragraph 1

Text proposed by the Commission

Amendment

1. The origin of a good shall be determined in accordance with Article 22 to 26 of Regulation (EC) No 2913/1992 of the European Parliament and of the Council of 12 October 1992 establishing the Community Customs Code18.

1. The origin of a good shall be determined in accordance with Article 59 to 63 of Regulation (EU) No 952/2013 of the European Parliament and of the Council, including the additional provisions to be adopted under Article 65 thereof.

__________________

 

18 OJ L 302, 19.10.1992, p. 1

 

Justification

The Regulation 2012/0027(COD) laying down the Union Customs Code (Recast) is currently being finalised and will repeal and replace Regulation (EC) No 450/2008 (Modernised Customs Code) as well as Regulation (EC) No 2913/1992. It should be voted in plenary in September and should enter into force by 1.11.2013.

Amendment  41

Proposal for a regulation

Article 3 – paragraph 2 – subparagraph 1 – introductory part

Text proposed by the Commission

Amendment

The origin of a service shall be determined on the basis of the origin of the natural or legal person providing it. The origin of the service provider shall be deemed to be:

The origin of a service shall be determined on the basis of the origin of the natural or legal person providing it. The origin of the economic operator providing the service shall be deemed to be:

Justification

Alignment with the European Parliament's position in the negotiations on the Public Procurement Directive.

Amendment  42

Proposal for a regulation

Article 4

Text proposed by the Commission

Amendment

Treatment of covered goods and services

Treatment of covered goods and services

When awarding contracts for the execution of works and/or a work, the supply of goods or the provision of services, contracting authorities/entities shall treat covered goods and services equally to goods and services originating in the European Union.

When awarding contracts for the execution of works and/or a work, the supply of goods or the provision of services, or when awarding work and services concessions, contracting authorities/entities shall treat covered goods and services equally to goods and services originating in the Union.

Goods or services originating in least-developed countries listed in Annex I to Regulation (EC) No 732/2008 shall be treated as covered goods and services.

Goods or services originating in least-developed countries listed in Annex IV to Regulation (EU) No 978/2012 of the European Parliament and of the Council or in developing countries considered to be vulnerable due to a lack of diversification and insufficient integration within the international trading system and in the world economy as defined in Annex VII to Regulation (EU) No 978/2012 shall be treated as covered goods and services.

Justification

By this amendment the rapporteur would like to exclude LDCs and potential GSP+ beneficiary countries from the scope of the regulation.

Amendment  43

Proposal for a regulation

Article 6 – paragraph 1

Text proposed by the Commission

Amendment

1. Upon request of contracting authorities/entities the Commission shall assess whether to approve, for contracts with an estimated value equal or above EUR 5.000.000 exclusive of value-added tax (VAT) the exclusion from procedures for the award of contracts tenders comprising goods or services originating outside the Union, if the value of the non-covered goods or services exceeds 50 % of the total value of the goods or services constituting the tender, under the following conditions.

1. Where the Commission initiates an external procurement investigation as provided for in Article 8, the Commission shall, upon request of contracting authorities/entities and after publication of the notice of the initiation in the Official Journal of the Union, assess whether to approve, for contracts with an estimated value equal or above EUR 5 000 000 exclusive of value-added tax (VAT ) the exclusion from procedures for the award of contracts tenders comprising goods or services originating outside the Union, if the value of the non-covered goods or services exceeds 50 % of the total value of the goods or services constituting the tender, under the following conditions.

Justification

By this amendment the rapporteur would like to forge a closer link between the procedure set out in Article 6 and Article 8.

Amendment  44

Proposal for a regulation

Article 6 – paragraph 2 – subparagraph 1

Text proposed by the Commission

Amendment

Where contracting authorities/entities intend to request the exclusion from procedures for the award of contracts on the basis of paragraph 1 they shall indicate this in the contract notice they publish pursuant to Article 35 of Directive 2004/18/EC or pursuant to Article 42 of Directive 2004/17/EC or Article 26 of the Directive on the award of concession contracts.

Where contracting authorities/entities intend to request the exclusion from procedures for the award of contracts on the basis of paragraph 1 they shall indicate this clearly in the introductory part of the ‘technical specifications’ or of the ‘descriptive document’ as referred to in Article 2(15) of Directives [2014/…/EU] on public procurement and of Directive [2014/…/EU] on procurement by entities operating in the water, energy, transport and postal services sectors, or in the introductory part of the ‘technical and functional requirements’ as referred to in Article 2(13) of Directive [2014/…/EU] on the award of concession contracts.

Amendment  45

Proposal for a regulation

Article 6 – paragraph 2 – subparagraph 3

Text proposed by the Commission

Amendment

Where contracting authorities/entities receive tenders that meet the conditions of paragraph 1 for which they intend to request the exclusion for that reason, they shall notify the Commission. During the notification procedure the contracting authority/entity may continue its analysis of the tenders.

Where contracting authorities/entities receive tenders that meet the conditions of paragraph 1 for which they intend to request the exclusion for that reason, they shall notify the Commission within eight calendar days. During the notification procedure the contracting authority/entity may continue its analysis of the tenders.

Amendment  46

Proposal for a regulation

Article 6 – paragraph 2 – subparagraph 4 – point b

Text proposed by the Commission

Amendment

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

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

Amendment  47

Proposal for a regulation

Article 6 – paragraph 2 – subparagraph 4 – point d a (new)

Text proposed by the Commission

Amendment

(da) where appropriate, any other information deemed useful by the Commission.

Amendment  48

Proposal for a regulation

Article 6 – paragraph 3 – subparagraph 5

Text proposed by the Commission

Amendment

The Commission may ask the contracting authority/entity for additional information.

deleted

Justification

Provisions concerning the time frame for the investigation provided for in Article 8 should be covered under the same article.

Amendment  49

Proposal for a regulation

Article 6 – paragraph 2 – subparagraph 6

Text proposed by the Commission

Amendment

That information shall be provided within eight working days, commencing on the first working day following the date on which it receives the request for additional information. If the Commission receives no information within this period the period established in paragraph 3 shall be suspended, until the Commission receives the requested information.

That information shall be provided within eight calendar days, commencing on the first calendar day following the date on which it receives the request for additional information. If the Commission receives no information within this period the period established in paragraph 3 shall be suspended, until the Commission receives the requested information.

Justification

The rapporteur would like to ensure that the term 'calendar days' is consistently used throughout the proposal instead of variously using 'days', 'calendar days' and 'working days'.

Amendment  50

Proposal for a regulation

Article 6 – paragraph 3

Text proposed by the Commission

Amendment

3. For contracts referred to in paragraph 1, the Commission shall adopt an implementing act concerning the approval of the intended exclusion within a period of two months commencing on the first working day following the date on which it receives the notification. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17 (2). This period may be extended once by a maximum of two months in duly justified cases, in particular if the information contained in the notification or in the documents annexed thereto is incomplete or inexact or if the facts as reported undergo any substantive changes. If, at the end of this two-month period, or the extended period the Commission has not adopted a decision approving or disapproving the exclusion, the exclusion shall be deemed to have been disapproved by the Commission.

3. Where the Commission finds, for the goods and/or services for which the exclusion is proposed, a lack of substantial reciprocity as defined in point (ga) of Article 2(1), it shall adopt an implementing act approving the exclusion of the tenders concerned by the investigation in accordance with the examination procedure referred to in Article 17(2). The implementing act shall be adopted within a period of one month commencing on the first calendar day after a request referred to in paragraph 1. This period may be extended once by a maximum of one month in duly justified cases, in particular if the information contained in the notification or in the documents annexed thereto is incomplete or inexact or if the facts as reported undergo any substantive changes. If, at the end of this one-month period, or the extended period the Commission has not adopted a decision approving or disapproving the exclusion, the exclusion shall be deemed to have been disapproved by the Commission.

 

That exclusion shall be a temporary measure pending the finalisation of the external procurement investigation as provided for in Article 8, the conclusions of the consultation procedure provided for under Article 9 and, where applicable, the adoption of any measures limiting access of non-covered goods and services to the Union public procurement market under Article 10.

Justification

The rapporteur would like to ensure that the term 'calendar days' is consistently used throughout the proposal instead of variously using 'days', 'calendar days' and 'working days'. In addition, the rapporteur would like to shorten the length of the procedures throughout the proposal to provide faster protection.

Amendment  51

Proposal for a regulation

Article 6 – paragraph 4 – subparagraph 1 – point b

Text proposed by the Commission

Amendment

(b) where an agreement referred to in point (a) does not exist and the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned.

(b) where an agreement referred to in point (a) does not exist and the third country maintains restrictive procurement or concession award measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned, notably where those restrictive measures are detrimental to the Union's industrial policy.

Amendment  52

Proposal for a regulation

Article 6 – paragraph 4 – subparagraph 2

Text proposed by the Commission

Amendment

For the purposes of point (b), a lack of substantial reciprocity is presumed where restrictive procurement measures result in serious and recurring discriminations of Union economic operators, goods and services.

deleted

Justification

This paragraph is replaced by the new Article 2 paragraph 2 point e a (new).

Amendment  53

Proposal for a regulation

Article 6 – paragraph 5

Text proposed by the Commission

Amendment

5. When assessing whether a lack of substantial reciprocity exists, the Commission shall examine the following:

deleted

(a) to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union goods, services and economic operators;

 

(b) to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operators.

 

Justification

This paragraph is replaced by the new Article 2 paragraph 2 point e a (new).

Amendment  54

Proposal for a regulation

Article 6 – paragraph 7

Text proposed by the Commission

Amendment

7. Contracting authorities/entities which have excluded tenders pursuant to paragraph 1 shall indicate this in the contract award notice they publish pursuant to Article 35 of Directive 2004/18/EC, Article 42 of Directive 2004/17/EC, or Article 27 of the Directive on the award of concession contracts. The Commission shall adopt implementing acts establishing the standard forms for contract award notices. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 17 (3).

deleted

Justification

To be in line with new procedure set by Article 6.

Amendment  55

Proposal for a regulation

Article 6 – paragraph 8

Text proposed by the Commission

Amendment

8. Paragraph 1 shall not apply where the Commission has adopted the implementing act on temporary access of the goods and services from a country engaged in substantive negotiations with the Union as set out in Article 9(4).

8. Paragraph 1 may not apply where the Commission has adopted the implementing act on temporary access of the goods and services from a country engaged in negotiations with the Union as set out in Article 9(4). The Commission shall duly justify its corresponding decision to the contracting entity that submitted the application.

Amendment  56

Proposal for a regulation

Article 7 – paragraph 1

Text proposed by the Commission

Amendment

Where the contracting authority/entity intends, under Article 69 of the Directive on public procurement or under Article 79 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors, after verifying the explanations of the tenderer, to accept an abnormally low tender comprising goods and/or services originating outside the Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of the goods or services constituting the tender, it shall inform the other tenderers of this in writing, including the reasons for the abnormally low character of the price or costs charged.

Where the contracting authority/entity intends, under Article 69 of the Directive on public procurement or under Article 79 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors, after verifying the explanations of the tenderer, to accept an abnormally low tender comprising goods and/or services originating outside the Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of the goods or services constituting the tender, it shall inform the other tenderers of this in writing, including the reasons for the abnormally low character of the price or costs charged. Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex XI to the Directive on public procurement [...] 2013.

Amendment  57

Proposal for a regulation

Article 7 – paragraph 2

Text proposed by the Commission

Amendment

A contracting authority/entity may withhold any information release of it would impede law enforcement, would otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of economic operators, whether public or private, or might prejudice fair competition between them.

After being informed by the contracting authority/entity of their intention to accept an abnormally low tender, the other tenderers shall have the possibility to provide relevant information to the contracting authority/entity within a reasonable period of time in order to allow the contracting authority/entity to take a decision on the acceptance in full knowledge of potential factors which might have an influence on the assessment of the abnormally low character of the price or costs charged.

Amendment  58

Proposal for a regulation

Article 8 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

Where the Commission considers it to be in the interest of the Union, it may at any time, on its own initiative or upon application of interested parties or a Member State, may initiate an external procurement investigation into alleged restrictive procurement measures.

The Commission may at any time, on its own initiative or upon application of interested parties, contracting authority/entity or a Member State, may initiate an external procurement investigation into alleged restrictive procurement measures. In its decision to initiate an external procurement investigation, the Commission shall take into account the number of requests made by contracting authorities/entities or Member States. In the event that the Commission declines to initiate an investigation, it shall duly justify its decision to the Member State, interested party or the contracting entity that submitted the application.

Amendment  59

Proposal for a regulation

Article 8 – paragraph 1 – subparagraph 2

Text proposed by the Commission

Amendment

In particular, the Commission shall take into account whether a number of intended exclusions have been approved pursuant to Article 6(3) of this Regulation.

deleted

Amendment  60

Proposal for a regulation

Article 8 – paragraph 2

Text proposed by the Commission

Amendment

2. The investigation referred to in paragraph 1 is conducted on the basis of the criteria laid down in Article 6.

2. The investigation referred to in paragraph 1 is conducted on the basis of the criteria laid down in Article 2 g a.

Amendment  61

Proposal for a regulation

Article 8 – paragraph 3

Text proposed by the Commission

Amendment

3. The assessment by the Commission of whether restrictive procurement measures are maintained by the third country concerned shall be made on the basis of the information supplied by interested parties and Member States and/or facts collected by the Commission during its investigation, and shall be concluded within a period of nine months after the initiation of the investigation. In duly justified cases this period may be extended by three months.

3. The assessment by the Commission of whether restrictive procurement measures are maintained by the third country concerned shall be made on the basis of the information supplied by interested parties and Member States and/or facts collected by the Commission during its investigation, or its regular reports on existing trade barriers in third countries, and shall be concluded within a period of three months after the initiation of the investigation. In duly justified cases this period may be extended by one month.

 

The assessment by the Commission shall take into account the requests made by contracting authorities/entities for investigations under article 6 paragraph 1 after initiating the procedure laid down in this article.

Justification

The rapporteur would like to shorten the length of the procedures throughout the proposal to provide faster protection.

Amendment  62

Proposal for a regulation

Article 9 – paragraph 3 – subparagraph 1

Text proposed by the Commission

Amendment

When, after the initiation of a consultation, the country concerned takes satisfactory remedial/corrective measures, but without undertaking new market access commitments, the Commission may suspend or terminate the consultation.

When, after the initiation of a consultation, the country concerned takes satisfactory remedial/corrective measures, but without undertaking new market access commitments, the Commission may suspend or terminate the consultation or invite the country concerned to enter into negotiations under Article 9(4).

Amendment  63

Proposal for a regulation

Article 9 – paragraph 3 – subparagraph 3 – introductory part

Text proposed by the Commission

Amendment

Where the remedial/corrective measures taken by the third country concerned are rescinded, suspended or improperly implemented, the Commission may:

Where the remedial/corrective measures taken by the third country concerned are rescinded, suspended or improperly implemented, the Commission acts under Article 10 to adopt implementing acts to limit the access of goods and services originating in a third country.

Justification

By this amendment the rapporteur would like to avoid an endless consultation procedure.

Amendment  64

Proposal for a regulation

Article 9 – paragraph 3 – subparagraph 3 – point i

Text proposed by the Commission

Amendment

(i) resume or restart the consultation with the third country concerned, and/or

deleted

Justification

By this amendment the rapporteur would like to avoid an endless consultation procedure.

Amendment  65

Proposal for a regulation

Article 9 – paragraph 3 – subparagraph 3 – point ii

Text proposed by the Commission

Amendment

(ii) act under Article 10 to adopt implementing acts to limit the access of goods and services originating in a third country

deleted

Justification

By this amendment the rapporteur would like to avoid an endless consultation procedure.

Amendment  66

Proposal for a regulation

Article 9 – paragraph 4

Text proposed by the Commission

Amendment

4. Where, after the initiation of a consultation, it appears that the most appropriate means to end a restrictive procurement practice is the conclusion of an international agreement, negotiations shall be carried out in accordance with the provisions of Articles 207 and 218 of the Treaty on the Functioning of the European Union. If a country has engaged in substantive negotiations with the European Union concerning market access in the field of public procurement, the Commission may adopt an implementing act providing that goods and services from that country cannot be excluded from procedures for the award of contracts pursuant to Article 6.

4. Where, after the initiation of a consultation, it appears that the most appropriate means to end a restrictive procurement practice is the conclusion of an international agreement, negotiations shall be carried out in accordance with the provisions of Articles 207 and 218 of the Treaty on the Functioning of the European Union. If a country has engaged in negotiations with the European Union concerning market access in the field of public procurement, the Commission may adopt an implementing act providing that goods and services from that country cannot be excluded from procedures for the award of contracts pursuant to Article 6. The Commission shall duly justify its corresponding decision to the Member State, interested party or the contracting entity that submitted the application.

