Legal provisions of COM(2016)34 - Access of third-country goods and services to the internal market in public procurement and supporting negotiations on access to public procurement markets of third countries - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)34 - Access of third-country goods and services to the internal market in public procurement and supporting negotiations on access ... |
|---|---|
| document | COM(2016)34  |
| date | January 29, 2016 |
Contents
- Chapter - I
- Article 1 - Subject matter and scope of application
- Article 2 - Definitions
- Article 3 - Rules of origin
- Chapter I - I
- Article 6 - Empowerment of contracting authorities/entities to exclude tenders comprising non-covered goods and services
- Chapter II - I
- Article 7 - Abnormally low tenders
- Chapter I - V
- Article 12 - Exceptions
Chapter - I
Article 1 - Subject matter and scope of application
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, by Union contracting authorities/entities, and establishes procedures supporting negotiations on access of Union on the basis of the origin of the economic operators, goods and or services concerned. to the public procurement markets of third countries.
2. This Regulation shall apply to contracts covered by the following acts:
(a)Directive 2014/23/EU 23 [2004/17/EC];
(b)Directive 2014/24/EU [2004/18/EC]; 24
(c)Directive 2014/25/EU [201./… (on the award of concession contracts].
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 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. 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.
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.
5. Member States and their contracting authorities and contracting entities shall not apply restrictive measures in respect of third country economic operators, goods and services beyond those provided for in this Regulation.
Article 2 - Definitions
(a)'economic operator' ‘supplier’ 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;which offers on the market goods;
(b)‘service provider’ means any natural or legal person which offers on the market the execution of works or a work, or services;
(bc)‘contracting authority/entity’ means ‘contracting authority’ as defined in [Article 1 (9) of Directive 2004/18/EC, Article 2(1) of Directive 2014/24/EU;
(c)and‘contracting entity’ means contracting entity as defined in Article 4(1) of Directive 2014/25/EU and Article 7 of Directive 2014/23/EU Article 2 of Directive 2004/17/EC and Articles 3 and 4 of Directive 20.. on the award of concession contracts];
(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;Annex I to this Regulation contains a list of relevant agreements;
(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 and in respect of which the relevant agreement does not applyapplies.
(f)‘measure’ means any law, regulation, or practice, or combination thereof;
(g)"interested parties" means a company or firm formed in accordance with the law of a Member State and having its registered office, central administration or principal place of business within the Union, directly concerned by the production of goods or the provision of services which are the subject of restrictive procurement measures of third countries.
2. For the purposes of this Regulation
(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.
(ga)the term 'country' means may refer to any State or separate customs territory, without such nomenclature term having implications for sovereignty;
(b)the term ‘economic operator’ shall cover equally the concepts of supplier and service provider;
(c)an economic operator who has submitted a tender shall be designated a ‘tenderer’;
(d)the execution of works and/or a work within the meaning of Directives (2004/17/EC, 2004/18/EC and Directive 201./.. on the award of concession contracts) shall for the purposes of this Regulation be considered as the provision of a service;
(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.
(h)SME means SME as defined in Commission Recommendation 2003/361/EC 25 .
2. For the purpose of this Regulation, the execution of works and/or a work within the meaning of Directives [2004/17/EC, 2004/18/EC and Directive 201./.. 2014/25/EU, 2014/24/EU and Directive 2014/23/EU on the award of concession contracts] shall for the purposes of this Regulation be considered as the provision of a service.
Article 3 - Rules of origin
2. The origin of a service shall be determined on the basis of the origin of the natural or legal person economic operator providing it.
3. The origin of the service provider an economic operator shall be deemed to be:
(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;
(b)in the case of a legal person either any of the following:
(i)if the service is not provided other than through a commercial presence within the Union, the country under the laws of which the legal where the juridical person is constituted or otherwise organised and in the territory of which the legal person is engaged in substantive business operations;
(2ii)if the service is provided through a commercial presence within the Union, the Member State where the legal person is established and in which territory it is engaged in substantive business operations such that it has a direct and entailing a direct and effective link with the economy of a the Member State concerned.
