Proposition 54K1541

Projet de loi relatif aux marchés publics.

General information ¶

Submitted by

MR Swedish coalition

Submission date

Jan. 4, 2016

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

EC Directive award of contract public procurement

Voting ¶

Voted to adopt

CD&V ∉ Open Vld N-VA LDD MR PP

Voted to reject

Groen Vooruit Ecolo PS | SP DéFI PVDA | PTB

Abstained from voting

LE VB

Party dissidents ¶

• Dirk Janssens (Open Vld) abstained from voting.

Contact form ¶

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Discussion ¶

May 12, 2016 | Plenary session (Chamber of representatives)

Full source

I have understood that Mr. Crusnière is asking for the word because he wants to talk about a document that is not part of the report.

Mr. Crusniere, I give you the word.

Mr. Speaker, as you know, this project is important and complex since it deals with very varied themes and involves several departments, including that of Defence. This was the topic I spoke about in the committee. I would have liked to hear the Minister of Defence, but it is Mr. Borsus who answered my questions.

I had also requested a supplementary note as several notable public procurements will have to be passed by Defence in the coming weeks. I received it, and I thank Mr. Unfortunately, it was too late to be included in the report. Everyone should be able to get acquainted with it. Therefore, I would like this note to be attached to the page of the House’s website relating to this bill. I thank you.

This will be the case, Mr. Crush.

The reporters are Mr. Van Biesen et Daerden.

Mr. Speaker, Mr. Minister, Dear colleagues, on behalf of my colleague Van Biesen, who has confidence in me, and myself, I will briefly report to you on this draft law on public procurement, which is mainly aimed at transposing the new European directives in this field.

First of all, the procedure. At its meeting on 9 March, the committee decided by vote not to hold hearings and not to seek the opinion of the Social Affairs Committee and the Court of Auditors. The committee also did not hear the ministers responsible for public procurement, i.e. the signatories of this bill.

The timing issue was also discussed. Various groups have expressed their amazement at the late arrival of this project in the commission. Finally, concerns were raised that the implementation deadline set for April 18 would not be met.

That said, we have been able to begin the introductory presentations and, for the intervention of Minister Borsus, I will limit myself to referring to his remarks on the general philosophy of the bill. The Minister recalled that this law aims to ensure that all companies benefit from equal access to public procurement. In addition to addressing the need for clear procurement procedures, the bill aims to ⁇ several objectives: facilitate access for SMEs to public procurement, encourage innovation, and ⁇ environmental and social objectives. These objectives are in line with those set out in the Directives. The Minister also wanted to refer to other key EU objectives such as fighting dumping and reducing the administrative burden.

Then the authors of the other proposals presented them and we went on to the general discussion and on the articles. I will present you a comprehensive exhibition of the positions of the government, the majority and the opposition.

He expressed regret on a few points. Overall, the “fight against social dumping” aspect is disappointing. The government chooses not to seize the historic opportunity left by the guidelines; for example, the law still allows the price to be used as the only criterion. Furthermore, compliance with social, labour and environmental obligations remains optional; it must be made mandatory. There are also regrets about the lack of measures regarding the fraudulent use of temporary unemployment or the limitation of subcontracting.

The bill should have provided for enhanced cooperation and provided the human, material and legal resources for the Social Inspection. Other groups fear the administrative burden due to the obligation to divide into lots or the lack of coordination with the federated entities.

Finally, with regard to public procurement in the field of defence, the issue of economic returns was discussed in particular in the F-16 renewal market. The coming of the competent minister was strongly desired in order to answer this complex question. My colleague just mentioned it.

The majority emphasized that the bill meets the objectives of the directive and reduces the administrative burden on SMEs. It adds that a fair balance between, on the one hand, the socio-ethical aspects and, on the other hand, the need for increased freedom and flexibility has been met. Another speaker asked about the discussions on dumping that were moved to another working group set up in January.

As regards the explanations of the Minister, the Minister recalled the need to leave certain freedom to the contracting authorities to organize their public procurement in view of their specificities. If they want to fight dumping, the law gives them the tools to do so. The minister indicated that he did not want to exclude the price criterion in order to maintain the flexibility necessary to meet all the assumptions.

