Considerations on 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
Please note
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 |
(2) Pursuant to Article 206 of the Treaty on the Functioning of the European Union, (TFEU) the Union, by establishing a customs union, is to contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers.
(3) In accordance with Article 26 of the Treaty on the Functioning of the European Union TFEU the Union is to adopt measures with the aim of establishing or ensuring the functioning of the internal market, comprising an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.
(4) Article III:8 of the General Agreement on Tariffs and Trade 1994 and Article XIII of the General Agreement on Trade in Services exclude government procurement from the main multilateral World Trade Organization (WTO) disciplines.
(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.
(56) Within the context of the World Trade Organisation 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.
(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.
(68) 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.
(79) Directive s 2004/17/EC of the European Parliament and of the Council of 31 March 2004 2014/25/EU of the European Parliament and of the Council 16 of 26 February 2014 on coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts contains only a few provisions concerning the external dimension of the public procurement policy of the Union, in particular Articles 5885 and 5986 of Directive 2004/17/EC. These provisions however only have a limited scope and due to a lack of guidance they are not much applied by contracting entities should be replaced.
(8) In accordance with Article 207 TFEU the common commercial policy in the field of public procurement is to be based on uniform principles.
(110)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.
(911)In the interest of legal certainty for Union and third-country economic operators, and contracting authorities and contracting /entities, the international market access commitments undertaken by the Union vis-à-vis 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. The Commission should issue guidance on the application of the existing international market access commitments of the European Union. This guidance should be updated on a regular basis and provide easy to use information.
(102)The objectives of improving the access of Union EU 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 European Single internal mMarket 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 that the treatment of third-country goods and services are not covered by the international commitments of the Union. be harmonised throughout the European Union.
(113)For this purpose rules of origin should be established so that contracting authorities/entities know whether goods and services are covered by the international commitments of the European Union. The origin of a good should be determined in accordance with Article 22 to 26 of Council Regulation (EEC) No 2913/1992 18 , of the European Parliament and of the Council of 12 October 1992 establishing the Community Customs Code. According to this Regulation goods should be considered to be Union goods when they are wholly obtained or produced in the Union. Goods whose production involved one or more third countries should be deemed to originate in the country where they underwent their last, substantial, economically justified processing or working in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing an important stage of manufacture.
(14) The origin of a service should be determined on the basis of the origin of the natural or legal person providing it. The guidance referred to in recital 9 should cover the application in practice of the rules of origin.
(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 19 , 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.
(167)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.
(12) The Commission should assess whether to approve that contracting authorities/entities within the meaning of Directives [2004/17/EC, 2004/18/EC and Directive [….] of the European Parliament and the Council of [….]….on the award of concession contracts] exclude, for contracts with an estimated value equal or above EUR 5.000.000 from procedures for the award of contracts goods and services not covered by the international commitments undertaken by the European Union.
(13) For the sake of transparency, contracting authorities/entities intending to make use of their power in accordance with this Regulation to exclude tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services from procedures for the award of contracts should inform economic operators thereof in the contract notice published in the Official Journal of the European Union.
(14) In order to enable the Commission to decide on any exclusion of third-country goods and services not covered by the international commitments of the Union, contracting authorities/entities should notify the Commission of their intention to exclude such goods and services, using a standard form that contains sufficient information to enable the Commission to decide.
(15) For contracts with an estimated value equal or above EUR 5.000.000 the Commission should approve the intended exclusion if the international agreement concerning market access in the field of public procurement between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union. Where such an agreement does not exist, the Commission should approve the exclusion where the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. A lack of substantial reciprocity should be presumed where restrictive procurement measures result in serious and recurring discriminations of EU economic operators, goods and services.
(1617)When assessing whether restrictive and/or discriminatory procurement measures or practices a lack of substantial reciprocity exists in a third country, the Commission should examine to what degree public procurement 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 public authorities or individual procuring contracting entities maintain or adopt discriminatory practices against Union goods, services and economic operators.
(15)18)In view of the fact that the access of third country goods and services to the public procurement market of the Union falls within the scope of the common commercial policy, Member States and or their contracting authorities and contracting entities should not be able to restrict the access of third country goods or services to their tendering procedures by any other measure than theose ones provided for in this Regulation.
