Amendments adopted by the European Parliament on 14 December 2021 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(2016)0034 — C9-0018/2016 — 2012/0060(COD))
Date: 2021-12-14
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, goods and services, market access, public procurement, restriction on competition, service concession, services contract, supplies contract, tendering, third country




C_2022251EN.01018301.xml










30.6.2022   


EN


Official Journal of the European Union


C 251/183






P9_TA(2021)0497
International procurement instrument ***I
Amendments adopted by the European Parliament on 14 December 2021 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(2016)0034 — C9-0018/2016 — 2012/0060(COD)) (1)

(Ordinary legislative procedure: first reading)
(2022/C 251/31)

Amendment 1


Proposal for a regulation


Title of the Regulation








Text proposed by the Commission




Amendment







Amended 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


REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the access of third-country 
economic operators,
 goods and services to the Union’s procurement 
market
 and procedures supporting negotiations on access of Union 
economic operators,
 goods and services to the procurement markets of third countries





Amendment 2


Proposal for a regulation


Recital 5








Text proposed by the Commission




Amendment













(5)






The revised plurilateral WTO Agreement on Government Procurement 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 that Agreement. The revised Agreement on Government Procurement was concluded by the Union in December 2013.










deleted







Amendment 3


Proposal for a regulation


Recital 6








Text proposed by the Commission




Amendment











(6)


Within the context of the WTO 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.












(6)


Within the context of the WTO and through its bilateral relations, the Union advocates an ambitious opening of international procurement markets of the Union and its trading partners, in a spirit of reciprocity and mutual benefit









Amendment 4


Proposal for a regulation


Recital 6 a (new)








Text proposed by the Commission




Amendment





 










(6a)






The plurilateral WTO Agreement on Government Procurement and EU trade agreements that include provisions on procurement provide for market access for Union economic operators only to the procurement markets of third countries that are parties to those agreements.











Amendment 5


Proposal for a regulation


Recital 7








Text proposed by the Commission




Amendment











(7)


If 
the
 country 
concerned
 is a Party to the WTO Agreement on Government Procurement or has concluded a trade agreement with the EU that includes provisions on 
public
 procurement, the Commission should follow the consultation mechanisms and/or dispute settlement procedures set out in 
that agreement
 when the restrictive practices relate to procurement covered by market access commitments undertaken by 
the
 country 
concerned
 towards the Union.












(7)


If 
a third
 country is a Party to the WTO Agreement on Government Procurement or has concluded a trade agreement with the EU that includes provisions on procurement, the Commission should follow the consultation mechanisms and/or dispute settlement procedures set out in 
those agreements
 when the restrictive practices relate to procurement covered by market access commitments undertaken by 
that third
 country towards the Union.









Amendment 6


Proposal for a regulation


Recital 8








Text proposed by the Commission




Amendment











(8)


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.












(8)


Many third countries are reluctant to open their procurement and 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 
partners
 of the Union. Those restrictive procurement practices result in the loss of substantial trading opportunities.









Amendment 7


Proposal for a regulation


Recital 9








Text proposed by the Commission




Amendment













(9)






Directive 2014/25/EU of the European Parliament and of the Council

 (16)

contains only a few provisions concerning the external dimension of the public procurement policy of the Union, in particular Articles 85 and 86 . These provisions have a limited scope and should be replaced.










deleted







Amendment 8


Proposal for a regulation


Recital 10








Text proposed by the Commission




Amendment











(10)


Regulation (EU) No 654/2014 of the European Parliament and of the Council (17) lays down rules and procedures in order to ensure the exercise of the Union's rights under international trade agreements concluded by the Union. No rules and procedures exist for the treatment of goods and services not covered by such international agreements.












(10)


Regulation (EU) No 654/2014 of the European Parliament and of the Council (4) lays down rules and procedures in order to ensure the exercise of the Union's rights under international trade agreements concluded by the Union. No 
such
 rules and procedures exist for the treatment of 
economic operators,
 goods and services not covered by such international agreements.









Amendment 9


Proposal for a regulation


Recital 11








Text proposed by the Commission




Amendment











(11)




In the interest of legal certainty for Union and third-country economic operators, contracting authorities and contracting entities, the
 international market access commitments undertaken by the Union towards 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
.












(11)


International market access commitments undertaken by the Union towards third countries in the field of 
procurement and concessions require, inter alia, the equal treatment of economic operators from those countries. Consequently, measures adopted under this Regulation can only apply to economic operators, goods or services from countries that are not parties to the plurilateral WTO Agreement on Government Procurement or to bilateral or multilateral trade agreements with the Union that include commitments on access to
 procurement and concessions 
markets, or from countries that are parties to such agreements but only regarding procurement procedures for goods, services or concessions that are not covered by those agreements. Irrespective
 of the application 
of measures adopted under this Regulation and in accordance with the European Commission's Communication of 24 July 2019 on ‘Guidance on the participation of third-country bidders and goods in the EU procurement market’

 (1a)

and Directives 2014/23/EU, 2014/24/EU and 2014/25/EU of the European Parliament and of the Council, economic operators from third countries which do not have any agreement providing for the opening of the EU procurement market or whose goods, services and works are not covered by such an agreement, do not have secured access to procurement procedures in the EU and could be excluded
.









Amendment 10


Proposal for a regulation


Recital 12








Text proposed by the Commission




Amendment











(12)


The 
objectives of
 improving the access of Union economic operators to the 
public
 procurement and concessions markets of certain third countries 
protected by restrictive and discriminatory procurement measures or practices and of preserving equal conditions of competition within the internal market require to refer to the non-preferential
 rules of origin 
established in the EU customs legislation
, 
so that contracting authorities and contracting entities know whether
 goods and services 
are covered by the international commitments of the Union
.












(12)


The 
effective application of any measure adopted under this Regulation with a view to
 improving the access of Union economic operators to the procurement and concessions markets of certain third countries 
requires a clear set of
 rules of origin 
for economic operators
, goods and services.









Amendment 11


Proposal for a regulation


Recital 13








Text proposed by the Commission




Amendment











(13)


The origin of a good should be determined in accordance with Article 
22
 to 
26
 of 
Council
 Regulation 
(EEC)
 No 
2913/1992

 (5).












(13)


The origin of a good should be determined in accordance with Articles 
59
 to 
62
 of Regulation 
(EU)
 No 
952/2013

 (5)

of the European Parliament and of the Council
.









Amendment 12


Proposal for a regulation


Recital 14








Text proposed by the Commission




Amendment











(14)


The origin of a service should be determined on the basis of the origin of the natural or legal person providing it.












(14)


The origin of a service should be determined on the basis of the origin of the natural or legal person providing it. 
The origin of a legal person should be considered to be the country under the laws of which a legal person is constituted or organised and in the territory of which the legal person is engaged in substantive business operations. The criterion of substantive business operations should not allow the potential circumvention of any measure adopted under this Regulation by the creation of letterbox companies.


The term ‘substantive business operations’ is a concept used in the WTO General Agreement on Trade in Services. In Union law it is equivalent to the term ‘effective and continuous link with the economy’ and is closely linked to the right of establishment set out in Article 49 of the Treaty on the Functioning of the European Union. The Commission regularly publishes guidelines based on the case law related to the right of establishment, addressing, inter alia, the concept of an effective or stable and continuous link with the economy. Article 86 of Directive 2014/25/EU also refers to the concept of a ‘direct and effective link with the economy’ which is equivalent to the concept of ‘substantive business operations’.











