Changes from report parliamentary committee draft to plenary report

RemovedNo economic hardship should arise from priority rated orders. Potential changes to production lines, capital investment and retraining must be compensated for. Moreover, the goods subject to priority orders are likely to be crisis relevant and therefore, subject to high demand and price increases. Any such price increases must be reflected in the prices that are quoted in relation to priority rated orders.

RemovedArticle 28 – title: Fines to operators for failure to comply with priority rated orders

RemovedAs the requests for information should remain voluntary for companies, only the fining regime for priority rated orders should be maintained.

Article 28 – paragraph 1 – point a: deleted

Change 85

ChangedArticle 28 – paragraph 2: 2. Fines imposed in the cases referred to in paragraph 1 (b) shall not exceed 50200 000 EUR. Fines imposed on economic operators that are SMEs, as defined in Recommendation 2003/361/EC, shall not exceed 25 000 EUR.

Change 86

RemovedFines should be proportional to the offense and reflect the economic burdens weighting on companies during a crisis.

AddedArticle 28 – paragraph 3: 3. Fines imposed in the cases referred to in paragraph 1 (c) shall not exceed 1 % of the average daily turnover in the preceding business year for each working day of non-compliance with the obligation pursuant to Article 27 (priority rated orders) calculated from the date established in the decision not exceeding 1% of the global turnover in the preceding business year. Fines imposed on economic operators that are SMEs, as defined in Recommendation 2003/361/EC, shall not exceed 0,25% of the global total turnover in the preceding business year.

RemovedArticle 28 – paragraph 3: 3. Fines imposed in the cases referred to in paragraph 1 (c) shall not exceed 1 % of the average daily turnover in the preceding business year for each working day of non-compliance with the obligation pursuant to Article 27 (priority rated orders) calculated from the date established in the decision not exceeding 1% of global turnover in the preceding business year.

Article 28 – paragraph 4: 4. In fixing the amount of the fine, the Commission shall take into account the size and economic resources of the economic operator concerned, to the nature, gravity and duration of the infringement, taking due account of the principles of proportionality and appropriateness. The impact of the crisis on the economic operator and its business activities shall also be taken into account.

Article 29 – paragraph 1 – point a: deleted

Change 87

RemovedCompliance with requests for information shall remain voluntary, hence alignment with proposed changes to Art.28.

Article 29 – paragraph 1 – point b: (b) three years in the case infringements of provisions concerning the obligation to prioritise the production of crisis-relevant goods pursuant to Article 27.

Article 31 – paragraph 1 – introductory part: 1. Before adopting a decision pursuant to Article 28, the Commission shall give the economic operator concerned the opportunity of being heard on:

Change 88

RemovedPriority rated orders should only be addressed to economic operators (alignment with Art. 27 and proposed changes to sanctions regime).

Article 31 – paragraph 2: 2. The economic operators concerned may submit their observations to the Commission’s preliminary findings within a time limit which shall be fixed by the Commission in its preliminary findings and which may not be less than 21 days.

Article 31 – paragraph 3: 3. The Commission shall base its decisions only on objections on which economic operators concerned have been able to comment.

Article 31 – paragraph 4: 4. The rights of defence of the economic operator concerned shall be fully respected in any proceedings. The economic operator concerned shall be entitled to have access to the Commission's file under the terms of a negotiated disclosure, subject to the legitimate interest of economic operators in the protection of their business secrets. The right of access to the file shall not extend to confidential information and internal documents of the Commission or the authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and the authorities of the Member States. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement.

Change 89

RemovedArticle 32 – paragraph -1 (new): -1. In the event of a shortage of crisis-relevant goods or services affecting one or more Member States, the Member States concerned may notify the Commission, indicating the quantities needed and any other relevant information. The Commission shall transmit the information to all competent authorities and streamline the coordination of Member States’ responses.

