Legal provisions of COM(2012)124 - Access of third countries to the Union’s public procurement market and negotiations on access of the Union to the public procurement markets of third countries

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dossier COM(2012)124 - Access of third countries to the Union’s public procurement market and negotiations on access of the Union to the public ...
document COM(2012)124 EN
date June 23, 2022

Contents

CHAPTER I - General provisions


Article 1

Subject matter and scope of application

1. This Regulation establishes measures regarding non-covered procurement, intended to improve the access of Union economic operators, goods and services to the public procurement and concession markets of third countries. 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.

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

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

(a)Directive 2014/23/EU;

(b)Directive 2014/24/EU;

(c)Directive 2014/25/EU.

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

4. This Regulation shall apply to public procurement procedures launched after its entry into force. An IPI measure shall apply only to public procurement procedures which are covered by the IPI measure and have been launched between the entry into force of that IPI measure and its expiry, withdrawal or suspension. Contracting authorities and contracting entities shall include a reference to the application of this Regulation and any applicable IPI measure in the public procurement documents for procedures falling within the scope of an IPI measure.

5. Environmental, social and labour requirements shall apply to economic operators in accordance with Directives 2014/23/EU, 2014/24/EU and 2014/25/EU, or other Union law.

Article 2

Definitions

1. For the purposes of this Regulation, the following definitions apply:

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

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

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

(d)‘score adjustment’ 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 relevant public procurement documents. In cases where price or cost is the only contract award criterion, the score adjustment means the relative increase, for the purpose of the evaluation of tenders, by a given percentage of the price offered by a tenderer;

(e)‘evidence’ means any information, certificate, supporting document or statement that aims to prove compliance with the obligations set out in Article 8, such as:

(i)documents showing that the goods are originating in the Union or a third country;

(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 value-added tax (VAT) identification number;

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

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

(h)‘interested party’ means any person or entity whose interest might be affected by a third-country measure or practice, such as undertakings, associations of undertakings or the main cross-industry organisations representing social partners at Union level;

(i)‘third-country 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, at any level, that results in a serious and recurrent impairment of access of Union economic operators, goods or services to the public procurement or concession markets of that third country;

(j)‘IPI measure’ means a measure adopted by the Commission in accordance with this Regulation limiting the access of economic operators, goods or services originating in third countries to the Union public procurement or concession markets in the area of non-covered procurement;

(k)‘non-covered procurement’ means public 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 public procurement or concessions;

(l)‘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;

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

(n)‘country’ means any State or separate customs territory, without such term having implications for sovereignty;

(o)‘subcontracting’ means arranging the execution of a part of a contract by a third party and does not include the mere delivery of goods or parts that are necessary for the provision of a service.

2. For the purpose of this Regulation, except for Article 6(3) and (7) thereof, the execution of works or a work within the meaning of Directives 2014/23/EU, 2014/24/EU and 2014/25/EU shall be considered as the provision of a service.

Article 3

Determination of origin

1. The origin of 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 that person has a right of permanent residence;

(b)in the case of a legal person, either of the following:

(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;

(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 organised, the origin of the legal person is to be that of the person or persons who may exercise, directly or indirectly, a dominant influence on the legal person by virtue of their ownership of that legal person, their financial participation therein, or the rules which govern that legal person.

For the purposes of the first subparagraph, point (b)(ii), that person or persons shall be presumed to have 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; or

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

2. Where an economic operator is a group of natural or legal persons, public entities or any combination thereof, and at least one of such persons or entities originates from a third country whose economic operators, goods or services are subject to an IPI measure, that IPI measure shall also apply to tenders submitted by that group.

However, where the participation of such persons or entities in a group amounts to less than 15 % of the value of a tender submitted by that group, that IPI measure shall not apply to that tender, unless those persons or entities are necessary in order to fulfil the majority of at least one of the selection criteria in a public procurement procedure.