Amendment 13


Proposal for a regulation


Recital 15








Text proposed by the Commission




Amendment













(15)






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 Regulation (EU) No 978/2012 of the European Parliament and of the Council

 (6)

, this Regulation should not apply to tenders where more than 50 % of the total value of the tender is made up of goods and services originating, in accordance with the Union’s non-preferential rules of origin, in least-developed countries benefitting from the ‘Everything But Arms’ arrangement or in 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.










deleted







Amendment 14


Proposal for a regulation


Recital 16








Text proposed by the Commission




Amendment













(16)






In the light of the overall policy objective of the Union to support small and medium-sized enterprises, this Regulation should also not apply to tenders submitted by SMEs established in the Union and in engaged in substantive business operations entailing a direct and effective link with the economy of at least one Member State.










deleted







Amendment 15


Proposal for a regulation


Recital 17








Text proposed by the Commission




Amendment











(17)


When assessing whether 
restrictive and/or discriminatory procurement
 measures or practices exists in a third country, the Commission should examine to what degree laws on 
public
 procurement and concessions 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 individual contracting authorities or contracting entities maintain or adopt 
discriminatory
 practices against Union goods, services 
and
 economic operators.












(17)


When assessing whether 
specific
 measures or practices exist in a third country 
that could result in the impairment of access of Union goods, services or economic operators to the procurement or concession markets
, the Commission should examine to what degree laws, 
rules or other measures
 on procurement and concessions of the country concerned ensure transparency in line with international standards, and 
do not result in serious and recurring restrictions
 against Union goods, services 
or
 economic operators. In addition, it should examine to what degree individual contracting authorities or contracting entities maintain or adopt 
restrictive
 practices against Union goods, services 
or
 economic operators.









Amendment 16


Proposal for a regulation


Recital 19








Text proposed by the Commission




Amendment











(19)


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 investigation into restrictive procurement measures or practices allegedly adopted or maintained by a third country. 
Such investigative procedures should be without prejudice to Regulation (EU) No 654/2014 of the European Parliament and of the Council.














(19)


The Commission should be able to initiate at any time 
a transparent
 investigation into restrictive or 
discriminatory
 procurement measures or practices allegedly adopted or maintained by a third country
, if it considers that such an investigation is in the interest of the Union
.









Amendment 17


Proposal for a regulation


Recital 19 a (new)








Text proposed by the Commission




Amendment





 










(19a)






The determination of whether an investigation is in the interest of the Union should be based on an appreciation of all the various interests taken as a whole, including the interests of the Union’s industry, users, consumers, workers and social partners. The Commission should weigh the consequences of starting or not starting an investigation against its impact, and the potential measures that could be adopted under this Regulation, in the Union’s broader interests. The general objective of achieving reciprocity by opening third-country markets and improving market access opportunities for Union economic operators should be given special consideration, and in that context the presence of third country bidders on EU procurement market could be taken into account. The objective of limiting any unnecessary administrative burden for contracting authorities and contracting entities as well as economic operators should also be taken into account. The Commission should pay particular attention to sectors that are considered strategic in respect of EU public procurement.











Amendment 18


Proposal for a regulation


Recital 19 b (new)








Text proposed by the Commission




Amendment





 










(19b)






Given the overall policy objective of the Union to support the economic growth of least developed countries (LDCs), of low and lower-middle income countries, and their integration into global value chains, it would not be in the Union’s interest to start an investigation against such countries under this Regulation, unless there are reasonable indications of circumvention of any adopted IPI measures. Consequently, this Regulation is not intended to apply to LDCs benefitting from the ‘Everything But Arms’ arrangement, developing countries considered to be vulnerable due to a lack of diversification and insufficient integration within the international trading system, as defined in Regulation (EU) No 978/2012, as well as to countries beneficiaries of the general arrangement referred to in that Regulation, unless the economy of such countries is considered to be competitive in the sectors concerned.











Amendment 19


Proposal for a regulation


Recital 20








Text proposed by the Commission




Amendment











(20)




If the existence of a restrictive and/or discriminatory procurement measure or 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 Union economic operators, goods and services 
in respect of public
 procurement in that country.












(20)




When conducting the investigation,
 the Commission should invite the 
third
 country concerned to enter into consultations with a view to 
eliminating and remedying any restrictive measures or practices and effectively
 improving the tendering opportunities for Union economic operators, goods and services 
regarding
 procurement 
and concessions markets
 in that country.









Amendment 20


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
 improvements to the tendering opportunities for Union economic operators, goods and services within a reasonable timeframe, the Commission should be able to adopt
, where appropriate, price adjustment measures applying to tenders submitted by economic operators originating in that country and/or including goods and services originating in that country.














(22)


If 
the investigation confirms the existence of restrictive measures or practices, and
 the consultations with the country concerned do not lead to 
satisfactory corrective actions that result in effectively remedying the serious and recurrent impairment of access
 for Union economic operators, goods and services within a reasonable timeframe 
or the third country concerned declines to enter into consultations,
 the Commission should adopt, 
under this Regulation, IPI measures in the form of a score adjustment or exclusion of tenders.











Amendment 21


Proposal for a regulation


Recital 23








Text proposed by the Commission




Amendment













(23)






Such measures should be applied only for the purpose of the evaluation of tenders comprising goods or services originating in the country concerned. To avoid circumvention of those measures, it may also be necessary to target certain foreign- controlled or owned legal persons that, although established in the European Union, are not engaged in substantive business operations that have a direct and effective link with the economy of at least one Member State. Appropriate measures should not be disproportionate to the restrictive procurement practices to which they respond.
















(23)






A score adjustment measure should be applied only for the purpose of the evaluation of tenders submitted by economic operators originating in the country concerned. It should not affect the price actually due to be paid under the contract to be concluded with the successful tenderer.











Amendment 22


Proposal for a regulation


Recital 23 a (new)








Text proposed by the Commission




Amendment





 










(23a)






IPI measures should apply to procurement procedures falling under the scope of this Regulation, including framework agreements and dynamic purchasing systems. IPI measures should also apply in the case of specific contracts awarded under a dynamic purchasing system, where those dynamic purchasing systems are subject to an IPI measure. However, they should not apply to such contracts below a certain threshold with a view to limiting the overall administrative burden for contracting authorities and contracting entities. In order to avoid a possible double application of IPI measures, such measures should not apply to contracts awarded based on a framework agreement, once IPI measures have already been applied at the stage of concluding that framework agreement.











Amendment 23


Proposal for a regulation


Recital 23 b (new)








Text proposed by the Commission




Amendment





 










(23b)






In light of the overall policy objective of the Union to support small and medium-sized enterprises (SMEs), the Commission and contracting authorities and contracting entities should duly consider the effects of this Regulation, with a view to preventing an overburdening of SMEs. The Commission in cooperation with the Member States should make available guidelines for best practices to achieve this objective, in order to ensure the efficiency of this Regulation and the consistency of its implementation.











Amendment 24


Proposal for a regulation


Recital 23 c (new)








Text proposed by the Commission




Amendment





 










(23c)






To avoid a possible circumvention of an IPI measure, additional contractual obligations should be imposed on successful tenderers. Those obligations should apply only in case of procurement procedures to which an IPI measure is applicable, as well as to contracts awarded based on a framework agreement where such contracts are equal to or above a certain threshold and when that framework agreement is subject to an IPI measure.