Amendment  67

Proposal for a regulation

Article 9 – paragraph 5 – subparagraph 1

Text proposed by the Commission

Amendment

The Commission may terminate the consultation if the country concerned undertakes international commitments agreed with the Union in any of the following frameworks:

The Commission may terminate the consultation if the country concerned has undertaken with the Union or at international level the following measures:

Amendment  68

Proposal for a regulation

Article 9 – paragraph 5 – subparagraph 1 – point a (new)

Text proposed by the Commission

Amendment

 

(a) international commitments have been agreed with the European Union in any of the following frameworks:

Amendment  69

Proposal for a regulation

Article 9 – paragraph 5 – subparagraph 1 – point a iii

Text proposed by the Commission

Amendment

(iii) Expansion of its market access commitments undertaken under the WTO Government Procurement Agreement (GPA) or under a bilateral agreement concluded with the Union in that framework,

(iii) Expansion of its market access commitments undertaken under the WTO Government Procurement Agreement (GPA) or under a bilateral agreement concluded with the Union in that framework, and

Amendment  70

Proposal for a regulation

Article 9 – paragraph 5 – subparagraph 1 – point b (new)

Text proposed by the Commission

Amendment

 

(b) corrective measures have been adopted by the country concerned.

Amendment  71

Proposal for a regulation

Article 9 – paragraph 6

Text proposed by the Commission

Amendment

6. In the event that a consultation with a third country does not lead to satisfactory results within 15 months from the day the consultation with the third country started, the Commission shall terminate the consultation and consider acting under Article 10 to adopt implementing acts to limit the access of goods and services originating in a third country.

6. In the event that a consultation with a third country does not lead to satisfactory results within 12 months from the calendar day the consultation with the third country started, the Commission shall terminate the consultation and consider acting under Article 10 to adopt implementing acts to limit the access of goods and services originating in a third country.

Justification

The rapporteur would like to shorten the length of the procedures throughout the proposal to provide faster protection.

Amendment  72

Proposal for a regulation

Article 10 – paragraph 1

Text proposed by the Commission

Amendment

1. Where it is found in an investigation pursuant to Article 8, and after following the procedure foreseen in Article 9, that restrictive procurement measures adopted or maintained by that third country leads to an lack of substantial reciprocity in market opening between the Union and the third country as referred to in Article 6, the Commission may adopt implementing acts to temporarily limit the access of non-covered goods and services originating in a third country. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17(2).

1. Where it is found in an investigation pursuant to Article 8, and after following the procedure foreseen in Article 9, that there is an lack of substantial reciprocity in market opening between the Union and the third country as referred to in point (ga) of Article 2(1), the Commission may adopt implementing acts to temporarily limit the access of non-covered goods and services originating in a third country for up to five years, which can be extended for another five years. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17(2).

Justification

By this amendment the rapporteur would like to limit the mandatory exclusion of certain third-country goods and services to 5 years.

Amendment  73

Proposal for a regulation

Article 10 – paragraph 3 – introductory part

Text proposed by the Commission

Amendment

Measures adopted pursuant to paragraph 1 may in particular be limited to:

The Commission shall not approve an intended exclusion where it would violate market access commitments entered into by the Union in its international agreements. Measures adopted pursuant to paragraph 1 may in particular be limited to:

Amendment  74

Proposal for a regulation

Article 11 – paragraph 1 – subparagraph 2

Text proposed by the Commission

Amendment

 

If the measures adopted pursuant to Article 9(4) and Article 10 have not in the meantime been suspended or repealed, they shall expire five years after their entry into force.

Justification

By this amendment the rapporteur would like to limit the mandatory exclusion of certain third-country goods and services to 5 years.

Amendment  75

Proposal for a regulation

Article 13 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. Contracting authorities/entities may decide not to apply the measures pursuant to Article 10 with respect to a procurement procedure if:

1. Contracting authorities/entities may request the Commission not to apply the measures pursuant to Article 10 with respect to a procurement procedure if:

Justification

This change is needed due to the closer link between Article 6 and Article 8 and the respective changes therein.

Amendment  76

Proposal for a regulation

Article 13 – paragraph 1 – subparagraph 2 (new)

Text proposed by the Commission

Amendment

If, after 15 calendar days, the Commission has not adopted a decision approving or disapproving such a request, the request shall be deemed to have been disapproved by the Commission. In exceptional circumstances, that deadline may be extended by a further maximum period of five calendar days.

Justification

This change is needed due to the closer link between Article 6 and Article 8 and the respective changes therein.

Amendment  77

Proposal for a regulation

Article 13 – paragraph 2 – subparagraph 1

Text proposed by the Commission

Amendment

Where a contracting authority/entity intends not to apply measures adopted pursuant to Article 10 of this Regulation, or reinstated pursuant to Article 11, it shall indicate its intention in the contract notice that it shall publish pursuant to Article 35 of Directive 2004/18/EC or Article 42 of Directive 2004/17/EC. It shall notify the Commission no later than ten calendar days after the publication of the contract notice.

Where a contracting authority/entity intends not to apply measures adopted pursuant to Article 10 of this Regulation, or reinstated pursuant to Article 11, it shall indicate its intention in the contract notice that it shall publish pursuant to Article 35 of Directive 2004/18/EC or Article 42 of Directive 2004/17/EC.

Justification

This change is needed due to the closer link between Article 6 and Article 8 and the respective changes therein.

Amendment  78

Proposal for a regulation

Article 13 – paragraph 2 – subparagraph 2

Text proposed by the Commission

Amendment

This notification shall be sent by electronic using a standard form. The Commission shall adopt implementing acts establishing the standard forms for contract notices and notification in accordance with the advisory procedure referred to in Article 17 (3).

The Commission shall adopt implementing acts establishing the standard forms for contract notices in accordance with the advisory procedure referred to in Article 17 (3).

Justification

This change is needed due to the closer link between Article 6 and Article 8 and the respective changes therein.

Amendment  79

Proposal for a regulation

Article 13 – paragraph 2 – subparagraph 3

Text proposed by the Commission

Amendment

The notification shall contain the following information:

deleted

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

 

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

 

(c) information on the origin of the economic operators, the goods and/or services to be admitted;

 

(d) the ground on which the decision not to apply the restrictive measures is based, and a detailed justification for the use of the exception;

 

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

 

Justification

This change is needed due to the closer link between Article 6 and Article 8 and the respective changes therein.

Amendment  80

Proposal for a regulation

Article 15 – paragraph 3

Text proposed by the Commission

Amendment

3. The delegation of power referred to in Article 14may be revoked at any time by the European Parliament or by the Council. A revocation decision shall put an end to the delegation of the power specified in that decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

3. The delegation of power referred to in Article 14 may be revoked at any time by the European Parliament or by the Council. A revocation decision shall put an end to the delegation of the power specified in that decision. It shall take effect on the calendar day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

Justification

The rapporteur would like to ensure that the term 'calendar days' is consistently used throughout the proposal instead of variously using 'days', 'calendar days' and 'working days'.

Amendment  81

Proposal for a regulation

Article 16 a (new)

Text proposed by the Commission

Amendment

 

Article 16a

 

Procurement conditions in connection with Union-funded programmes in third countries.

 

In connection with public procurements funded by the European Union and its Member States, the Commission shall ensure that a binding regulatory framework intended to govern the award and performance of public contracts is introduced. In that connection, the Union shall adopt uniform rules to ensure fair conditions of competition between Union and third country economic operators.

Amendment  82

Proposal for a regulation

Article 18 – paragraph 2

Text proposed by the Commission

Amendment

2. Neither the Commission nor the Council, nor the European Parliament nor Member States, nor their officials shall reveal any information of a confidential nature received pursuant to this Regulation, without specific permission from the supplier of such information.

deleted

Justification

This paragraph is replaced by the new Paragraph 18 paragraph 4 a (new).

Amendment  83

Proposal for a regulation

Article 18 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

 

4a. Under no circumstances shall information received pursuant to this Regulation and declared by the provider of the information to be of a confidential nature be revealed, unless the provider gives his specific permission.

Amendment  84

Proposal for a regulation

Article 19 – paragraph 1

Text proposed by the Commission

Amendment

By 1 January 2017 and at least every three years after the entry into force of this Regulation, the Commission shall submit a report to the European Parliament and the Council on the application of this Regulation and on progress made in international negotiations regarding access for EU economic operators to public contract award procedures in third countries undertaken under this Regulation. To this effect, Member States shall upon request provide the Commission with appropriate information.

At least every three years after the entry into force of this Regulation, the Commission shall submit a report to the European Parliament and the Council on the application of this Regulation and on progress made in international negotiations regarding access for EU economic operators to public contract award procedures in third countries undertaken under this Regulation. To this effect, Member States shall upon request provide the Commission with appropriate information. When the Commission submits its second report, it shall also submit to the European Parliament and to the Council a legislative proposal for an amended Regulation or set out the reasons why, in its view, no changes are necessary. Should the Commission not comply with these obligations, the Regulation shall cease to apply at the end of the second year following the submission of the second report.

Justification

By this amendment the rapporteur would like to introduce a review clause.

Amendment  85

Proposal for a regulation

Article 20

Text proposed by the Commission

Amendment

Articles 58 and 59 of Directive 2004/17/EC shall be repealed with effect from the entry into force of this Regulation.

The Commission shall assess whether Articles 58 and 59 of Directive 2004/17/EC are to be maintained. In view of the conclusions of that assessment, the Commission shall submit a legislative proposal repealing those Articles with effect from the entry into force of this Regulation.

Justification

Articles 58 and 59 of Directive 2004/17/EC (Utilities Directive) have been maintained by the European Parliament in the revised proposal for the Utilities Directive, given that the outcome of the negotiations on this Regulation is still unclear. To avoid any legal vacuum, there should not be an automatic repeal of those articles. The EC should be empowered to make an assessment to check whether if it is relevant to repeal those articles. Such decision will be taken depending on this assessment. A decision to repeal articles of another legislative text does not seem to be possible with the notion of delegated acts as defined in article 290 of the Treaty on the Functioning of the EU, as delegated acts should only refer to non-essential parts of a legislative text and concern modifications to be made on the legislative text being examined, not on another legislative text (cross-reference). The EP has to be associated with this decision. Therefore if legally speaking the use of delegated acts is not possible, the repeal of articles 58 and 59 should be made via a legislative proposal.


EXPLANATORY STATEMENT

On 21 March 2012 the Commission put forward the so-called International Procurement Initiative: a proposal for regulation to restrict access to the EU public procurement market for third countries not offering reciprocal access to their markets. The Commission’s aim is to create some leverage in bilateral trade negotiations with third countries on opening up public procurement markets. Article III: 8 of the GATT and Article XIII of GATS exclude government procurement from the main WTO multilateral disciplines. Many third countries are reluctant to open their public procurement markets to international competition at all, or to open markets further than what they have already done. As a result, EU economic operators face restrictive procurement practices in many of the trading partners of the Union.

In addition to ongoing trade negotiations with major trading partners (such as the US, Canada, Japan or India) and commitments taken by 15 Parties of the plurilateral Government Procurement Agreement (GPA) (1) - having being revised and waiting for approval by Council and Parliament - the proposed regulation intends to complement the EU's ongoing efforts to open up public procurement markets for EU companies in third countries.

Opening-up public procurement markets

There seems to be an increasing mismatch between, on the one hand, the legal openness of EU's public procurement markets, the EU's ambitions and interests in this area, and, on the other hand, restrictive practices by major trading partners.

The EU's public procurement market is de jure largely open to international competition, which reflects the EU's commitment to free trade. According to the Commission(2), EU public procurement share is estimated between 15 and 20% of EU’s GDP, while 85 % of European markets are open for an amount of € 352 billion, against 32 % of those of the United States for an amount of € 178 billion, and 28 % of the Japanese ones for an amount of € 27 billion. However, some experts’ - as outlined in the detailed appraisal of Commission's impact assessment by the Parliament(3) - claim that the Commission might have miscalculated the relative degree of openness of the EU procurement markets in its impact assessment of the proposal. They suggest that the focus should have been on the de facto openness measured by penetration rate. It should be noted in this context, that the penetration rate depends on a variety of factors such as market size, linguistic barriers, technology (including specialization), other determinants of comparative advantage influence import penetration, but also the mode through which foreign firms participate in the EU procurement market, namely through the participation of foreign affiliates in public procurement markets. This is relatively high in the EU (indirect penetration).

In general, public procurement markets constitute a strong offensive interest of the EU in trade negotiations with third countries, since many EU companies are highly competitive in various sectors.

It has become obvious that many third countries are reluctant to open up their procurement markets to EU companies. Moreover, the Commission witnessed an increasing number of protectionist measures taken by third countries in recent years, which de facto or de jure restrict access to their respective public procurement markets. This includes protectionist requirements such as imposing technology transfers as a condition for the award of public contracts or local content requirements.

So far, the EU has only succeeded to a limited extent in opening up public procurement markets through trade agreements. The GPA has only a few signatories' countries - major emerging economies such as India, Brazil and China do not show much appetite for joining the GPA in the near future. Despite the revision of the GPA, the GPA still contains various exceptions and does not systematically commit all levels of government. Bilateral Free Trade Agreements (FTA) of the EU with third countries often also contain exemptions to access to public procurement markets for European companies. Given that the EU public procurement markets are largely open to foreign bidders, it has been proved difficult for the Commission to achieve commitments by third countries in this area in trade negotiations.

An issue for action at EU level?

The possibility to restrict market access for third countries not engaging in trade negotiations with the EU aims at creating some leverage in trade negotiations with third countries to open up their public procurement markets. This can be done in full compliance with WTO law as public procurement is not covered by WTO multilateral agreements. As the EU would have the possibility to close their public procurements markets temporarily and partly for companies for third countries, which applies restrictive procurement measures, the Commission believes that this should give an incentive to third countries to start negotiations on this matter with the EU.

Market access to public procurement by companies from third countries is part of the EU's Common Commercial Policy (CCP), which falls under the exclusive competence of the Union. There are currently only two specific cases in which the EU has restricted this access by giving the possibility to Member States (or their contracting entities) to reject bids from third countries: in the utilities sector (e.g. telecommunications postal services, water, energy), Directive 2004/17/EC provides for the possibility for contracting entities to reject foreign goods not covered by any EU international commitments from its tender procedure or to give preference to European tenders and tenders covered by EU’s international obligations, in cases of equivalent offers. In the area of defence, a recital in the Defence Procurement Directive (2009/81/EC) confirms it is up to Member States to decide whether their contracting authorities can accept bids from third countries or not.

Increasingly, economic operators from third countries, which maintain important restrictions or conditionality to access to their public procurement markets and, hence, do not provide for reciprocal access, are bidding in EU public procurement proceedings. This situation has led to some Member States taking unilaterally measures to restrict access by economic operators of third countries, with which the EU has not signed any market access commitments. National or regional measures restricting access to public procurement markets for third country measures are likely to undermine the principle of uniformity of the CCP and run counter to the Union's exclusive competence in this field as stated in Article 3(1)(e) TFEU.

Furthermore, the EU has agreed on explicit market access reservation taken by the EU with third countries in the framework of a number of trade agreements. The Commission claims that for the sake of legal clarity and transparency, these reservations need to be transposed into EU law. Any restrictions should be clearly stipulated by the contracting authorities and must be subject to approval of the EU Commission to maintain uniformity of the CCP and its application. The instrument provides for a legal basis to adopt implementing acts, which transpose these market restrictions, and, thereby, increase transparency of public procurement markets.

Improving the proposed regulation

The proposal has been jointly put forward by Commissioner Barnier and Commissioner de Gucht, who have both stated that they strongly believe in the need for endowing the Union with such an instrument.

However, reactions in the Council have been mixed: with a block of Member States supporting the proposal, and an equally important block of Member States not perceiving a need for action and rejecting the idea as they consider the instrument a protectionist measure, which might have negative repercussions on the global trade (notably by possible retaliation measures by powerful third countries). Unfortunately, the Council has not been able to break this deadlock and advance discussions on the substance of the proposal. The rapporteur would like to suggest a couple of amendments, which may help to bridge the gap between fierce opponents and strong advocates of the proposal:

Assess its impact and review the instrument: In the rapporteur's view, no substantiated answer has been provided to the question, whether the regulation will contribute to further opening public procurement markets or will be a protectionist instrument. To reject the regulation in its entirety on that ground would be questionable, however. Therefore, the rapporteur suggests incorporating a review clause, which obliges the Commission to look into the impact of the regulation, after it has come into force and being applied for a couple of years, and revise it accordingly. For the same reason, the rapporteur suggests to limit the application of any restrictive measures taken through an implementing act to up to 5 years (similar to provisions in the EU Trade Defence Regulations) as to avoid that these measures turn into a permanent closure of the market.

Protect the principle of uniformity of the CCP: As mentioned above, Articles 58 and 59 of the Directive 2004/17/EC provide for excluding suppliers of particular goods and services from third countries from public procurement markets. Those provisions should cease to apply once the regulation comes into force. In addition, there are national and/or regional provisions in various Member States. To prevent distortion of the internal market, and, at the same time ensure efficient leverage to be brought about by the CCP, it should be clearly stated in the Regulation that Member States or their contracting authorities are not able to restrict access of third country goods and services by any other means than the ones provided in this Regulation.

Avoid fragmentation of the internal market: There is a risk that Article 6 as proposed by the Commission will lead to a fragmentation of the internal market, whereby a contracting authority in one Member State may request to exclude a certain foreign bidder on the basis of this article, while the same bidder may compete for a similar project with other companies in another Member State. Therefore, it should be made clear that contracting authorities can only take action to request measures for restricting access to their public procurement market for certain third countries if the Commission has decided to launch an investigation on the lack of substantial reciprocity by the third country concerned. For the same reason, contracting authorities must not be able to use the exceptions provided for in Article 13 to avoid applying the measures taken by the Union without being strictly monitored by the Commission. A mechanism is needed enabling the Commission to prohibit, if not duly justified, a contracting authority from evoking an exception.

