- Analysis of the European Parliament's amendments at second reading - Montesquieu Instituut

 

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COUNCIL OFBrussels, 22 July 2003

THE EUROPEAN UNIONPUBLIC

11547/03

LIMITE

MAP 11 CODEC 1011

Interinstitutional Files:

2000/0115 (COD) 2000/0117 (COD)

NOTE

from :

General Secretariat of the Council

to : Permanent Representatives Committee (Part 1)

No. prev. docs.: 11029/3/03 REV 3 MAP 30 CODEC 922 ("classical")

12634/3/03 REV 3 MAP 38 CODEC 1180 ("utilities")

No. Cion prop. 10345/00 MAP 5 CODEC 550 COM(2000) 275 final + COR 1 ("classical")

10346/00 MAP 6 CODEC 551 - COM(2000) 276 final + COR 1 ("utilities")

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• - 

  - Proposal for a Directive of the European Parliament and of the Council on the coordination of procedures for the award of public supply contracts, public service contracts and public works contracts ("classical" directive)
• - 

  - Proposal for a Directive of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors ("utilities" directive)

Subject: Analysis of the European Parliament's amendments at second reading

II. STATE OF PLAY

• 3. 

  These amendments were examined at the occasion of a Working Party meeting on 18 July

2003. The discussion focused on the amendments concerning the accessibility criteria for

disabled persons (amd. 8 and 33 "classical", amd. 7 and 28 "utilities"), the amendments

concerning particularly complex contracts (amds. 18, 87, 44 and 91 "classical"), and the

amendments concerning the further precision of award criteria (amd. 70 and 95 "classical",

amd. 50 "utilties"). Several other amendments were discussed in some detail.

• 4. 

  The results of the discussion are summarized in the annexes to this note.

The Committee is now invited to take note of this summary report and to confirm the results

of the first Working Party meeting. The Committee is also invited to mandate the Presidency

to initiate a first trialogue meeting with Parliament on 2 September.

________________________

ANNEX I

Proposal for a Directive of the European Parliament and of the Council on the coordination of procedures for the award of public supply

contracts, public service contracts and public works contracts ("classical" directive)

(2000/0115 (COD))

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 1

RECITAL 2

The achievement of freedom of movement of goods in the matter of public supply contracts, and the achievement of freedom of establishment and freedom to provide services in the matter of public works contracts and public service contracts, for contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law requires not only the abolition of restrictions but also the implementation of provisions on the coordination of national procedures for the award of public contracts which are based on the rules governing these three freedoms and on the principles deriving therefrom, such as the principles of equal treatment, of which the principle of non-The achievement of freedom of movement of goods in the matter of public supply contracts, and the achievement of freedom of establishment and freedom to provide services in the matter of public works contracts and public service contracts, for contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law requires not only the abolition of restrictions but also the implementation of provisions on the coordination of national procedures for the award of public contracts which are based on the rules governing these three freedoms and on the principles deriving therefrom, such as the principles of equal treatment, of which the principle of non-Not Acceptable Several delegations in favour of maintaining the Common position. Two delegations willing to show some flexibility. See also reasoning to amendment 23 ("classical") and 16 ("utilities").

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

discrimination is no more than a specific expression, the principle of mutual recognition, the principle of proportionality and the principle of transparency, and the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty. discrimination is no more than a specific expression, the principle of mutual recognition, the principle of proportionality and the principle of transparency, and the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.

Contracting authorities are obliged to observe the above principles as regards all contracts, including those falling below the thresholds specified in Article 7.

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 77

RECITAL 9a (new)

(9a) A contract shall be deemed to be a public works contract only if its subject-matter specifically covers the execution of activities listed in Annex I, even if the contract covers the provision of other services necessary for the execution of such activities. Public service contracts, in particular in the sphere of property management services, may, in certain circumstances, include works. However, insofar as such works are incidental to the principal subject matter of the contract, and are a possible consequence thereof or a complement thereto, the fact that such works are included in the contract does not justify the qualification of the contract as a public works contractAcceptable, subject to editing. Acceptable, under the condition that a parallel wording in recital 9 should be deleted.