AddedArticle 32 – title: Solidarity and coordinated distribution of strategic reserves

RemovedArticle 32 – paragraph 1: Where the strategic reserves constituted by the Member States prove to be insufficient to meet the needs related to the internal market emergency, the Commission, taking into consideration the opinion provided by the advisory board, may recommend to the Member States to distribute the strategic reserves in a targeted way, where possible, having regard to the need not to further aggravate disruptions on the internal market, including in geographical areas particularly affected by such disruptions and in accordance with the principles of necessity, proportionality and solidarity and establishing the most efficient use of reserves with a view to ending the internal market emergency.

AddedArticle 32 – paragraph -1 (new): -1. In the event of a shortage of crisis-relevant goods and services affecting one or more Member States, the Member States concerned may notify the Commission thereof and indicate the quantities needed and any other relevant information. The Commission shall transmit the information to all competent authorities and streamline the coordination of Member States’ responses.

RemovedArticle 33 – paragraph 1: 1. The Commission may, when it considers that there is a risk of a shortage of crisis-relevant goods and services, recommend that Member States implement specific measures to ensure the efficient re-organisation of supply chains and production lines and to use existing stocks to increase the availability and supply of crisis-relevant goods and services, as quickly as possible.

AddedArticle 32 – paragraph 1: Where the strategic reserves constituted by the Member States in accordance with Article 8a prove to be insufficient to meet the needs related to the internal market emergency, the Commission, duly taking into consideration the opinion provided by the Board, may recommend to the Member States to distribute the strategic reserves in a targeted way, where possible, having regard to the need not to further aggravate disruptions on the internal market, including in geographical areas particularly affected by such disruptions and in accordance with the principles of necessity, proportionality and solidarity and establishing the most efficient use of reserves with a view to ending the internal market emergency.

AddedArticle 33 – title: Measures to ensure the availability and supply of crisis-relevant goods or services

AddedArticle 33 – paragraph 1: 1. The Commission may, when it considers that there is a risk of a shortage of crisis-relevant goods and services, taking into account the opinion of the Board, recommend that Member States take specific measures, including to ensure the efficient supply chains and production lines.

AddedArticle 33 – paragraph 2 – point a: (a) facilitating the expansion or repurposing of existing or the establishment of new production capacities for crisis-relevant goods or services;

Article 33 – paragraph 2 – point c a (new): (ca) facilitating the free movement of crisis-relevant services.

Change 90

RemovedService providers, for example maintenance workers of crisis relevant machinery, may also be in short supply, and the Commission could issue recommendations if it sees fit.

AddedPart V – title: Public procurement

Change 91

ChangedArticlePart 34V – paragraph 1: 1. Two or more Member States may request thatChapter theI Commission– launchtitle: aPublic procurement on behalf of the Member States that wish to be represented by the Commission (‘participating Member Statesʼ), for the purchasing of goods and services of critical importance listed in an implementing act adopted pursuant to Article 9(1) orand crisis-relevant goods and services listedby inthe anCommission implementingon actbehalf adoptedof pursuantMember toStates Articleduring 14(5).vigilance and emergency modes

Change 92

ChangedArticle 3534 – paragraph 1: 1. TheTwo agreementor referredmore toMember inStates Articlemay 34(3)request shallthat establishthe Commission launch a negotiatingprocurement mandateon forbehalf of the CommissionMember States that wish to actbe asrepresented aby centralthe purchasingCommission body(ʽparticipating Member Statesʼ), for relevantthe purchasing of goods and services of critical importance listed in an implementing act adopted pursuant to Article 9(1) or crisis-relevant goods and services on behalf of thelisted participatingin Memberan Statesimplementing throughact theadopted conclusionpursuant ofto newArticle contracts.14(5).

Change 93

AddedArticle 34 – paragraph 2: 2. The Commission, in consultation with the Board, shall assess without delay the necessity and proportionality of the request referred to in paragraph 1. Where the Commission intends not to follow that request, it shall inform the Member States concerned and the Board and give reasons for its refusal.

AddedArticle 34 – paragraph 3: 3. Where the Commission agrees to procure on behalf of the Member States, it shall: / (a) inform all Member States and the Board of its intention to carry out the procurement procedure and invite the interested Member States to participate; / (b) draw up a proposal for a framework agreement to be concluded with the participating Member States allowing the Commission to procure on their behalf. This agreement shall lay down the detailed conditions for the procurement, including practical arrangements, rules for decision making and the proposed quantities, on behalf of the participating Member States.