Avoid harming developing countries: There is a risk that developing countries could be the unintended victims of this instrument given that, because of their economic situation, some developing countries are not yet in a position to open up their public procurement markets. The proposal already excludes Least-Developed Countries from its scope. The rapporteur suggests enlarging the scope of developing countries not covered by the instrument. In order to be coherent with the overall EU trade policy, existing EU trade legislation should be taken as the reference for defining EU's trade relations with such countries. For this purpose, the GSP Regulation provides a comprehensive and nuanced framework(4). While it would be contra-productive to the aim of the proposal to exclude from the scope of the Regulation all countries, which are not (yet) developed economies, further differentiation is needed: developing countries, which are considered to be vulnerable due to a lack of diversification and insufficient integration within the international trading system, should also be excluded from the scope of this instrument.

(1)

These are Armenia, Canada, EU with regard to its 28 Member States, Hong Kong, Iceland, Israel, Japan, Korea, Liechtenstein, Norway, Singapore, Switzerland, Taiwan, United States, Netherlands on behalf of Aruba.

(2)

Source: European Commission’s press release: External public procurement initiative - Frequently Asked Questions, 21 March 2012.

(3)

Source: Third countries' reciprocal access to EU public procurement - detailed appraisal by the EP Impact Assessment Unit of the European Commission's Impact Assessment, June 2013.

(4)

Regulation (EU) No. 978/2012 of 25 October 2012 applying a scheme of generalised tariff preferences.


OPINION OF THE COMMITTEE ON THE INTERNAL MARKET AND CONSUMER PROTECTION(*) (22.10.2013)

for the Committee on International Trade

on the proposal for a regulation of the European Parliament and of the Council on the access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries

(COM(2012)0124 – C7-0084/2012 – 2012/0060(COD))

Rapporteur(*): Frank Engel

(*)       Associated committee – Rule 50 of the Rules of Procedure

SHORT JUSTIFICATION

Objective of the proposal

In March 2012 the European Commission adopted the present proposal for a Regulation, which constitutes the first attempt to establish a comprehensive external public procurement policy for the European Union.

In legal terms, the main objective of the proposal is to increase the leverage of the European Union in international trade negotiations, with a view to achieving improved market access opportunities for European economic operators in third countries' public procurement markets. In political terms, this is a crucial opportunity for the European Union to communicate its determination to ensure equal treatment and, hence, level the playing field in an area where its interests are stronger and more diverse than any other player's on the global trade scene today.

This is a message of particular importance, especially against the backdrop of the economic crisis, during which the European Union has persistently resisted the adoption of protectionist measures as well as any backtracking in its international commitments. In consistency with that approach, this proposal states the obvious: The EU is indeed facing higher and tougher competition - sometimes even unfair - from its trading partners; instead of closing down its public procurement market to foreign operators, it claims for equal market access opportunities for its own operators and goods abroad.

This proposal for a Regulation provides for a series of mechanisms including consultations with the Member State concerned giving the possibility to remedy the problems of restrictive procurement practices. It is only when these mechanisms have failed to solve the issue that the restrictive measures foreseen in this proposal come into play.

Internal market aspects

Up to now, contracting authorities have been lacking a clear framework to be able to apply the international commitments of the European Union in the field of public procurement. This proposal will change the fragmented approach followed by different Member States, where individual decisions were taken to block access of third country goods and services to the national public procurement market. Instead, the centralised system will ensure a uniform treatment of third country goods and services.

The IMCO Committee has been allocated only very few competences in the elaboration of this Regulation. As a consequence, this opinion is limited to mostly non-substantial provisions.

In particular, the Articles falling under the exclusive competence of the IMCO committee are the following:

Article 6 Paragraph 7 - Empowerment of contracting authorities/entities to exclude tenders comprising non-covered goods and services: Publication of exclusions of tenders and establishing of the standard forms for contract notices.

Article 17 Paragraph 3 - Committee procedure: - Competence of the Advisory Committee in accordance with the Council decision 71/306/EWG

Art. 20 - Repeals: repealing of the articles 58 and 59 of 2004/17/EC

The articles on which the IMCO Committee has shared competence with the INTA Committee are the following:

Article 2 : Definitions

Article 7: Abnormally low tenders

Article 17 Paragraph 1: Committee procedure

Article 18: Confidentiality

Article 19: Reporting

Rapporteur’s position

Among others, your Rapporteur proposes a number of amendments concerning the definitions in Article 2. These amendments aim at bringing the definitions of this proposal in line with the definitions that have been agreed by the IMCO Committee in its position ahead of the negotiations on the Classic Public Procurement Directive (A7-0007/2013).

Furthermore, your Rapporteur proposes to provide for more legal clarity and certainty with regard to Art. 7, paragraph 1 and the related Recital 19 on the possibility for other tenderers to submit additional information in case of an intended acceptance of an abnormally low tender.

Finally, your Rapporteur advises to link the first reporting obligation by the Commission to the future date of entry into force of this Regulation instead of referring to a precise - but possibly too early or too late - date (01 January 2017) as foreseen by the Commission proposal.

AMENDMENTS

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

Amendment  86

Proposal for a regulation

Title

Text proposed by the Commission

Amendment

Proposal for a

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries

on the access of third-country goods and services to the Union’s internal market in public procurement and concessions and procedures supporting negotiations on access of Union goods and services to the public procurement and concession markets of third countries

(Text with EEA relevance)

(Text with EEA relevance)

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  87

Proposal for a regulation

Recital 1

Text proposed by the Commission

Amendment

(1) Article 21 of the Treaty on European Union provides that the Union is to define and pursue common policies and actions, and work for a high degree of cooperation in all fields in international relations in order, inter alia, to encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade.

(1) Article 21 of the Treaty on European Union provides that the Union is to define and pursue common policies and actions, and work for a high degree of cooperation in all fields in international relations in order, inter alia, to safeguard its values, fundamental interests, security, independence and integrity and to encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade.

Amendment  88

Proposal for a regulation

Recital 5

Text proposed by the Commission

Amendment

(5) Within the context of the World Trade Organisation and through its bilateral relations the Union advocates an ambitious opening of international public procurement markets of the Union and its trading partners, in a spirit of reciprocity and mutual benefit.

(5) Within the World Trade Organisation and within the framework of its bilateral relations, the Union supports an ambitious international opening of the public procurement and concession markets of the Union and of its trade partners, in a spirit of reciprocity and mutual benefit.

Justification

Following the negotiations on the public procurement directives and the directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation. At international level, only works concessions are currently regulated.

Amendment  89

Proposal for a regulation

Recital 6

Text proposed by the Commission

Amendment

(6) Many third countries are reluctant to open their public procurement markets to international competition, or to open those markets further than what they have already done. As a result, Union economic operators face restrictive procurement practices in many of the trading partner of the Union. Those restrictive procurement practices result in the loss of substantial trading opportunities.

(6) Many third countries are reluctant to open their public procurement and concession markets to international competition, or to open those markets further than what they have already done. As a result, Union economic operators face restrictive procurement and concessions practices in many of the trading partners of the Union. Those restrictive practices result in the loss of substantial trading opportunities.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  90

Proposal for a regulation

Recital 8

Text proposed by the Commission

Amendment

(8) In accordance with Article 207 TFEU the common commercial policy in the field of public procurement is to be based on uniform principles.

(8) In accordance with Article 207 TFEU the common commercial policy in the field of public procurement and concessions is to be based on uniform principles.

Amendment  91

Proposal for a regulation

Recital 9

Text proposed by the Commission

Amendment

(9) In the interest of legal certainty for Union and third-country economic operators and contracting authorities/entities, the international market access commitments undertaken by the Union vis-à-vis third countries in the field of public procurement should be reflected in the legal order of the EU, thereby ensuring effective application thereof. The Commission should issue guidance on the application of the existing international market access commitments of the European Union. This guidance should be updated on a regular basis and provide easy to use information.

(9) In the interest of legal certainty for Union and third-country economic operators and contracting authorities/entities, the international market access commitments undertaken by the Union vis-à-vis third countries in the field of public procurement and concessions should be reflected in the legal order of the EU, thereby ensuring effective application thereof. The Commission should issue guidance on the application of the existing international market access commitments of the European Union. This guidance should be updated on a regular basis and provide easy to use information.

Justification

Following the negotiations on the public procurement directives and the directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation. At international level, only works concessions are currently regulated.

Amendment  92

Proposal for a regulation

Recital 10

Text proposed by the Commission

Amendment

(10) The objectives of improving the access of EU economic operators to the public procurement markets of certain third countries protected by restrictive procurement measures and preserving equal conditions of competition within the European Single Market require that the treatment of third-country goods and services not covered by the international commitments of the Union be harmonised throughout the European Union.

(10) The objectives of improving the access of Union economic operators to the public procurement and concession markets of certain third countries protected by restrictive procurement measures and preserving equal conditions of competition within the European Single Market require that the treatment of third-country supplies and services not covered by the international commitments of the Union be harmonised throughout the Union.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  93

Proposal for a regulation

Recital 11

Text proposed by the Commission

Amendment

(11) For this purpose rules of origin should be established so that contracting authorities/entities know whether goods and services are covered by the international commitments of the European Union. The origin of a good should be determined in accordance with Article 22 to 26 of Regulation (EC) No 2913/1992 of the European Parliament and of the Council of 12 October 1992 establishing the Community Customs Code2. According to this Regulation goods should be considered to be Union goods when they are wholly obtained or produced in the Union. Goods whose production involved one or more third countries should be deemed to originate in the country where they underwent their last, substantial, economically justified processing or working in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing an important stage of manufacture. The origin of a service should be determined on the basis of the origin of the natural or legal person providing it. The guidance referred to in recital 9 should cover the application in practice of the rules of origin.

(11) For this purpose rules of origin should be established so that contracting authorities/entities know whether goods and services are covered by the international commitments of the European Union. The origin of a good should be determined in accordance with Article 52 to 55 of Regulation (EU) No 952/2013 of the European Parliament and of the Council2a, including the additional provisions to be adopted under Article 55. According to this Regulation goods should be considered to be Union goods when they are wholly obtained or produced in the Union. Goods whose production involved one or more third countries should be deemed to originate in the country where they underwent their last, substantial, economically justified processing or working in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing an important stage of manufacture. The origin of a service should be determined on the basis of the origin of the natural or legal person providing it. The guidance referred to in recital 9 should cover the application in practice of the rules of origin.

_______________

______________

2 OJ L 302, 19.10.1992, p. 1

 

 

2a Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 269, 10.10.2013).

Amendment  94

Proposal for a regulation

Recital 12

Text proposed by the Commission

Amendment

(12) The Commission should assess whether to approve that contracting authorities/entities within the meaning of Directives [2004/17/EC, 2004/18/EC and Directive [….] of the European Parliament and the Council of [….]….on the award of concession contracts] exclude, for contracts with an estimated value equal or above EUR 5.000.000 from procedures for the award of contracts goods and services not covered by the international commitments undertaken by the European Union.

(12) The Commission should assess whether to approve that contracting authorities/entities within the meaning of Directives [2004/17/EC, 2004/18/EC and Directive [….] of the European Parliament and the Council of [….]….on the award of concession contracts] exclude, for procedures for the award of contracts or concessions with an estimated value equal or above EUR 5.000.000 from procedures for the award of contracts goods and services not covered by the international commitments undertaken by the European Union.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  95

Proposal for a regulation

Recital 13

Text proposed by the Commission

Amendment

(13) For the sake of transparency, contracting authorities/entities intending to make use of their power in accordance with this Regulation to exclude tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services from procedures for the award of contracts should inform economic operators thereof in the contract notice published in the Official Journal of the European Union.

(13) For the sake of transparency, contracting authorities/entities intending to make use of their power in accordance with this Regulation to exclude tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services from procedures for the award of contracts or concessions should inform economic operators thereof in the contract notice published in the Official Journal of the European Union.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  96

Proposal for a regulation

Recital 15

Text proposed by the Commission

Amendment

(15) For contracts with an estimated value equal or above EUR 5.000.000 the Commission should approve the intended exclusion if the international agreement concerning market access in the field of public procurement between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union. Where such an agreement does not exist, the Commission should approve the exclusion where the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. A lack of substantial reciprocity should be presumed where restrictive procurement measures result in serious and recurring discriminations of EU economic operators, goods and services.

(15) For contracts and concessions with an estimated value equal or above EUR 5.000.000 the Commission should approve the intended exclusion if the international agreement concerning market access in the field of public procurement or concessions between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union. Where such an agreement does not exist, the Commission should approve the exclusion where the third country maintains restrictive measures in the field of procurement or the award of concessions leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. A lack of substantial reciprocity should be presumed where restrictive measures in the field of procurement or the award of concessions result in serious and recurring discriminations of EU economic operators, goods and services.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  97

Proposal for a regulation

Recital 15 a (new)

Text proposed by the Commission

Amendment

 

(15a) The concept of substantial reciprocity is a key concept for the application of this Regulation and it should be clearly defined. Its absence should, inter alia, be presumed when the third country has not undertaken any commitments, either in a bilateral or a multilateral context, to allow for access of Union economic operators, goods or services to its public procurement markets or to the award of concession contracts ensuring equal and transparent treatment for and prohibiting any kind of discrimination against Union economic operators, goods or services; or when its laws, regulations or practices allow for de jure or de facto discrimination against Union economic operators, goods or services.

Amendment  98

Proposal for a regulation

Recital 16

Text proposed by the Commission

Amendment

(16) When assessing whether a lack of substantial reciprocity exists, the Commission should examine to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union goods, services and economic operators. In addition, it should examine to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operators.

(16) When assessing whether a lack of substantial reciprocity exists, the Commission should examine to what degree the laws on public procurement and concessions of the country concerned ensure transparency in line with international standards in the field of public procurement and concessions and preclude any discrimination against Union goods, services and economic operators. In addition, it should examine to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operators.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation. At international level, only works concessions are currently regulated.

Amendment  99

Proposal for a regulation

Recital 17

Text proposed by the Commission

Amendment

(17) The Commission should be able to prevent the possible negative impact of an intended exclusion on on-going trade negotiations with the country concerned. Therefore, the Commission may, where a country is engaging in substantive negotiations with the Union concerning market access in the field of public procurement and the Commission considers that there is a reasonable prospect of removing the restrictive procurement practices in the near future, it should be able to adopt a implementing act providing that goods and services from that country should not be excluded from procedures for the award of contracts for a period of one year.

(17) The Commission should be able to prevent the possible negative impact of an intended exclusion on on-going trade negotiations with the country concerned. Therefore, the Commission may, where a country is engaging in substantive negotiations with the Union concerning market access in the field of public procurement or concessions and the Commission considers that there is a reasonable prospect of removing the restrictive procurement or concessions practices in the near future, it should be able to adopt an implementing act providing that goods and services from that country should not be excluded from procedures for the award of contracts for a period of one year.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  100

Proposal for a regulation

Recital 18

Text proposed by the Commission

Amendment

(18) In view of the fact that the access of third country goods and services to the public procurement market of the Union falls within the scope of the common commercial policy, Member States or their contracting authorities/entities should not be able to restrict the access of third country goods or services to their tendering procedures by any other measure than the ones provided for in this Regulation.

(18) In view of the fact that the access of third country goods and services to the public procurement and concession market of the Union falls within the scope of the common commercial policy, Member States or their contracting authorities/entities should not be able to restrict the access of third country goods or services to their tendering procedures by any other measure than the ones provided for in this Regulation.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  101

Proposal for a regulation

Recital 19

Text proposed by the Commission

Amendment

(19) In view of the greater difficulty for contracting authorities/entities to assess, in the context of tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services, the explanations of tenderers it is appropriate to provide for an increased transparency in the treatment of abnormally low tenders. In addition to the rules provided by Article 69 of the Directive on public procurement and Article 79 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors the contracting authority/entity that intends to accept such an abnormally low tender, should inform the other tenderers of this in writing including the reasons for the abnormally low character of the price or costs charged. This allows these tenderers to contribute to a more accurate assessment as to whether the successful tenderer will be able to fully perform the contract under the conditions spelled out in the tender documentation. Therefore, this additional information would achieve a more level playing field on the EU public procurement market.

(19) In view of the greater difficulty for contracting authorities/entities to assess, in the context of tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services, the explanations of tenderers it is appropriate to provide for an increased transparency in the treatment of abnormally low tenders. Tenders that appear abnormally low in relation to the works, supplies or services might be based on technically, economically or legally unsound assumptions or practices. In addition to the rules provided by Article 69 of Directive 20XX/XXX/EU of the European Parliament and of the Council13a and Article 79 of Directive 20XX/XXX/EU of the European Parliament and of the Council13b the contracting authority/entity that intends to accept such an abnormally low tender, should inform the other tenderers of this in writing including the reasons for the abnormally low character of the price or costs charged. Where the tenderer cannot provide a sufficient explanation, the contracting authority should be entitled to reject the tender. This allows these tenderers to contribute to a more accurate assessment as to whether the successful tenderer will be able to fully perform the contract under the conditions spelled out in the tender documentation. Therefore, this additional information would achieve a more level playing field on the EU public procurement market.