Amendment 25


Proposal for a regulation


Recital 24








Text proposed by the Commission




Amendment













(24)






Price adjustment measures should not have a negative impact on on-going trade negotiations with the country concerned. Therefore, where a country is engaging in substantive negotiations with the Union concerning market access in the field of public procurement, the Commission may suspend the measures during the negotiations.










deleted







Amendment 26


Proposal for a regulation


Recital 25








Text proposed by the Commission




Amendment













(25)






In order to simplify the application of a price adjustment measure by contracting authorities or contracting entities, there should be a presumption that all economic operators originating in a targeted third country with which there is no agreement on procurement will be subject to the measure, unless they can demonstrate that less than 50 % of the total value of their tender is made up of goods or services originating in the third country concerned.










deleted







Amendment 27


Proposal for a regulation


Recital 26








Text proposed by the Commission




Amendment













(26)






Member States are best placed to identify the contracting authorities or contracting entities, or categories of contracting authorities or contracting entities, which should apply the price adjustment measure. To ensure that an appropriate level of action is taken and that a fair distribution of the burden among Member States is achieved, the Commission should take the final decision, based on a list submitted by each Member State. Where necessary, the Commission may establish a list on its own initiative.










deleted







Amendment 28


Proposal for a regulation


Recital 27








Text proposed by the Commission




Amendment











(27)


It is imperative that contracting authorities and contracting entities have access to a range of high-quality products meeting their purchasing requirements at a competitive price. Therefore contracting authorities and contracting entities should be able 
not to
 apply 
price adjustment
 measures limiting access of non-covered goods and services 
in case
 there are no Union and/or covered goods or services available which meet the requirements of the contracting authority or contracting entity to 
safeguard
 essential public needs, for example 
in the fields of health and public safety, or where the
 application of 
the measure would lead to a disproportionate increase in the price or costs of the contract.














(27)


It is imperative that contracting authorities and contracting entities have access to a range of high-quality products meeting their purchasing requirements at a competitive price. Therefore, contracting authorities and contracting entities should be able
, on an exceptional basis, to not
 apply 
IPI
 measures limiting access of non-covered goods and services 
where
 there are no Union and/or covered goods or services available which meet the requirements of the contracting authority or contracting entity 
or where such action relates
 to 
safeguarding
 essential public 
policy
 needs, for example 
regarding public health or protection of the environment. The
 application of 
these exceptions should require the approval of the Commission. The contracting authorities and contracting entities should notify the Commission in a timely and comprehensive manner to allow for the appropriate monitoring of the implementation of this Regulation.











Amendment 29


Proposal for a regulation


Recital 28








Text proposed by the Commission




Amendment











(28)


In case of misapplication by contracting authorities or contracting entities of exceptions to 
price adjustment
 measures limiting access of non-covered goods and services, the Commission should be able to apply the corrective mechanism of Article 3 of Council Directive 89/665/EEC (20) or Article 8 of Council Directive 92/13/EEC (21) . In addition, contracts concluded with an economic operator by contracting authorities or contracting entities in violation of 
price adjustment
 measures limiting access of non-covered goods and services should be ineffective.












(28)


In case of misapplication by contracting authorities or contracting entities of exceptions to 
IPI
 measures limiting access of non-covered goods and services, the Commission should be able to apply the corrective mechanism of Article 3 of Council Directive 89/665/EEC (20) or Article 8 of Council Directive 92/13/EEC (21). In addition, contracts concluded with an economic operator by contracting authorities or contracting entities in violation of 
IPI
 measures limiting access of non-covered goods and services should be ineffective.









Amendment 30


Proposal for a regulation


Recital 30








Text proposed by the Commission




Amendment











(30)


The examination procedure should be used for the adoption of implementing acts regarding the adoption, withdrawal, 
or
 suspension or reinstatement of 
a the price adjustment
 measure.












(30)


The examination procedure should be used for the adoption of implementing acts regarding the adoption, withdrawal, suspension or reinstatement of 
an IPI
 measure 
and the Commission should be assisted by the Committee established by Regulation (EU) 2015/1843 of the European Parliament and of the Council

 (22)

(the ‘Trade Barriers Regulation’). If necessary and for matters affecting the Union’s legal framework on public procurement, the Commission should be able to also seek the advice of the Advisory Committee on Public Procurement established by Council Decision 71/306/EEC.











Amendment 31


Proposal for a regulation


Recital 30 a (new)








Text proposed by the Commission




Amendment





 










(30a)






Information received pursuant to this Regulation should only be used for the purpose for which it was requested and with due respect to the applicable Union and national data protection and confidentiality requirements. Regulation (EC) No 1049/2001 as well as Article 28 of Directive 2014/23/EU, Article 21 of Directive 2014/24/EU and Article 39 of Directive 2014/25/EU, should apply accordingly.











Amendment 32


Proposal for a regulation


Recital 32








Text proposed by the Commission




Amendment











(32)




Regular reporting by
 the Commission should 
make it possible to monitor
 the 
application
 and efficiency of 
the procedures established by
 this Regulation.












(32)



In line with the Interinstitutional Agreement of 13 April 2016 on Better Law-Making

 (1a)

and with a view, inter alia, to reduce administrative burdens, in particular on Member States
, the Commission should 
regularly review
 the 
scope, functioning
 and efficiency of this Regulation. 
The Commission should report on its assessment to the European Parliament and the Council. The review may be followed up by appropriate legislative proposals.







Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (hereinafter the Financial Regulation) provides that procurement rules and principles applicable to public contracts awarded by Union institutions on their own account should be based on the rules set out in the relevant EU acquis on public procurement. When reviewing the Financial Regulation, it is therefore appropriate to provide for the application of the IPI Regulation also to public contracts awarded by Union institutions.







Amendment 33


Proposal for a regulation


Recital 33








Text proposed by the Commission




Amendment













(33)






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 common rules on the treatment of tenders which include goods and services not covered by the international commitments of the Union. This Regulation does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with the fourth paragraph of Article 5 of the Treaty on European Union,










deleted







Amendment 34


Proposal for a regulation


Article 1 — paragraph 1








Text proposed by the Commission




Amendment






1.   This Regulation establishes measures intended to improve the access of Union economic operators, goods and services to the 
public
 procurement and concessions markets of third countries. It lays down procedures for the Commission to undertake investigations into alleged 
restrictive and discriminatory procurement
 measures or practices 
adopted or maintained by third countries
 against Union economic operators, goods and services, and to enter into consultations with the third countries concerned.




1.   This Regulation establishes measures intended to improve the access of Union economic operators, goods and services to the procurement and concessions markets of third countries
, regarding non-covered procurement
. It lays down procedures for the Commission to undertake investigations into alleged 
third-country
 measures or practices against Union economic operators, goods and services, and to enter into consultations with the third countries concerned.







It
 provides for the possibility 
of applying price adjustment
 measures 
to certain tenders for contracts for the execution of works or a work, for
 the 
supply of goods and/or the provision of services and for concessions, on the basis of the origin of the
 economic operators, goods or services 
concerned
.




This Regulation
 provides for the possibility 
for the Commission to impose IPI
 measures
, by means of implementing acts, in relation to such third country measures or practices to restrict
 the 
access of
 economic operators, goods or services 
from third countries to Union procurement procedures
.