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 7

RECITAL 24

The awarding of public contracts for certain audiovisual services in the field of broadcasting should allow aspects of cultural or social significance to be taken into account which render application of procurement rules inappropriate. For these reasons, an exception must therefore be made for public service contracts for the purchase, development, production or co- production of off-the-shelf programmes and other preparatory services, such as those relating to scripts or artistic performances necessary for the production of the programme and contracts concerning broadcasting times. However, this exclusion does not apply to the supply of technical equipment necessary for the production, co-production and broadcasting of such programmes The awarding of public contracts for certain audiovisual services in the field of broadcasting should allow aspects of cultural or social significance to be taken into account which render application of procurement rules inappropriate. For these reasons, an exception must therefore be made for public service contracts for the purchase, development, production or co- production of off-the-shelf programmes and other preparatory services, such as those relating to scripts or artistic performances necessary for the production of the programme and contracts concerning broadcasting times. A broadcast should be defined as transmission and distribution using any form of electronic networkAccept Several delegations can accept this amendment (see also reasoning to

amendment 25).

does not apply to the supply of technical equipment necessary for the production, co-production and broadcasting of such programmes. . However, this exclusion

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 8

RECITAL 27

The technical specifications drawn up by public purchasers need to allow public procurement to be opened up to competition. To this end, it must be possible to submit tenders which reflect the diversity of technical solutions. Accordingly, it must be possible to draw up the technical specifications in terms of functional performance and require- ments, and, where reference is made to the European standard or, in the absence thereof, to the national standard, tenders based on equivalent arrangements must be considered by contracting authorities. To demonstrate equiva- lence, tenderers should be permitted to use any form of evidence. Contracting authorities must be able to provide a reason for any decision that equivalence does not exist in a given case. Contracting authorities that wish to define environmental requirements for the technical specifications of a given contract The technical specifications drawn up by public purchasers need to allow public procurement to be opened up to competition. To this end, it must be possible to submit tenders which reflect the diversity of technical solutions. Accordingly, it must be possible to draw up the technical specifications in terms of functional performance and require- ments, and, where reference is made to the European standard or, in the absence thereof, to the national standard, tenders based on equivalent arrangements must be considered by contracting authorities. To demonstrate equiva- lence, tenderers should be permitted to use any form of evidence. Contracting authorities must be able to provide a reason for any decision that equivalence does not exist in a given case. Contracting authorities that wish to define environmental requirements for the technical specifications of a given contract Not acceptable Several delegations can accept this amendment, subject to the modification to replace "whenever possible

" by "where appropriate ".

Some delegations are willing to show flexibility, but have scrutiny reservations on this suggestion. See also reasoning to amendment 33 ("classical") and amendments 7 and 28 ("utilities").

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

may lay down the environmental characteristics and/or specific environmental effects of product groups or services. They can, but are not obliged to, use appropriate specifications that are defined in eco-labels, such as the European Eco-label, (multi-)national eco- labels or any other eco-label provi- ding the requirements for the label are drawn up and adopted on the basis of scientific information using a procedure in which stakeholders, such as government bodies, consu- mers, manufacturers, distributors and environmental organisations can participate, and providing the label is accessible and available to all interested parties.

may lay down the environmental characteristics and/or specific environmental effects of product groups or services. They can, but are not obliged to, use appropriate specifications that are defined in eco-labels, such as the European Eco-label, (multi-)national eco- labels or any other eco-label provi- ding the requirements for the label are drawn up and adopted on the basis of scientific information using a procedure in which stakeholders, such as government bodies, consu- mers, manufacturers, distri-butors and environmental organisations can participate, and providing the label is accessible and available to all interested parties. Whenever possible, the contracting autho- rity should take into account accessibility criteria for people with disabilities or design for all requirements when laying down specifications. These technical specifications should be clearly indicated so that all ten-derers fully understand the require- ments established by the contracting authority

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 9

Recital 32

The laws, regulations and collective agreements, at both national and Community level, which are in force in the areas of welfare and safety at work apply during performance of a public contract, providing that such rules, and their application, comply with Community law. In cross-border situations, where workers from one Member State provide services in another Member State for the purpose of performing a public contract, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services lays down the minimum conditions which must be observed by the host country in respect of such posted workers. If national law contains provisions to this effect, non-compliance with those obligations may be considered to be grave misconduct or an offence The laws, regulations and collective agreements, at both national and Community level, which are in force in the areas of employment conditionsAcceptable, subject to an editorial amendment

A large number of delegations can

accept the amendment.

and safety at work apply

during performance of a public contract, providing that such rules, and their application, comply with Community law. In cross-border situations, where workers from one Member State provide services in another Member State for the purpose of performing a public contract, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services lays down the minimum conditions which must be observed by the host country in respect of such posted workers. If national law contains provisions to this effect, non-compliance with those obligations may be considered to be grave misconduct or an offence

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

concerning the professional conduct

of the economic operator concerned, liable to lead to the exclusion of that economic operator from the procedure for the award of a public contract. concerning the professional conduct

of the economic operator concerned, liable to lead to the exclusion of that economic operator from the procedure for the award of

a public contract

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 15

Article 1, paragraph 7

An 'electronic auction' is a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values

concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods.