 

_________________

 

13a Directive 20XX/XXX/EU of the European Parliament and of the Council on public procurement (OJ XXX) (2011/0438(COD)).

 

13b Directive 20XX/XXX/EU of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sectors (OJ XXX) (2011/0439(COD)).

Amendment  102

Proposal for a regulation

Recital 20

Text proposed by the Commission

Amendment

(20) The Commission should be able, on its own initiative or at the application of interested parties or a Member State, to initiate at any time an external procurement investigation into restrictive procurement practices allegedly maintained by a third country. In particular it shall take into account the fact that the Commission has approved a number of intended exclusions concerning a third country pursuant to Article 6(2) of this Regulation. Such investigative procedures should be without prejudice to Council Regulation (EC) No 3286/94 of 22 December 1994 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community’s rights under international trade rules, in particular those established under the auspices of the World Trade Organisation.

(20) The Commission should be able, on its own initiative or at the application of interested parties or a Member State, to initiate at any time an external investigation into restrictive procurement and concessions practices allegedly maintained by a third country. In particular it shall take into account the fact that the Commission has approved a number of intended exclusions concerning a third country pursuant to Article 6(2) of this Regulation. Such investigative procedures should be without prejudice to Council Regulation (EC) No 3286/94 of 22 December 1994 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community’s rights under international trade rules, in particular those established under the auspices of the World Trade Organisation.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  103

Proposal for a regulation

Recital 21

Text proposed by the Commission

Amendment

(21) Where the Commission has, on the basis of information available to it, reason to believe that a third country has adopted or maintains a restrictive procurement practice, it should be able to start an investigation. If the existence of a restrictive procurement practice in a third country is confirmed the Commission should invite the country concerned to enter into consultations with a view to improving the tendering opportunities for economic operators, goods and services in public procurement in that country.

(21) Where the Commission has, on the basis of information available to it, reason to believe that a third country has adopted or maintains a restrictive procurement or concessions practice, it should be able to start an investigation. If the existence of a restrictive procurement practice in a third country is confirmed the Commission should invite the country concerned to enter into consultations with a view to improving the tendering opportunities for economic operators, goods and services in public procurement in that country.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  104

Proposal for a regulation

Recital 23

Text proposed by the Commission

Amendment

(23) Such measures may entail the mandatory exclusion of certain third-country goods and services from public procurement procedures in the European Union, or may subject tenders made up of goods or services originating in that country to a mandatory price penalty. To avoid circumvention of these measures, it may also be necessary to exclude certain foreign-controlled or owned juridical persons established in the European Union, that are not engaged in substantive business operations such that it has a direct and effective link with the economy of a Member State concerned. Appropriate measures should not be disproportionate to the restrictive procurement practices to which they respond.

(23) Such measures may entail the mandatory exclusion of certain third-country goods and services from public procurement procedures or procedures for the award of concessions in the European Union, or may subject tenders made up of goods or services originating in that country to a mandatory price penalty. To avoid circumvention of these measures, it may also be necessary to exclude certain foreign-controlled or owned juridical persons established in the European Union, that are not engaged in substantive business operations such that it has a direct and effective link with the economy of a Member State concerned. Appropriate measures should not be disproportionate to the restrictive procurement practices to which they respond.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  105

Proposal for a regulation

Recital 26

Text proposed by the Commission

Amendment

(26) In the light of the overall policy of the Union with regard to least-developed countries as provided for, inter alia, in Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences from 1 January 2009, it is appropriate to assimilate goods and services from these countries to Union goods and services.

(26) In the light of the overall policy of the Union with regard to least-developed countries as provided for, inter alia, in Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences from 1 January 2009, it is appropriate to assimilate goods and services from these countries to Union goods and services, in order to provide the necessary economic opportunities for a better integration of their markets in the world economy.

Amendment  106

Proposal for a regulation

Recital 27

Text proposed by the Commission

Amendment

(27) In order to reflect in the legal order of the European Union the international market access commitments undertaken in the field of public procurement after the adoption of this Regulation, the Commission should be empowered to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union amendments to the list of international agreements annexed to this Regulation. It is of particular importance that the Commission should carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and the Council.

(27) In order to reflect in the legal order of the European Union the international market access commitments undertaken in the field of public procurement and concessions after the adoption of this Regulation, the Commission should be empowered to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union amendments to the list of international agreements annexed to this Regulation. It is of particular importance that the Commission should carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  107

Proposal for a regulation

Recital 31

Text proposed by the Commission

Amendment

(31) In accordance with the principle of proportionality, it is necessary and appropriate for achievement of the basic objective of establishing a common external policy in the field of public procurement to lay down rules on the treatment of goods and services not covered by the international commitments of the European Union. This Regulation on the access of third-country economic operators, goods and services does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with the third paragraph of Article 5 of the Treaty on European Union,

(31) In accordance with the principle of proportionality, it is necessary and appropriate for achievement of the basic objective of establishing a common external policy in the field of public procurement and concessions to lay down rules on the treatment of goods and services not covered by the international commitments of the European Union. This Regulation on the access of third-country economic operators, goods and services does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with the third paragraph of Article 5 of the Treaty on European Union,

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  108

Proposal for a regulation

Article 1 – paragraph 1

Text proposed by the Commission

Amendment

1. This Regulation lays down rules on the access of third-country goods and services to the award of contracts for the execution of works or a work, the supply of goods and the provision of services by Union contracting authorities/entities, and establishes procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries.

1. This Regulation lays down rules on the access of third-country goods and services to the award of contracts and concessions for the execution of works or a work, the supply of goods and the provision of services, depending on the kind of contract in question, by Union contracting authorities/entities, and establishes procedures supporting negotiations on access of Union goods and services to the public procurement and concession markets of third countries.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation. There are no supply concessions, hence the addition of ‘depending on the kind of contract in question’.

Amendment  109

Proposal for a regulation

Article 1 – paragraph 2 – subparagraph 2

Text proposed by the Commission

Amendment

This Regulation shall apply to the award of contracts where the goods or services are procured for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods or in the provision of services for commercial sale.

This Regulation shall apply to the award of contracts where the goods or services are procured for governmental purposes and to the award of concessions for services provided for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods or in the provision of services for commercial sale.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation. There are no concessions for the supply of goods.

Amendment  110

Proposal for a regulation

Article 1 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a. This Regulation does not affect the freedom of Member States to define, in conformity with Union law, what they consider to be services of general economic interest, how these services should be organised and financed, in compliance with the State aid rules, and what specific obligations they should be subject to. Equally, this Regulation does not affect the decision of public authorities whether, how and to what extent they want to perform public functions themselves pursuant to Article 14 TFEU and Protocol No 26 on Services of General Interest. This shall also apply to Union's policies towards third countries.

Amendment  111

Proposal for a regulation

Article 2 – paragraph 1 – point -a (new)

Text proposed by the Commission

Amendment

 

(-a) 'economic operator' means any natural or legal person or public entity or group of such persons and/or entities, including temporary associations of undertakings, which offers the execution of works and/or a work, the supply of products or the provision of services on the market;

Justification

Alignment to the developments in the negotiations on the Public Procurement Directive

Amendment  112

Proposal for a regulation

Article 2 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) ‘supplier’ means any natural or legal person which offers on the market goods;

deleted

Justification

Alignment with the Committee's position in the negotiations on the Public Procurement Directive.

Amendment  113

Proposal for a regulation

Article 2 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) ‘service provider’ means any natural or legal person which offers on the market the execution of works or a work, or services;

deleted

Justification

Alignment with the Committee's position in the negotiations on the Public Procurement Directive.

Amendment  114

Proposal for a regulation

Article 2 – paragraph 1 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba) ‘tenderer’ means an economic operator that has submitted a tender;

Justification

Alignment with the Committee's position in the negotiations on the Public Procurement Directive.

Amendment  115

Proposal for a regulation

Article 2 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d) ‘covered goods or services’ means a good or service originating in a country with which the Union has concluded an international agreement in the field of public procurement including market access commitments and in respect of which the relevant agreement applies. Annex I to this Regulation contains a list of relevant agreements;

(d) ‘covered goods or services’ means a good or service originating in a country with which the Union has concluded an international agreement in the field of public procurement and concessions including market access commitments and in respect of which the relevant agreement applies. Annex I to this Regulation contains a list of relevant agreements;

 

(This amendment applies to the whole of the legislative text (addition of the reference to concessions whenever public procurement is mentioned); adoption of the regulation will entail technical changes throughout the text.)

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  116

Proposal for a regulation

Article 2 – paragraph 1 – point g a (new)

Text proposed by the Commission

Amendment

 

(ga) ‘lack of substantial reciprocity’ means the existence of any legislative, regulatory or administrative measure, procedure or practice, adopted or performed by public authorities or individual procuring entities in a third country, restricting access to public procurement or concession markets which results in serious and recurrent discriminatory treatment against Union economic operators, goods or services.

Amendment  117

Proposal for a regulation

Article 2 – paragraph 1 – point g b (new)

Text proposed by the Commission

Amendment

 

(gb) ‘satisfactory remedial or corrective measures’ means removal of the restrictive measures targeted by the European Commission's investigation.

Amendment  118

Proposal for a regulation

Article 2 – paragraph 2 – point b

Text proposed by the Commission

Amendment

(b) the term ‘economic operator’ shall cover equally the concepts of supplier and service provider;

deleted

Justification

Alignment with the Committee's position in the negotiations on the Public Procurement Directive.

Amendment  119

Proposal for a regulation

Article 2 – paragraph 2 – point c

Text proposed by the Commission

Amendment

(c) an economic operator who has submitted a tender shall be designated a ‘tenderer’;

deleted

Justification

Alignment with the Committee's position in the negotiations on the Public Procurement Directive.

Amendment  120

Proposal for a regulation

Article 2 – paragraph 2 – point e

Text proposed by the Commission

Amendment

(e) a ‘mandatory price penalty’ shall refer to an obligation for contracting entities to increase, subject to certain exceptions, the price of services and/or goods originating in certain third countries that have been offered in contract award procedures.

(e) a ‘mandatory price penalty’ shall refer to an obligation for contracting entities to increase, subject to certain exceptions, the price of services and/or goods originating in certain third countries that have been offered in contract award procedures or concession award procedures.

 

(This amendment applies to the whole of the legislative text (addition of the reference to ‘concession award procedures’ whenever there is mention of ‘contract award procedures’, in the singular or the plural); adoption of the regulation will entail technical changes throughout the text.)

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  121

Proposal for a regulation

Article 3 – paragraph 1

Text proposed by the Commission

Amendment

1. The origin of a good shall be determined in accordance with Article 22 to 26 of Regulation (EC) No 2913/1992 of the European Parliament and of the Council of 12 October 1992 establishing the Community Customs Code18.

1. The origin of a good shall be determined in accordance with Article 52 to 55 of Regulation (EU) No 952/2013, including the delegated acts to be adopted under Article 55 of that Regulation.

Amendment  122

Proposal for a regulation

Article 3 – paragraph 2 – subparagraph 1 – introductory part

Text proposed by the Commission

Amendment

The origin of a service shall be determined on the basis of the origin of the natural or legal person providing it. The origin of the service provider shall be deemed to be:

The origin of a service shall be determined on the basis of the origin of the natural or legal person providing it. The origin of the economic operator providing the service shall be deemed to be:

Justification

This change is needed due to the changes in Art 2 (definitions)

Amendment  123

Proposal for a regulation

Article 4 – paragraph 1

Text proposed by the Commission

Amendment

When awarding contracts for the execution of works and/or a work, the supply of goods or the provision of services, contracting authorities/entities shall treat covered goods and services equally to goods and services originating in the European Union.

When awarding contracts for the execution of works and/or a work, the supply of goods or the provision of services, or when awarding concessions for the execution of works or the provision of services, contracting authorities/entities shall treat covered goods and services equally to goods and services originating in the European Union.

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation. There are no concessions for the supply of goods.

Amendment  124

Proposal for a regulation

Article 6 – paragraph 2 – subparagraph 4 – point b

Text proposed by the Commission

Amendment

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

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

 

(This amendment applies to the whole of the legislative text (addition of the term ‘concession’ to the term ‘contract’, in the singular or the plural); adoption of the regulation will entail technical changes throughout the text.)

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  125

Proposal for a regulation

Article 6 – paragraph 4 – subparagraph 1 – point b

Text proposed by the Commission

Amendment

(b) where an agreement referred to in point (a) does not exist and the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned.

(b) where an agreement referred to in point (a) does not exist and the third country maintains restrictive procurement or concession award measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned.

 

(This amendment applies to the whole of the legislative text (addition of ‘concession award’ whenever there is a reference to ‘procurement’); adoption of the regulation will entail technical changes throughout the text.)

Justification

Following the negotiations on the public procurement directives and the new proposal for a directive on concessions, the vocabulary used in this Regulation must be the same as that used in the regulation on concessions, as this Regulation covers both public procurement and concessions (Article 1.2). There are separate legislative instruments for the two kinds of contract; the differences between them must be reflected in this Regulation.

Amendment  126

Proposal for a regulation

Article 6 – paragraph 4 – subparagraph 2

Text proposed by the Commission

Amendment

For the purposes of point (b), a lack of substantial reciprocity is presumed where restrictive procurement measures result in serious and recurring discriminations of Union economic operators, goods and services.

deleted

Justification

Deletion to accompany the new definition of the idea of ‘lack of substantial reciprocity’ (Article 2(1)(ga)) and the elements to be taken into account by the Commission when assessing a ‘lack of substantial reciprocity’ (Article 6(5)).

Amendment  127

Proposal for a regulation

Article 6 – paragraph 5 – point a

Text proposed by the Commission

Amendment

(a) to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union goods, services and economic operators;

(a) to what degree laws, regulations and administrative provisions of the country concerned on public procurement or concessions ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union goods, services and economic operators;

Justification

Extension of the paragraph’s scope to regulatory measures concerning public procurement / concessions beyond pure legislation, which the Commission also needs to take into account when assessing ‘lack of substantial reciprocity’.

Amendment  128

Proposal for a regulation

Article 6 – paragraph 7

Text proposed by the Commission

Amendment

7. Contracting authorities/entities which have excluded tenders pursuant to paragraph 1 shall indicate this in the contract award notice they publish pursuant to Article 35 of Directive 2004/18/EC, Article 42 of Directive 2004/17/EC, or Article 27 of the Directive on the award of concession contracts. The Commission shall adopt implementing acts establishing the standard forms for contract award notices. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 17 (3).

7. Contracting authorities/entities which have excluded tenders pursuant to paragraph 1 shall indicate this, including the reasons for exclusion, in the contract award notice they publish pursuant to Article 35 of Directive 2004/18/EC, Article 42 of Directive 2004/17/EC, or Article 27 of the Directive on the award of concession contracts. The Commission shall adopt implementing acts establishing the standard forms for contract award notices. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 17 (3).

Amendment  129

Proposal for a regulation

Article 7 – paragraph 1

Text proposed by the Commission

Amendment

Where the contracting authority/entity intends, under Article 69 of the Directive on public procurement or under Article 79 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors, after verifying the explanations of the tenderer, to accept an abnormally low tender comprising goods and/or services originating outside the Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of the goods or services constituting the tender, it shall inform the other tenderers of this in writing, including the reasons for the abnormally low character of the price or costs charged.

Where the contracting authority/entity intends, under Article 69 of the Directive on public procurement or under Article 79 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors, after verifying the explanations of the tenderer, to accept an abnormally low tender comprising goods and/or services originating outside the Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of the goods or services constituting the tender, it shall inform the other tenderers of this in writing, including the reasons for the abnormally low character of the price or costs charged given by the concerned tenderer.

 

After being informed by the contracting authority/entity of their intention to accept an abnormally low tender, the other tenderers shall have the possibility to provide relevant information to the contracting authority/entity within a reasonable period of time in order to allow the contracting authority/entity to take a decision on the acceptance in full knowledge of potential factors which might have an influence on the assessment of the abnormally low character of the price or costs charged.

Justification

It should be clarified in the article that the other tenderers which have been informed of the intention of the contracting authority/entity to accept an abnormally low tender have the possibility to give more information to ensure that the decision to accept is made in the most informed possible manner.

Amendment  130

Proposal for a regulation

Article 8 – paragraph 1 – subparagraph 3

Text proposed by the Commission

Amendment

Should an investigation be initiated, the Commission shall publish a notice in the Official Journal of the Union, inviting interested parties and Member States to provide all relevant information to the Commission within a specified period of time.

Should an investigation be initiated, the Commission shall arrange for publication of a notice in the Official Journal of the Union, inviting interested parties and Member States to provide all relevant information to the Commission within a period of three months.

Amendment  131

Proposal for a regulation

Article 8 – paragraph 3

Text proposed by the Commission

Amendment

3. The assessment by the Commission of whether restrictive procurement measures are maintained by the third country concerned shall be made on the basis of the information supplied by interested parties and Member States and/or facts collected by the Commission during its investigation, and shall be concluded within a period of nine months after the initiation of the investigation. In duly justified cases this period may be extended by three months.