For the purposes of point (b) (ii) of the first subparagraph (2) if the legal person is not engaged in substantive business operations such that it has entailing a direct and effective link with the economy of a Member State concerned, the origin of the natural or legal person shallwill be that of the persons or which own, persons which own or control the juridical legal person providing the service.
AThe legal person shall be considered to be beproviding the service shall be considered to be: 'owned' by persons of a given country whereif more than 50 % of the equity interest in it is beneficially owned by persons of that country.
A legal person shall be considered to beand 'controlled' by persons of a given country whereif such persons have the power to name appoint a majority of its directors or otherwise to legally direct its actions.
3. For the purpose of this Regulation, goods or services originating in the countries of the European Economic Area other than the Member States shall be treated like those originating in the Member States.
Chapter I - I
Exemptions
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.
Tenders shall be exempted from this Regulation where more than 50% of the total value of the tender is made up of gGoods or 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. (EC) No 732/2008 shall be treated as covered goods and services.
Non-covered goods and services may be subject to restrictive measures taken by the Commission:
(a)upon request of individual contracting entities according to the rules set out in Article 6;
(b)according to the rules set out in Articles 10 and 11.
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.
Article 6 - Empowerment of contracting authorities/entities to exclude tenders comprising non-covered goods and services
2. 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.
Contracting authorities/entities shall require tenderers to provide information on the origin of the goods and/or services contained in the tender, and their value. They shall accept self-declarations as preliminary evidence that tenders cannot be excluded pursuant to paragraph 1. A contracting authority may ask a tenderer at any moment during the procedure to submit all or parts of the required documentation where this appears necessary to ensure the proper conduct of the procedure. The Commission may adopt implementing acts establishing standard forms for declarations concerning the origin of goods and services. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 17 (3).
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.
The notification shall be sent by electronic means using a standard form. The Commission shall adopt implementing acts establishing the standard forms. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 17 (3). That standard form shall contain the following information:
(a)the name and contact details of the contracting authority/entity;
(b)a description of the object of the contract;
(c)the name and contact details of the economic operator whose tender would be excluded;
(d)information on the origin of the economic operator, the goods and/or services and their value.
The Commission may ask the contracting authority/entity for additional information.
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.
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.
4. When adopting implementing acts pursuant to paragraph 3, the Commission shall approve the intended exclusion in the following cases:
(a)if the international agreement concerning market access in the field of public procurement between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union;
(b)where an agreement referred to in point (a) does not exist and the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned.
For the purposes of point (b), a lack of substantial reciprocity is presumed where restrictive procurement measures result in serious and recurring discriminations of Union economic operators, goods and services.
When adopting implementing acts pursuant to paragraph 3, the Commission shall not approve an intended exclusion where it would violate market access commitments entered into by the Union in its international agreements.
5. When assessing whether a lack of substantial reciprocity exists, the Commission shall examine the following:
(a)to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union goods, services and economic operators;
(b)to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operators.
6. Before the Commission takes a decision pursuant to paragraph 3 it shall hear the tenderer or tenderers concerned.
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).
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).
Chapter II - I
Investigations, consultations and price adjustement measures
Article 7 - Abnormally low tenders
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.
Chapter I - V
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, may initiate an external procurement investigation into alleged restrictive and/or discriminatory procurement measures or pratices.
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.
IfShould an investigation isbe 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.
2. The investigation referred to in paragraph 1 is conducted on the basis of the criteria laid down in Article 6.
3.2.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, and/or of facts collected by the Commission during its investigation, or both. The assessmentand shall be concluded within a period of nine eight months after the initiation of the investigation. In duly justified cases, this period may be extended by three four months.
4.3.WhereWhen the Commission concludes as a result of the external procurement 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, by the third country concerned, the Commission shall terminate adopt a decision terminating the investigation. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17.
4. When the Commission has concluded its investigation, it shall make publicly available a report recording its main findings.