Amendment 35


Proposal for a regulation


Article 1 — paragraph 2 — introductory part








Text proposed by the Commission




Amendment






2.   This Regulation shall apply to 
contracts
 covered by the following acts:




2.   This Regulation shall apply to 
procurement procedures
 covered by the following acts:






Amendment 36


Proposal for a regulation


Article 1 — paragraph 3








Text proposed by the Commission




Amendment








3.
   
This Regulation shall apply to the award of contracts for the supply of goods and/or services and to the award of works and services concessions. It shall only apply where the goods or services are procured for governmental purposes. It shall not apply where the goods are purchased with a view to commercial resale or with a view to use in the production of goods for commercial sale. It shall not apply where the services are purchased with a view to commercial resale or with a view to use in the supply of services for commercial sale.







deleted







Amendment 37


Proposal for a regulation


Article 1 — paragraph 4








Text proposed by the Commission




Amendment








4.
   
This Regulation shall apply only with regard to restrictive and/or discriminatory procurement measures or practices implemented by a third country in respect of purchases of non-covered goods and services. The application of this Regulation shall be without prejudice to any international obligations of the Union.







deleted







Amendment 38


Proposal for a regulation


Article 1 — paragraph 4 a (new)








Text proposed by the Commission




Amendment





 





4a.
   
This Regulation shall be without prejudice to any international obligations of the Union or measures that Member States and their contracting authorities and contracting entities may take in accordance with the acts referred to in paragraph 2.








Amendment 39


Proposal for a regulation


Article 1 — paragraph 5 a (new)








Text proposed by the Commission




Amendment





 





5a.
   
This Regulation shall only apply to procurement procedures launched after its entry into force. An IPI measure shall only apply to procurement procedures covered by the IPI measure and launched at any moment between the entry into force of that IPI measure and its expiry, withdrawal or suspension. A reference to the application of this Regulation and any applicable IPI measure shall be included by contracting authorities and contracting entities in the procurement documents for procedures falling within the scope of an IPI measure.








Amendment 40


Proposal for a regulation


Article 1 — paragraph 5 b (new)








Text proposed by the Commission




Amendment





 





5b.
   
Contracting authorities and contracting entities shall, in order to appropriately integrate environmental, social and labour requirements into public procurement and concession award procedures, take relevant measures to ensure that environmental, social and labour obligations resulting from laws, regulations or administrative provisions, at both Union and national level, as well as from collective agreements compatible with Union law, applicable to the procurement contract, are complied with. Equally, obligations stemming from international conventions ratified by all Member States and listed in Annex X to Directive 2014/23/EU, Annex X to Directive 2014/24/EU and Annex XIV to Directive 2014/25/EU shall apply during the execution of the contract.







 




Member States shall inform the Commission of any difficulties, in law or in fact, encountered and reported by their economic operators and which are due to the non-observance of the international environmental, social and labour law referred to in subparagraph 1, when those undertakings have tried to secure the award of contracts within the EU or in third countries.







Amendment 41


Proposal for a regulation


Article 2 — paragraph 1– point a








Text proposed by the Commission




Amendment











(a)


‘economic operator’ means 
any natural or legal person or public entity or group of such persons and/or entities, including any temporary association of undertakings, which submits a tender for the execution of works and/or a work, the supply of goods or the provision of services on the market;














(a)


‘economic operator’ means 
an economic operator as defined in Directives 2014/23/EU, 2014/24/EU and 2014/25/EU;











Amendment 42


Proposal for a regulation


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








Text proposed by the Commission




Amendment





 










(aa)






‘goods’ means goods referred to in the object of the public procurement tender and in the specifications of the contract, but does not cover any input, material or ingredient incorporated in the supplied goods;











Amendment 43


Proposal for a regulation


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








Text proposed by the Commission




Amendment





 










(ab)






‘estimated value’ means the estimated value of a contract calculated in accordance with Directives 2014/23/EU, 2014/24/EU and 2014/25/EU;











Amendment 44


Proposal for a regulation


Article 2 — paragraph 1– point a c (new)








Text proposed by the Commission




Amendment





 










(ac)






‘evidence’ means any information, certificate, supporting document, statement and other means of proof aimed at proving compliance with the obligations set out in Article 9a(1)(c), such as:










(i)






certificates of origin, supplier declarations or import declarations for goods originating in third countries;














(ii)






a description of manufacturing processes (including samples, descriptions or photographs) for goods to be supplied;














(iii)






an extract of relevant registers or of financial statements for the origin of services, including a VAT identification number;















Amendment 45


Proposal for a regulation


Article 2 — paragraph 1– point a d (new)








Text proposed by the Commission




Amendment





 










(ad)






‘score adjustment measure’ means the relative diminution by a given percentage of the score of a tender, resulting from its evaluation by a contracting authority or a contracting entity, on the basis of the contract award criteria defined in the procurement documents. In cases where price or cost is the only contract award criterion, the score adjustment measure means the relative increase, for the purpose of the evaluation of tenders, by a given percentage of the price offered by a tenderer;











Amendment 46


Proposal for a regulation


Article 2 — paragraph 1 — point b








Text proposed by the Commission




Amendment











(b)


contracting authority means ‘contracting authority’ as defined in 
Article 2(1) of Directive
 2014/24/EU;












(b)


‘contracting authority’ means 
a
 contracting authority as defined in 
Directives 2014/23/EU,
 2014/24/EU 
and 2014/25/EU
;









Amendment 47


Proposal for a regulation


Article 2 — paragraph 1 — point c








Text proposed by the Commission




Amendment











(c)


‘contracting entity’ means ‘contracting entity’ as defined in 
Article 4(1) of
 Directive 
2014/25/EU
 and 
Article 7 of Directive 2014/23/EU
;












(c)


‘contracting entity’ means 
a
 contracting entity as defined in Directives 
2014/23/EU
 and 
2014/25/EU
;









Amendment 48


Proposal for a regulation


Article 2 — paragraph 1 — point c a (new)








Text proposed by the Commission




Amendment





 










(ca)






‘interested party’ means any person or entity whose interest might be affected by a third country measure, such as undertakings, an association of undertakings, trade associations, trade unions, or civil society organisations, including consumers organisations;











Amendment 49


Proposal for a regulation


Article 2 — paragraph 1 — point d








Text proposed by the Commission




Amendment













(d)






‘covered goods or services’ means a goods or services originating in a country with which the Union has concluded an international agreement in the field of public procurement and/or concessions including market access commitments and in respect of which the relevant agreement applies;










deleted







Amendment 50


Proposal for a regulation


Article 2 — paragraph 1 — point e








Text proposed by the Commission




Amendment













(e)






‘non-covered goods or services’ means a goods or services originating in a country with which the Union has not concluded an international agreement in the field of public procurement or concessions including market access commitments, as well as goods or services originating in a country with which the Union has concluded such an agreement but in respect of which the relevant agreement does not apply;










deleted







Amendment 51


Proposal for a regulation


Article 2 — paragraph 1 — point f








Text proposed by the Commission




Amendment











(f)




‘restrictive and/or discriminatory procurement
 measure or practice’ means any legislative, regulatory or administrative measure, procedure or practice, or combination thereof, adopted or maintained by public authorities or individual contracting authorities or contracting entities in a third country, that result in a serious and recurrent impairment of access of Union goods, services and/or economic operators to the 
public
 procurement or concession 
market of that country
.












(f)




‘third-country
 measure or practice’ means any legislative, regulatory or administrative measure, procedure or practice, or combination thereof
, of a general nature, stemming from a national or sub-national policy,
 adopted or maintained by public authorities or individual contracting authorities or contracting entities in a third country, that results in a serious and recurrent impairment of access of Union goods, services and/or economic operators to the procurement or concession 
markets
.