3. The assessment by the Commission of whether restrictive procurement measures are maintained by the third country concerned shall be made on the basis of the information supplied by interested parties and Member States and/or facts collected by the Commission during its investigation, and shall be concluded within a period of six months after the initiation of the investigation. In duly justified cases this period may be extended by three months.

Amendment  132

Proposal for a regulation

Article 18 – paragraph 2

Text proposed by the Commission

Amendment

2. Neither the Commission nor the Council, nor the European Parliament nor Member States, nor their officials shall reveal any information of a confidential nature received pursuant to this Regulation, without specific permission from the supplier of such information.

deleted

Justification

This paragraph is replaced by the new Paragraph 18 paragraph 4 a (new).

Amendment  133

Proposal for a regulation

Article 18 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

 

4a. Under no circumstances shall information received pursuant to this Regulation and declared by the provider of the information as of confidential nature, be revealed, unless the provider gives his specific permission.

Amendment  134

Proposal for a regulation

Article 19

Text proposed by the Commission

Amendment

By 1 January 2017 and at least every three years after the entry into force of this Regulation, the Commission shall submit a report to the European Parliament and the Council on the application of this Regulation and on progress made in international negotiations regarding access for EU economic operators to public contract award procedures in third countries undertaken under this Regulation. To this effect, Member States shall upon request provide the Commission with appropriate information.

One year after entry into force of this Regulation and thereafter at least every three years, the Commission shall submit a report to the European Parliament and the Council on the application of this Regulation and on progress made in international negotiations regarding access for EU economic operators to public contract award procedures in third countries undertaken under this Regulation. To this effect, Member States shall upon request provide the Commission with appropriate information.

Amendment  135

Proposal for a regulation

Article 20

Text proposed by the Commission

Amendment

Articles 58 and 59 of Directive 2004/17/EC shall be repealed with effect from the entry into force of this Regulation.

The Commission shall assess whether Articles 58 and 59 of Directive 2004/17/EC shall be maintained. In view of the conclusions of this assessment, the Commission shall submit a legislative proposal repealing those Articles with effect from the entry into force of this Regulation.

Justification

Articles 58 and 59 of Directive 2004/17/EC (Utilities Directive) have been maintained by the European Parliament in the revised proposal for the Utilities Directive, given that the outcome of the negotiations on this Regulation is still unclear. To avoid any legal vacuum, there should not be an automatic repeal of those articles. The EC should be empowered to make an assessment to check whether if it is relevant to repeal those articles. Such decision will be taken depending on this assessment. A decision to repeal articles of another legislative text does not seem to be possible with the notion of delegated acts as defined in article 290 of the Treaty on the Functioning of the EU, as delegated acts should only refer to non-essential parts of a legislative text and concern modifications to be made on the legislative text being examined, not on another legislative text (cross-reference). The EP has to be associated with this decision. Therefore if legally speaking the use of delegated acts is not possible, the repeal of articles 58 and 59 should be made via a legislative proposal.

PROCEDURE

Title

Access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries

References

COM(2012)0124 – C7-0084/2012 – 2012/0060(COD)

Committee responsible

       Date announced in plenary

INTA

20.4.2012

 

 

 

Opinion by

       Date announced in plenary

IMCO

20.4.2012

Associated committee(s) - date announced in plenary

25.10.2012

Rapporteur

       Date appointed

Frank Engel

21.6.2012

Discussed in committee

25.9.2012

21.3.2013

18.6.2013

26.9.2013

Date adopted

17.10.2013

 

 

 

Result of final vote

+:

–:

0:

28

11

0

Members present for the final vote

Pablo Arias Echeverría, Adam Bielan, Preslav Borissov, Jorgo Chatzimarkakis, Sergio Gaetano Cofferati, Birgit Collin-Langen, Lara Comi, Anna Maria Corazza Bildt, António Fernando Correia de Campos, Vicente Miguel Garcés Ramón, Evelyne Gebhardt, Thomas Händel, Małgorzata Handzlik, Eduard-Raul Hellvig, Philippe Juvin, Sandra Kalniete, Edvard Kožušník, Hans-Peter Mayer, Sirpa Pietikäinen, Phil Prendergast, Mitro Repo, Robert Rochefort, Zuzana Roithová, Heide Rühle, Matteo Salvini, Christel Schaldemose, Róża Gräfin von Thun und Hohenstein, Gino Trematerra, Emilie Turunen, Barbara Weiler

Substitute(s) present for the final vote

Raffaele Baldassarre, Regina Bastos, Ashley Fox, María Irigoyen Pérez, Morten Løkkegaard, Patricia van der Kammen

Substitute(s) under Rule 187(2) present for the final vote

Takis Hadjigeorgiou, Linda McAvan, Patrizia Toia


OPINION OF THE COMMITTEE ON DEVELOPMENT (5.11.2013)

for the Committee on International Trade

on the proposal for a regulation of the European Parliament and of the Council on the access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries

(COM(2012)0124 – C7-0084/2012 – 2012/0060(COD))

Rapporteur: Judith Sargentini

SHORT JUSTIFICATION

Commission proposal (COM(2012)0124) intends to restrict access to the EU public procurement market for third countries not offering reciprocal access to their markets.

Your rapporteur has two major concerns regarding this proposal for a regulation:

Firstly, developing countries (DC) risk being the unintended victims of this instrument which would prevent them from using procurement for the development of their domestic industries. The EU's fear of excessive penetration by state-subsidized competitors from some emerging countries should not deprive all DC`s of this right.

Secondly, it is doubtful that this regulation will achieve its intended objectives.

Treatment of developing countries

Even though access to public procurement markets is not a trade issue per se, it constitutes a strong offensive interest of the EU in trade negotiations with third countries, since many EU companies are highly competitive and have a comparative advantage in various sectors Although the proposal excludes least developed countries (LDCs) from its scope, it still applies to middle income developing countries that are included in OECD DAC list.

Moreover, the lack of reference to possible exemptions for policies aimed at promoting small and medium sized companies (SMEs), or even time-limited exemptions for other explicit development policies is particularly worrisome, especially as EU public procurement directives provide provisions to favour European SMEs. The same logic should apply for DC, where SMEs also constitute the backbone of their economic development.

A narrower definition of reciprocity that undermines multilateralism

While EU trade policy has generally been based on the broad definition of reciprocity, - to be understood as the "broad balance of benefits" (as in the GATT/WTO practice) -, the draft regulation proposes a narrower definition (sector-by-sector reciprocity). In this case, "full reciprocity" requires that two countries allow identical access to their respective markets. By doing so, the EU departs from the principle of Special and Differential treatment for DCs and from the multilateral approach, where interests of DCs are better reflected. In return, the risk of retaliation of large trading blocks will perpetuate and could provoke the stalemate in multilateral negotiations.

DCs have refused to sign the WTO Government Procurement Agreement (GPA), as well as the revised GPA of March 2012.

So far, the EU has only succeeded to a limited extent in opening up public procurement markets through trade agreements. Major emerging economies such as India, Brazil and China do not show willingness for joining the GPA in the near future. Hence, this Regulation comes down to an offensive "market opening" strategy that aims to impose on DC what they already refused at the WTO (the so-called "Singapore issues" of 1996).

Liberalisation of DC's procurement markets may lead to spending a substantial share of scarce domestic resources on imports rather than domestically produced goods. Therefore, it is essential that governments of DC - and not foreign actors - take the lead in designing procurement systems to make them effective for development.

Your rapporteur believes that requests made by DC in terms of local establishment, technology transfer and national content requirements as a condition for the award of public contracts should not be seen as discriminatory practices, but a legitimate tool of their development strategy.

Reciprocity rule in public procurement is not consistent with EU's commitments on aid effectiveness that request using country procurement system as the default option

Tying aid has been one of the common practises regarding public procurement policy. In order to end effectively donors' practices of formal and informal aid tying, the Paris Declaration (2005), the Accra Agenda for Action (2008) and Busan Declaration (2011) on aid effectiveness reiterate the principle of using recipient country procurement systems as the default option for aid programmes in support of activities managed by the public sector.

Using country systems on procurement has the advantage of creating ownership and domestic accountability, while it improves the chances for local firms to win contracts. Hence, giving preference to local and regional procurement should be the priority, as it is a smart development tool.

While donors are already lagging behind in the use of country systems, the draft regulation could further hamper EU commitments taken on aid effectiveness.

Furthermore, the rapporteur questions the merits of so-called international procurement initiative on the following ground:

"De jure" openness should not be confused with "de facto" openness.

The proposal rests on the assumption that other countries are less open than EU and have not committed to the opening of the same amount of procurement markets in GPA. However, while the EU's public procurement market is de jure largely open to international competition, the detailed appraisal of Commission's impact assessment by the Parliament(1) outlines that de facto openness is much smaller. In particular, a review of contracts above the thresholds awarded to third-country economic operators in 2011 reveals that these companies could access directly - i.e. not through EU subsidiaries or dealers - only a very small number of contracts (0.2% of all). Even if EU regulation could possibly be effective in prohibiting de jure preferences, it would remain far less effective in dealing with de facto preferences.

In practice, de facto preferences for local suppliers can be achieved i.a. by splitting contracts so that they become below thresholds. Beside, the removal of de facto barriers depends on the willingness of the third country to apply both transparency (to combat corruption) and the refusal to promote national champions. Hence, it is rather doubtful that the Regulation will enable the EU to gain leverage in negotiating genuinely open procurement markets in countries such as China or India, which are the target of this legislation.

Impact on SMEs

The direct benefits for European SMEs will be slim if there are any at all. European SMEs tend to bid for contracts much lower than the proposed threshold of 5 Mio Euro. Cross-border SME procurement participation is also limited. If public procurement markets are opened in the future, the potential benefits for SMEs will mostly be available through sub-contracting and supply chain opportunities, areas that third countries can easily close down - in retaliation - with de facto protectionist measures.

A limited impact to further opening public procurement markets

The current EU legal framework for public procurement already contains provisions regarding third countries in the so-called "utilities directive" (2004/17/EC) and equally foresees provisions for abnormally low tenders. Hence, the possibility to refuse such tender on the basis of reciprocity concerns already exists (although hardly ever used).

Against this background, it is doubtful that the proposed Regulation has a real added value.

******

The Committee on Development calls on the Committee on International Trade, as the committee responsible, to incorporate the following amendments into its report:

Amendment  136

Proposal for a regulation

Recital 12

Text proposed by the Commission

Amendment

(12) The Commission should assess whether to approve that contracting authorities/entities within the meaning of Directives [2004/17/EC, 2004/18/EC and Directive [….] of the European Parliament and the Council of [….]….on the award of concession contracts13] exclude, for contracts with an estimated value equal or above EUR 5.000.000 from procedures for the award of contracts goods and services not covered by the international commitments undertaken by the European Union.

(12) The Commission should assess whether to approve that contracting authorities/entities within the meaning of Directives [2004/17/EC, 2004/18/EC and Directive [….] of the European Parliament and the Council of [….]….on the award of concession contracts13] exclude, for contracts with an estimated value equal or above EUR 5.000.000 from procedures for the award of contracts goods and services not covered by the international commitments undertaken by the European Union. This should not concern procedures for contracting goods and services with countries benefiting from the "Everything But Arms" arrangement listed in Annex IV of the European Parliament and Council Regulation (EU) No 978/2012 applying a scheme of generalised tariff preferences14, and contracting goods and services originating in developing countries as defined in Annex VII of the Regulation (EU) No 978/2012.

__________________

__________________

13 OJ L….

13 OJ L….

 

13a OJ L 303, 31.10.2012, p. 1

Amendment  137

Proposal for a regulation

Recital 26

Text proposed by the Commission

Amendment

(26) In the light of the overall policy of the Union with regard to least-developed countries as provided for, inter alia, in Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences from 1 January 2009, it is appropriate to assimilate goods and services from these countries to Union goods and services.

(26) In the light of the overall policy of the Union aimed at supporting the economic growth of developing countries and their integration in the global economy, which underpins the establishment of the scheme of generalised tariff preferences as set out in the Regulation (EU) No 978/2012 of the European Parliament and of the Council, it is appropriate to assimilate goods and services from least-developed countries benefiting from the ‘Everything but Arms’ arrangement to Union goods and services, and also goods and services originating in developing countries considered to be vulnerable due to a lack of diversification and insufficient integration in the world economy, as defined in Annexes IV and VII respectively of Regulation (EU) No 978/2012.

Justification

This regulation should include a scheme aimed specifically at least-developed countries and vulnerable developing countries.

Amendment  138

Proposal for a regulation

Article 4 – paragraph 2

Text proposed by the Commission

Amendment

Goods or services originating in least-developed countries listed in Annex I to Regulation (EC) No 732/2008 shall be treated as covered goods and services.

Goods or services originating in least-developed countries listed in Annex IV to Regulation (EU) No 978/2012 of the European Parliament and of the Council or in developing countries considered to be vulnerable due to lack of diversification and insufficient integration in the world economy as defined in Annex VII of the Regulation (EU) No 978/2012 shall be treated as covered goods and services.

Amendment  139

Proposal for a regulation

Article 19 – paragraph 1

Text proposed by the Commission

Amendment

By 1 January 2017 and at least every three years after the entry into force of this Regulation, the Commission shall submit a report to the European Parliament and the Council on the application of this Regulation and on progress made in international negotiations regarding access for EU economic operators to public contract award procedures in third countries undertaken under this Regulation. To this effect, Member States shall upon request provide the Commission with appropriate information.

At least every three years after the entry into force of this Regulation, the Commission shall submit a report to the European Parliament and the Council on the application of this Regulation and on progress made in international negotiations regarding access for EU economic operators to public contract award procedures in third countries undertaken under this Regulation. To this effect, Member States shall upon request provide the Commission with appropriate information. When presenting its second report, the Commission shall submit to the European Parliament and the Council a legislative proposal for an amended regulation or set out the reasons why in its view no changes are needed.

PROCEDURE

Title

Access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries

References

COM(2012)0124 – C7-0084/2012 – 2012/0060(COD)

Committee responsible

       Date announced in plenary

INTA

20.4.2012

 

 

 

Opinion by

       Date announced in plenary

DEVE

20.4.2012

Rapporteur

       Date appointed

Judith Sargentini

25.9.2012

Discussed in committee

14.10.2013

5.11.2013

 

 

Date adopted

5.11.2013

 

 

 

Result of final vote

+:

–:

0:

19

6

0

Members present for the final vote

Thijs Berman, Corina Creţu, Véronique De Keyser, Nirj Deva, Leonidas Donskis, Charles Goerens, Mikael Gustafsson, Eva Joly, Miguel Angel Martínez Martínez, Gay Mitchell, Bill Newton Dunn, Andreas Pitsillides, Jean Roatta, Birgit Schnieber-Jastram, Alf Svensson, Ivo Vajgl, Daniël van der Stoep, Anna Záborská, Iva Zanicchi

Substitute(s) present for the final vote

Eduard Kukan, Isabella Lövin, Cristian Dan Preda, Judith Sargentini

Substitute(s) under Rule 187(2) present for the final vote

Bogusław Sonik, María Muñiz De Urquiza

(1)

Source: Third countries' reciprocal access to EU public procurement - detailed appraisal by the EP Impact Assessment Unit of the European Commission's Impact Assessment, June 2013.


OPINION OF THE COMMITTEE ON EMPLOYMENT AND SOCIAL AFFAIRS (24.6.2013)

for the Committee on International Trade

on the proposal for a regulation of the European Parliament and of the Council on the access of third-country goods and services to the Union's internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third-countries

(COM(2012)0124 – C7-0084/2012 – 2012/0060(COD))

Rapporteur: Tamás Deutsch

AMENDMENTS

The Committee on Employment and Social Affairs calls on the Committee on International Trade, as the committee responsible, to incorporate the following amendments in its report:

Amendment  140

Proposal for a regulation

Recital 1

Text proposed by the Commission

Amendment

(1) Article 21 of the Treaty on European Union provides that the Union is to define and pursue common policies and actions, and work for a high degree of cooperation in all fields in international relations in order, inter alia, to encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade.

(1) Article 21 of the Treaty on European Union provides that the Union is to define and pursue common policies and actions, and work for a high degree of cooperation in all fields in international relations in order, inter alia, to encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade; pursuant to the same article the Union should promote democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity and the respect for the principles of the United Nations Charter and international law; the cooperation in the field of international relations should serve to foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty.

Amendment  141

Proposal for a regulation

Recital 5 a (new)

Text proposed by the Commission

Amendment

 

(5a) European Union trade policy should help to reduce poverty worldwide by promoting improved working conditions, health and safety at work and fundamental rights.

Amendment  142

Proposal for a regulation

Recital 6 a (new)

Text proposed by the Commission

Amendment

 

(6a) The EU should not put pressure on third countries in order to push them to privatize public services. Public authorities at all levels should have the right to decide whether, how and to what extend they want to provide public services themselves.

Amendment  143

Proposal for a regulation

Recital 9 a (new)

Text proposed by the Commission

Amendment

 

(9a) Public contracts should not be awarded to economic operators that have participated in a criminal organisation, in exploitation of human trafficking and child labour.

Amendment  144

Proposal for a regulation

Recital 12 a (new)

Text proposed by the Commission

Amendment

 

(12a) Such exclusion should not be made on the basis of the introduction by third countries of sustainable development objectives in their public procurement. Such objectives should be encouraged.

