Tag Archives: Services contract

Public procurement in the fields of defence and security

Outline of the Community (European Union) legislation about Public procurement in the fields of defence and security

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Public procurement

Public procurement in the fields of defence and security

Document or Iniciative

Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC (Text with EEA relevance). [See amending act(s)].

Summary

This Directive applies to public contracts in the fields of defence and security for:

the supply of military equipment;
the supply of sensitive equipment;
works, supplies and services directly related to military or sensitive equipment;
works and services for specifically military purposes or sensitive works and sensitive services.

Public procurement

Economic operators, whether they are natural or legal persons, can participate in invitations to tender in these fields. Groups of economic operators may also participate. If a contract is awarded to them, they may be required to assume a specific legal form.

Market thresholds and exclusions

This Directive shall apply to contracts which have a value excluding value-added tax (VAT) estimated to be no less than the following thresholds:

EUR 400,000 for supply and service contracts;
EUR 5,000,000 in the case of works contracts.

Exclusions

Certain specific contracts are excluded from the scope of this Directive, including:

contracts governed by specific procedural rules pursuant to an international agreement or arrangement between Member States and third countries and markets governed by the specific procedural rules of an international organisation purchasing for its purposes;
contracts for which the application of the rules of this Directive would oblige a Member State to supply certain information the disclosure of which it considers contrary to the essential interests of its security;
contracts awarded in the framework of a cooperation programme aimed at developing a new system;
contracts for the purposes of intelligence activities;
contracts awarded in a third country when forces are deployed outside the territory of the Union and transactions take place in the area of operations;
contracts relating to immovable property;
contracts awarded between governments.

Procedures

Contracting authorities/entities shall apply national procedures for the award of public contracts adjusted for the purposes of this Directive, by using the restricted procedure or the negotiated procedure with publication of a contract notice. An open procedure cannot be chosen.

Member States may use a competitive dialogue in the case of particularly complex contracts. In this case, contracting authorities/entities open a dialogue with the candidates selected in order to identify and define the means best suited to satisfying their needs.

There are also exceptional cases in which it is possible to use the negotiated procedure without publication of a contract notice.

The procedures are adjusted for the specific purposes of this Directive, in particular by proposing specific rules for the security of information, the security of supply and subcontracting.

The contracting authorities/entities may also conclude framework agreements, the duration of which may not exceed seven years. They must not, however, restrict competition.

Rules on advertising and transparency

Contracting authorities/entities may publish a prior information notice on their buyer profiles or on Tenders Electronic Daily (TED). They are obliged to publish a contract notice on TED with the sole exception of an exceptional negotiated procedure without publication of a contract notice.

In the case of restricted or negotiated procedures, contracting authorities/entities shall invite the selected candidates to submit their tenders and to negotiate. They shall also be invited to negotiate under the negotiated procedure. This invitation shall include contract documents, the deadline for receipt of tenders and an indication of any documents to be annexed.

For every contract or framework agreement, the contracting authorities/entities must draw up a written report describing the selection procedure chosen as well as information concerning the candidates.

Contract award criteria

Contracting authorities/entities shall award contracts on the basis of:

the most economically advantageous tender. Award shall then be based on various criteria linked to the subject-matter of the contract in question, such as quality, price or technical merit); or
the lowest price.

Subcontracting

Contracting authorities/entities may oblige the successful tenderer to organise a transparent and non-discriminatory competition when awarding subcontracts to third parties.

In addition, Member States may allow or require their contracting authorities/entities to ask that subcontracts representing at least a certain share of the value of the contract (a maximum of 30 %) be awarded to third parties following a transparent and non-discriminatory competition.

Review

A review of a decision taken by contracting authorities/entities may be sought in the event of an infringement of Community law. Member States must ensure that any operator that has suffered harm has access to effective and rapid rights to review. They may require that operators who wish to seek review either inform the contracting authority or first seek review from it.

During a review procedure, interim or final measures may be taken. In both cases, damages shall be granted to the persons concerned.

Context

The 2005 Green Paper on defence procurement highlighted the fact that it was essential to create a European market for defence equipment. This Directive should prove to be an appropriate legislative framework since it meets the specific requirements relating to goods and services in the fields of defence and security.

Reference

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Directive 2009/81/EC	21.8.2009	21.8.2011	OJ L216, 20.8.2009

Amending act(s)	Entry into force	Deadline for transposition in the Member States	Official Journal
Regulation (EC) No 1177/2009	1.1.2010	–	OJ L 314, 1.12.2009
Regulation (EU) No 1251/2011	2.12.2011	–	OJ L 319, 2.12.2011

Successive amendments and corrections to Directive 2009/81/EC have been incorporated into the original text. This consolidated version is for reference only.

Derivatives

Outline of the Community (European Union) legislation about Derivatives

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Financial services: general framework

Derivatives

Document or Iniciative

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, the Committee of the Regions and the European Central Bank of 20 October 2009 – Ensuring efficient, safe and sound derivatives markets: Future policy actions [COM(2009) 563 final – Not published in the Official Journal].

Summary

This Communication defines ways to make more efficient, safer and sounder derivatives markets. The latter contributed substantially to the financial crisis due to their risky nature and the lack of transparency of the financial markets. The Commission therefore decided to adopt measures aimed at making derivatives more efficient, safer and sounder.