1. WhereWhen it is found as a result of an investigation that restrictive and/or discriminatory procurement measures or practices have been adopted or are maintained by a third country and the Commission considers it to be justified by in the Union EU interest, the Commission shall invite itthe country in question to enter into consultations. Those consultations shall aim at a view to ensuring that Union economic operators, goods and services can participate in tendering procedures for the award of public procurement or concession contracts in that country on the conditions no less favourable than those accorded to national economic operators, goods and services of that country and also with a view also to ensuring the application of the principles of transparency and equal treatment.
In the event thatIf the third country concerned declines the invitation to enter into consultations, the Commission shall take appropriate action, on the basis of the facts available, when adopting implementing acts under Article 10 to limit the access of goods and services originating in that third country, decide on the basis of the facts available.
2. 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.
2. When, after the initiation of a consultations, the country concerned takes satisfactory remedial/ or corrective measures, but without undertaking new market access commitments, the Commission may suspend or terminate the consultations.
The Commission shall monitor the application of those remedial or /corrective measures, where appropriate on the basis of information supplied at intervals, which it may request from the third country concerned.
3. Where the remedial or /corrective measures taken by the third country concerned are rescinded, suspended or improperly implemented, the Commission may take the following steps:
(i) resume or restart the consultations with the third country concerned, and/or
(ii) act under Article 10 to adoptdecide, by implementing acts to limit the access of goods and services originating in a third country act, to impose a price adjustment measure pursuant to Article 8.
The implementing acts referred to in point (ii) of the first subthis paragraph shall be adopted in accordance with the examination procedure referred to in Article 174(2).
4. Where, after the initiation of a consultations, it appears that the most appropriate means to end a restrictive and/or discriminatory procurement measure or 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.. While such negotiations are ongoing, the investigation shall may be suspended.
5. The Commission may terminate the consultations if the country concerned undertakes international commitments agreed with the Union in any of the following frameworks:
(a)Accession to the WTO Agreement on Government Procurement;
(b)Conclusion of a bilateral agreement with the Union which includes market access commitments in the field of public procurement and/or concessions; or
(c)Expansion of its market access commitments undertaken under the WTO Agreement on Government Procurement or under a bilateral agreement concluded with the Union. in that framework,
The consultations may also be terminated in cases where the restrictive and/or discriminatory procurement measures or practices are still in place at the time these commitments are undertaken, as long as they include detailed provisions relating to the phasing-out of such those measures or practices within a reasonable period of time.
6. In the event that a consultations with a third country does not lead to satisfactory results within 15 months from the day thosethe consultations with the third country started, the Commission shall terminate the consultations and consider acting under Article 10 to adopt implementing acts to limit the access of goods and services originating in a shall take appropriate action. In particular, the Commission may decide, by means of an implementing act, to impose a price adjustment measure, pursuant to Article 8. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 14(2).
1. Where it is found in an investigation pursuant to Article 8, and after following the procedure foreseen in Article 9, that restrictive procurement measures adopted or maintained by that third country leads to an lack of substantial reciprocity in market opening between the Union and the third country as referred to in Article 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).Tenders more than 50 % of the total value of which is made of goods and/or services originating in a third country, may be subject to a price adjustment measure where the third country concerned adopts or maintains restrictive and/or discriminatory procurement measures or practices.
Price adjustment measures shall only apply to contracts with an estimated value equal to or above EUR 5.000.000 exclusive of value-added tax.
2. The measures adopted pursuant to paragraph 1 may take any of the following forms: The price adjustment measure shall specify the penalty of up to 20% to be calculated on the price of the tenders concerned. It shall also specify any restrictions to the scope of application of the measure, such as those related to:
(a)the exclusion of tenders of which more than 50 % of the total value is made up of non-covered goods or services originating in the country adopting or maintaining a restrictive procurement practice; and/or
(a)public procurement ofby specificcertain defined categories of contracting authorities or contracting entities;
(b)public procurement of specificcertain defined categories of goods or services or tenders submitted by specific categories of economic operators;
(c)public procurement above or within certain defined thresholds;.
(d)tenders submitted for specific categories of concessions;
(e)the territories of certain subcentral levels of government.