Amendment  145

Proposal for a regulation

Recital 15

Text proposed by the Commission

Amendment

(15) For contracts with an estimated value equal or above EUR 5.000.000 the Commission should approve the intended exclusion if the international agreement concerning market access in the field of public procurement between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union. Where such an agreement does not exist, the Commission should approve the exclusion where the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. A lack of substantial reciprocity should be presumed where restrictive procurement measures result in serious and recurring discriminations of EU economic operators, goods and services.

(15) For contracts with an estimated value equal or above EUR 5.000.000 the Commission should approve the intended exclusion if the international agreement concerning market access in the field of public procurement between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union. Where such an agreement does not exist, the Commission should approve the exclusion where the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. A lack of substantial reciprocity should be presumed where restrictive procurement measures result in serious and recurring discriminations of EU economic operators, goods and services, or paramount economic interests of the Union are at stake, for instance in the field of industry. In the case of serious and repeated violations in the field of fundamental workers' rights, trade unions rights and international law, including fundamental international conventions in the field of labour, social and environmental law, such as ILO Convention No. 94 on labour clauses in public procurement, the Commission should equally consider a restriction of market access for the concerned goods and/or services.

Amendment  146

Proposal for a regulation

Recital 16

Text proposed by the Commission

Amendment

(16) When assessing whether a lack of substantial reciprocity exists, the Commission should examine to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union goods, services and economic operators. In addition, it should examine to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operators.

(16) When assessing whether a lack of substantial reciprocity exists, the Commission should examine to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union goods, services and economic operators. In addition, it should examine to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operators, or jeopardizes the economic interests of the Union for instance in the field of industry.

Amendment  147

Proposal for a regulation

Recital 16 a (new)

Text proposed by the Commission

Amendment

 

(16a) The respect of social, labour and environmental law applicable in the place of work in a third country, including the respect of fundamental international agreements, such as ILO Convention No. 94, should not be seen as discriminatory practice.

Amendment  148

Proposal for a regulation

Recital 16 b (new)

Text proposed by the Commission

Amendment

 

(16b) Measures limiting the market access of third countries should not have disproportionate negative impacts on the social and labour situation in the country concerned, in particular in case of developing countries.

Amendment  149

Proposal for a regulation

Recital 19

Text proposed by the Commission

Amendment

(19) In view of the greater difficulty for contracting authorities/entities to assess, in the context of tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services, the explanations of tenderers it is appropriate to provide for an increased transparency in the treatment of abnormally low tenders. In addition to the rules provided by Article 69 of the Directive on public procurement and Article 79 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors the contracting authority/entity that intends to accept such an abnormally low tender, should inform the other tenderers of this in writing including the reasons for the abnormally low character of the price or costs charged. This allows these tenderers to contribute to a more accurate assessment as to whether the successful tenderer will be able to fully perform the contract under the conditions spelled out in the tender documentation. Therefore, this additional information would achieve a more level playing field on the EU public procurement market.

(19) In view of the greater difficulty for contracting authorities/entities to assess, in the context of tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services, the explanations of tenderers it is appropriate to provide for an increased transparency in the treatment of abnormally low tenders. In addition to the rules provided by Article 69 of the Directive on public procurement and Article 79 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors the contracting authority/entity that intends to accept such an abnormally low tender, should inform the other tenderers of this in writing including the reasons for the abnormally low character of the price or costs charged. Special attention should be paid to the respect of international labour, social and environmental law, including fundamental international conventions, such as ILO Convention No. 94. This allows these tenderers to contribute to a more accurate assessment as to whether the successful tenderer will be able to fully perform the contract under the conditions spelled out in the tender documentation. Therefore, this additional information would achieve a more level playing field on the EU public procurement market.

Amendment  150

Proposal for a regulation

Recital 21

Text proposed by the Commission

Amendment

(21) Where the Commission has, on the basis of information available to it, reason to believe that a third country has adopted or maintains a restrictive procurement practice, it should be able to start an investigation. If the existence of a restrictive procurement practice in a third country is confirmed the Commission should invite the country concerned to enter into consultations with a view to improving the tendering opportunities for economic operators, goods and services in public procurement in that country.

(21) Where the Commission has, on the basis of information available to it, reason to believe that a third country has adopted or maintains a restrictive procurement practice or continues to violate fundamental workers' rights and international law, including fundamental international conventions in the field of labour, social and environmental law, including ILO Convention No. 94, it should be able to start an investigation. If the existence of a restrictive procurement practice or of the above mentioned violations in a third country is confirmed the Commission should invite the country concerned to enter into consultations with a view to improving the tendering opportunities for economic operators, goods and services in public procurement in that country.

Amendment  151

Proposal for a regulation

Recital 23

Text proposed by the Commission

Amendment

(23) Such measures may entail the mandatory exclusion of certain third-country goods and services from public procurement procedures in the European Union, or may subject tenders made up of goods or services originating in that country to a mandatory price penalty. To avoid circumvention of these measures, it may also be necessary to exclude certain foreign-controlled or owned juridical persons established in the European Union, that are not engaged in substantive business operations such that it has a direct and effective link with the economy of a Member State concerned. Appropriate measures should not be disproportionate to the restrictive procurement practices to which they respond.

(23) Such measures may entail the mandatory exclusion of certain third-country goods and services from public procurement procedures in the European Union, or may subject tenders made up of goods or services originating in that country to a mandatory price penalty. To avoid circumvention of these measures, it may also be necessary to exclude certain foreign-controlled or owned juridical persons established in the European Union, that are not engaged in substantive business operations such that it has a direct and effective link with the economy of a Member State concerned. Appropriate measures should not be disproportionate to the restrictive procurement practices to which they respond. They should in particular take into account possible negative impacts on the social, labour and environmental situation in the country concerned, in particular in case of developing countries.

Amendment  152

Proposal for a regulation

Recital 24

Text proposed by the Commission

Amendment

(24) It is imperative that contracting authorities/entities have access to a range of high-quality products meeting their purchasing requirements at a competitive price. Therefore contracting authorities/entities should be able to set aside measures limiting access of non-covered goods and services in case there are no Union and/or covered goods or services available which meet the requirements of the contracting authority/entity to safeguard essential public needs for example health and public safety, or application of the measure would lead to a disproportionate increase in the price or costs of the contract.

(24) It is imperative that contracting authorities/entities have access to a range of high-quality products meeting their purchasing requirements at a competitive price. Therefore contracting authorities/entities should be able to set aside measures limiting access of non-covered goods and services in case there are no Union and/or covered goods or services available which meet the requirements of the contracting authority/entity to safeguard essential public needs for example health and public safety, including social and environmental sustainability characteristics, or application of the measure would lead to a disproportionate increase in the price or costs of the contract.

Amendment  153

Proposal for a regulation

Article 6 – paragraph 2 – subparagraph 1 a (new)

Text proposed by the Commission

Amendment

 

Sustainable development criteria, environment policy and social criteria that support working conditions, health and safety at work and equal treatment shall also be taken into account in relation to the award of public contracts. Such criteria shall be favoured and shall on no account be considered a reason for exclusion.

Amendment  154

Proposal for a regulation

Article 6 – paragraph 2 – subparagraph 2

Text proposed by the Commission

Amendment

Contracting authorities/entities shall require tenderers to provide information on the origin of the goods and/or services contained in the tender, and their value. They shall accept self-declarations as preliminary evidence that tenders cannot be excluded pursuant to paragraph 1. A contracting authority may ask a tenderer at any moment during the procedure to submit all or parts of the required documentation where this appears necessary to ensure the proper conduct of the procedure. The Commission may adopt implementing acts establishing standard forms for declarations concerning the origin of goods and services. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 17 (3).

Contracting authorities/entities shall require tenderers to provide information on the origin of the goods and/or services contained in the tender, and their value. Criteria relating to fundamental workers' rights and international law, including fundamental internationally recognized international conventions, in the field of labour, social and environmental law shall also be taken into account. They shall accept self-declarations as preliminary evidence that tenders cannot be excluded pursuant to paragraph 1. A contracting authority may ask a tenderer at any moment during the procedure to submit all or parts of the required documentation where this appears necessary to ensure the proper conduct of the procedure. The Commission may adopt implementing acts establishing standard forms for declarations concerning the origin of goods and services. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 17 (3).

Amendment  155

Proposal for a regulation

Article 6 – paragraph 2 – subparagraph 4 – point d a (new)

Text proposed by the Commission

Amendment

 

(da) main reasons for the exclusion of goods and/or services.

Amendment  156

Proposal for a regulation

Article 6 – paragraph 4 – subparagraph 1 – point b

Text proposed by the Commission

Amendment

(b) where an agreement referred to in point (a) does not exist and the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned.

(b) where an agreement referred to in point (a) does not exist and the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned, notably where those restrictive measures are detrimental to the economic interest of the Union, such as its industry.

Amendment  157

Proposal for a regulation

Article 6 – paragraph 4 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba) where there is evidence of serious and repeated violations in the field of fundamental workers' rights and international law in the field of labour, social and environmental law, including fundamental internationally recognized international conventions. The respect of social, labour and environmental law applicable in the place of work in the country concerned shall not be considered as a restrictive procurement measure resulting in serious and recurring discriminations of Union economic operators, goods and services.

Amendment 158

Proposal for a regulation

Article 6 – paragraph 5 a (new)

Text proposed by the Commission

Amendment

 

5a. When assessing whether there is evidence of serious and repeated violations in the field of fundamental workers' rights and international law in the field of labour, social and environmental law, including fundamental internationally recognized international conventions, the Commission shall examine to what degree:

 

(a) laws and practices in the country concerned ensure the respect of fundamental workers' rights and international law in the field of labour, social and environmental law;

 

(b) public authorities and/or individual procuring entities maintain or adopt social dumping practices on the concerned goods and services.

Amendment   159

Proposal for a regulation

Article 6 – paragraph 6 a (new)

Text proposed by the Commission

Amendment

 

6a. The impact of trade negotiations on social, environmental and human rights shall be regularly assessed with special attention to promoting decent work and combating structural unemployment. Environment and social policy aspects shall be taken into account when awarding public contracts, the selection criterion of which shall not be the lowest price but the most sustainable tender.

Amendment  160

Proposal for a regulation

Article 7 – paragraph 1

Text proposed by the Commission

Amendment

1. Where the contracting authority/entity intends, under Article 69 of the Directive on public procurement or under Article 79 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors, after verifying the explanations of the tenderer, to accept an abnormally low tender comprising goods and/or services originating outside the Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of the goods or services constituting the tender, it shall inform the other tenderers of this in writing, including the reasons for the abnormally low character of the price or costs charged.

1. Where the contracting authority/entity intends, under Article 69 of the Directive on public procurement or under Article 79 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors, after verifying the explanations of the tenderer, to accept an abnormally low tender comprising goods and/or services originating outside the Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of the goods or services constituting the tender, it shall inform the other tenderers of this in writing, including the reasons for the abnormally low character of the price or costs charged, referring in particular to the respect of fundamental workers' rights and international law, including fundamental internationally recognized international conventions in the field of labour, social and environmental law, notably to avoid any social or environmental or taxation dumping.

Amendment  161

Proposal for a regulation

Article 7 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a. Rules on health and safety at work, working conditions and collective agreements in particular shall also be complied with in the case of abnormally low tenders.

Amendment  162

Proposal for a regulation

Article 8 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a. The Commission shall not penalise third countries which introduce sustainable development objectives in their award criteria; on the contrary, these measures shall be encouraged.

Amendment  163

Proposal for a regulation

Article 9 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

When it is found as a result of an investigation that restrictive procurement measures are maintained by a third country and the Commission considers it to be justified by the EU interest, the Commission shall invite it to enter into consultations with a view to ensuring that Union economic operators, goods and services can participate in tendering procedures for the award of public procurement contracts in that country on the conditions no less favourable than those accorded to national economic operators, goods and services of that country and also with a view also to ensuring the application of the principles of transparency and equal treatment.

When it is found as a result of an investigation that restrictive procurement measures or violations regarding the respect of fundamental workers' rights and international law, including fundamental internationally recognized international conventions in the field of labour, social and environmental law, are maintained by a third country and the Commission considers it to be justified by the EU interest, the Commission shall invite it to enter into consultations with a view to ensuring that Union economic operators, goods and services can participate in tendering procedures for the award of public procurement contracts in that country on the conditions no less favourable than those accorded to national economic operators, goods and services of that country and also with a view also to ensuring the application of the principles of transparency and equal treatment.

Amendment  164

Proposal for a regulation

Article 9 – paragraph 5 – point c a (new)

Text proposed by the Commission

Amendment

 

(ca) respect of internationally recognised social and labour norms and/or law or environmental law;

Amendment  165

Proposal for a regulation

Article 9 – paragraph 5 – point c b (new)

Text proposed by the Commission

Amendment

 

(cb) respect of internationally recognised human rights.

Amendment  166

Proposal for a regulation

Article 9 – paragraph 5 a (new)

Text proposed by the Commission

Amendment

 

5a. The Commission may also terminate the consultation if the country concerned respects fundamental workers' rights and international law, including fundamental internationally recognized international conventions in the field of labour, social and environmental law.

Amendment  167

Proposal for a regulation

Article 10 – paragraph 1

Text proposed by the Commission

Amendment

1. Where it is found in an investigation pursuant to Article 8, and after following the procedure foreseen in Article 9, that restrictive procurement measures adopted or maintained by that third country leads to an lack of substantial reciprocity in market opening between the Union and the third country as referred to in Article 6, the Commission may adopt implementing acts to temporarily limit the access of non-covered goods and services originating in a third country. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17(2).

1. Where it is found in an investigation pursuant to Article 8, and after following the procedure foreseen in Article 9, that restrictive procurement measures adopted or maintained by that third country leads to an lack of substantial reciprocity in market opening between the Union and the third country or the non-respect of fundamental workers' rights and international law, including fundamental internationally recognized international conventions in the field of labour, social and environmental law as referred to in Article 6, the Commission may adopt implementing acts to temporarily limit the access of non-covered goods and services originating in a third country. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17(2).

Amendment  168

Proposal for a regulation

Article 10 – paragraph 2 – point a

Text proposed by the Commission

Amendment

(a) the exclusion of tenders of which more than 50 % of the total value is made up of non-covered goods or services originating in the country adopting or maintaining a restrictive procurement practice; and/or

(a) the exclusion of tenders of which more than 50 % of the total value is made up of non-covered goods or services originating in the country adopting or maintaining a restrictive procurement practice and/or concerned by the non-respect of fundamental workers' rights and international law, including fundamental internationally recognized international conventions, in the field of labour, social and environmental law; and/or

Amendment  169

Proposal for a regulation

Article 10 – paragraph 2 – point b

Text proposed by the Commission

Amendment

(b) a mandatory price penalty on that part of the tender consisting of non-covered goods or services which originate in the country adopting or maintaining a restrictive procurement practice.

(b) a mandatory price penalty on that part of the tender consisting of non-covered goods or services which originate in the country adopting or maintaining a restrictive procurement practice and/or concerned by the non-respect of fundamental workers' rights and international law, including fundamental internationally recognized international conventions in the field of labour, social and environmental law.

Amendment  170

Proposal for a regulation

Article 10 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a. Measures limiting the market access of third countries shall be proportionate and shall not have disproportionate negative impacts on the country concerned, in particular in case of developing countries, but shall be rather designed to foster the local social and labour situation.

PROCEDURE

Title

Access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries

References

COM(2012)0124 – C7-0084/2012 – 2012/0060(COD)

Committee responsible

       Date announced in plenary

INTA

20.4.2012

 

 

 

Opinion by

       Date announced in plenary

EMPL

20.4.2012

Rapporteur

       Date appointed

Tamás Deutsch

24.5.2013

Discussed in committee

20.3.2013

29.5.2013

19.6.2013

 

Date adopted

20.6.2013

 

 

 

Result of final vote

+:

–:

0:

34

7

3

Members present for the final vote

Regina Bastos, Edit Bauer, Heinz K. Becker, Jean-Luc Bennahmias, Phil Bennion, Pervenche Berès, Philippe Boulland, Milan Cabrnoch, David Casa, Alejandro Cercas, Ole Christensen, Derek Roland Clark, Marije Cornelissen, Emer Costello, Frédéric Daerden, Karima Delli, Sari Essayah, Richard Falbr, Thomas Händel, Roger Helmer, Nadja Hirsch, Stephen Hughes, Danuta Jazłowiecka, Martin Kastler, Jean Lambert, Verónica Lope Fontagné, Olle Ludvigsson, Thomas Mann, Csaba Őry, Sylvana Rapti, Licia Ronzulli, Elisabeth Schroedter, Joanna Katarzyna Skrzydlewska, Jutta Steinruck, Traian Ungureanu, Inês Cristina Zuber

Substitute(s) present for the final vote

Georges Bach, Kinga Göncz, Sergio Gutiérrez Prieto, Jelko Kacin, Jan Kozłowski, Ria Oomen-Ruijten, Birgit Sippel

Substitute(s) under Rule 187(2) present for the final vote

Jorgo Chatzimarkakis, Jürgen Klute


OPINION OF THE COMMITTEE ON LEGAL AFFAIRS (20.9.2013)

for the Committee on International Trade

on the proposal for a regulation of the European Parliament and of the Council on the access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries

(COM(2012)0124 – C7-0084/2012 – 2012/0060(COD))

Rapporteur: Raffaele Baldassarre

SHORT JUSTIFICATION

1. The rapporteur's position

1.1 – General remarks

During the WTO negotiations on the revision of the Government Procurement Agreement, as in the free trade negotiations, the EU has always been in favour of opening up international public procurement markets on the basis of the principles of equal treatment, transparency and reciprocity(1). However, most non-EU countries do not have such a level of openness. On the contrary, the worsening of the economic crisis has prompted many countries to adopt protectionist measures which actually aim to close the domestic public procurement market to external tenderers(2).