AddedArticle 34 – paragraph 3 a (new): 3a. Where the Commission is unable to award the contract to a suitable economic operator, it shall immediately inform the Member States thereof in order to allow them to initiate their own procurement processes without delay.

AddedArticle 35 – paragraph 1: 1. The agreement referred to in Article 34(3), point (b) shall establish a negotiating mandate, which shall include elements such as award criteria and how tenders shall be assessed, for the Commission to act as a central purchasing body for relevant goods and services of critical importance or crisis-relevant goods and services on behalf of the participating Member States through the conclusion of new contracts.

AddedArticle 35 – paragraph 2: 2. In accordance with that agreement, the Commission may be entitled, on behalf of the participating Member States, to enter into contracts with economic operators, including individual producers of goods and services of critical importance or crisis-relevant goods and services, concerning the purchase of such goods or services.

Article 35 – paragraph 3: deleted

Change 94

RemovedThe right of Commission representatives or experts to visit may be negotiated as part of the procurement agreement, but this provision is not necessary to ensure compliance with a procurement agreement itself.

AddedArticle 35 – paragraph 3 a (new): 3a. The Commission shall invite the participating Member States to appoint representatives to take part in the preparation of the procurement procedures.

RemovedArticle 37 – paragraph 1: The Commission and any of the Member States may engage, as contracting parties, in a joint procurement procedure conducted pursuant to Article 165(2) of Regulation (EU, Euratom) 2018/1046 with a view to the purchase of crisis-relevant goods or goods and services of critical importance within a reasonable time frame.

AddedArticle 36 – paragraph 2: 2. The contracts shall include a clause stating that a Member State which has not participated in the procurement procedure may, subject to the agreement of the majority of the participating Member States, become a party to the contract after it has been signed, laying out in detail the procedure for doing so and its effects.

Change 95

ChangedArticle 37 – paragraph 11: a1. (new):The ByCommission wayand ofone derogationor frommore Articlecontracting 165(2)authorities offrom RegulationMember (EU,States Euratom)may 2018/1046,engage, participationas contracting parties, in thea joint procurement procedure shall beconducted openpursuant to all Member States, European FreeArticle Trade165(2) Associationof StatesRegulation and(EU, UnionEuratom) candidate2018/1046 countrieswith asa wellview asto the Principalitypurchase of Andorra, thecrisis-relevant Principalitygoods ofor Monaco,goods theand Republicservices of Sancritical Marinoimportance andwithin thea Vaticanreasonable Citytime State.frame.

Change 96

RemovedArticle 37 – paragraph 1 b (new): The joint procurement procedure shall comply with the following conditions: / (a) it shall not affect the functioning of the internal market and shall not constitute discrimination or a restriction of trade, nor shall it cause distortion of competition; / (b) it shall not have any direct financial impact on the budget of the countries referred to in paragraph 2 that do not participate in the joint procurement.

AddedArticle 37 – paragraph 1 a (new): 1a. The participation in the joint procurement procedure shall be open to all Member States, as well as, by way of derogation from Article 165(2) of Regulation (EU, Euratom) 2018/1046, to the European Free Trade Association States and Union candidate countries as well as the Principality of Andorra, the Principality of Monaco, the Republic of San Marino and the Vatican City State, in particular where this has been specifically provided for in a bilateral or multilateral treaty.

RemovedArticle 38 – paragraph 1: When the internal market emergency mode has been activated pursuant to Article 14, Member States shall consult each other and the Commission and coordinate their actions with the Commission and the representatives of the other Member States in the advisory group prior to launching procurement of crisis-relevant goods and services listed in an implementing act adopted pursuant to Article 14(5) in accordance with Directive 2014/24/EU of the European Parliament and of the Council55 .

AddedArticle 37 – paragraph 1 b (new): 1b. The joint procurement procedure shall be preceded by a joint procurement agreement between the parties in order to determine the practical arrangements governing that procedure and the decision-making process with regard to the choice of the procedure, how the tenders shall be assessed and the criteria for awarding the contract, in accordance with the relevant Union law.