Nevertheless, the minister joined the opposition on several points regarding the fight against social dumping and tried to reassure the opposition that the elements raised will be settled by royal decree. He indicated that laws, rulings and subsequent plans will be devoted to the limitation of subcontracting and the fraudulent use of temporary unemployment.

In total, there were 88 amendments, 12 of which were submitted by the majority and 76 by the opposition, of which 40 were signed by the PS. Only the majority amendments were accepted. Note that during the second working session, the majority submitted amendments partially joining the opposition and providing a basis for the problem of subcontracting.

Finally, the text was adopted by 11 votes against 1, the PS, and 2 abstentions.

Here is the brief report of this important work in the committee.

For my part, the agreement and the present draft are very balanced, in the sense that often conflicting interests were reconciled. For example, I think of the threshold, where the construction sector wants a lower measure and other sectors want a higher. Local governments wanted to keep the maximum threshold for the simplified negotiation procedure as high as possible. The trade unions saw no salvation in this. Nevertheless, a broad consensus can be reached within this design, which is a very important signal.

A broad consensus could of course only be possible through extensive consultation with all stakeholders. The first major achievement, and the great importance of this bill, is that we will be able to make the competition in the field of public procurement much better, with two effects as a result. On the one hand, SMEs will have much better and faster access to public procurement, while on the other hand, the price level for our governments will fall. The design holds that important merit in itself.

Gold placing, for example, is limited to a minimum, for example by not including mandatory exclusion grounds in the law, but by letting those fall under the responsibility of the contracting authority. There is sufficient flexibility, for example with the free variants, created and above all – this should be underlined – a reduction in the administrative burden for public administrations. There will be less bureaucracy for SMEs. The threshold for entering the single negotiation procedure has been lowered, which will make it much quicker for SMEs to find their way to public procurement.

A number of important advantages relate to the means of communication. There is an efficiency improvement, which can count, through the use of electronic means that are imposed in communication and are extensively regulated. There is a possibility of mixed orders, which is also a great new advantage. The competition dialogue, which is currently fairly complex, will be much better and more flexible. The threshold for the scope of the Act on Public Procurement will be increased from EUR 8 500 to EUR 30 000 for contracts accepted under invoice, which is an important step forward.

However, I need to make a few technical comments. We gave it to the Minister. I have especially been very interested in the fact that in the course of the royal decrees that will be issued, we can illuminate a number of technical options. I think it is important to emphasize this for a moment. The use of the Uniform European Procurement Document has a number of disadvantages. This form also brings with it significant administrative burdens. We should try to make other options valid, such as the implicit statement on honor. That existing arrangement could be ⁇ ined in the future through a royal decree.

The electronic signature of offers is not always an evidence. With different regulations across different countries, procedures go wrong. It may be that the wrong person signed the offer, because the statutes have been changed in the meantime or because it is no longer known exactly who is actually signing authority for which type of order. Also for this, a number of options can be laid out. In our view, it should also be possible to work with the principle of the refutable presumption in which the person who signs is deemed to be able to bind the tenderer. This adjustment could be taken into account in the royal decrees.

Mr. Speaker, I would like to conclude with the request to the Minister to, I think by summer, very thoroughly review the royal decisions. It would be wise, given the capital of information in the House, that the factions review the royal decrees again, so that we take all input on orders and comments from the various administrations, which we are rich and who stand behind our political mandators, sure and firmly.

Mr. Minister, this is a positive call to you, which we would like to address.

Mr. Speaker, after making the report, I will now share the position of my group.

This draft law transposing the Public Procurement Directive represents several missed appointments. First with the calendar. It was to be transposed before 18 April without counting that the full exercise of transposition involves the adoption or modification of several laws or decrees: first appointment missed.

Missed meetings with ministers: neither the Secretary of State for Combating Social Fraud, nor the Prime Minister – remember that the Chancellor of the Prime Minister is currently in charge of transposing the directive – were present in the committee, we regretted it. We wanted a minister or secretary of state directly responsible to be present.

Missed meetings with the consultation: the Social Affairs Committee could not be consulted with an opinion on this text despite its actual implications in matters of employment, social fraud and social security. In addition, hearings were refused and no amendments from the opposition were accepted by the government, despite their relevance. It becomes usual.