An 'electronic auction' is a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values,

[...] enabling them to be ranked using automatic evaluation methods. This procedure is in no way suited to the award of works contracts or contracts for intellectual-creative and other more complex servicesNot acceptable

A large number of delegations is in favour of maintaining the common position. Some delegations could accept this amendment or - as an alternative - to shift the text to the

recitals.

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 16

Article 1, paragraph 9, sub-paragraph 1

• 9. 

  'Contracting authorities' means the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law.
• 9. 

  'Contracting authorities' means the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law as well as purchasing groups set up by the latter for the purpose of awarding public contracts.

Not acceptable No final view, but preference to maintain the common position. (see also reasoning to amendment 13 "utilities").

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendments 18 and 87

Article 1, paragraph 15a (new)

15a. A contract is 'particularly complex' if the contracting authority is not able to define, either by holding a design contest or by a functional contract notice, the technical or other means of meeting its requirements or what the market can offer in terms of technical or financial solutions.

Not acceptable A clear majority of delegations estimates this amendment as being not acceptable. Some delegations might show some flexibility on the issue. See also reasoning to amendments 91 and 44 ("classical").

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 20

Article 6

This Directive shall not limit the right of economic operators to require a contracting authority, in accordance with the national law to which it is subject, to respect the confidential nature of information which they make available; such information may include, in particular, technical or trade secrets and the confidential aspects of tenders.

Without prejudice to the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out

in Articles 35(4) and 41 respectively, the contracting authorities shall respect fully, both throughout and after the award procedure, the confidential nature of the information furnished by the economic operators. Such information includes technical or trade secrets, the confidentiality of tenders and proposed solutions and any other confidential information given by the economic operator.

Not acceptable Maintain the common position. Some delegations are willing to show some flexibility, if wording of amendment 20 is changed. See also reasoning to amendment 51 "classical" and 18 "utilities".

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 23

Article 7a (new)

Article 7a Respect for Community law

Contracting authorities shall be obliged to respect the fundamental principles of Community law in connection with all contracts, including those falling below the thresholds specified in Article 7.

Not acceptable The majority of delegations in favour of maintaining the common position.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 25

Article 16 point (b)

(b) the acquisition, development, production or co-production of programme material by broadcasters and contracts for broadcasting time;

. (b) the acquisition, development, production or co-production of programme and other electronic material intended for transmission and distribution across all electronic communications networks by broadcasters and contracts for broadcasting time Acceptable in principle, subject to the modification to delete "and other electronic Several delegations can accept this amendment subject to the modification described in the third column.

".

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 26

Article 16, paragraph 1a (new)

In addition, this Directive shall not apply to public supply contracts involving the purchase of schoolbooks in respect of which a fixed final retail price has been laid down by law in the Member State in which the purchase is made

Not acceptable A majority of delegations in favour

of maintaining the common position. Some delegations are willing to show more flexibility or could accept the amendment.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 27

Article 18a (new)

Article 18a Contracts awarded to entities formed by contracting authorities

This Directive shall not apply to contracts awarded by a contracting authority to:

(a) a legally distinct entity, if the contracting authority exercises over that entity a control which is similar to that which it exercises over its own departments and if that entity carries out the essen- tial part of its activities with the controlling contracting authority;

(b) a joint venture formed by that contracting authority with other contracting authorities, if that contracting authority exercises over the joint venture a control which is similar to that which it exercises over its own depart- ments and if the joint venture carries out the essential part of its activities with the controlling contracting authority or Not acceptable Several delegations in favour of maintaining the common position. Some delegations could accept the amendment, if reworded.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

authorities.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 31

Article 23, paragraph 4, sub-paragraph 2a (new)

A contracting authority that rejects a tender on the grounds that its requirements are not satisfied in an equivalent manner shall inform the tenderer, at the latter's request, of the grounds for the non-equivalenceNot acceptable No final view by delegations.

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 33

Article 23, paragraph 6a (new)

6a. Whenever possible, public authorities shall take into account accessibility for people with disabilities and design for all requirements. These technical specifications should be clearly indicated in the contract documents.

Not acceptable A clear majority in favour of maintaining the common position. Some delegations could show some flexibility on the issue.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 91

Article 29, paragraph 1a (new)

1a. In the case of particularly complex contracts within the meaning of Article 1(15a) the contracting authority may make use of the competitive dialogue in accordance with this Article. The award criterion must be the most economically advantageous tenderNot acceptable A clear majority of delegations estimates this amendment as being not acceptable. Some delegations might show some flexibility on the issue. (see also reasoning to amendments 18, 87 and 44 "classical").