Amendment 52


Proposal for a regulation


Article 2 — paragraph 1 — point f a (new)








Text proposed by the Commission




Amendment





 










(fa)






‘IPI measure’ means a measure adopted by the Commission under this Regulation limiting the access of economic operators and/or goods and services originating in third countries to the Union procurement or concessions market in the area of non-covered procurement;











Amendment 53


Proposal for a regulation


Article 2 — paragraph 1 — point f b (new)








Text proposed by the Commission




Amendment





 










(fb)






‘non-covered procurement’ means procurement procedures for goods, services or concessions regarding which the Union has not undertaken market access commitments in an international agreement in the field of procurement or concessions;











Amendment 54


Proposal for a regulation


Article 2 — paragraph 1 — point f c (new)








Text proposed by the Commission




Amendment





 










(fc)






‘contracts’ means ‘public contracts’ as defined in Directive 2014/24/EU, ‘concessions’ as defined in Directive 2014/23/EU and ‘supply, works and service contracts’ as defined in Directive 2014/25/EU;











Amendment 55


Proposal for a regulation


Article 2 — paragraph 1 — point f d (new)








Text proposed by the Commission




Amendment





 










(fd)






‘tenderer’ means a tenderer as defined in Directives 2014/23/EU, 2014/24/EU and 2014/25/EU;











Amendment 56


Proposal for a regulation


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








Text proposed by the Commission




Amendment





 










(ga)






‘subcontracting’ means arranging the part execution of a contract by a third party; the simple delivery of goods or parts necessary for the provision of a service is not considered to be subcontracting.











Amendment 57


Proposal for a regulation


Article 2 — paragraph 1 — point h








Text proposed by the Commission




Amendment













(h)






SME means SME as defined in Commission Recommendation 2003/361/EC

 (23)

.










deleted







Amendment 58


Proposal for a regulation


Article 2 — paragraph 2








Text proposed by the Commission




Amendment






2.   For the purpose of this Regulation, the execution of works 
and/
or a work within the meaning of Directives 
2014/25/EU
, 2014/24/EU and Directive 
2014/23/EU
 shall be considered as the provision of a service.




2.   For the purpose of this Regulation, 
except for Articles 8a(3) and 8a(7)thereof,
 the execution of works or a work within the meaning of Directives 
2014/23/EU
, 2014/24/EU and Directive 
2014/25/EU
 shall be considered as the provision of a service.






Amendment 59


Proposal for a regulation


Article 3 — title








Text proposed by the Commission




Amendment







Rules
 of origin




Determination
 of origin





Amendment 60


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 Council Regulation (EEC) No 2913/1992

 (24)

.







deleted







Amendment 61


Proposal for a regulation


Article 3 — paragraph 2








Text proposed by the Commission




Amendment








2.
   
The origin of a service shall be determined on the basis of the origin of economic operator providing it.







deleted







Amendment 62


Proposal for a regulation


Article 3 — paragraph 3 –subparagraph 1 — point a








Text proposed by the Commission




Amendment











(a)


in the case of a natural person, the country of which the person is a national or where 
he
 has a right of permanent residence;












(a)


in the case of a natural person, the country of which the person is a national or where 
that person
 has a right of permanent residence;









Amendment 63


Proposal for a regulation


Article 3 — paragraph 3 — subparagraph 1 — point b — subpoint i








Text proposed by the Commission




Amendment











(i)




if the service is not provided through a commercial presence within the Union,
 the country under the laws of which the legal person is constituted or otherwise organised and in the territory of which the legal person is engaged in substantive business operations;












(i)


the country under the laws of which the legal person is constituted or otherwise organised and in the territory of which the legal person is engaged in substantive business operations
, entailing a direct and effective link with the economy of the country concerned
;









Amendment 64


Proposal for a regulation


Article 3 — paragraph 3 — subparagraph 1 — point b — subpoint ii








Text proposed by the Commission




Amendment











(ii)


the Member State where the legal person is established and engaged in substantive business operations entailing a direct and effective link with the economy of the Member State concerned.












(ii)




if
 the legal person is 
not
 engaged in substantive business operations 
in the territory of the country in which it is constituted or otherwise engaged, the origin of the legal person shall be that of the person or persons which may exercise, directly or indirectly, a dominant influence on the legal person by virtue of their ownership of it, their financial participation therein, or the rules which govern it.











Amendment 65


Proposal for a regulation


Article 3 — paragraph 3 — subparagraph 2








Text proposed by the Commission




Amendment





For the purposes of point (b) (ii) of the first subparagraph if the legal person is not engaged in substantive business operations entailing a direct and effective link with the economy of a Member State, the origin of a legal person shall be that of the person or persons which own or control the legal person.


For the purposes of point (b) (ii) of the first subparagraph
, that person or persons shall be presumed as having a dominant influence on
 the legal 
person in any of the following cases in which they, directly or indirectly:






 










(a)






hold the majority of the legal person’s subscribed capital;










 










(b)






control the majority of the votes attaching to shares issued by the legal person;










 










(c)






can appoint more than half of the legal person’s administrative, management or supervisory body.











Amendment 66


Proposal for a regulation


Article 3 — paragraph 3 — subparagraph 3








Text proposed by the Commission




Amendment







A legal person shall be considered to be ‘owned’ by persons of a given country where more than 50 % of the equity interest in it is beneficially owned by persons of that country.






deleted







Amendment 67


Proposal for a regulation


Article 3 — paragraph 3 — subparagraph 4








Text proposed by the Commission




Amendment







A legal person shall be considered to be ‘controlled’ by persons of a given country where such persons have the power to appoint a majority of its directors or otherwise to legally direct its actions.






deleted







Amendment 68


Proposal for a regulation


Article 3 — paragraph 3 a (new)








Text proposed by the Commission




Amendment





 





3a.
   
Where an economic operator is a group of natural or legal persons and/or of public entities, and at least one of such persons or entities originates from a third country whose economic operators and goods and services are subject to an IPI measure, that IPI measure shall equally apply to tenders submitted by that group. This shall not apply if the participation of those persons or entities in a group amounts to less than 15 % of the value of the tender in question, unless those persons or entities are necessary for fulfilling the majority of at least one of the selection criteria in a procurement procedure.








Amendment 69


Proposal for a regulation


Article 3 — paragraph 3 b (new)








Text proposed by the Commission




Amendment





 





3b.
   
Contracting authorities or contracting entities may at any time during the procurement procedure request the economic operator to submit, clarify or complete the information or documentation related to the verification of the economic operator's origin within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency. Tenders from economic operators that fail to provide such information or documentation shall be rejected in accordance with the rules applicable to the award procedure.








Amendment 70


Proposal for a regulation


Article 3 — paragraph 3 c (new)








Text proposed by the Commission




Amendment





 





3c.
   
For the application of the additional contractual obligations upon the successful tenderer set out in Article 9a, the origin of a good shall be determined in accordance with Articles 59 to 62 of Regulation (EU) No 952/2013, while the origin of a service shall be determined on the basis of the origin of the economic operator providing it.








