Changes from adopted text to adopted text

RemovedTitle III – title: Internal market emergency response measures

RemovedArticle 23 – paragraph 1: 1. Binding measures included in this Chapter may be adopted by the Commission by means of implementing acts only when an internal market emergency mode has been activated in accordance with Article 14.

RemovedArticle 23 – paragraph 2: 2. An implementing act introducing a measure included in this Chapter shall clearly and specifically list the crisis-relevant goods and services identified in the implementing act adopted in accordance with Article 14(5) to which such a measure applies. That measure shall apply only for the duration of the emergency mode.

RemovedArticle 23 – paragraph 2 a (new): 2a. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 42(2). On duly justified imperative grounds of urgency relating to the impact of the crisis on the internal market, the Commission shall adopt immediately applicable implementing acts in accordance with the procedure referred to in Article 42(3).

RemovedArticle 24 – paragraph 1: 1. Where there is a severe crisis-related shortage or an immediate threat thereof, the Commission may invite economic operators in crisis-relevant supply chains to transmit, in accordance with paragraph 3, specific information that is relevant to the internal market emergency, on a voluntary basis and within a reasonable time limit.

RemovedArticle 24 – paragraph 2: 2. If the addressees do not transmit the information requested in accordance with paragraph 1 within the time-limit and do not provide a valid justification for not doing so, the Commission may, by means of a recommendation, request that they transmit the requested information, indicating why it is proportionate and necessary to do so, specifying the crisis-relevant goods and services and addressees concerned by the information request, and the information that is sought, providing where necessary a template with the questions that may be addressed to the economic operators.

RemovedArticle 24 – paragraph 3 – introductory part: 3. The information requests referred to in paragraph 1, may concern:

RemovedArticle 24 – paragraph 3 – point a: (a) targeted information to the Commission on the production capacities and possible existing stocks of the crisis-relevant goods and components thereof in production facilities located in the Union and production facilities located in a third country which the organisation or the operator referred to in paragraph 1 operates or contracts;

RemovedArticle 24 – paragraph 3 – point b: (b) a schedule of the expected production output of crisis-relevant goods for the 3 months following the information request regarding production facilities located in the Union or in a third country in which the operator operates or contracts.

RemovedArticle 24 – paragraph 4: 4. When inviting or requesting economic operators to provide information for the purposes of this Article, the Commission shall rely, where possible, on the relevant and available contact lists of the economic operators active in the selected supply chains of crisis-relevant goods and services, compiled by the Member States. The Commission may obtain the necessary information on the relevant economic operators from the Member States.

RemovedArticle 24 – paragraph 5: 5. The Commission recommendation containing individual information requests shall contain a reference to the situations of severe crisis-related shortages or an immediate threat thereof which has given rise to them. Any information request shall be duly justified and proportionate in terms of the volume, nature and granularity of the data, as well as the frequency of access to the data requested, and shall be necessary for the management of the emergency. A request shall set out a reasonable time limit not exceeding 14 days within which the information is to be provided. The operator may request a one-time extension to the time limit until two days prior to its expiration in the event that the gravity of the situation requires such extension. The Commission shall respond, within one working day, to any such request for an extension to the time limit. It shall take into account the effort required to collect and make the data available by the economic operator. The recommendation shall also contain safeguards for protection of data in accordance with Article 39 of this Regulation, safeguards for non-disclosure of sensitive business information and safeguards for non-disclosure of trade secrets and intellectual property in the reply in accordance with Article 25.

RemovedArticle 24 – paragraph 6: 6. The owners of the economic operators or the persons authorised to represent them by law or by their constitution may supply the information requested on behalf of the economic operator concerned. Each economic operator shall provide the requested information on an individual basis in line with the Union rules on competition governing the exchange of information. Lawyers duly authorised to act may supply the information on behalf of their clients. The latter shall remain fully responsible if the information supplied is incomplete, incorrect or misleading.

RemovedArticle 24 – paragraph 7: deleted

RemovedArticle 24 – paragraph 8: deleted

RemovedArticle 25 – paragraph 1: 1. Information received from liaison offices of the Member States, the Board, economic operators or any other source as a result of the application of this Regulation shall be used only for the purpose for which it was requested.

RemovedArticle 25 – paragraph 2: 2. Member States and the Commission shall ensure the protection of trade and business secrets, intellectual property, and other sensitive and confidential information acquired and generated in application of this Regulation, including recommendations and measures to be taken, in accordance with Union and the respective national law.

RemovedArticle 25 – paragraph 4: 4. The Commission may present to the Board aggregate information based on any information collected pursuant to Article 24.

RemovedArticle 25 – paragraph 5 a (new): 5a. Any information obtained through information requests shall be deleted immediately upon the expiration of the internal market emergency mode, or earlier if all relevant reports pertaining to the internal market emergency mode have been submitted. The Commission and Member States shall send a confirmation of the deletion of that information to the economic operators affected immediately after its deletion.