Missed meeting with the fight against social dumping and it is the one that is the most unacceptable given the seriousness and urgency of the situation. Let us be objective! This transposition bill represents an advance on several points. It makes it easier for SMEs to access public procurement; it also has the merit of making legislation clearer, more competent and more transparent. The PS Group shares its objectives. However, we do not understand why this project remains so weak when it comes to fighting social dumping.

We are facing a full text of 191 articles that refer as little as possible to enforcement orders except when it comes to fighting social dumping: a total shortage! You can’t say it’s Europe’s fault.

Alongside the “Determination of Workers” Directive, which we criticize and call for a profound amendment and against which we are, at the national level, relatively powerless, there is this time the “Public Procurement” Directive which offered our country real opportunities. With the “Detailing Workers Directive”, as Commissioner Thyssen acknowledges, we have to deal with an alternative and inexpensive form of wage employment. Four percent of our working population works as a detainee. In 2015, there were more than 40,000 dispatched workers in construction while the sector lost more than 20,000 jobs. This is unacceptable and undermines not only the confidence of workers and SMEs but also the financing of our social security.

Fortunately, the PS has fought at European level to ensure that the Public Procurement Directive offers real opportunities in order to lead to a more just, more sustainable and more equitable society. Public procurement represents a real impact force for stimulating the economy but also for orienting it towards sustainable development, taking environmental, social and ethical criteria into account. This struggle brought its fruits to Europe, once not customary. Indeed, we were able to obtain, under the impulse of the rapporteur, Marc Tarabella, that the European Union allows Member States to adopt a transposition law that is pioneering, progressive and bringing social progress. The directive was the result of very long negotiations, first with the deputies of the 28 Member States and then with the European governments through the Council. It must be observed that the result achieved at the European level with all these interlocutors goes further than the a minima transposition of the Belgian government. How can we tolerate that the Michel government chooses not to immediately seize all the opportunities offered? However, the government insisted that the fight against social dumping was a priority.

The government has negotiated with the social partners of construction and transport ambitious action plans. He has made a lot of advertising effects on this subject. The majority adopted a resolution. However, almost a year later, there is still nothing concrete. Lots of words but few actions.

by Mr. Tommelein went to other functions. I congratulate him.

We hope that the will he has demonstrated on this topic, even though the realizations have been few, will be ⁇ ined. We hope that this will not be a return to the starting point. His successor was there just recently and the fact that he has left is a bad sign. He knows the problem well, which he has followed as I did at the European level. We call it to work, not in a dogmatic vision, but in partnership, in a spirit of openness, with the trade unions, with the employers, with the opposition, giving the means to the administration to end dumping in Belgium.

For the PS, fighting social dumping is a real priority. We have been asking for concrete things for months. We have, together with our colleagues from the sp.a, submitted legislative proposals. Ladies and gentlemen of the majority, it is enough to always postpone the issue to later, while every day many jobs are lost!

The government must be coherent. Will it, yes or no, end social dumping? I honestly do not think so and I deeply regret it. This finding was even more flagrant during a colloquium on social dumping, organized last April 22 by the PS, the sp.a, the FGTB. It was a real success. I have had the opportunity to hear striking testimony about the consequences of dumping suffered by our workers. I have heard once again in what unworthy conditions some dispatched workers must live. I was touched, but also angry. How can we allow this to happen? This is inhumane, Mr. Minister. We must act.

Politicians, workers’ representatives and employers have jointly expressed their views on ways to combat social dumping, in particular in the context of public procurement. I repeat it: the politicians, the trade unions and the employer bank of the north and south of the country, united against dumping. All these actors deplored the minimum transposition of directives by the government. All call for European, national, regional and local action. Indeed, every level of power must contribute to this struggle. At the local level, I took my responsibilities by making a charter against social dumping in public procurement in Herstal. It has made oil stain in many municipalities and Wallonia has generalized its principles.

A platform for combating this plague has also been created in order to follow its implementation. Again, in this matter as in others, the PS has been proactive since the beginning of the legislature. In the framework of resolutions, legislative proposals, as in the framework of this bill, we have submitted ⁇ forty amendments. We have done so in respect of social law, so that breaches are punished, in economic unemployment, to prohibit subcontracting when it is used, in terms of limitation of the subcontracting chain, in matters of control and price criteria. In this regard, we advocate that a public procurement can no longer be awarded solely on the basis of price. For the labour and service markets, especially victims of social dumping, we also advocate that the price can no longer, on its own, be determining.