Amendment 71


Proposal for a regulation


Chapter 2 — title








Text proposed by the Commission




Amendment










deleted







Amendment 72


Proposal for a regulation


Article 4 — paragraph 1








Text proposed by the Commission




Amendment





Tenders shall be exempted from this Regulation where 
more than 50 % of the total value of the tender is made up of goods and/or services
 originating in least-developed countries listed in Annex IV to Regulation (EU) No 978/2012 (27), and 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.


Tenders shall be exempted from this Regulation where 
they have been submitted by an economic operator
 originating in least-developed countries listed in Annex IV to Regulation (EU) No 978/2012 (27), and 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. 
The Commission may exempt tenders submitted by an economic operator originating in developing countries that are beneficiaries of the general arrangement referred to in point (a) of Article 1(2) of Regulation (EU) No 978/2012, unless the economy of such countries is considered to be competitive in the sectors concerned.







Amendment 73


Proposal for a regulation


Article 5








Text proposed by the Commission




Amendment







Article 5






deleted








Exemption for tenders submitted by SMEs




 






Tenders submitted by SMEs

 (28)

established in the Union and engaged in substantive business operations entailing a direct and effective link with the economy of at least one Member State, shall be exempted from this Regulation.




 





Amendment 74


Proposal for a regulation


Chapter III– title








Text proposed by the Commission




Amendment





Investigations, consultations and 
price adjustement
 measures


Investigations, consultations, measures 
and additional contractual obligations







Amendment 75


Proposal for a regulation


Article 6 — title








Text proposed by the Commission




Amendment





Investigations


Investigations 
and consultations







Amendment 76


Proposal for a regulation


Article 6 — paragraph 1








Text proposed by the Commission




Amendment






1.   
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, initiate an investigation into alleged 
restrictive and/or discriminatory procurement measures or practices. If an investigation is initiated, the Commission shall publish
 a notice in the Official Journal of the European Union

, inviting
 interested parties and Member States to provide 
all relevant
 information to the Commission within a specified period of time.




1.   
If
 the Commission considers it to be in the interest of the Union, it 
shall
 on its own initiative or upon 
a substantiated complaint
 of 
a Union
 interested 
party, the European Parliament,
 or a Member State, initiate an investigation into 
an
 alleged 
third-country measure or practice by publishing
 a notice in the Official Journal of the European Union. 
The notice of initiation shall include the Commission's preliminary assessment of the third-country measure or practice and invite Union
 interested parties and Member States to provide information to the Commission within a specified period of time.





 




The Commission shall make available on its website the form which the interested parties or Member States are required to complete in order to submit a substantiated complaint.





 




A determination as to whether the Union's interest calls for an investigation shall be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry and users and consumers. An investigation may not be started where the Commission, on the basis of all the information submitted, can clearly conclude that it is not in the Union's interest to start such an investigation.







Amendment 77


Proposal for a regulation


Article 6 — paragraph 1 a (new)








Text proposed by the Commission




Amendment





 





1a.
   
Upon publication of the notice, the Commission shall invite the third country concerned to submit its views, provide information and enter into consultations with the Commission in order to remedy the alleged third-country measure or practice. The Commission shall regularly inform interested parties, the European Parliament, and Member States within the Committee established by Article 7 of the Trade Barriers Regulation.








Amendment 78


Proposal for a regulation


Article 6 — paragraph 2








Text proposed by the Commission




Amendment






2.   
The assessment by the Commission of whether the alleged restrictive and/or discriminatory procurement measures or practices have been adopted or are maintained by the third country concerned shall be made on the basis of the information supplied by interested parties and Member States, of facts collected by the Commission during its investigation, or both.
 The 
assessment
 shall be concluded within a period of 
eight
 months after the initiation 
of the investigation.
 In duly justified cases, 
this period
 may 
be extended
 by 
four
 months.




2.   The 
investigation and consultations
 shall be concluded within a period of 
six
 months after the 
date of the publication in the Official Journal of the
 initiation 
notice.
 In duly justified cases, 
the Commission
 may
, before the end of the initial six months, extend that period
 by 
three
 months, 
by publishing a notice in the Official Journal of the European Union and informing the third country, interested parties, the European Parliament, and Member States
.






Amendment 79


Proposal for a regulation


Article 6 — paragraph 2 a (new)








Text proposed by the Commission




Amendment





 





2a.
   
Upon conclusion of the investigation and consultations, the Commission shall make publicly available a report recording the main findings of the investigation and a proposed course of action. The Commission shall present the report to the European Parliament.








Amendment 80


Proposal for a regulation


Article 6 — paragraph 3








Text proposed by the Commission




Amendment






3.   Where the Commission 
concludes as a result of
 its investigation that the alleged 
restrictive and/or discriminatory procurement measures or practices are
 not maintained or that 
they do
 not result in 
restrictions to
 access 
by
 Union economic operators or Union goods 
and
 services to the 
public
 procurement or concession 
markets
 of the third country 
concerned
, the Commission shall terminate the investigation.




3.   Where the Commission 
finds, following
 its investigation, that the alleged 
third-country measure or practice is
 not maintained or that 
it does
 not result in 
a serious and recurrent impairment of
 access 
of
 Union economic operators, Union goods 
or
 services to the procurement or concession 
market
 of the third country, the Commission shall terminate the investigation, 
and publish a notice of termination in the Official Journal of the European Union
.






Amendment 81


Proposal for a regulation


Article 6 — paragraph 4








Text proposed by the Commission




Amendment








4.
   
When the Commission has concluded its investigation, it shall make publicly available a report recording its main findings.







deleted







Amendment 82


Proposal for a regulation


Article 6 — paragraph 4 a (new)








Text proposed by the Commission




Amendment





 





4a.
   
The Commission may suspend the investigation and consultations at any time if the third country:







 










(a)






takes satisfactory corrective measures remedying the serious and recurrent impairment of access of Union economic operators or Union goods or services and effectively improving such an access, or










 










(b)






undertakes commitments towards the Union to end or phase out the third-country measure or practice within a reasonable period of time and no later than three months.










 




The Commission shall resume the investigation and consultations at any time if it concludes that the reasons for the suspension are no longer valid.






 




The Commission shall publish a notice in the Official Journal of the European Union in case of suspension or resumption of the investigation and consultations.







Amendment 83


Proposal for a regulation


Article 7








Text proposed by the Commission




Amendment





[…]




deleted







Amendment 84


Proposal for a regulation


Article 8








Text proposed by the Commission




Amendment





[…]




deleted







Amendment 85


Proposal for a regulation


Article 8 a (new)








Text proposed by the Commission




Amendment





 




Article 8 a






 




IPI measures






 





1.
   
Where the Commission finds, following an investigation and consultations pursuant to Article 6, that a third-country measure or practice exists, it shall impose an IPI measure by means of an implementing act. An IPI measure shall only apply if the main object of the procurement procedure falls within the scope of the implementing act, as specified in accordance with paragraph 7 point (a). The procurement procedure shall not be designed with the intention of excluding that procedure from the scope of this Regulation.







 





2.
   
The IPI measure shall be determined on the basis of the following criteria, in light of available information:







 










(a)






the proportionality of the IPI measure with regard to the third-country measure or practice;










 










(b)






the availability of alternative sources of supply for the goods and services concerned, in order to avoid or minimise a significant negative impact on contracting authorities or contracting entities.










 










(c)






the engagement of undertakings from the targeted third country in procurement activities in the internal market, benefiting from the lack of reciprocity.










 





3.
   
The IPI measure shall only apply to procurement procedures with an estimated value of at least EUR 10 000 000  net of value-added tax for works and concessions, and of at least EUR 5 000 000  net of value-added tax for goods and services.







