(14 February 2013) Please find below a joint ETUCU/EPSU letter on public procurement and concessions sent to members of the EP’s Internal Market and Consumer Protection Committee (IMCO) in view of the upcoming vote next week about whether to start ‘trialogue’.
If you are able to contact MEPs and to ask them not to support a trialogue this would be very helpful. As pointed out in the letter, the concessions Directive is in particular contested and needs further discussion, not least because:
- Europe does not need more market-opening instruments, it needs instruments that address the real problems faced by citizens; e.g., how to guarantee citizens non-discriminatory, comprehensive and affordable access to public services, as called for by the Lisbon Treaty, including Protocol 26 on services of general interest? How to ensure as many citizens as possible have access to decent jobs and employment conditions?
- Supporters of the Directive say that the proposal is not about liberalisation or privatisation, but the text says (in recital 20) that “it is not justified to limit the full application of procurement law to a limited group of services. As a result this Directive should apply to a number of services, which showed a potential for cross-border trade.” In various texts we see references to compulsory social security services, fire-services and even prison services, all areas that should not be traded across, or within, borders.
- The Explanatory Statement to the draft EP report says that the Directive ensures a common definition of concessions and the manner of awarding them; and represents a ‘light’ approach that is sufficiently clear and robust without entailing extra administrative costs. We do not think that this is the case: It is extremely difficult to understand what is included/excluded from the Directive, what it means to transfer the ‘substantial risk’ to an economic operator, or how concepts such as the ‘vagaries of the market’ will be interpreted.
- The Explanatory Statement also says that draft report provides a ‘guarantee of procedural transparency’. However it is silent on the right of citizens to have transparency on the funding, organisation and provision of public services. Indeed, amendments 36 and 158 on confidentiality introduced by the EP may make it more difficult for citizens to know how their public services are being run. The Directive puts the ‘grantor’ and the ‘economic operator’ same footing; but governments are not the ‘owners’ of pure water, good health, or of a functioning public transport system any more than companies. Amendment 158 contains an addition to say that confidentiality shall not prevent the disclosure of ‘non-confidential’ parts of contracts - wording which is mirrored in the public procurement report - but this addition affirms the primacy of commercial concerns over general interest ones.
- Furthermore, one of the sub-headings in the Explanatory Statement is called ‘taking public policy aims into account’ but the draft report restricts this. Amendment 42 says that the grantor should be allowed to use as award criteria the organisation, qualifications and experience of the staff assigned to the performance of the concessions contract; and amendment 172/223 says that Member States shall ensure that economic operators comply with environmental, social and labour law provisions, including certain collective agreements, but neither report has any reference to ILO Convention 94 – which has been ratified by 10 Member States – or to the possibility to include social clauses in public procurement or concession contracts. This effectively excludes from the definition of public policy the practice of using social clauses to avoid downward pressure on wages and working conditions.[1]
- The EP has to show that Europe is capable of providing positive legal frameworks – not just ‘enabling’ liberalisation. As mentioned in the letter, eleven members from five different political groups did table amendments to reject the Directive and there were also amendments to lessen the negative impact of the Directive on citizens and workers, i.e., by excluding from the scope public services (such as water supply, wastewater services, waste disposal, health services, social services, social security, education, railway and local public transport, energy, municipal services, culture, promotion of culture and audiovisual media) and strengthening provisions on employment rights[2]. Discussion on these should not come to halt.
[2] amendment 535 (broad exemption of services of general interest), amendment 828 (reasons for exclusion), amendment 846 (adherence to collective agreements), and amendments 868, 869, 871, 872, 874 (social and environmental award criteria).
- EPSU/ETUC letter February 2013 to IMCO on importance of social considerations for eventual trilogue (EN/FR)
- Public Procurement - ETUC Evaluation of IMCO report
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