We want to be constructive again, here, in the plenary session. To this end, my group will immediately submit an amendment concerning the price criterion for the award of a contract. This is now a real aberration, which goes against our principles of good administration. The public authorities and the federal authority first and foremost cannot close their eyes longer. But unfortunately, so far, it is not the choice of the government, which still allows to only consider the price.

We need political courage, we need to go further in this matter. During our conference, all stakeholders, whether employers, workers or experts, found that the lowest price dictatorship, of which we are victims, is the real gateway for social dumping.

This dictatorship forces companies to resort to the worst means to win the market. Whether in the construction, maintenance or cleaning sector, unfair competition has become wild. The race for the lowest price is killing our economy and destroying the quality of our jobs.

All the actors present have converged in the same direction with this statement: this dictatorship must end. A SME boss testified in the room and explained that some practices went so far that he could no longer gain markets, even by employing dispatched workforce. With regret, it must go further and find new ways to reduce costs. It is important for quality and employment. This is what we have reached today! This must stop, Mr. Minister.

In order to hope to end dumping in public procurement in Belgium, it is necessary that all contracting authorities play the game, that they are all housed under the same sign. We need a federal framework.

Dear colleagues, and especially of the majority, today I appeal to your political conscience. Be courageous, be consistent, will you continue to tolerate that public authorities continue to encourage social dumping, or will you lay the first stone to stop this plague. You know, in the committee, and I recalled this at the moment, I have submitted ⁇ forty amendments. In this plenary session, I will only submit one. The only one aimed at ending this dictatorship of the “less speaking.”

I hope I can convince the majority so that together we can move towards less dumping and more social justice. So I will be very clear: my amendment is not intended to prohibit the price criterion in the award criteria; it will simply no longer be the only award criterion. And stop hiding behind false excuses: for supply markets such as buying standard bikes or other small supplies, price can still be the determining factor, representing for example 95% of the award criteria. Simply put, for the works and services markets, ⁇ victims of dumping, the price can no longer be determining by itself, since it can not represent more than 40 % of the award criteria.

Dear colleagues, and I conclude, after the yellow card to Commissioner Thyssen, and my colleague spoke about it recently and questioned the Minister of Employment, the need for our country to stand firmly against social dumping is even clearer. Belgium can be the model to be followed at European level from now on. That is why, dear colleagues, I sincerely hope that you will be consistent in supporting our amendment, so that together we can abandon the dictatorship of the lowest price and really start fighting social dumping. Otherwise, it will be hard to find that this is not your real priority and therefore we will not be able to support this project.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. by Daerden.

After weeks of intense and constructive debate, we finally arrived at the bill. Of course, I will not list the articles but remind them of the main principles and objectives. The main objectives, what are they? Increase the effectiveness of public procurement, ⁇ a better balance between the obligations and rights of all parties, facilitate access for SMEs, ⁇ common social objectives, provide greater legal certainty and finally, Mr Daerden, strengthen the fight against social dumping.

Increase the effectiveness of public procurement by strengthening the principles of equal treatment, non-discrimination and transparency. This will better ensure the free movement of goods and services and, above all, enhance equitable access for all economic operators.

Achieving a better balance between the obligations and the rights of everyone, for example, compliance with the obligations of the right to work and of the social law has, through Article 7, a more general scope than today. This is a significant step forward, Mr. Minister. Failure to comply with obligations distorts competition. Article 4 of the project strengthens compliance with the obligations regarding the processing guaranteed to economic operators. This is also the case in environmental law where non-compliance with obligations could also be considered an infringement. Economic operators who fail to comply with these obligations will be sanctioned.

Facilitating SMEs’ access to public procurement mainly through batch distribution is a fundamental change. It is now recommended that contracting authorities divide the contracts into lots as much as possible in order to increase competition and justify the contrary. The rule will now be “divide or explain” for markets below the European advertising threshold.

Achieving common societal objectives by using the criteria for awarding the economically most advantageous offer. Price-based allocation will always be possible, but the concept is broadened with the cost criterion, i.e. the relationship between price and efficiency.