3. Contracting authorities or contracting entities may, at any time during the public procurement procedure, request the economic operator to submit, supplement, 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 compliance with the principles of equal treatment and transparency. Where the economic operator fails to provide such information or documentation without any reasonable explanation, and thereby prevents the verification of the economic operator’s origin by contracting authorities or contracting entities or makes such a verification practically impossible or very difficult, that economic operator shall be excluded from participation in the public procurement procedure concerned.

4. The origin of a good shall be determined in accordance with Article 60 of Regulation (EU) No 952/2013, and the origin of a service shall be determined on the basis of the origin of the economic operator providing it.

Article 4

Exemption for goods and services originating in least developed countries

The Commission shall not initiate an investigation in respect of least developed countries listed in Annex IV to Regulation (EU) No 978/2012, unless there is evidence of a circumvention of any IPI measure imputable to the listed third country or their economic operators.

CHAPTER II - Investigations, consultations, measures and obligations


Article 5

Investigations and consultations

1. On its own initiative or upon a substantiated complaint of a Union interested party or a Member State, the Commission may initiate an investigation into an alleged third-country measure or practice by publishing a notice in the Official Journal of the European Union. Such a notice of initiation shall include the Commission’s preliminary assessment of the third-country measure or practice and invite interested parties and Member States to provide relevant information to the Commission within a specified period of time.

The Commission shall make an online tool available on its website. Member States and Union interested parties shall use that tool in order to submit a substantiated complaint.

2. Upon publication of the notice referred to in paragraph 1, the Commission shall invite the third country concerned to submit its views, provide relevant information and enter into consultations with the Commission in order to eliminate or remedy the alleged third-country measure or practice. The Commission shall regularly inform Member States on the progress of the investigation and consultations within the Trade Barriers Committee established by Article 7 of Regulation (EU) 2015/1843.

3. The investigation and consultations shall be concluded within a period of nine months after the date of their initiation. In justified cases, the Commission may extend this period by five months by publishing a notice in the Official Journal of the European Union and informing the third country, interested parties and Member States of that extension.

4. Upon conclusion of the investigation and the consultations, the Commission shall make publicly available a report setting out the main findings of the investigation and a proposed course of action. The Commission shall present that report to the European Parliament and to the Council.

5. 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, goods or services to the public procurement or concession markets of the third country, the Commission shall terminate the investigation, and publish a notice of termination in the Official Journal of the European Union.

6. The Commission may suspend the investigation and the consultations at any time where the third country concerned:

(a)takes satisfactory corrective actions to eliminate or remedy the serious and recurrent impairment of access of Union economic operators, goods or services to the public procurement or concession markets of the third country, and thereby improve such access; or

(b)undertakes commitments towards the Union to end or phase out the third-country measure or practice, including by extending the scope of an existing agreement to public procurement, within a reasonable period of time and no later than six months after undertaking such commitments.

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

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

Article 6

IPI measures

1. Where the Commission finds, following an investigation and consultations pursuant to Article 5, that a third-country measure or practice exists, it shall, if it considers it to be in the interest of the Union, adopt an IPI measure by means of an implementing act. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 11(2).

2. A determination as to whether it is in the Union’s interest to adopt an IPI measure shall be based on an appreciation of all the various interests taken as a whole, including the interests of the Union’s economic operators. IPI measures shall not be adopted where the Commission, on the basis of all the information available, concludes that it is not in the Union’s interest to adopt such measures.

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

(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 and contracting entities.

4. The IPI measure shall only apply to public procurement procedures with an estimated value above a threshold to be determined by the Commission in light of the results of the investigation and consultations and taking into consideration the criteria set out in paragraph 3. That estimated value should be equal to or above EUR 15 000 000 net of VAT for works and concessions, and equal to or above EUR 5 000 000 net of VAT for goods and services.

5. The IPI measure shall apply in the case of specific contracts awarded under a dynamic purchasing system where the IPI measure also applies to those dynamic purchasing systems, 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 or Article 15 of Directive 2014/25/EU. The IPI measure shall not apply to public procurement procedures for the award of contracts based on a framework agreement or to contracts for individual lots to be awarded in accordance with Article 5(10) of Directive 2014/24/EU or Article 16(10) of Directive 2014/25/EU.