RemovedArticle 26: deleted / (deleted) / (deleted) / (deleted)

RemovedArticle 27 – paragraph 1: 1. The Commission, may invite, on a voluntary basis, one or more economic operators in crisis-relevant supply chains established in the Union to accept and prioritise certain orders for the production or supply of crisis-relevant goods (‘priority rated order’). The Commission shall specify all relevant information, including the quantity of the crisis-relevant goods and services, the delivery time and the price and shall inform the European Parliament thereof.

RemovedArticle 27 – paragraph 2: 2. If an economic operator does not accept or prioritise priority rated orders, the Commission may, on its own initiative or at the request of 14 Member States, assess the necessity and proportionality of resorting to priority rated orders. In such cases, the Commission shall give the economic operator concerned as well as any parties demonstrably affected by the potential priority rated order, the opportunity to state their position within a reasonable time limit set by the Commission in light of the circumstances of the case. In exceptional circumstances, following such an assessment and taking into due consideration the opinion of the Board, the Commission may address an implementing act to the economic operator concerned, requiring it to either accept and prioritise the priority rated orders specified in the implementing act or explain in writing why it is not possible or appropriate for that operator to do so. Where the consideration of the Commission diverges from the opinion of the Board, the Commission shall provide a substantiated justification. The Commission’s decision shall be based on objective data which is factual, measurable and substantiated, showing that such prioritisation is indispensable to ensure the maintenance of vital societal economic activities in the internal market.

RemovedArticle 27 – paragraph 4 – subparagraph 1: Where the economic operator to which the decision referred to in paragraph 2 is addressed declines to accept the requirement to accept and prioritise the orders specified in the decision, it shall provide to the Commission, within 10 days from the notification of the decision, a reasoned explanation setting out duly justified reasons why it is not possible or appropriate, for it to comply with the requirement. Such reasons include the inability of the operator to perform the priority rated order due to insufficient production capacity or a serious risk that accepting the order would entail particular hardship or economic burden for the operator, taking into account, in particular, the prices and quantities specified by the Commission, or other considerations of comparable gravity. These reasons could entail the legitimate aims of the undertaking concerned and the cost, effort, technical practicality, and long-term business consequences, required for any change in production sequence.

RemovedArticle 27 – paragraph 4 – subparagraph 2: deleted

RemovedArticle 27 – paragraph 6: 6. The Commission shall take the decision referred to in paragraph 2 in accordance with applicable Union law, including the principles of necessity and proportionality, and the Union’s obligations under international law. The decision shall in particular take into account the legitimate interests of the economic operator concerned and any available information concerning the cost and effort required for any change in production sequence. It shall state the legal basis for its adoption, fix the time limits within which the priority rated order is to be performed and, where applicable, specify the product, the price and quantity. It shall state the fines provided for in Article 28 for failure to comply with the decision. The priority rated order shall be placed at a fair and reasonable price, which shall include, where relevant, an appropriate compensation for all additional costs incurred by the economic operator.

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

RemovedArticle 28 – paragraph 1 – point a: deleted

RemovedArticle 28 – paragraph 2: 2. Fines imposed in the cases referred to in paragraph 1 (b) shall not exceed 200 000 EUR. Fines imposed on economic operators that are SMEs, as defined in Recommendation 2003/361/EC, shall not exceed 25 000 EUR.

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 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 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.

RemovedArticle 29 – paragraph 1 – point a: deleted

RemovedArticle 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.

RemovedArticle 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:

RemovedArticle 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.

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

RemovedArticle 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.

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

RemovedArticle 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 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.

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

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, 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.

RemovedArticle 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;

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

RemovedPart V – title: Public procurement

RemovedPart V – Chapter I – title: Public procurement of goods and services of critical importance and crisis-relevant goods and services by the Commission on behalf of Member States during vigilance and emergency modes

RemovedArticle 34 – paragraph 1: 1. Two or more Member States may request that the Commission launch a procurement on behalf of the Member States that wish to be represented by the Commission (ʽparticipating Member Statesʼ), for the 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 listed in an implementing act adopted pursuant to Article 14(5).

RemovedArticle 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.

RemovedArticle 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.

RemovedArticle 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.

RemovedArticle 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.

RemovedArticle 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.

RemovedArticle 35 – paragraph 3: deleted

RemovedArticle 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 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.

RemovedArticle 37 – paragraph 1: 1. The Commission and one or more contracting authorities from 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.

RemovedArticle 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 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 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.

RemovedArticle 37 – paragraph 1 d (new): 1d. The Commission shall inform the European Parliament about the joint procurement procedures conducted in accordance with this Article and, 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.

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 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).

RemovedArticle 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.