Role of derivatives

Derivatives enable economic agents to transfer the risks inherent in certain economic activities to other economic agents who are willing to bear those risks.

However, derivatives have unreliable aspects in that they allow leverage to increase and interconnect market participants. These aspects contributed towards the financial crisis of 2008.

Mitigating counterparty credit risk

The 2008 crisis showed that market participants did not price counterparty credit risk correctly. The latter may be managed bilaterally between the two counterparties or at central market level, by means of a central counterparty (CCP).

The Commission and the G20 have identified the CCP as the main tool to manage counterparty risks. CCPs are currently regulated at national level. For this reason, the Commission intends to propose a European framework for CCPs laying down standards in matters of security, regulation and operation.

The European CCP framework is to cover the different asset classes for which the CCPs provide services. These asset classes generally include cash equities, fixed income and derivatives.

However, not all derivatives are suitable for central clearing. As a result, the Commission intends to submit a proposal aimed at requiring financial firms to post initial margin specific to counterparty characteristics and variation margin depending on the change in the value of the contract.

The Commission also intends to subject non-centrally cleared contracts to higher capital requirements.

The Commission also intends to make it mandatory to clear standardised derivatives through CCPs.

Reducing operational risk

Operational risk includes legal risk and risk relating to losses resulting from inadequate or failed internal processes or from external events.

The Commission intends to take measures to reduce operational risk by facilitating the standardisation of contracts in terms of processing and standard legal terms.

Increasing transparency

Over-the-counter or OTC derivatives markets are characterised by a lack of transparency of prices, transactions and positions. This lack of transparency has hindered regulators from supervising the derivatives market.

It therefore appears necessary to report all transactions to trade repositories and to impose new reporting obligations on market participants. These bodies should be regulated and comply with a common legal framework. The Commission believes that the European Securities and Markets Authority (ESMA) should be responsible for supervising these bodies.

During the G20 at Pittsburgh in September 2009, it was agreed that all standardised OTC derivatives contracts should be traded on exchanges or electronic trading platforms.

At European level, these transactions should take place on organised markets. It appears necessary to increase transparency of trading on these markets.

Enhancing market integrity and oversight

The Commission intends to review the Market Abuse Directive in order to cover derivatives markets effectively

In addition, the Commission intends to propose rules to give regulators the possibility to counter concentrations of speculative positions and disproportionate price movements.

Context

In the light of the considerable development of derivatives on global markets, a robust and convergent international regulatory framework must be ensured. This Communication is in line with the objectives outlined in the G20 meeting of 25 September 2009 calling for the improvement of OTC derivatives markets.

The business and prudential supervision of electronic money institutions

Outline of the Community (European Union) legislation about The business and prudential supervision of electronic money institutions

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Single market for services > Financial services: banking

The business and prudential supervision of electronic money institutions

Document or Iniciative

Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (Text with EEA relevance).

Summary

This Directive defines the rules on the business and supervision of electronic money institutions in order to guarantee fair competition conditions for all payment services providers.

Which institutions are covered by the directive?

credit institutions;
electronic money institutions *;
post office giro institutions entitled to issue electronic money;
the European Central Bank and national central banks;
Member States or their regional or local authorities when acting in their capacity as public authorities.

Which activities are carried out by electronic money institutions?

Electronic money institutions issue electronic money. They can carry out this activity through natural or legal persons acting on their behalf. In this case, they must obtain authorisation from Member States.

These institutions are also authorised to carry out the following activities:

the provision of payment services (see the list appended to the Directive on payment services in the internal market);
the granting of credit related to payment services;
the provision of operational services and closely related ancillary services in respect of the issuing of electronic money or the provision of payment services;
the operation of payment systems;
business activities other than the issuance of electronic money.

Own funds and capital requirements

Electronic money institutions must hold initial capital of not less than EUR 350 000.

They are to hold own funds which, as stated in the Directive on the taking up and pursuit of the business of credit institutions, shall be composed mainly of capital, reserves, funds for general banking risks, revaluation reserves and value adjustments. They shall mainly be calculated according to the following methods:

for activities not related to the issuance of electronic money, own funds shall be calculated in accordance with methods A, B or C of Article 8 of the Directive on payment services in the internal market);
for the activity of issuing electronic money, own funds shall amount to at least 2% of the average outstanding electronic money.

Electronic money institutions must safeguard funds that have been received in exchange for the electronic money issued. These safeguards must be effective no later than five business days after the issuance of electronic money.

What are the conditions for the issuance and redeemability of electronic money?

Electronic money issuers shall issue electronic money at par value on the receipt of funds. Upon request by the electronic money holder, issuers must be able to redeem the monetary value of the electronic money held at any moment.

Redemption conditions shall be clearly established in the contract between the issuer and the holder of electronic money. Redemption may be subject to a fee only if stated in the contract in the following cases:

redemption is requested before the termination of the contract;
the electronic money holder terminates the contract before the termination date;
redemption is requested more than one year after the date of termination of the contract.

This Directive repeals Directive 2000/46/EC.

Key terms of the Act
Electronic money institution: a legal person that has been granted authorisation to issue electronic money; Electronic money: electronically, including magnetically, stored monetary value as represented by a claim on the issuer which is issued on receipt of funds for the purpose of making payment transactions.

Reference

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Directive 2009/110/EC	30.10.2009	30.4.2011	OJ L 267 of 10.10.2009

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.