 





4.
   
The IPI measure shall also apply in the case of specific contracts awarded under a dynamic purchasing system, where those dynamic purchasing systems are subject to the IPI measure, with the exception of specific contracts the estimated value of which is below the respective values set out in Article 8 of Directive 2014/23/EU, Article 4 of Directive 2014/24/EU and Article 15 of Directive 2014/25/EU.







 




The IPI measure shall not apply to procedures for the award of contracts based on a framework agreement. The IPI measure shall also not apply to individual lots to be awarded according to Article 5 (10) of Directive 2014/24/EU or Article 16 (10) of Directive 2014/25/EU.






 





5.
   
In its implementing act, the Commission may decide, within the scope established in paragraph 7 of this Article, to restrict the access of operators, goods or services from third countries to procurement procedures by requiring contracting authorities or contracting entities to:







 










(a)






impose a score adjustment measure on tenders submitted by economic operators originating in that third country;










 










(b)






exclude tenders submitted by economic operators originating in that third country; or










 










(c)






impose a combination of (a) and (b), if different sectors or categories of goods and services are subject to IPI measures.










 





6.
   
The score adjustment measure referred to in paragraph 5 point (a) shall apply only for the purpose of the evaluation and ranking of the tenders. It shall not affect the price due to be paid under the contract to be concluded with the successful tenderer.







 





7.
   
The implementing act, adopted in accordance with Article 14(2), shall specify the scope of application of the IPI measure, including:







 










(a)






the sectors or the categories of goods, services and concessions based on the Common Procurement Vocabulary as well as any applicable exceptions;










 










(b)






specific categories of contracting authorities or contracting entities;










 










(c)






specific categories of economic operators;










 










(d)






as regards the score adjustment measure referred to in paragraph 5 point (a), the percentage value of the adjustment, set up to 100 % of the evaluation score of the tender depending on the third country and sector of goods, services, works or concessions envisaged.










 





8.
   
When determining the IPI measure based on the options under points (a), (b) or (c) of paragraph 5, the Commission shall opt for the kind of measure that would most effectively remedy the level of impairment of EU operators on third country markets.







 





9.
   
The Commission may either withdraw the IPI measure or suspend its application if the third country takes satisfactory corrective actions remedying the impairment of access of Union goods, services or economic operators to its procurement or concession markets, or if it undertakes commitments to end the measure or practice in question. If the Commission considers that the corrective actions or commitments undertaken have been rescinded, suspended or improperly implemented, it shall make publicly available its findings and reinstate the application of the IPI measure at any time. The Commission may withdraw, suspend or reinstate an IPI measure in accordance with the examination procedure referred to in Article 14(2) and followed by the publication of a notice in the Official Journal of the European Union.







 





10.
   
An IPI measure shall expire five years from its entry into force. An IPI measure may be extended for a duration of five years. Nine months before the date of expiry of the IPI measure, the Commission, at its own initiative, shall initiate a review of the IPI measure in question by publishing a notice in the Official Journal of the European Union. Such a review shall be concluded within six months. Following such a review, the Commission may extend the duration of the IPI measure, adjust it appropriately or replace it by a different IPI measure.








Amendment 86


Proposal for a regulation


Article 9








Text proposed by the Commission




Amendment







Article 9






deleted








Authorities or entities concerned




 






The Commission shall determine the contracting authorities or entities or categories of contracting authorities or entities, listed by Member State, whose procurement is concerned by the measure. To provide the basis for this determination, each Member State shall submit a list of appropriate contracting authorities or entities or categories of contracting authorities or entities. The Commission shall ensure that an appropriate level of action is taken and that a fair distribution of the burden among Member States is achieved.




 





Amendment 87


Proposal for a regulation


Article 9 a (new)








Text proposed by the Commission




Amendment





 




Article 9a






 




Additional contractual obligations upon the successful tenderer






 





1.
   
In the case of procurement procedures to which an IPI measure is applicable, as well as in the case of contracts awarded based on a framework agreement where the estimated value of those contracts is equal or above the values set out in Article 8 of Directive 2014/23/EU, Article 4 of Directive 2014/24/EU and Article 15 of Directive 2014/25/EU, respectively, and where those framework agreements were subject to the IPI measure, contracting authorities and contracting entities shall also include, among the conditions of the contract with the successful tenderer:







 










(a)






an obligation not to subcontract, including through the delivery of goods and parts, more than 25 % of the total value of the contract to economic operators originating in a third country which is subject to an IPI measure;










 










(b)






for contracts whose subject matter covers the supply of goods, a commitment that, for the duration of the contract, goods supplied and/or services provided in the execution of the contract and originating in a third country which is subject to the IPI measure represent no more than 25 % of the total value of the contract, whether such goods and/or services are supplied or provided directly by the tenderer or by a subcontractor;










 










(c)






an obligation to provide, upon request, adequate evidence corresponding to points (a) or (b) to the contracting authority or the contracting entity at the latest upon completion of the execution of the contract;










 










(d)






a proportionate charge, in case of non-observance of the commitments referred in points (a) or (b) of 25 % of the total value of the contract.










 





2.
   
For the purposes of paragraph 1 point (c), it is sufficient to provide evidence that more than 75 % of the total value of the contract originates in countries other than the third country subject to the IPI measure. The contracting authority or contracting entity shall request evidence in case of reasonable indications of non-compliance with points (a) or (b) of paragraph 1 or if the contract is awarded to a group of economic operators comprising a legal person originating in a third country subject to an IPI measure.







 





3.
   
For tenders submitted by autonomous SMEs, as defined in the Commission Recommendation 2003/361/EC, originating in the Union or in a third country with which the Union has concluded an international agreement in the field of procurement, the Commission and the Member States shall make available guidelines for best practices to ensure the efficiency of this Regulation and the consistency of its implementation. Those guidelines shall take into account, in particular, the information needs of SMEs.







 





4.
   
Contracting authorities and contracting entities shall include a reference to the additional conditions laid down in this Article in the documents for procurement procedures to which an IPI measure is applicable.








Amendment 88


Proposal for a regulation


Article 10








Text proposed by the Commission




Amendment





[…]




deleted







Amendment 89


Proposal for a regulation


Article 11








Text proposed by the Commission




Amendment





[…]




deleted







Amendment 90


Proposal for a regulation


Article 12 — paragraph 1 — introductory part








Text proposed by the Commission




Amendment






1.   Contracting authorities and contracting entities may decide not to apply the 
price adjustment
 measure with respect to a procurement 
or a concession
 procedure if:




1.   Contracting authorities and contracting entities may, 
on an exceptional basis,
 decide not to apply the 
IPI
 measure to a procurement procedure if:






Amendment 91


Proposal for a regulation


Article 12 — paragraph 1 — point a








Text proposed by the Commission




Amendment













(a)






there are no Union and/or covered goods or services available which meet the requirements of the contracting authority or contracting entity; or










deleted







Amendment 92


Proposal for a regulation


Article 12 — paragraph 1 — point a a (new)








Text proposed by the Commission




Amendment





 










(aa)






there are only tenders from economic operators originating in a third country subject to an IPI measure, or if only such tenders meet the tender requirements; or











Amendment 93


Proposal for a regulation


Article 12 — paragraph 1 — point a b (new)








Text proposed by the Commission




Amendment





 










(ab)






this is justified for overriding reasons relating to the public interest, such as public health or protection of the environment;











Amendment 94


Proposal for a regulation


Article 12 — paragraph 1 –point b








Text proposed by the Commission




Amendment













(b)






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










deleted







Amendment 95


Proposal for a regulation


Article 12 — paragraph 2








Text proposed by the Commission




Amendment






2.   Where a contracting authority or contracting entity intends not to apply 
a price adjustment measure, it shall indicate its intention in the contract notice that it publishes pursuant to Article 49 of Directive 2014/24/EU or Article 69 of Directive 2014/25/EU or in the concession notice pursuant to Article 31 of Directive 2014/23/EU. It
 shall notify the Commission no later than 
ten calendar
 days 
after the publication
 of the contract 
notice
.