Therefore, the government has chosen to hold accountability without constraints and, where possible, to take into account other factors when awarding a contract.

In the same spirit, Article 15 allows contracting authorities to reserve the right to participate in a specific procedure to protected workshops, labour training undertakings and social integration operators in order to effectively promote the inclusion or reintegration of certain categories of workers.

The fifth objective aims to provide greater legal certainty through clarification of quasi-in-house contracts or procedures such as the competitive procedure with negotiation, through the use of the single document for European contracts – imposed on all operators wishing to subscribe to a procurement procedure – and through the establishment of electronic platforms for sending and receiving offers, which will ensure greater efficiency and transparency in future procedures and facilitate access for SMEs.

All these technical aspects aim to make these economic operations safer, more efficient and more in line with the economic reality. This will promote a more efficient allocation of public money and enable a more efficient fight against corruption.

This project also aims, I said at the beginning, to strengthen the fight against social dumping, which our government has made one of its priorities. In addition to the measures already taken and the commitment of a hundred people to increase on-the-spot checks and address proven cases of fraud, the draft law "public markets" also allows to combat this dumping.

The European Directive has established some basic rules and granted a breadth to the Member States. The government has chosen not to transpose into the common legislative pillar the rules that must apply only to certain sectors affected by this plague that is social dumping. He prefers to work through royal decrees that will be drawn up in common agreement with the sectors. Discussions are progressing well, so these arrests should be available quickly.

As for offers and operators that violate labor law, the government has taken care to maintain the concept of proportionality. Our legal arsenal already implies that the contracting authority is obliged to reject an offer that violates labour law, a practice that remains punishable penally – we discussed this yesterday about another text. This exclusion motive will again be reinforced through royal decrees. Therefore, the text is not empty, Mr. Daerden: we will fill it!

The same applies to operators who employ workers in an unlawful position or the processing of offers with an abnormally low price due to infringement of labour law.

A “social dumping” working group is working to prepare a text that will satisfy all parties.

In relation to the limitation and approval of the subcontractors, the finding was shared by all and the majority then amended the text in this direction.

In the light of the solidarity of the subcontractors, if it is established that a subcontractor does not meet its obligations in terms of paying wages, the entire chain will be jointly liable if the collaboration does not cease within eight days.

Finally, many lobbyists have contacted us all. They were met. A number of meetings were held between the Government and the Office. This project is therefore the result of a balanced process and the result of effective consultation. Everyone who asked was heard in their request.

One question remains to be asked, Mr. Minister. I forgot to mention it at the meeting. It concerns court officers. In the reasoning of the bill, it is stated that “justice officers fall within the scope of Chapter 6, but that they may be excluded if they are appointed by a court, court or by law to perform specific tasks under the control of those courts, i.e. in their monopolistic role with regard to judicial acts”, under an enforceable formula. Can you confirm this possible exemption?

By thanking you for this precision, Mr. Minister, I confirm that my group and I fully adhere to the general philosophy underlying the public procurement reform and that we will support this project after congratulating you for your excellent work.

In my speaker list is now Mr Deseyn and then Mr Vanvelthoven. They obviously do not want to get the word.

Fortunately, Mrs. Gerkens is here.

Mr. Speaker, you know that you can always count on me to criticize a government project that does not meet our goals. Faithful to the post.

We were looking forward to this bill with impatience. This European Directive really allowed to take ambitious provisions towards the fight against social dumping, sustainable markets – with social and environmental clauses – in the ethical dimension. It allowed states to dare to assert themselves as regulators in the face of economic actors who completely destroy and destroy the economic market. Because we do not speak of solidarity, nor of values taking into account the environment or the fate of workers. We are talking about an economic activity that is sometimes completely damaged by practices that distort competition.

Mr. Minister, you and the members of the majority present this bill as just a tool for fighting social dumping. You have put a lot of energy into saying it, to present it as such. Energy is in the texts significantly less when it comes to preventing social dumping and giving real tools to fight it.