6. In the IPI measure referred to in paragraph 1, the Commission may decide, within the scope established in paragraph 8, to restrict the access of economic operators, goods or services from a third country to public procurement procedures by requiring contracting authorities or contracting entities to:

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

(b)exclude tenders submitted by economic operators originating in that third country.

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

8. In the IPI measure referred to in paragraph 1 the Commission 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 established by Regulation (EC) No 2195/2002 of the European Parliament and of the Council (18), as well as any applicable exceptions;

(b)the specific categories of contracting authorities or contracting entities;

(c)the specific categories of economic operators;

(d)the specific thresholds equal to or above those set out in paragraph 4;

(e)where appropriate, the percentage values of a score adjustment referred to in paragraph 6, point (a).

The percentage value of the adjustment as referred to in point (e) of the first subparagraph shall be set up to 50 % of the evaluation score of the tender, depending on the third country and sector of envisaged goods, services, works or concessions. For the purpose of public procurement procedures, where price or cost is the only contract award criterion, the score adjustment shall be twice the percentage value as set out in the first sentence of this subparagraph. An IPI measure shall indicate the respective percentage values separately.

9. When determining the IPI measure based on the options under paragraph 6, point (a) or (b), the Commission shall opt for the kind of measure that would be proportionate and most effectively remedy the level of impairment of access for Union economic operators, goods or services to third-country public procurement or concession markets.

10. Where the Commission considers that the third country takes satisfactory corrective actions to eliminate or remedy the impairment of access for Union economic operators, goods or services to public procurement or concession markets of that third country, thereby improving such access, or if the third country undertakes commitments to end the measure or practice in question, the Commission may withdraw the IPI measure or suspend its application.

Where the Commission considers that the corrective actions or commitments undertaken have been rescinded, suspended or improperly implemented, it shall make its findings publicly available and reinstate the IPI measure at any time.

The Commission may withdraw, suspend or reinstate an IPI measure by means of an implementing act and in such cases, shall publish a notice in the Official Journal of the European Union. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 11(2).

11. An IPI measure shall expire five years from its entry into force. An IPI measure may be extended for a duration of five years. The Commission shall initiate a review of the IPI measure in question no later than nine months before the date of expiry of that IPI measure, by publishing a notice in the Official Journal of the European Union. Such a review shall be concluded within six months from publication of the relevant notice. Following such a review, the Commission may extend the duration of the IPI measure, adjust it appropriately or replace it with a different IPI measure by means of an implementing act. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 11(2).

Article 7

List of contracting authorities exempted from the application of this Regulation

1. Upon a justified request by a Member State, the Commission may adopt, with a view to a fair distribution among Member States of the award procedures subject to IPI measures, a list of local contracting authorities in that Member State, within administrative units with population below 50 000 inhabitants, that are exempted from the application of this Regulation.

2. In its request, the Member State shall provide detailed information justifying the request for exemption and regarding the value of the contracts that are above the thresholds set out in Article 6(4) of this Regulation, awarded by all listed contracting authorities or contracting entities over the past three years from the 31 December preceding the request for exemption. An exemption may only be granted if the total value of contracts above the thresholds set out in Article 6(4) of this Regulation, and awarded by the contracting authorities or contracting entities which are not to be exempted, exceeds 80 % of the total value of above thresholds contracts falling within the scope of Directives 2014/23/EU, 2014/24/EU and 2014/25/EU awarded in the requesting Member State in the same three-year period.

3. The exemption shall be limited to what is strictly necessary and proportionate, taking into account the administrative capacity of the contracting authorities to be exempted.

4. The Commission shall inform Member States before adopting the list referred to in paragraph 1. That list, to be published in the Official Journal of the European Union, shall be valid for a period of three years and may be revised or renewed every three years upon justified request by the Member State concerned.