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 44

Article 29, paragraph 6, sub-paragraph 2

These tenders may be clarified andThese tenders may be clarifiedNot acceptable A clear majority of delegations estimates this amendment as being not acceptable. See also reasoning to amendments 18, 87 and 91 ("classical").

specified at the request of the contracting authority. However, such clarification, specification or additional information may not involve changes to the basic features of the tender or the call for tender, variations in which are likely to distort competition or have

a discriminatory effect.

-

specified and fine-tuned, [...]

at the

request of the contracting authority. However, such clarification, specification, fine-tuning

or

additional information may not involve fundamental changes to the basic features of the tender or the call for tender, variations in which are likely to distort competition or have a discriminatory effect.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 47

Article 35, paragraph 2

Contracting authorities which wish to award a public contract or a framework agreement by open, restricted or, under the conditions laid down in Article 30, negotiated procedure with the publication of a contract notice or, under the conditions laid down in Article 29, a competitive dialogue, shall make known their intention by means of a contract notice. Contracting authorities which wish to award a public contract [...] by open, restricted or, under the conditions laid down in Article 30, negotiated procedure [...] shall make known their intention by means of a contract notice or, where a qualification system is in operation in accordance with Article 44a, by means of a notice that such a system exists. Not acceptable Several delegations in favour of maintaining the common position.

A small number of delegations can accept this amendment subject to a modification of the wording. See also reasoning to amendment 54 ("classical").

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 51

Article 42, paragraph 2a (new)

2a. Contracting authorities shall provide to tenderers on request a certificate from an accredited third party certifying that they have taken the necessary steps to safeguard the confidentiality of tenderers' information during transmission and after receipt . Not acceptable Maintain the common position. (see also reasoning to amendment 40 "utilities".)

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 52

Article 42, paragraph 3a (new)

3a. A tender may be submitted by electronic means only if an advanced electronic signature within the meaning of Directive 1999/93/EC and a reliable means of encrypting the contents are usedNot acceptable A majority of delegations in favour

of maintaining the common position. One single delegation can accept the amendment. Some delegations are flexible on the issue. (see also reasoning to amendment 39 "utilities").

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 54

Article 44a (new)

Article 44a Qualification systems

• 1. 

  Contracting authorities which so wish may establish and operate a system for qualification of economic operators. Authorities which establish or operate a qualification system shall ensure that economic operators are at all times able to request qualification. 2. The system under paragraph 1 may involve different qualification stages. It shall be operated on the basis of objective criteria and rules to be established by the contracting authority. Where those criteria and rules include technical specifications, the provisions of Article 23 shall apply. The criteria and rules may be updated as required. 3. The criteria and rules for qualification referred to in paragraph 2 shall be made Not acceptable Several delegations in favour of maintaining the common position.

A small number of delegations can accept this amendment subject to a modification of the wording.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

available to economic operators on request. The updating of these criteria and rules shall be communicated to the interested economic operators. Where a contracting authority considers that the qualification system of certain other authorities or bodies meets its requirements, it shall communicate the names of such other authorities or bodies to interested economic operators. 4. A written record of qualified economic operators shall be kept;

it may be divided into categories according to the type of contract for which the qualification is valid. 5. When a notice on the existence of a qualification system has been published in accordance with Article 35(2), tenderers in a restricted procedure or participants in a negotiated procedure shall be selected from the qualified candidates in accordance with such a system. .

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendments 70 and 95

Article 53, paragraph 1 point (a)

(a) when award is made to the tender most economically advantageous for the contracting authorities, various criteria

justified by the subject of the public contract in question: for example, quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost- effectiveness, after-sales service and technical assistance, delivery date and delivery period or period

of completion or (a) when award is made to the tender most [economically] advantageous, various criteria

linked to the subject of the public contract in question: for example, quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, including those relating to production methodsNot acceptable. The second part of the amendment is superfluous, on the last part it seems difficult to imagine that these examples can be closely linked to the subject of the contract.Several delegations in favour of maintaining the common position. Some delegations can accept the amendment (except for its last part), some delegations would like to have more clarification from the EP. (see also reasoning to amendment 50 "utilities").

running costs, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery period or period of completion, the tenderer's policy in relation to people with disabilities, its equal treatment policy or

,

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 68

Article 80a (new)

Article 80a Monitoring mechanisms Member States shall establish effective, open and transparent mechanisms to ensure implementation of this Directive by contracting authorities operating within their jurisdiction. These mechanisms may include, inter alia, the establishment of an independent Public Procurement Agency with the powers to monitor contracting processes, to ensure that all stages of a contract award are properly completed and to intervene, as appropriate, where the procedures required by this Directive are not being followed. The independent agency should be given powers to enforce compliance, including, inter alia, the setting aside of contract awards or the re-opening of a contracting process. These Not acceptable Maintain the common position.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

powers should be subject to an independent appeals procedure open to contracting authorities and potential suppliers and should not preclude the right of contracting parties to take legal action. .