If I am so severe in my assessment it is because you have kept the price as the only possible criterion in the head of the contracting authorities. There is the price alone, then the quality-price ratio, then the integration of more specific clauses. But the price alone is left. The prime minister, feeling attacked, dared to say that it is to allow the administrations who want to buy a large amount of bikes that they can do so by referring only to the notion of price. Is this really a valid argument? Can we dare to say something like this when we are faced with companies, especially in construction, which must close, declare themselves bankrupt, lose workers. As of December 31, 2014, there were 17,500 construction workers who lost their jobs due to market distribution.

Can one really be content with the price, even to buy bicycles for all the administrations in Belgium? There too, it is known, there are criteria that can be imposed whether quality, whether material choice, whether proximity to avoid CO2 emissions that bring you bikes that come from the bottom of the world and are produced by underpaid workers.So even for bikes, keeping the price as the only criterion is a fundamental mistake.

Mr. Minister, when I hear the N-VA colleague who does not listen to the other stakeholders on the bill, the argument he used initially was not social dumping. This was to promote competition. Markets must facilitate competition between those who will offer their offer and respond to calls. What does it mean to promote competition? We are back at the single price. Fostering competition means that we will take the one that will be the cheapest and that we will be able, with the device that you have set up, to take only that criterion.

Other provisions related to this and my criticism really reinforce my analysis and make me say that it wasn’t your goal to actually fight social dumping. This was corrected but, for example, false statements made by a bidder did not even constitute a mandatory exclusion clause. It was optional. Another element that also makes me think that in the mind of the entire government, the aim was not to promote fair markets, it is that you had even, at some point, omitted to put in your text the motivation of abnormally low offers. Fortunately, the directive does not leave you the freedom not to require this motivation. There was a correction of the text.

It is really to tell you that the way in which this text was written, elaborated and defended is at least ambiguous and that in any case, it is not your responsibility to say that it is a tool of combating social dumping given these different elements.

I also met with the construction actors and others in relation to the text. I know that they have also tried to change the devices of the text and that there have been some corrections but that these have been relatively weak.

They also oppose this unique principle of price as an argument of choice.

Faced with workers they have to put into technical unemployment, they tell us that from the moment the price is the argument, they are obliged to do so. And when their workers are in economic unemployment, if they want to continue to run their business, they are obliged to use displaced workers who will cost them less, otherwise they will have to dismiss the workers put into economic unemployment because it is impossible to pay them in compliance with the legislation, the salary agreed at the sectoral level and at the same time pay the social contributions and the obligations related to them.

Mr. Minister, you did not seize the opportunity to put in this tool the possibility of saying that when you respond to a bidding, you will necessarily have to take into account the price with the guarantees. These guarantees apply to employees employed, salary, compliance with environmental and ethical clauses.

In addition to this dimension, in the discussions we had in the committee, I also tried to draw more attention to the facilitation of access to public procurement for SMEs and craftsmen. For this purpose, I have submitted amendments and I am submitting them again. I also amend the amendment that excludes price as the only criterion. I also submitted two other amendments.

I re-presented an amendment on the division of markets into lots as a principle by allowing exemptions to these divisions when justified. I also submitted an amendment regarding the turnover.

It is important to limit the requirements to the turnover required by tenderers in relation to the value and risk incurred in the financial year and in the response to a tender.

There are clearly excesses today, which make it always the same big companies that win certain markets. And we know that when these large companies get the market, they start to subcontract.

You refused, and the majority refused, to take these amendments into account. Nevertheless, the State Council had issued an opinion that the required financial guarantee should be reasonable, at a maximum of twice the market cost.

On the other hand, in construction, there are processes related to the approval of companies. For example, when they want to bid for public procurement, turnover figures are linked to the amounts of contracts they can meet. This means that there too, they have set up tools that limit sales. So why not stipulate in the law that the requirements must be reasonable and not prevent access for certain actors?

Approvals are in the other direction. They shall provide for the amounts of turnover and other minimum criteria in order to have sufficient guarantee of organizational, personnel and financial area to assume such a market level. It is in the other direction.

It is written in the other direction, but it goes back to the same. If we say: for such a market, a 1 million market, the bidder must have a turnover of at least 3 or 4 million, we impose conditions that are not assumable by a whole series of actors. If it was limited to the double maximum, or if it was valued and reinforced, as in the authorisation system, by generalizing it to all markets, then the policy would impose rules limiting the excesses existing in calls to tenderers.