Article 8

Obligations upon the successful tenderer

1. In the case of public procurement procedures which are subject to an IPI measure, as well as in the case of contracts awarded on the basis of a framework agreement where the estimated value of those contracts is equal to 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 and where those framework agreements were subject to the IPI measure, contracting authorities and contracting entities shall also include in public procurement documents the following obligations on successful tenderers:

(a)not to subcontract more than 50 % 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, to ensure for the duration of the contract that goods or services supplied or provided in the execution of the contract and originating in the third country which is subject to the IPI measure represent no more than 50 % of the total value of the contract, irrespective of whether such goods or services are supplied or provided directly by the successful tenderer or by a subcontractor;

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

(d)to pay a proportionate charge, in the event of non-observance of the obligations referred in point (a) or (b), of between 10 % and 30 % 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 50 % 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 relevant evidence where reasonable indications of non-compliance with paragraph 1, point (a) or (b), exist or where the contract is awarded to a group of economic operators comprising a legal person originating in the third country subject to an IPI measure.

3. Contracting authorities and contracting entities shall include a reference to the obligations set out in this Article in the documents for public procurement procedures to which an IPI measure is applicable.

Article 9

Exceptions

1. Contracting authorities and contracting entities may on an exceptional basis decide not to apply an IPI measure with respect to a public procurement procedure where:

(a)only tenders from economic operators originating in a third country subject to an IPI measure meet the tender requirements; or

(b)the decision not to apply the IPI measure is justified for overriding reasons relating to the public interest, such as public health or protection of the environment.

2. Where a contracting authority or contracting entity decides not to apply an IPI measure, it shall provide the following information to the Commission, in a manner to be decided by the respective Member State and no later than thirty days after the award of the contract:

(a)the name and contact details of the contracting authority or contracting entity;

(b)a description of the object of the contract;

(c)information on the origin of the economic operators;

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

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

The Commission may ask the Member States concerned for additional information.

Article 10

Remedies

To ensure the legal protection of economic operators having or having had an interest in obtaining a particular contract falling under the scope of this Regulation, Directives 89/665/EEC and 92/13/EEC shall apply accordingly.

CHAPTER III - Implementing powers, reporting and final provisions


Article 11

Committee procedure

1. The Commission shall be assisted by the Committee established by Article 7 of Regulation (EU) 2015/1843. That committee shall be a committee 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.

3. Where the Committee delivers no opinion for the adoption of draft IPI measure in the form of an exclusion of tenders, pursuant to Article 6, paragraph 6, point (b) of this Regulation, the Commission shall not adopt the draft implementing act and Article 5(4), third subparagraph, of Regulation (EU) No 182/2011 shall apply.

Article 12

Guidelines

To facilitate the application of this Regulation by contracting authorities and contracting entities and by economic operators, the Commission shall, within six months from 29 August 2022, issue guidelines.

Article 13

Reporting

1. By 30 August 2025 and at least every two years thereafter, the Commission shall submit a report to the European Parliament and to the Council on the application of this Regulation and on the progress made in international negotiations, regarding access for Union economic operators to the public procurement or concession markets of third countries, undertaken under this Regulation. That report shall be made public. Member States shall, upon request, provide the Commission with information on the application of measures under this Regulation, including as regards the number of public 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.

2. Contracting authorities and contracting entities shall report to the Commission through the Tenders electronic daily about the application of IPI measures, as part of the information on contract awards. Such report shall include, for each relevant procedure, information on the application of IPI measures, the number of tenders received from third countries subject to the relevant IPI measure, the number of tenders for which the exclusion of the tender or score adjustment were applied and the application of specific exceptions from the IPI measure. The Commission shall use this data in its regular reporting required under this Article. Member States shall provide the Commission with additional information on the application of measures under this Regulation upon its request.

Article 14

Review

No later than four years after the adoption of an implementing act or no later than 30 August 2027, whichever the earlier, and every five years thereafter, the Commission shall review the scope, functioning and efficiency of this Regulation, and shall report its findings to the European Parliament and to the Council.

Article 15

Entry into force

This Regulation shall enter into force on the sixtieth 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.