2.   Where a contracting authority or contracting entity intends not to apply 
an IPI measure, it
 shall notify the Commission 
without delay and in any case
 no later than 
thirty
 days 
before the award
 of the contract
, and provide a detailed justification for the use of the exception
.






Amendment
96


Proposal for a regulation


Article 12 — paragraph 3 — subparagraph 1 — point d








Text proposed by the Commission




Amendment











(d)


the ground on which the decision not to apply the 
price adjustment
 measure is based, and a detailed justification for the use of the exception;












(d)


the ground on which the decision not to apply the 
IPI
 measure is based, and a detailed justification for the use of the exception;









Amendment 97


Proposal for a regulation


Article 12 — paragraph 3 a (new)








Text proposed by the Commission




Amendment





 





3a.
   
Any request for an exception based on this Article shall require the approval by the Commission before the award of the contract.








Amendment 98


Proposal for a regulation


Article 12 — paragraph 3 b (new)








Text proposed by the Commission




Amendment





 





3b.
   
The Commission may object to a request for an exception to an IPI measure if the notification lacks a sufficiently detailed justification. The Commission shall inform the contracting authority or contracting entity about its decision without undue delay.








Amendment 99


Proposal for a regulation


Article 12 — paragraph 4








Text proposed by the Commission




Amendment








4.
   
In the event that a contracting authority or contracting entity conducts a negotiated procedure without prior publication, under Article 2 of Directive 2014/24/EU or under Article 50 of Directive 2014/25/EU and decides not to apply a price adjustment measure, it shall indicate this in the contract award notice it publishes pursuant to Article 50 of Directive 2014/24/EU or Article 70 of Directive 2014/25/EU or in the concession award notice it publishes pursuant to Article 32 of Directive 2014/23/EU and notify the Commission no later than ten calendar days after the publication of the contract award notice.







deleted








The notification shall contain the following information:




 












(a)






the name and contact details of the contracting authority or contracting entity;








 












(b)






a description of the object of the contract or the concession;








 












(c)






information on the origin of the economic operators, the goods and/or services admitted;








 












(d)






the justification for the use of the exception;








 












(e)






where appropriate, any other information deemed useful by the contracting authority or contracting entity.








 





Amendment 100


Proposal for a regulation


Article 13 — paragraph 2








Text proposed by the Commission




Amendment






2.   Contracts concluded with an economic operator in violation of 
price adjustment
 measures adopted or reinstated by the Commission pursuant to this Regulation shall be ineffective.




2.   Contracts concluded with an economic operator in violation of 
IPI
 measures adopted or reinstated by the Commission pursuant to this Regulation shall be ineffective.






Amendment 101


Proposal for a regulation


Article 13 a (new)








Text proposed by the Commission




Amendment





 





Article 13a




Resources




The Commission shall make sure that an adequate amount of resources is allocated to the implementation and enforcement of this Regulation.








Amendment 102


Proposal for a regulation


Article 15








Text proposed by the Commission




Amendment





[…]




deleted







Amendment 103


Proposal for a regulation


Article 16 — paragraph 1








Text proposed by the Commission




Amendment







By 31 December 2018
 and at least every three years thereafter, 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 Union economic operators to 
public contract or concession award procedures in
 third countries undertaken under this Regulation. 
To this effect,
 Member States shall upon request provide the Commission with appropriate information.




Two years after the date of entry into force of this Regulation
 and at least every 
two
 years thereafter, 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 Union economic operators to 
procurement and concession markets of
 third countries undertaken under this Regulation. Member States shall, upon request, provide the Commission with appropriate information 
on the application of measures under this Regulation, including as regards the number of procurement procedures at central and sub-central level in which a given IPI measure was applied, the number of tenders received from third countries subject to that IPI measure, as well as cases in which a specific exception from the IPI measure was applied
. 
The report shall be made public.







Amendment 104


Proposal for a regulation


Article 16 — paragraph 1 a (new)








Text proposed by the Commission




Amendment





 




The Commission shall establish at Union level a database of public procurement contracts or concession award procedures with third countries and the application of IPI measures under this Regulation, based on the information received from Member States. The Commission shall update the database annually.







Amendment 105


Proposal for a regulation


Article 17








Text proposed by the Commission




Amendment







Article 17






deleted








Amendment of Directive 2014/25/EU




 






Articles 85 and 86 of Directive 2014/25/EU shall be deleted with effect from the entry into force of this Regulation.




 





Amendment 106


Proposal for a regulation


Article 17 a (new)








Text proposed by the Commission




Amendment





 





Article 17a




Review




No later than three years after the date of entry into force of this Regulation, and every three years thereafter, the Commission shall review the scope, functioning and efficiency of this Regulation, and shall report its findings to the European Parliament and the Council. In duly justified cases, the Commission may extend the timeframe for the second review up to five years. In the event of such an extension, the Commission shall, in advance, inform the European Parliament and the Council.









(1)  The matter was referred back for interinstitutional negotiations to the committee responsible, pursuant to Rule 59(4), fourth subparagraph (A9-0337/2021).

(16)  
Directive 2014/25/EU of the European Parliament and of the Council, of February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors (OJ L 94, 28.3.2014, p. 243).



(17)  Regulation (EU) No 654/2014 of the European Parliament and of the Council of 15 May 2014 concerning the exercise of the Union's rights for the application and enforcement of international trade rules and amending Council Regulation (EC) No 3286/94 laying down Community procedures in the field of 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 (OJ L 189, 27.6.2014, p. 50.)

(4)  Regulation (EU) No 654/2014 of the European Parliament and of the Council of 15 May 2014 concerning the exercise of the Union's rights for the application and enforcement of international trade rules and amending Council Regulation (EC) No 3286/94 laying down Community procedures in the field of 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 (OJ L 189, 27.6.2014, p. 50.)

(1a)  
C(2019)5494



(5)  
Council Regulation (EEC) No 2913/1992 of 12 October 1992 establishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1).



(5)  
Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 269, 10.10.2013, p. 1).



(6)  
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).



(20)  Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ L 395, 30.12.1989, p. 33).

(21)  Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 76, 23.3.1992, p. 14).

(20)  Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ L 395, 30.12.1989, p. 33).

(21)  Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 76, 23.3.1992, p. 14).

(22)  
Regulation (EU) 2015/1843 of the European Parliament and of the Council of 6 October 2015 laying down Union procedures in the field of the common commercial policy in order to ensure the exercise of the Union’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization (OJ L 272, 16.10.2015, p. 1).



(1a)  

OJ L 123, 12.5.2016, p. 1.



(23)  
Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).



(24)  
Council Regulation (EEC) No 2913/1992 of 12 October 1992 establishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1).



(27)  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).

(27)  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).

(28)  
As defined in the Commission recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).