The asymmetry the Commission has noted in the public procurement market is leading to losses of some EUR 12 billion for European companies, especially in those areas in which they excel(3). If, however, public procurement markets were accessible to EU companies in an equitable manner, some 180 000 jobs would be created.

Your rapporteur agrees, therefore, with the general aim of the proposal – that of strengthening the EU's negotiating position in terms of access of European goods and services to third-country markets.

The importance of the reciprocity principle has, moreover, been stressed on several occasions, both in European Council meetings(4) and by the European Parliament(5).

1.2 Key changes made

Your rapporteur considers it appropriate, in order to ensure that the rules are uniform and consistent, to make certain provisions more stringent and to simplify the substance of the text, which could otherwise where give rise to ambiguities in interpretation.

The key amendments put forward in the draft opinion regard the treatment of non-covered goods and services (Article 6 of the proposal for a regulation). Your rapporteur takes the view that procedures should, on the one hand, be streamlined while on the other, the scope – currently limited to contracts above the defined threshold – should be broadened.

Your rapporteur suggests that the procedure be divided into two separate mechanisms, on the basis of different applicable thresholds.

•   In the first case, the contracting authorities/entities should have the right to exclude from procedures for the award of contracts tenders comprising goods or services originating outside the Union, if the value of the non-covered goods or services exceeds 50 % of the total value of the goods or services constituting the tender(6).

•   In the second case, for contracts with an estimated value equal to or above EUR

5 000 000, the Commission should be able to assess whether or not to approve the proposal by the contracting authorities/entities to exclude third-country tenderers.

As regards the treatment of abnormally low tenders, your rapporteur regrets that the Commission has not proposed any specific, ambitious measures, as called for by Parliament(7). He thus considers it necessary to provide that contracting entities that intend to accept an abnormally low tender must inform the other tenderers of this in writing.

In addition to the main changes set out above, other changes seek to make the provisions more stringent, automatic and rapid, more specifically in relation to the possibility of a consultation with a third country (Article 9) and the Commission's right to adopt restrictive measures, under Article 10. In this regard, your rapporteur takes the view that the non-application of any exclusion of third-country tenderers should take place only after the third country in question has substantially expanded and facilitated access to its public procurement market for tenderers from the EU. At the same time, the adoption of temporary restrictive measures by the Commission should be automatic(8) if, following an investigation and further to a consultation with the third country in question, the Commission determines a lack of substantial reciprocity in market opening between the Union and the third country.

Lastly, with the aim of avoiding any 'interpretative loopholes', your rapporteur considers it necessary to reduce the number of exceptions permitted under Article 13. Accordingly, an amendment removes the option for contracting entities to decide not to apply the restrictive measures under Article 10 where they result in a disproportionate increase in the price and costs of the contract. In keeping with his views on abnormally low tenders, your rapporteur is of the view that quality and sustainability have a legitimate cost.

AMENDMENTS

The Committee on Legal Affairs calls on the Committee on International Trade, as the committee responsible, to incorporate the following amendments in its report:

Amendment  171

Proposal for a regulation

Recital 2

Text proposed by the Commission

Amendment

(2) Pursuant to Article 206 of the Treaty on the Functioning of the European Union (TFEU) the Union, by establishing a customs union, is to contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers.

(2) Pursuant to Article 206 of the Treaty on the Functioning of the European Union (TFEU) the Union, by establishing a customs union, is to contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers. In fulfilling these tasks and in compliance with Article 32 TFEU, the Union draws its inspiration from the need to promote trade between Member States and third countries.

Amendment  172

Proposal for a regulation

Recital 5

Text proposed by the Commission

Amendment

(5) Within the context of the World Trade Organisation and through its bilateral relations the Union advocates an ambitious opening of international public procurement markets of the Union and its trading partners, in a spirit of reciprocity and mutual benefit.

(5) Within the World Trade Organisation and within the framework of its bilateral relations, the Union supports an ambitious international opening of the public procurement markets of the Union and of its trade partners, in a spirit of reciprocity, transparency, equal treatment and mutual benefit.

Amendment  173

Proposal for a regulation

Recital 6

Text proposed by the Commission

Amendment

(6) Many third countries are reluctant to open their public procurement markets to international competition, or to open those markets further than what they have already done. As a result, Union economic operators face restrictive procurement practices in many of the trading partner of the Union. Those restrictive procurement practices result in the loss of substantial trading opportunities.

(6) Many third countries are reluctant to open their public procurement markets to international competition, or to open those markets further than what they have already done. This reluctance has been exacerbated by the economic crisis under way, which has prompted a number of third countries to adopt protectionist policies and protect their own markets to the detriment of foreign economic operators.

Amendment  174

Proposal for a regulation

Recital 6 a (new)

Text proposed by the Commission

Amendment

 

(6a) Further to the closure of third-country markets, Union economic operators face restrictive procurement practices in many of the countries that are the Union's trading partners.

Those restrictive practices result in the loss of substantial trading opportunities, particularly in the railway, construction, textile and high technology sectors.

Amendment  175

Proposal for a regulation

Recital 7

Text proposed by the Commission

Amendment

(7) Directives 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts contain only a few provisions concerning the external dimension of the public procurement policy of the Union, in particular Articles 58 and 59 of Directive 2004/17/EC. These provisions however only have a limited scope and due to a lack of guidance they are not much applied by contracting entities.

(7) Directives 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts contain only a few provisions concerning the external dimension of the public procurement policy of the Union, in particular Articles 58 and 59 of Directive 2004/17/EC. However, these provisions are limited to procurement by utilities and are too narrow in their scope to make a substantial impact on negotiations on market access.

Amendment  176

Proposal for a regulation

Recital 8

Text proposed by the Commission

Amendment

(8) In accordance with Article 207 TFEU the common commercial policy in the field of public procurement is to be based on uniform principles.

(8) In accordance with Article 207 TFEU the common commercial policy in the field of public procurement is to be based on uniform principles. In this regard, the Union needs to increase its negotiating power to improve, on the basis of its primary and secondary legislation, access to the public markets of third countries.

Amendment  177

Proposal for a regulation

Recital 12

Text proposed by the Commission

Amendment

(12) The Commission should assess whether to approve that contracting authorities/entities within the meaning of Directives [2004/17/EC, 2004/18/EC and Directive [….] of the European Parliament and the Council of [….]….on the award of concession contracts] exclude, for contracts with an estimated value equal or above EUR 5.000.000 from procedures for the award of contracts goods and services not covered by the international commitments undertaken by the European Union.

(12) Contracting authorities/entities within the meaning of Directives [2004/17/EC, 2004/18/EC and Directive [….] of the European Parliament and the Council of [….]….on the award of concession contracts] should be able to exclude from procedures for the award of contracts tenders comprising goods and/or services originating from third countries, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services.

Amendment  178

Proposal for a regulation

Recital 13

Text proposed by the Commission

Amendment

(13) For the sake of transparency, contracting authorities/entities intending to make use of their power in accordance with this Regulation to exclude tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services from procedures for the award of contracts should inform economic operators thereof in the contract notice published in the Official Journal of the European Union.

deleted

Amendment  179

Proposal for a regulation

Recital 14

Text proposed by the Commission

Amendment

(14) In order to enable the Commission to decide on any exclusion of third-country goods and services not covered by the international commitments of the Union, contracting authorities/entities should notify the Commission of their intention to exclude such goods and services, using a standard form that contains sufficient information to enable the Commission to decide.

(14) In order to enable the Commission to assess whether to exclude third-country goods and services not covered by the international commitments of the Union, contracting authorities/entities should notify the Commission of their intention to exclude such goods and services, using a standard form that contains sufficient information to enable the Commission to decide.

Amendment  180

Proposal for a regulation

Recital 15

Text proposed by the Commission

Amendment

(15) For contracts with an estimated value equal or above EUR 5.000.000 the Commission should approve the intended exclusion if the international agreement concerning market access in the field of public procurement between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union. Where such an agreement does not exist, the Commission should approve the exclusion where the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. A lack of substantial reciprocity should be presumed where restrictive procurement measures result in serious and recurring discriminations of EU economic operators, goods and services.

(15) For contracts with an estimated value equal or above EUR 5.000.000 the Commission should authorise the intended exclusion if the international agreement concerning market access in the field of public procurement between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union. Where such an agreement does not exist, the Commission should approve the exclusion where the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. A lack of substantial reciprocity should be presumed where restrictive procurement measures result in serious and recurring discriminations of EU economic operators, goods and services.

Amendment  181

Proposal for a regulation

Recital 16

Text proposed by the Commission

Amendment

(16) When assessing whether a lack of substantial reciprocity exists, the Commission should examine to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union goods, services and economic operators. In addition, it should examine to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operators.

deleted

Amendment  182

Proposal for a regulation

Recital 18

Text proposed by the Commission

Amendment

(18) In view of the fact that the access of third country goods and services to the public procurement market of the Union falls within the scope of the common commercial policy, Member States or their contracting authorities/entities should not be able to restrict the access of third country goods or services to their tendering procedures by any other measure than the ones provided for in this Regulation.

deleted

Amendment  183

Proposal for a regulation

Recital 20

Text proposed by the Commission

Amendment

(20) The Commission should be able, on its own initiative or at the application of interested parties or a Member State, to initiate at any time an external procurement investigation into restrictive procurement practices allegedly maintained by a third country. In particular it shall take into account the fact that the Commission has approved a number of intended exclusions concerning a third country pursuant to Article 6(2) of this Regulation. Such investigative procedures should be without prejudice to Council Regulation (EC) No 3286/94 of 22 December 1994 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization.

(20) The Commission should be able, on its own initiative or at the application of interested parties or a Member State, to initiate at any time an external procurement investigation into restrictive procurement practices allegedly maintained by a third country. In particular it shall take into account the fact that the Commission has approved a number of intended exclusions concerning a third country pursuant to this Regulation. Such investigative procedures should be without prejudice to Council Regulation (EC) No 3286/94 of 22 December 1994 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization.

Amendment  184

Proposal for a regulation

Recital 24

Text proposed by the Commission

Amendment

(24) It is imperative that contracting authorities/entities have access to a range of high-quality products meeting their purchasing requirements at a competitive price. Therefore contracting authorities/entities should be able to set aside measures limiting access of non-covered goods and services in case there are no Union and/or covered goods or services available which meet the requirements of the contracting authority/entity to safeguard essential public needs for example health and public safety, or application of the measure would lead to a disproportionate increase in the price or costs of the contract.

(24) It is imperative that contracting authorities/entities have access to a range of high-quality products meeting their purchasing requirements at a competitive price. Therefore contracting authorities/entities should be able to set aside measures limiting access of non-covered goods and services in case there are no Union and/or covered goods or services available which meet the requirements of the contracting authority/entity to safeguard essential public needs, for example health and public safety.

Amendment  185

Proposal for a regulation

Chapter 2 – title

Text proposed by the Commission

Amendment

Treatment of covered and non-covered goods and services, Abnormally low tenders

Treatment of covered and non-covered goods and services,

Amendment  186

Proposal for a regulation

Article 4

Text proposed by the Commission

Amendment

Treatment of covered goods and services

General provisions

When awarding contracts for the execution of works and/or a work, the supply of goods or the provision of services, contracting authorities/entities shall treat covered goods and services equally to goods and services originating in the European Union.

1. When awarding contracts for the execution of works and/or a work, the supply of goods or the provision of services, contracting authorities/entities shall treat covered goods and services equally to goods and services originating in the European Union.

Goods or services originating in least-developed countries listed in Annex I to Regulation (EC) No 732/2008 shall be treated as covered goods and services.

Goods or services originating in the following classifications of third countries shall be treated as covered goods and services:

 

(a) least-developed countries listed in Annex I to Regulation (EC) No 732/2008;

 

(b) countries that have been classified by the World Bank as a low-income country during three consecutive years.

 

2. Member States or their contracting authorities/entities shall not restrict the access of non-covered goods or services to their tendering procedures by any measure other than those provided for in this Regulation.

 

3. Non-covered goods and services may be subject to restrictive measures taken by the Commission according to the rules set out in Articles 10 and 11.

Amendment  187

Proposal for a regulation

Article 5

Text proposed by the Commission

Amendment

Article 5

deleted

Rules of access for non-covered goods and services

 

Non-covered goods and services may be subject to restrictive measures taken by the Commission:

 

a) upon request of individual contracting entities according to the rules set out in Article 6;

 

b) according to the rules set out in Articles 10 and 11.

 

Amendment  188

Proposal for a regulation

Article 6 – title

Text proposed by the Commission

Amendment

Empowerment of contracting authorities/entities to exclude tenders comprising non-covered goods and services

Exclusion of tenders comprising non-covered goods and services

Amendment  189

Proposal for a regulation

Article 6 – paragraph 1

Text proposed by the Commission

Amendment

Upon request of contracting authorities/entities the Commission shall assess whether to approve, for contracts with an estimated value equal or above EUR 5.000.000 exclusive of value-added tax (VAT) the exclusion from procedures for the award of contracts tenders comprising goods or services originating outside the Union, if the value of the non-covered goods or services exceeds 50 % of the total value of the goods or services constituting the tender, under the following conditions.

Contracting authorities/entities may exclude from procedures for the award of contracts tenders comprising goods or services originating outside the Union, if the value of the non-covered goods or services exceeds 50 % of the total value of the goods or services constituting the tender, under the following conditions.

Amendment  190

Proposal for a regulation

Article 6 – paragraph 2 – indent 1

Text proposed by the Commission

Amendment

Where contracting authorities/entities intend to request the exclusion from procedures for the award of contracts on the basis of paragraph 1 they shall indicate this in the contract notice they publish pursuant to Article 35 of Directive 2004/18/EC or pursuant to Article 42 of Directive 2004/17/EC or Article 26 of the Directive on the award of concession contracts.

deleted

Amendment  191

Proposal for a regulation

Article 6 – paragraph 2 – subparagraph 3

Text proposed by the Commission

Amendment

Where contracting authorities/entities receive tenders that meet the conditions of paragraph 1 for which they intend to request the exclusion for that reason, they shall notify the Commission. During the notification procedure the contracting authority/entity may continue its analysis of the tenders.

3. Where contracting authorities/entities receive tenders that meet the conditions of paragraph 1 for which they intend to request the exclusion for that reason, they shall notify the Commission within one week. During the notification procedure the contracting authority/entity may continue its analysis of the tenders.

Amendment  192

Proposal for a regulation

Article 6 – paragraph 2 – subparagraph 6 a (new)

Text proposed by the Commission

Amendment

 

6a. Contracting authorities/entities which have excluded tenders pursuant to paragraph 1 shall indicate this in the contract award notice they publish pursuant to Article 35 of Directive 2004/18/EC, Article 42 of Directive 2004/17/EC, or Article 27 of the Directive on the award of concession contracts. The Commission shall adopt implementing acts establishing the standard forms for contract award notices. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 17 (3).

Amendment  193

Proposal for a regulation

Article 6 – paragraph 2 – subparagraph 6 b (new)

Text proposed by the Commission

Amendment

 

6b. Paragraph 1 shall not apply where the Commission has adopted the implementing act on temporary access of the goods and services from a country engaged in substantive negotiations with the Union as set out in Article 9(4).

Amendment  194

Proposal for a regulation

Article 6 – paragraph 3

Text proposed by the Commission

Amendment

3. For contracts referred to in paragraph 1, the Commission shall adopt an implementing act concerning the approval of the intended exclusion within a period of two months commencing on the first working day following the date on which it receives the notification. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17(2). This period may be extended once by a maximum of two months in duly justified cases, in particular if the information contained in the notification or in the documents annexed thereto is incomplete or inexact or if the facts as reported undergo any substantive changes. If, at the end of this two-month period, or the extended period the Commission has not adopted a decision approving or disapproving the exclusion, the exclusion shall be deemed to have been disapproved by the Commission.

deleted

Amendment  195

Proposal for a regulation

Article 6 – paragraph 4

Text proposed by the Commission

Amendment

4. When adopting implementing acts pursuant to paragraph 3, the Commission shall approve the intended exclusion in the following cases:

deleted

(a) if the international agreement concerning market access in the field of public procurement between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union;

 

(b) where an agreement referred to in point (a) does not exist and the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned.

 

For the purposes of point (b), a lack of substantial reciprocity is presumed where restrictive procurement measures result in serious and recurring discriminations of Union economic operators, goods and services.

 

When adopting implementing acts pursuant to paragraph 3, the Commission shall not approve an intended exclusion where it would violate market access commitments entered into by the Union in its international agreements.

 

Amendment  196

Proposal for a regulation

Article 6 – paragraph 5

Text proposed by the Commission

Amendment

5. When assessing whether a lack of substantial reciprocity exists, the Commission shall examine the following:

deleted

(a) to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union goods, services and economic operators;

 

(b) to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operators.