(b)a mandatory price penalty on that part of the tender consisting of non-covered goods or services which originate in the country adopting or maintaining a restrictive procurement practice
3. Measures adopted pursuant to paragraph 1 may in particular be limited to: Contracting authorities and contracting entities on the list adopted pursuant to Article 9 shall apply the price adjustment measure to the following:
(a)to tenders submitted by economic operators originating in the third country concerned, unless these economic operators 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,; and
(b)to any tenders offering goods and services originating in the country concerned, where the value of these goods and services accounts for more than 50 % of the total value of the tender.
Article 9
Authorities or entities concerned
1.
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.
1. Where the Commission considers that the reasons justifying the measures adopted pursuant to Articles 9 (4) and 10 no longer apply, The Commission may decide, by adopt an implementing act to:
(a)repeal the measures; or
(b)suspend the application of the measures for a period of up to one year.
For the purposes of point (b), the application of the measures may, at any moment in time, be reinstated by the Commission, to withdraw the price adjustment measure or suspend its application for a period of time if the country concerned takes satisfactory remedial or corrective actions.
Where the remedial or corrective actions taken by the third country concerned are rescinded, suspended or improperly implemented, the Commission may reinstate the application of the price adjustment measure, at any time, by means of an implementing act.
2. The Commission shall make publicly available its findings regarding the remedial or corrective actions taken by the third country concerned.
23. The implementing acts referred to in this Article shall be adopted in accordance with the examination procedure referred to in Article 174(2).
Article 11 - Application of price adjustment measuresInformation to tenderers
1. Contracting authorities and contracting entities on the list adopted pursuant to Article 9 shall apply price adjustment measures to the following:(a)tenders submitted by economic operators originating in the third country concerned, or
(b)tenders offering goods and services originating in the third country concerned, where the value of those goods and services accounts for more than 50 % of the total value of the tender.
Contracting authorities and contracting entities shall not apply price adjustment measures to tenders referred to in point (a) where the tenderers can demonstrate that less than 50 % of the total value of their tender is made of goods and services originating in the third country concerned.
The price adjustment measure shall apply only for the purpose of the evaluation and ranking of the price component of the tenders. It shall not affect the price due to be paid under the contract which will be concluded with the successful tenderer.
2. When contracting authorities and contracting entities conduct a procurement or a concession procedure that is subject to restrictive measuresa price adjustment measure adopted pursuant to Article 10 or reinstated pursuant to Article 11, they shall include that informationindicate this in the contract notice they publish pursuant to Article 3549 of Directive 2004/18/ECDirective 2014/24/EU or Article 42 of Directive 2004/17/ECArticle 69 of Directive 2014/25/EU or in the concession notice they publish pursuant to Article 31 of Directive 2014/23/EU. The Commission shallmay adopt implementing acts in accordance with the advisory procedure referred to in Article 14(3) adapting establishing the standard forms for contract or concession notices adopted under Directives 2014/23/EU, 2014/24/EU, and 2014/25/EU. in accordance with the advisory procedure referred to in Article 174 (3).
3.2Where the exclusion of a tender is based on the application of measures adopted pursuant 10 or reinstated pursuant to Article 11, cContracting authorities and contracting entities shall inform unsuccessful tenderers. of the award of a contract or a concession based on the application of a price adjustment measure adopted or reinstated pursuant to this Regulation.
4. Where a price adjustment measure is applied, contracting authorities and contracting entities shall require tenderers to provide information on the origin of the goods and/or services contained in the tender, and on the value of the goods and services originating in the third country concerned as a percentage of the total value of the tender. They shall accept self-declarations from tenderers.
A contracting authority may ask a tenderer at any moment during the procedure to submit additional documentation where necessary, in order to ensure the proper conduct of the procedure. The successful tenderer shall always be asked to submit more detailed information on the origin of the goods and services to be provided.
Article 12 - Exceptions
(a)there are no Union and/or covered goods or services available which meet the requirements of the contracting authority or contracting entity; or
(b)the application of the measure would lead to a disproportionate increase in the price or costs of the contract.
2. Where a contracting authority or contracting entity intends not to apply a price adjustment 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 publishes pursuant to Article 3549 of Directive 2004/18/EC or Article 42 of Directive 2004/17/EC. 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.
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).
