Amendments adopted by the European Parliament on 15 January 2014 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))
Date: 2014-01-15
Institutions: Committee on Development, Committee on Employment and Social Affairs, Committee on Industry, Research and Energy, Committee on International Trade, Committee on Legal Affairs, Committee on the Internal Market and Consumer Protection, European Parliament
Subjects: award of contract, invitation to tender, market access, ordinary legislative procedure, provision of services, service concession, services contract, single market, supplies contract, third country








C_2016482EN.01019201.xml










23.12.2016   


EN


Official Journal of the European Union


C 482/192





P7_TA(2014)0027
Access of goods and services to public procurement markets ***I
Amendments adopted by the European Parliament on 15 January 2014 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)) (1)

(Ordinary legislative procedure: first reading)
(2016/C 482/41)

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)





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), 2011/0439(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 86


Proposal for a regulation


Recital 4 a (new)








Text proposed by the Commission




Amendment





 










(4a)






The revised plurilateral World Trade Organisation (WTO) Agreement on Government Procurement (GPA) provides only for limited market access for Union companies to the public procurement markets of third countries and applies only to a limited number of WTO Members, which are parties to the GPA. The revised GPA was ratified by the Union in December 2013.











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.









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 b (new)








Text proposed by the Commission




Amendment





 










(5b)






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.









Amendment 87


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 (10) 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 (11) 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 (10) 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 (11) 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 
had
 a limited scope and due to a lack of guidance they 
were
 not much applied by contracting entities
, and should therefore be replaced by more concise and applicable provisions
.









Amendment 88


Proposal for a regulation


Recital 7 a (new)








Text proposed by the Commission




Amendment





 










(7a)






Market access for bidders from third countries to Union public procurement markets should be provided in accordance with Directives 2014/…/EU

 (12)

, 2014/…/EU

 (13)

and 2014/…/EU

 (14)

of the European Parliament and of the Council;











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.









Amendment 11


Proposal for a regulation


Recital 9 a (new)








Text proposed by the Commission




Amendment





 










(9a)






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), 2011/0439(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.









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 Code

 (12). 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
s 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.
 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.









Amendments 14 and 89


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 (13)] 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)




In the event that the Commission initiates an external procurement investigation to determine whether a lack of substantial reciprocity can be observed regarding access to the public procurement markets of third countries,
 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 (13)] 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 Council

 (13a)

, 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.











Amendments 15 and 90


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 
introductory part of the ‘technical specifications’ or of the ‘descriptive document’ as referred to in point 15 of Article 2(1) of Directive [2014/…/EU] on public procurement and point 15 of Article 2 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 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 […] 2014 and in Annex XIV to the Directive on procurement by entities operating in the water, energy, transport and postal services sectors […] (2014) 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.











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 […] 2014 and in Annex XIV to the Directive on procurement by entities operating in the water, energy, transport and postal services sectors […] (2014) 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 […] (2014) 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.









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.











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 
2014/XXX/EU of the European Parliament and of the Council

 (13a) and Article 79 of Directive 
2014/XXX/EU of the European Parliament and of the Council

 (13b) 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.









Amendments 22 and 91


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 (14.).












(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 its decision to initiate an external investigation procedure, it should take into account the number of requests made by contracting authorities/entities or Member States.
 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 (14.).









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.









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.









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
.









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.









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.









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.











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,









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 93


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 works and services concessions 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.





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;









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
;









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.)






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 […] 2014 and in Annex XIV to the Directive on procurement by entities operating in the water, energy, transport and postal services sectors […] (2014) 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 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







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







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.)






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 Code

 (18).


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.







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:





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.





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.





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 2 — subparagraph 5








Text proposed by the Commission




Amendment







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






deleted







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.





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.







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







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.








 





Amendment 92


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.   
Where tenders have been excluded pursuant to paragraph 3,
 contracting authorities/entities 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 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 point (ga) of Article 2(1).







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.







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.







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







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







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 — introductory part








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.





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).





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 a (new)








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.







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:





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.







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.





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).





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.








 





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.





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







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








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.







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.






(1)  This matter was referred back to the committee responsible for reconsideration pursuant to Rule 57(2), second subparagraph (A7-0454/2013).

(10)  OJ L 134, 30.4.2004, p. 1.

(11)  OJ L 134, 30.4.2004, p. 114.

(10)  OJ L 134, 30.4.2004, p. 1.

(11)  OJ L 134, 30.4.2004, p. 114.

(12)  
Directive 2014/…/EU of the European Parliament and of the Council of … on public procurement (OJ L …).



(13)  
Directive 2014/…/EU of the European Parliament and of the Council of … on procurement by entities operating in the water, energy, transport and postal services sectors (OJ L …).



(14)  
Directive 2014/…/EU of the European Parliament and of the Council of … on the award of concession contracts (OJ L …).



(12)  

OJ L 302, 19.10.1992, p. 1




(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).



(13a)  
Directive 2014/XXX/EU of the European Parliament and of the Council on public procurement (OJ XXX) (2011/0438(COD)).



(13b)  
Directive 2014/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)).



(14.)  OJ L 349, 31.12.1994


(14.)  OJ L 349, 31.12.1994


(18)  

OJ L 302, 19.10.1992, p. 1