 

Amendment  197

Proposal for a regulation

Article 6 – paragraph 6

Text proposed by the Commission

Amendment

6. Before the Commission takes a decision pursuant to paragraph 3 it shall hear the tenderer or tenderers concerned.

deleted

Amendment  198

Proposal for a regulation

Article 6 – paragraph 7

Text proposed by the Commission

Amendment

7. Contracting authorities/entities which have excluded tenders pursuant to paragraph 1 shall indicate this in the contract award notice they publish pursuant to Article 35 of Directive 2004/18/EC, Article 42 of Directive 2004/17/EC, or Article 27 of the Directive on the award of concession contracts. The Commission shall adopt implementing acts establishing the standard forms for contract award notices. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 17 (3).

deleted

Amendment  199

Proposal for a regulation

Article 6 – paragraph 8

Text proposed by the Commission

Amendment

8. Paragraph 1 shall not apply where the Commission has adopted the implementing act on temporary access of the goods and services from a country engaged in substantive negotiations with the Union as set out in Article 9(4).

deleted

Amendment  200

Proposal for a regulation

Article 6 a (new)

Text proposed by the Commission

Amendment

 

Article 6a

 

Assessment of the exclusion of tenders comprising non-covered goods and services

 

1. The Commission shall assess the decision of the contracting authorities/entities to exclude tenders comprising goods or services originating outside the Union from procedures for the award of contracts pursuant to Article 6(1).

 

For this assessment, the Commission shall verify, in particular, whether:

 

(a) the contracting authorities/entities have correctly interpreted the criteria referred to in Article 6(1);

 

(b) the exclusion infringes the commitments on market access entered into by the Union in the international agreements it has concluded.

 

2. In the event that the Commission does not approve the exclusion in question, it shall inform the contracting authorities/entities of its disagreement within three weeks, commencing on the first working day following the date on which it receives the notification referred to in Article 6(3).

Amendment  201

Proposal for a regulation

Article 6 b (new)

Text proposed by the Commission

Amendment

 

Article 6b

 

Authorisation of the exclusion of tenders comprising non-covered goods and services for contracts with an estimated value equal to or above EUR 5.000.000

 

The Commission shall assess the decision of the contracting authorities/entities to exclude tenders comprising goods or services originating outside the Union, for contracts with an estimated value equal or above EUR 5.000.000, from procedures for the award of contracts pursuant to Article 6(1).

 

The Commission shall approve the intended exclusion in the following cases:

 

(a) if the international agreement concerning market access in the field of public procurement between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union;

 

(b) where an agreement referred to in point (a) does not exist and the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned.

 

For the purposes of point (b), a lack of substantial reciprocity is presumed where restrictive procurement measures result in serious and recurring discriminations of Union economic operators, goods and services.

 

The Commission shall reject the intended exclusion where it infringes the commitments on market access entered into by the Union in the international agreements it has concluded.

 

3. When assessing whether a lack of substantial reciprocity exists, the Commission shall examine the following:

 

(a) to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union goods, services and economic operators;

 

(b) to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operators.

 

4. The Commission shall adopt an implementing act concerning the approval of the intended exclusion within a period of two months commencing on the first working day following the date on which it receives the notification. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17(2). This period may be extended by a maximum of two months in duly justified cases, in particular if the information contained in the notification or in the documents annexed thereto is incomplete or inexact or if the facts as reported undergo any substantive changes. If, at the end of this two-month period, or the extended period the Commission has not adopted a decision approving or disapproving the exclusion, the exclusion shall be deemed to have been rejected by the Commission.

 

5. Before adopting a decision under paragraph 4, the Commission shall hear the tenderer or tenderers and the contracting authorities/entities.

Amendment  202

Proposal for a regulation

Article 7 – paragraph 2

Text proposed by the Commission

Amendment

A contracting authority/entity may withhold any information release of it would impede law enforcement, would otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of economic operators, whether public or private, or might prejudice fair competition between them.

deleted

Amendment  203

Proposal for a regulation

Article 8 – paragraph 2 – subparagraph 2

Text proposed by the Commission

Amendment

In particular, the Commission shall take into account whether a number of intended exclusions have been approved pursuant to Article 6(3) of this Regulation.

In particular, the Commission shall take into account whether a number of intended exclusions have been approved pursuant to Article 6a(4) of this Regulation.

Amendment  204

Proposal for a regulation

Article 8 – paragraph 2

Text proposed by the Commission

Amendment

2. The investigation referred to in paragraph 1 is conducted on the basis of the criteria laid down in Article 6.

2. The investigation referred to in paragraph 1 is conducted on the basis of the criteria laid down in Article 6b(2) and (3).

Amendment  205

Proposal for a regulation

Article 8 – paragraph 3

Text proposed by the Commission

Amendment

3. The assessment by the Commission of whether restrictive procurement measures are maintained by the third country concerned shall be made on the basis of the information supplied by interested parties and Member States and/or facts collected by the Commission during its investigation, and shall be concluded within a period of nine months after the initiation of the investigation. In duly justified cases this period may be extended by three months.

3. The assessment by the Commission of whether restrictive procurement measures are maintained by the third country concerned shall be made on the basis of the information supplied by interested parties and Member States and/or facts collected by the Commission during its investigation, and shall be concluded within a period of nine months after the initiation of the investigation.

Amendment  206

Proposal for a regulation

Article 8 – paragraph 4

Text proposed by the Commission

Amendment

4. When the Commission concludes as a result of the external procurement investigation that the alleged restrictive procurement measures are not maintained by the third country concerned, the Commission shall adopt a decision terminating the investigation. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17 (2).

deleted

Amendment  207

Proposal for a regulation

Article 8 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

 

The assessment by the Commission of whether restrictive procurement measures are maintained by the third country concerned shall be made on the basis of the information supplied by interested parties and Member States and/or facts collected by the Commission during its investigation, and shall be concluded within a period of six months after the initiation of the investigation. In duly justified cases this period may be extended by two months.

Amendment  208

Proposal for a regulation

Article 8 – paragraph 4 b (new)

Text proposed by the Commission

Amendment

 

When the Commission concludes as a result of the external procurement investigation that the alleged restrictive procurement measures are not maintained by the third country concerned, the Commission shall adopt a decision terminating the investigation. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17 (2).

Amendment  209

Proposal for a regulation

Article 9 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

When it is found as a result of an investigation that restrictive procurement measures are maintained by a third country and the Commission considers it to be justified by the EU interest, the Commission shall invite it to enter into consultations with a view to ensuring that Union economic operators, goods and services can participate in tendering procedures for the award of public procurement contracts in that country on the conditions no less favourable than those accorded to national economic operators, goods and services of that country and also with a view also to ensuring the application of the principles of transparency and equal treatment.

When it is found as a result of an investigation that restrictive procurement measures are maintained by a third country, the Commission shall invite it to enter into consultations with a view to ensuring that Union economic operators, goods and services can participate in tendering procedures for the award of public procurement contracts in that country on the conditions no less favourable than those accorded to national economic operators, goods and services of that country and also with a view also to ensuring the application of the principles of transparency and equal treatment.

Amendment  210

Proposal for a regulation

Article 9 – paragraph 3 – subparagraph 3

Text proposed by the Commission

Amendment

Where the remedial/corrective measures taken by the third country concerned are rescinded, suspended or improperly implemented, the Commission may:

Where the remedial/corrective measures taken by the third country concerned are rescinded, suspended or improperly implemented, the Commission shall:

Amendment  211

Proposal for a regulation

Article 9 – paragraph 4

Text proposed by the Commission

Amendment

4. Where, after the initiation of a consultation, it appears that the most appropriate means to end a restrictive procurement practice is the conclusion of an international agreement, negotiations shall be carried out in accordance with the provisions of Articles 207 and 218 of the Treaty on the Functioning of the European Union. If a country has engaged in substantive negotiations with the European Union concerning market access in the field of public procurement, the Commission may adopt an implementing act providing that goods and services from that country cannot be excluded from procedures for the award of contracts pursuant to Article 6.

4. Where, after the initiation of a consultation, it appears that the most appropriate means to end a restrictive procurement practice is the conclusion of an international agreement, negotiations shall be carried out in accordance with the provisions of Articles 207 and 218 of the Treaty on the Functioning of the European Union. If a country has substantially expanded and facilitated access to its public procurement market for tenderers from the EU, the Commission may adopt an implementing act providing that goods and services from that country cannot be excluded from procedures for the award of contracts pursuant to Article 6.

Amendment  212

Proposal for a regulation

Article 9 – paragraph 5

Text proposed by the Commission

Amendment

5. The Commission may terminate the consultation if the country concerned undertakes international commitments agreed with the Union in any of the following frameworks:

deleted

(a) Accession to the WTO Agreement on Government Procurement,

 

(b) Conclusion of a bilateral agreement with the Union which includes market access commitments in the field of public procurement, or

 

(c) Expansion of its market access commitments undertaken under the WTO Agreement on Government or under a bilateral agreement concluded with the Union in that framework,

 

The consultation may also be terminated in cases where the restrictive procurement measures are still in place at the time these commitments are undertaken, as long as they include detailed provisions relating to the phasing-out of those practices.

 

Amendment  213

Proposal for a regulation

Article 9 – paragraph 6

Text proposed by the Commission

Amendment

6. In the event that a consultation with a third country does not lead to satisfactory results within 15 months from the day the consultation with the third country started, the Commission shall terminate the consultation and consider acting under Article 10 to adopt implementing acts to limit the access of goods and services originating in a third country .

6. In the event that a consultation with a third country does not lead to satisfactory results within 12 months from the day the consultation with the third country started, the Commission shall terminate the consultation and consider acting under Article 10 to adopt implementing acts to limit the access of goods and services originating in a third country .

Amendment  214

Proposal for a regulation

Article 10 – paragraph 1

Text proposed by the Commission

Amendment

1. Where it is found in an investigation pursuant to Article 8, and after following the procedure foreseen in Article 9, that restrictive procurement measures adopted or maintained by that third country leads to an lack of substantial reciprocity in market opening between the Union and the third country as referred to in Article 6, the Commission may adopt implementing acts to temporarily limit the access of non-covered goods and services originating in a third country. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17(2).

1. Where it is found in an investigation pursuant to Article 8, and after following the procedure foreseen in Article 9, that restrictive procurement measures adopted or maintained by that third country leads to an lack of substantial reciprocity in market opening between the Union and the third country as referred to in Article 6b(3), the Commission shall adopt implementing acts to temporarily limit the access of non-covered goods and services originating in a third country. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17(2).

Amendment  215

Proposal for a regulation

Article 11 – title

Text proposed by the Commission

Amendment

Withdrawal or suspension of measures

Renewal, withdrawal or suspension of measures

Justification

It is necessary to add a review process.

Amendment  216

Proposal for a regulation

Article 11 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

Where the Commission considers that the reasons justifying the measures adopted pursuant to Articles 9 (4) and 10 no longer apply, the Commission may adopt an implementing act to:

After verifying that the reasons justifying the measures adopted pursuant to Articles 9 (4) and 10 no longer apply, the Commission shall adopt an implementing act to:

Amendment  217

Proposal for a regulation

Article 11 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

Pursuant to its decision in Article 10(1), the Commission shall regularly monitor the situation in the third country concerned and report annually to the European Parliament and the Council on whether remedial/corrective measures have been taken.

Justification

This addition allows for an annual review of the third country situation.

Amendment  218

Proposal for a regulation

Article 11 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

 

Where the Commission considers that the reasons justifying the measures adopted pursuant to Article 9(4) and 10 still apply upon the end of the temporary period under Article 10(1), the Commission may adopt an implementing act to renew the measures for a further period of up to five years and renewed every five years thereafter.

Justification

This provides a process for the renewal of the measures adopted in Article 9(4).

Amendment  219

Proposal for a regulation

Article 13 – paragraph 1 b

Text proposed by the Commission

Amendment

(b) application of the measure would lead to a disproportionate increase in the price or costs of the contract.

deleted

PROCEDURE

Title

Access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries

References

COM(2012)0124 – C7-0084/2012 – 2012/0060(COD)

Committee responsible

       Date announced in plenary

INTA

20.4.2012

 

 

 

Opinion by

       Date announced in plenary

JURI

20.4.2012

Rapporteur

       Date appointed

Raffaele Baldassarre

25.4.2012

Discussed in committee

21.2.2013

29.5.2013

20.6.2013

 

Date adopted

17.9.2013

 

 

 

Result of final vote

+:

–:

0:

22

1

2

Members present for the final vote

Raffaele Baldassarre, Luigi Berlinguer, Sebastian Valentin Bodu, Françoise Castex, Christian Engström, Marielle Gallo, Giuseppe Gargani, Lidia Joanna Geringer de Oedenberg, Sajjad Karim, Klaus-Heiner Lehne, Antonio López-Istúriz White, Antonio Masip Hidalgo, Jiří Maštálka, Alajos Mészáros, Bernhard Rapkay, Evelyn Regner, Francesco Enrico Speroni, Dimitar Stoyanov, Alexandra Thein, Rainer Wieland, Cecilia Wikström, Tadeusz Zwiefka

Substitute(s) present for the final vote

Eva Lichtenberger, Angelika Niebler, József Szájer, Axel Voss

Substitute(s) under Rule 187(2) present for the final vote

Olle Schmidt

(1)

For further details, see: European Parliament, DG Expo (2012): Public procurement in international trade, p. 10-11.

(2)

In China, for instance, 'buy local' clauses have been incorporated into Article 10 of the Government Procurement Law, enacted in 2003. This protectionist policy was further strengthened by the Beijing government in 2007 with the introduction of two decrees limiting the possibility of contracts for foreign goods. In the United States, meanwhile, the American Recovery and Reinvestment Act has further strengthened the 'Buy American' protectionist measures that were introduced some 70 years ago in the wake of the so-called Great Depression.

The Brazilian government amended its law on procurement in 2010, introducing the option for contracting authorities to set aside a 25% margin for goods and services produced in whole or in part in Brazil. Cf.: European Parliament, DG Expo (2012): Public procurement in international trade, p. 22-30. See also: European Commission (2012): impact assessment of the proposal for a regulation in question, p 10-14.

(3)

In particular, the railway and construction sectors. See European Commission impact assessment SWD(2012) 57 final.

(4)

Cf. European Council conclusions of 16 September 2010 and 29 June 2012.

(5)

Cf European Parliament resolution on equal access to public sector markets in the EU and in third countries and on the revision of the legal framework of public procurement including concessions (http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+MOTION+B7-2011-0284+0+DOC+XML+V0//EN).

(6)

In this case, the Commission should assess the exclusion and if it disagrees with the decision of the competent national authorities it should notify its disagreement within three weeks.

(7)

Paragraph 4 of the European Parliament resolution of 4 May 2011 on 'equal access to public sector markets in the EU and in third countries and on the revision of the legal framework of public procurement including concessions' states: 'In this regard, calls on the Commission to assess the problems associated with extraordinary low bids and to propose appropriate solutions'.

(8)

For the sake of legal consistency, your rapporteur considers it appropriate to provide the same degree of automaticity with regard to the revocation or suspension of restrictive measures, which must be set aside once the Commission has verified that the reasons which justified the adoption of the measures no longer apply (lack of substantial reciprocity).


PROCEDURE

Title

Access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries

References

COM(2012)0124 – C7-0084/2012 – 2012/0060(COD)

Date submitted to Parliament

21.3.2012

 

 

 

Committee responsible

       Date announced in plenary

INTA

20.4.2012

 

 

 

Committee(s) asked for opinion(s)

       Date announced in plenary

DEVE

20.4.2012

EMPL

20.4.2012

ITRE

20.4.2012

IMCO

20.4.2012

 

JURI

20.4.2012

 

 

 

Not delivering opinions

       Date of decision

ITRE

23.4.2012

 

 

 

Associated committee(s)

       Date announced in plenary

IMCO

25.10.2012

 

 

 

Rapporteur(s)

       Date appointed

Daniel Caspary

25.4.2012

 

 

 

Discussed in committee

27.11.2012

23.1.2013

20.3.2013

28.5.2013

 

17.6.2013

17.9.2013

5.11.2013

 

Date adopted

28.11.2013

 

 

 

Result of final vote

+:

–:

0:

19

10

1

Members present for the final vote

William (The Earl of) Dartmouth, Nora Berra, Daniel Caspary, María Auxiliadora Correa Zamora, George Sabin Cutaş, Marielle de Sarnez, Christofer Fjellner, Yannick Jadot, Franziska Keller, Bernd Lange, David Martin, Vital Moreira, Franck Proust, Godelieve Quisthoudt-Rowohl, Helmut Scholz, Peter Šťastný, Henri Weber, Iuliu Winkler, Jan Zahradil, Paweł Zalewski

Substitute(s) present for the final vote

Tokia Saïfi, Marietje Schaake, Jarosław Leszek Wałęsa

Substitute(s) under Rule 187(2) present for the final vote

Phil Bennion, Jutta Haug, Anthea McIntyre, Katarína Neveďalová, Marc Tarabella, Nikola Vuljanić, Roberts Zīle

Date tabled

10.12.2013

Last updated: 19 December 2013Legal notice