3. The notification shall contain the following information:
(a)the name and contact details of the contracting authority and/or contracting 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 price adjustment measure is based, and a detailed justification for the use of the exception;
(e)where appropriate, any other information deemed useful by the contracting authority and/or contracting entity.
The Commission may ask the contracting authority or contracting entity concerned for additional information.
43. In the event that a contracting authority or contracting entity conducts a negotiated procedure without prior publication, under Article 312 of Directive 2004/18/EC or under Article 40 (3) 2 of Directive 2004/17/EC Directive 2014/24/EU or under Article 50 of Directive 2014/25/EU and decides not to apply a price adjustment measure adopted pursuant to Article 10 of this Regulation, or reinstated pursuant to Article 11, it shall indicate this use in the contract award notice it publishes pursuant to Article 3550 of Directive 2044/18/EC2014/24/EU or Article 4370 of Directive 2004/17/EC2014/25/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.
This notification shall be sent by electronic means using a standard form. The Commission shall adopt implementing acts establishing the standard forms for contract notices and notifications in accordance with the advisory procedure referred to in Article 17 (2). 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 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 or contracting entity.
Article 16 - 3 Implementation
1. In case of misapplication by contracting authorities or contracting entities of exceptions laid down in Article 132, the Commission may apply the corrective mechanism of Article 3 of Directive 89/665/EEC 29 or Article 8 of Directive 92/13/EEC 30 .2. Contracts concluded with an economic operator in violation of price adjustment measures Commission implementing acts adopted or reinstated by the Commission pursuant to Article 6 this Regulation upon intended exclusion notified by contracting authorities/ entities or measures adopted pursuant to Article 10 or reinstated pursuant to Article 11 shall be declared ineffective. within the meaning of Directive 2007/66/EC.
Chapter IV
Delegated and implementing powers, reporting and final provisions
Article 143 - Amendments to the Annex
The Commission shall be empowered to adopt delegated acts in accordance with Article 14 concerning amendments to the Annex to reflect the conclusion of new international agreements by the Union in the field of public procurement.Article 15 - Exercise of the delegation of powers
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.2. The delegation of power referred to in Article 14 shall be conferred on the Commission for an indeterminate period of time from the [date of entry into force of this Regulation].
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.
4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
5. A delegated act adopted pursuant to this Article shall enter into force only where no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of the act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or the Council.
Article 17 - 4 Committee procedure
1. The Commission shall be assisted by the Advisory Committee for Public Contracts established by Council Decision 71/306/EEC 31 and by the Committee set up by Article 7 of the Council Regulation (EU) 2015/1843 (Trade Barriers Regulation) 32 . These committees shall be committees within the meaning of Article 3 of Regulation (EU) No 182/2011.2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply and the competent committee shall be the Committee set up by the Trade Barriers Regulation.
3. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply and the competent committee shall be the Committee established by Council Decision 71/306/EEC.
Article 18 - 5 Confidentiality
1. Information received pursuant to this Regulation shall be used only for the purpose for which it was requested.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.
3. The supplier of information may request to treat information submitted as confidential. The request for confidentiality and shall be accompanied by a non-confidential summary of the information or a statement of the reasons why the information cannot be summarised.
4. If it appears that a request for confidentiality is not justified and if the supplier is unwilling either to make the information public or to authorise its disclosure in generalised or summary form, the information in question may be disregarded.
5. Paragraphs 1 to 45 shall not preclude the disclosure of general information by the Union authorities. Such disclosure must take into account the legitimate interest of the parties concerned in not having their business secrets divulged.
Article 19 - 6 Reporting
By 31 December1 January 20178 and at least every three years thereafter 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 EUUnion 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.Article 20 - 17 Amendment of Directive 2014/25/EURepeals
Articles 58 and 59 of Directive 2004/17/EC85 and 86 of Directive 2014/25/EU shall be repealed deleted with effect from the entry into force of this Regulation.Article 21 - 18 Entry into force
This Regulation shall enter into force on the 60th day following that of its publication in the Official Journal of the European Union.This Regulation shall be binding in its entirety and directly applicable in all Member States.