(19) In view of the greater difficulty for contracting authorities/entities to assess, in the context of tenders comprising goods and/or services originating outside the European Union, in which the value of the non-covered goods or services exceeds 50 % of the total value of these goods or services, the explanations of tenderers it is appropriate to provide for an increased transparency in the treatment of abnormally low tenders. In addition to the rules provided by Article 69 of the Directive on public procurement and Article 79 of the Directive on procurement by entities operating in the water, energy, transport and postal services sectors the contracting authority/entity that intends to accept such an abnormally low tender, should inform the other tenderers of this in writing including the reasons for the abnormally low character of the price or costs charged. This allows these tenderers to contribute to a more accurate assessment as to whether the successful tenderer will be able to fully perform the contract under the conditions spelled out in the tender documentation. Therefore, this additional information would achieve a more level playing field on the EU public procurement market.
(20)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 external procurement investigation into restrictive procurement measures or practices allegedly adopted or maintained by a third country. In particular it shall take into account the fact that the Commission has approved a number of intended exclusions concerning a third country pursuant to Article 6(2) of this Regulation. Such investigative procedures should be without prejudice to Regulation (EUC) No 3286/94 of 22 December 1994 654/2014 of the European Parliament and of the Council laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization.
(21)20)Where the Commission has, on the basis of information available to it, reason to believe that a third country has adopted or maintains a restrictive procurement practice, it should be able to start an investigation. If the existence of a restrictive 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.
(18)21)It is of the utmost importance that the investigation is carried out in a transparent manner. A report on the main findings of the investigation should therefore be publicly available.
(19) If the existence of a restrictive procurement practice in a third country is confirmed the Commission should invite the country concerned to enter into consultations with a view to improving the tendering opportunities for economic operators, goods and services in public procurement in that country.
(2222)If the consultations with the country concerned do not lead to sufficient improvements in to the tendering opportunities for EU Union economic operators, goods and services within a reasonable timeframe, the Commission should be able to adopt, where should take appropriate, price adjustment restrictive measures applying to tenders submitted by economic operators originating in that country and/or including goods and services originating in that country.
(23) Such measures should be applied only for the purpose of may entail the mandatory exclusion of certain third-country goods and services from public procurement procedures in the European Union, or may subject the evaluation of tenders comprising goods or services originating in than the country to a mandatory price concerned. penalty. To avoid circumvention of theose measures, it may also be necessary to target exclude certain foreign-controlled or owned juridical legal persons that, although established in the European Union, that are not engaged in substantive business operations such that it hasve a direct and effective link with the economy of at least one Member State concerned. Appropriate measures should not be disproportionate to the restrictive procurement practices to which they respond.
(24) The Commission should be able to prevent the possiblePrice adjustment measures should not have a negative impact of an intended exclusion on on-going trade negotiations with the country concerned. Therefore, the Commission may, where a country is engaging in substantive negotiations with the Union concerning market access in the field of public procurement, the Commission may suspend and the measures during the negotiations.the Commission considers that there is a reasonable prospect of removing the restrictive procurement practices in the near future, it should be able to adopt a implementing act providing that goods and services from that country should not be excluded from procedures for the award of contracts for a period of one year.
(26) In the light of the overall policy of the Union with regard to least-developed countries as provided for, inter alia, in Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences from 1 January 2009, it is appropriate to assimilate goods and services from these countries to Union goods and services.
(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.
(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.
(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 set aside 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.
(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 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 or Article 8 of Council Directive 92/13/EEC 21 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. For the same purpose, In addition, contracts concluded with an economic operator in violation of Commission’s decisions on intended exclusions notified by contracting authorities or contracting entities or in violation of price adjustment measures limiting access of non-covered goods and services should be declared ineffective. within the meaning of Directive 2007/66/EC of the European Parliament and Council.
(2731)In order to reflect in the legal order of the European Union the international market access commitments undertaken in the field of public procurement after the adoption of this Regulation, the Commission should be empowered to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union amendments to the list of international agreements annexed to this Regulation. It is of particular importance that the Commission should carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and the Council.
(3029)In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council 22 of 16 February 2011 laying down the rules and general principles concerning mechanisms for the control by the Member States of the Commission’s exercise of implementing powers.
(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.
(2931)The advisory procedure should be used for the adoption of implementing acts adapting for the drawing up of the standard forms for the publication of contract or concession notices. the submission of notifications to the Commission and the origin of goods or services. These decisions do not have any impact either from the financial point of views or on the nature and scope of obligations stemming from this Regulation. On the contrary, these acts are characterised by a mere administrative purpose and serve to facilitate the application of the rules set by this Regulation.
(302)Regular reporting by theThe Commission should make it possible to monitor report at least every three years on the application and efficiency of the procedures established byof this Regulation.
(313)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 includingwhich include goods and services not covered by the international commitments of the European Union. This Regulation on the access of third-country economic operators, goods and services does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with the third fourth paragraph of Article 5 of the Treaty on European Union,