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 84

ANNEX III, point VIII

ITALY ITALY Accept Several delegations can accept this amendment.

Bodies Bodies

Società 'Stretto di Messina' Società 'Stretto di Messina'

Ente autonomo mostra d'oltremare Ente autonomo mostra d'oltremare

e del lavoro italiano nel mondo e del lavoro italiano nel mondo

Ente nazionale per l'aviazione civile Ente nazionale per l'aviazione civile

OE ENAC OE ENAC

Ente nazionale per l'assistenza al Ente nazionale per l'assistenza al

volo - ENAV volo - ENAV

ANAS S.p.a.

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 69

Annex VII, Part A, prior information notice, point 1

The name, address, fax number,

email address of the contracting authority and, if different, of the service from which additional information may be obtained. The name, address, telephone and - Not acceptable Maintain the common position.

fax number and email address of the contracting authority and, if different, of the service from which additional information may be obtained and, in the case of services and works contracts, of the services from which information can be obtained concerning the rules and regulations on taxes, environmental protection, employment protection and working conditions applicable in the place where the contract is to

be performed

ANNEX II

Proposal for a Directive of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the

water, energy, transport and postal services sectors ("utilities" directive)

(2000/0117 (COD))

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 1

Recital 9

The procedures for the award of contracts which are applied by entities operating in the water, energy, transport and postal services sectors call for coordi- nation based on the requirements inferable from Articles 14, 28 and 49 of the Treaty and from Article 97 of the Euratom Treaty, namely the principles of equal treatment, of which the principle of non- discrimination is no more than a specific expression, the principle of mutual recognition, the principle of proportionality, the principle of transparency, and the opening up of public procurement to competition. While safeguarding the application of those principles, this coordination should establish a The procedures for the award of contracts which are applied by entities operating in the water, energy, transport and postal services sectors call for coordi-nation based on the aim of guaranteeing a high standard of reliable services of general interest at affordable prices and the requirements inferable from Articles 14, 28 and 49 of the EC Treaty and from Article 97 of the Euratom Treaty, namely the prin-ciples of equal treatment, of which the principle of non-discrimination is no more than a specific ex-pression, the principle of mutual recognition, the principle of proportionality, the principle of transparency, and the opening up of public procurement to competition. While taking into account the overall aims laid down in Articles 2 and 6 of the EC Treaty, this coordination must Not acceptable Maintain the common position.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

framework for sound commercial practice and shouldestablish a framework for sound commercial practice and must

allow a allow a

maximum of flexibility. maximum of flexibility.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 7

Recital 41

The technical specifications drawn up by public purchasers need to allow public procurement to be opened up to competition. To this end, it must be possible to submit tenders which reflect the diversity of technical solutions. Accordingly, it must be possible to draw up the technical specifications in terms of functional performance and requirements, and, where reference is made to the European standard or, in the absence thereof, to the national standard, tenders based on equivalent arrangements must be considered by contracting authorities. To demonstrate equi- valence, tenderers should be per- mitted to use any form of evidence. Contracting authorities must be able to provide a reason for any decision that equivalence does not exist in a given case. Contracting authorities that wish to define environmental requirements for the technical specifications of a given contract The technical specifications drawn up by public purchasers need to allow public procurement to be opened up to competition. To this end, it must be possible to submit tenders which reflect the diversity of technical solutions. Accordingly, it must be possible to draw up the technical specifications in terms of functional performance and requirements, and, where reference is made to the European standard or, in the absence thereof, to the national standard, tenders based on equivalent arrangements must be considered by contracting authorities. To demonstrate equi- valence, tenderers should be per- mitted to use any form of evidence. Contracting authorities must be able to provide a reason for any decision that equivalence does not exist in a given case. Contracting authorities that wish to define environmental requirements for the technical specifications of a given contract Not acceptable Some delegations can accept this amendment, subject to the modification to replace "whenever possible

" by "where appropriate ".

Some delegations are willing to show flexibility, but have scrutiny reservations on this suggestion. (see also reasoning to amd. 8 "classical").