RemovedArticle 39 – paragraph 1: Where the internal market emergency mode has been activated pursuant to Article 16 and procurement by the Commission on behalf of Member States has been launched in accordance with Articles 34 to 36, the contracting authorities of the participating Member States shall not procure goods or services covered by such procurement by other means.

AddedArticle 37 – paragraph 1 c (new): 1c. The following conditions shall apply to the joint procurement procedure: / (a) it shall not negatively affect the functioning of the internal market and shall not constitute discrimination or a restriction of trade, nor shall it cause distortion of competition; / (b) it shall not have any direct financial impact on the budget of the countries referred to in paragraph1a that do not participate in the joint procurement procedure.

AddedArticle 37 – paragraph 1 d (new): 1d. The Commission shall inform the European Parliament about the joint procurement procedures conducted in accordance with this Articleand, upon request, grant access to the contracts that are concluded as a result of those procedures, subject to the adequate protection of commercially sensitive information, including business secrets, commercial relations and the interests of the Union. The Commission shall communicate information to the European Parliament regarding sensitive documents in accordance with Article 9(7) of Regulation (EC) No 1049/2001.

AddedArticle 38 – paragraph 1: When the internal market emergency mode has been activated pursuant to Article 14, Member States shall consult each other and the Commission and coordinate their actions with the Commission and the representatives of the other Member States in the Board prior to launching procurement of crisis-relevant goods and services listed in an implementing act adopted pursuant to Article 14(5) in accordance with Directive 2014/24/EU of the European Parliament and of the Council55 . The Board may issue recommendations on the coordination of these actions. / 55 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65).

AddedArticle 39 – paragraph 1: Where the internal market emergency mode has been activated pursuant to Article 14 and procurement by the Commission on behalf of Member States has been launched in accordance with Articles 34 to 36, the contracting authorities of the participating Member States shall not procure goods or services covered by such procurement by other means, except in cases referred to in Article 34(3a). Any procurement contracts concluded in violation of this Article shall be considered void.

Article 40: deleted / (deleted) / (deleted) / (deleted) / (deleted)

Change 97

Removedmoved to Art. 2.6.

AddedPart V a (new): Part Va / Digital tools

RemovedPart V a (new): Part Va / Digital Tools

RemovedDuring the Covid pandemic, divergent requirements and procedures for entering another Member State created great confusion and frustration for citizens, especially workers and service providers, in particular in border regions. Therefore, the Commission must immediately develop IT tools similar to the Covid-19 certificate to guarantee the functioning of “fast lanes” for critical goods and services. The Commission must provide a digital portal, covering all registration or authorisation forms for cross-border activities, especially for crisis-relevant declarations similar to Covid Certificates, and for crisis-relevant professional services to accelerate authorisation, registration or declaration procedures.

Article 41 – title: General provisions on digital tools

Change 98

ChangedArticle 41 – paragraph 1: 1. By ... [6 months after the entry into force of thethis Regulation], the Commission and the Member States shall set up, maintain and regularly update interoperable digital tools or IT infrastructures supporting the objectives of this Regulation. Such tools or infrastructures shall includebe developed outside the duration of an internal market emergency in order to respond to possible future emergencies in a timely and efficient manner. They shall include, inter alia, standardised, secure and effective digital tools for the secure collection and exchange of information for the purposes of Article 7a, real time information on national restrictions as referred to in Article 41a, emergency and resilience fast lanes as referred to in Article 41b and the stakeholder platform referred to in Article 41c, and shall be developed outside the duration of the internal market emergency.41c.

Change 99

RemovedArticle 41 – paragraph 2 a (new): Member States shall regularly exchange information with the Commission and among themselves on all matters, falling within the scope of this Regulation via a secure channel of communication.

AddedArticle 41 – paragraph 2: 2. The Commission shall, by means of implementing acts, set out the technical aspects of such tools or infrastructures using, where possible, already existing IT tools or portals, such as Your Europe. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 42(2).