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

may lay down the environmental characteristics and/or specific environmental effects of product groups or services. They can, but are not obliged to, use appropriate specifications that are defined in eco-labels, such as the European Eco-label, (multi-)national eco- labels or any other eco-label provi- ding the requirements for the label are drawn up and adopted on the basis of scientific information using a procedure in which stakeholders, such as government bodies, consumers, manufacturers, distribu- tors and environmental organi- sations can participate, and provi- ding the label is accessible and available to all interested parties. may lay down the environmental characteristics and/or specific environmental effects of product groups or services. They can, but are not obliged to, use appropriate specifications that are defined in eco-labels, such as the European Eco-label, (multi-)national eco- labels or any other eco-label provi- ding the requirements for the label are drawn up and adopted on the basis of scientific information using a procedure in which stakeholders, such as government bodies, consumers, manufacturers, distribu- tors and environmental organi- sations can participate, and provi- ding the label is accessible and available to all interested parties.

Whenever possible, the contracting authority should take into account accessibility criteria for people with disabilities and design for all requirements when laying down specifications. These technical specifications should be clearly indicated so that all tenderers fully understand the requirements established by the contracting authority

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 12

Article 1, paragraph 6

• 6. 

  'Electronic auction' means a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which is held after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods.
• 6. 

  'Electronic auction' means a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which is held after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods. This procedure is in no way suited to the award of works contracts or intellectual-creative and other complex services.

Not acceptable A large number of delegations is in favour of maintaining the common position. Some delegations could accept this amendment or - as an alternative - to shift the text to the recital (see also reasoning to amendment 15 "classical").

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 13

Article 2, paragraph 1, point (a), sub-paragraph 1

(a) 'contracting authorities' means the State, regional or local authorities, bodies governed by public law, associations formed by one or several such authorities or one or several of such bodies governed by public law.

(a) 'contracting authorities' means the State, regional or local authorities, bodies governed by public law, associations formed by one or several such authorities or one or several of such bodies governed by public law as well as purchasing groups set up by the latter for the purpose of awarding public contracts. Not acceptable No final view, but tendency to maintain the common position.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 14

Article 2, paragraph 3

For the purposes of this Directive, special or exclusive rights mean rights granted by a competent authority of a Member State by way of any legislative, regulatory or administrative provision the effect of which is to limitFor the purpose of applying paragraph 2(b), 'special or exclusive rights' shall mean rights

deriving from authorisations

granted by a competent authority of

the Member State concerned, by law, regulation or administrative action, the effect of which is to

reserve for one or more entities the exercise of an activity defined in Articles 3 to 7.

Rights granted in any form, including by way of acts of concession, by a Member State to

a limited number of undertakings, on the basis of objective, proportional and non- discriminatory criteria that allow any interested person who satisfies them the opportunity to benefit from them, shall not constitute special or exclusive rightsNot acceptable Maintain the common position.

exercise of activities the

Articles 3 to 7 to one or more entities, and which substantially affects the ability of other undertakings to carry out such activity on the same territory under substantially equivalent conditions.

defined in

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 15

Article 6

This Directive shall apply to activities relating to the provision of reserved postal services, other postal services or, on the conditions set out in paragraph 2(d), ancillary postal services. For the purpose of this Directive and without prejudice to Directive

97/67/EC:

(a) 'postal item' means an item addressed in the final form in which it is to be carried, irrespective of weight. In addition to items of correspondence, such items also include for instance books, catalogues, newspapers, periodicals and postal packages containing merchandise with or without commercial value, irrespective of weight (b) 'reserved postal services' means services consisting of the clearance, sorting, routing and delivery of postal items which are or may be reserved on the basis of Article 7 of This Directive shall apply to activities relating to the provision of reserved postal services, other postal services and , on the conditions set out in paragraph 2(c), other services. For the purpose of this Directive and without prejudice to the amended version of Directive

97/67/EC:

(a) 'postal item' means an item addressed in the final form in which it is to be carried, irrespective of weight. In addition to items of correspondence, such items also include for instance books, catalogues, newspapers, periodicals and postal packages containing merchandise with or without commercial value, irrespective of weight (b) 'reserved postal services' means services consisting of the clearance, sorting, routing and delivery of postal items which are or may be reserved on the basis of Article 7 of Not acceptable Maintain the common position. One single delegation is willing to show some flexibility on the issue.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Directive 97/67/EC;

(c) 'other postal services' means services other than those listed in (b) consisting of the clearance, sorting, routing and delivery of postal items; and

(d) 'ancillary postal services' means services provided in the following areas:

• - 

  mail service management services (services both preceding and subsequent to despatch, such as 'mailroom management services');
• - 

  added-value services linked to and provided entirely by electronic means (including the secure transmission of coded documents by electronic means, address management services and transmission of registered electronic mail);
• - 

  services concerning postal items not included in point (a), such as direct mail bearing no address;
• - 

  financial services, as defined in category 6 of Annex XVII A and in Article 24(c) and including in particular postal money orders and postal giro transfers; the amended version of Directive 97/67/EC (c) 'other services' means services

provided in the following areas:

• - 

  postal services consisting of the clearance, sorting, routing and delivery of postal items which are not reserved and which may not be so pursuant to Article 7 of Directive 97/67/EC; and
• - 

  mail service management services (services both preceding and subsequent to despatch, such as 'mailroom management services');
• - 

  added-value services linked to and provided entirely by electronic means (including the secure transmission of coded documents by electronic means, address management services and transmission of registered electronic mail);
• - 

  services concerning postal items not included in point (a), such as direct mail bearing no address;
• - 

  financial services, as defined in category 6 of Annex XVII A and in Article 24(c) and including in particular postal money orders and postal giro transfers;

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

• - 

  philatelic services; and - philatelic services; and
• - 

  logistics services (services combining physical delivery and/or warehousing with other non-postal functions), on condition that such services are provided by an entity which also provides postal services within the meaning of points (b) or (c) and provided that the conditions set out in Article 30(1) are not satisfied in respect of the services falling within those points.
• - 

  logistics services (services combining physical delivery and/or warehousing with other non-postal functions), on condition that such services are provided by an entity which also provides reserved postal services within the meaning of point (b) and provided that the conditions set out in Article 30(1) are not satisfied in respect of the services falling within that point.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 16

Article 10a (new)

Article 10a Respect for Community law

The contracting entities shall be obliged to respect the fundamental principles of Community law in connection with all contracts, including those falling below the thresholds specified in Article 16. . Not acceptable The majority of delegations in favour of maintaining the common position.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 18

Article 13, paragraph 2

This Directive shall not limit the right of economic operators to require a contracting entity, in accordance with the national law to which it is subject, to respect the confidential nature of information which they make available; such information may

include, in particular, technical or trade secrets and the confidential aspects of tenders Without prejudice to the requirements to publish information on contracts awarded and the candidates and tenderers, laid down respectively in Articles 43 and 49, the contracting entities must, throughout the procedure and at its end, respect the confidential nature of information provided by the economic operators. Such information shall include technical or trade secrets, the confidentiality of tenders and proposed solutions, and any other confidential information provided by the economic operator. Not acceptable Maintain the common position.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 28

Article 34, paragraph 6a (new)

6a. Whenever possible, public authorities shall take into account the accessibility for people with disabilities and design for all requirements. These technical specifications should be clearly indicated in the contract documentationNot acceptable A clear majority in favour of maintaining the common position. Some delegations could show some flexibility on the issue.

.

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 29

Article 34, paragraph 8

Unless justified by the subject- matter of the contract, technical specifications shall not refer to a specific make or source, or to a particular process, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted, on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract pursuant to paragraphs 3 and 4 is not possible; such reference shall be accompanied by the words 'or equivalent' Unless justified by the subject- matter of the contract, technical specifications shall not refer to a specific make or source, or to a particular process, or to trade marks, patents, types or a specific origin or production, or a specific producer or supplier. Such reference shall be permitted, on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract pursuant to paragraphs 3 and 4 is not possible; such reference must include the words 'or equivalent' Not acceptable A majority of delegations in favour

of maintaining the common position. A small number of delegations could show some flexibility on the issue.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 35

Article 40, paragraph 3, point (b)

(b) where a contract is purely for the purpose of research, experiment, study or development, and not for the purpose of securing a profit or of recovering research and development costs, and in so far as the award of such contract does not prejudice the competitive award of subsequent contracts which do seek, in particular, those ends;

(b) where a contract is purely for the purpose of research, experiment, study or development

[...]

Not acceptable Maintain the common position.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 39

Article 48, paragraph 4, sub-paragraph 1a (new)

A tender may be submitted by electronic means only if an advanced electronic signature within the meaning of Directive 1999/93/EC and a reliable means of encrypting the contents are usedNot acceptable. A majority of delegations in favour

of maintaining the common position. One single delegation can accept the amendment. Some delegations are flexible on the issue.

.

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 40

Article 48, paragraph 6a (new)

6a. Contracting entities shall provide to tenderers on request a certificate from an accredited third party certifying that they have in place adequate measures to safeguard the confidentiality of tenderers' information during transmission and after receiptNot acceptable Maintain the common position. (same position as to amd. 51 "classical")

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 41

Article 49, paragraph 3

Contracting entities which establish and operate a system of qualification shall inform applicants of their decision as to qualification within a reasonable period.

If the decision will take longer than

six months from the presentation of an application, the contracting entity shall inform the applicant, within two months of the application, of the reasons justifying the longer period and of the date by which his application will be accepted or refused. Contracting entities which establish and operate a system of qualification shall inform applicants of their decision as to qualification within a maximum period of two months.

If the decision will take longer than

two months from the presentation of an application, the contracting entity shall inform the applicant, within one month of the application, of the reasons justifying the longer period and of the date by which his application will be accepted or refused. Not acceptable Maintain the common position.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 50

Article 55, paragraph 1 , point (a)

(a) where the contract is awarded

on the basis of the most economically advantageous tender

for the contracting entities, various criteria justified by the subject-matter of the contract in question, such as delivery or completion date, running costs, cost-effectiveness, quality, aesthetic and functional characteristics, environmental characteristics, technical merit, after-sales service and technical assistance, commitments with regard to parts, security of supply, and price; or (a) where the contract is awarded on the basis of the most [...] advantageous tender, various criteria linked to the subject-matter of the contract in question, such as delivery or completion date, running costs, cost-effectiveness, quality, aesthetic and functional characteristics, environmental characteristics including production methods, technical merit, after-sales service and technical assistance, commitments with regard to parts, security of supply, price and the tenderer's equal treatment policy; or Not acceptable. The EP should moreover give some clarification for what reason the word "economically" was deleted in the text of the "utilities" directive, but not in the parallel amendments to the "classical" directive.Several delegations in favour of maintaining the common position. Some delegations can accept the amendment (except for its last part), some delegations would like to have more clarification from the EP. (see also reasoning to amendments 70 and 95 "classical").

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 53

Article 59, paragraph 3

The Commission shall endeavour, by approaching the third country concerned, to remedy any situation whereby it finds, on the basis either of the reports referred to in para- graph 2 or of other information, that, in the context of the award of

service contracts, a third country:

(a) does not grant Community undertakings effective access comparable to that granted by the Community to undertakings from that country; or (b) does not grant Community undertakings national treatment or the same competitive opportunities as are available to national undertakings; or

(c) grants undertakings from other third countries more favourable treatment than Community undertakings The Commission shall endeavour, by approaching the third country concerned, to remedy any situation whereby it finds, on the basis either of the reports referred to in para- graph 2 or of other information, that, in the context of the award of

public procurement contracts, a third country (a) does not grant Community undertakings effective access comparable to that granted by the Community to undertakings from that country; or (b) does not grant Community undertakings national treatment or the same competitive opportunities as are available to national undertakings; [...]

(c) grants undertakings from other third countries more favourable treatment than Community undertakings. Not acceptable, point d) of this amendment is directly linked to amendment 56.Several delegations in favour of maintaining the common position.

A small number of delegations could show some flexibility on the issue.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

-

, or

(d) does not comply with the international labour law provisions listed in Annex XXIIa.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 55

ANNEX XI, point D

CONTRACTING ENTITIES IN THE FIELD OF RAILWAY SERVICES CONTRACTING ENTITIES IN THE FIELD OF RAILWAY SERVICES

Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways

Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community's railways

Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 95/18/EC on the licensing of railway undertakings

Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infra-Not acceptable Not acceptable.

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

structure capacity and the levying of charges for the use of railway infrastructure and safety certifi- cation

 

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 54

ANNEX XI, point H

EXPLORATION FOR AND EXTRACTION OF COAL OR OTHER SOLID FUELS EXPLORATION FOR AND EXTRACTION OF COAL OR OTHER SOLID FUELS

If the requirements of Directive Not acceptable, recital 40 is sufficient to clarify the situation.Maintain the common position.

94/22/EC also apply, through

national legislation, to coal and

other solid fuels

.

Common position EP amendments Commission position Position of the Council Working

(second reading) Party

Amendment 56

ANNEX XXIIa (new)

Convention 87 on Freedom of Association and the Protection of the Right to Organise; Convention 98 on the Right to Organise and Collective Bargaining; Convention 29 on Forced Labour; Convention 105 on the Abolition

of Forced Labour; Convention 138 on Minimum Age; Convention 111 on Discrimination in Employment and Occupation; Convention 100 on Equal Remuneration; Convention 182 on Worst Forms

of Child Labour. . Not acceptable Several delegations in favour of maintaining the common position.

A small number of delegations could show some flexibility on the issue. (Position follows logically from views on amendment 53).

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