In your bill, you did not limit those requirements that some may have. You thus allow some large players to still get the markets and you prevent SMEs and craftsmen from having access to them.

Similarly, we would have wanted to see in the project the division by lots and the authorization that, in order to meet a tender, several craftsmen or SMEs associate and solidary and collectively value their turnover to meet the requirements, to enable them to directly carry out contracts, works avoiding the use of subcontracting.

You announce us a royal decree that will limit the number of subcontractors to two. The construction actors I’ve met recently have told me that I should be reassured on this point and that the royal order is actually going to be done.

In relation to all these resolutions that you have announced to us, Mr. Minister, I would like that today, in the plenary session, you can really tell us where you are in a concrete way in each of the aspects that were to be met.

In this regard, one cannot accept that such a bill is the result of a compromise. It is not OK. When we are in the struggle against social dumping, fraud, underpayment of workers, we need strong policies that truly ensure public authority against economic actors who do not respect the rules and which harm our economic activity and, consequently, also our social solidarity and the fate of many self-employed or self-employed workers and their families.

I truly hope that the majority will resume and that at least, the amendment that removes – we are many who have filed such an amendment – the single resort to the price will be accepted and that this price will be accompanied by requirements. The degree of requirement is obviously dependent on the objectives pursued by the contracting authorities but you must mark, Mr. Minister.

As a committee, I abstained because, at the last moment, you came up with amendments that I had not had the opportunity to read because I had other committee meetings. After examining the entire text, considering the non-response that we have had, again concerted the sector and again identified all the risks, Mr. Minister, Ecolo-Groen can only oppose this bill, even if only because there is this price as the only criterion.

This bill contains a number of elements that are positive and that derive exclusively from the European Directive. I think of clarifying existing rules, facilitating SMEs’ access to public procurement, facilitating SMEs’ access to in-house contracts, ending the uncertainty about cooperation between public authorities.

We came into a committee with proposals to evolve the text on a whole range of topics. I welcome the openness of which the majority has demonstrated, for example on the maintenance of the notions of fractional market and extension clause, the maintenance of the notions of variants and options since this was not envisaged in the original bill. We submitted these amendments and the majority joined us, so much better.

I have also asked you a lot about the importance of preserving the health actors of the public procurement mechanism. There have been enormous contacts with industry actors during the government work. Clearly, the government did not want to hear. We discussed this in the committee. More than a year ago, I submitted a bill in this direction. I have submitted amendments to be able to incorporate it into this bill because it is an important issue. In the bill you filed, not excluding health professionals from the scope of public procurement, you considered that all commitments of self-employed health professionals must go through a public procurement.

And this indirectly leads to a merchandising of the health sector. The criteria for recruiting a doctor, a physiotherapist, possibly a nurse – mostly employed – of these health actors within a hospital institution are, for the vast majority, not objectivable and are based on a whole series of elements as important as the human aspect, the relationship and sense of contact with the patient, the multidisciplinary approach with the care teams, so many important elements.

The rigidity and timeliness of the tender procedures, the possibilities of recourse are completely inadequate to the engagement of caregivers and risk leaving primary positions vacant for several months at the expense of patients, paralyzing hospitals and care structures.

Subjecting the commitment of healthcare professionals to the public procurement law – and that would be the worst of the worst – could increase the recourse to foreign doctors at the expense of our young caregivers and even while our caregivers have a clearly higher level of quality training.

It was therefore, it seems to me, obvious to exclude caregivers, especially self-employed, since employees are recruited explicitly because they have a labor contract. It was important to exclude them to ensure continuity and quality of patient care.

I would have preferred this to be flooded into the law because I still fear in this matter a risk of retreat in the second half. With this in mind, we were able to agree on a common amendment with an authorisation to the King to define exactly the scope of the notion of employment contract, and therefore to explicitly provide that self-employed caregivers engaged in a care structure are and are part of the notion of employment contract, which would therefore allow to exclude them from this law on public procurement.

Since then, a few weeks have passed. I would like to know the progress of the work on this royal decree. I have pleaded in committee that this should be carried out in consultation with the field actors.

I will obviously be excessively vigilant on the content of the announced royal decree and I count well – I can understand that the decree is not necessarily finalised – to hear you confirm here the commitment that I was able to obtain in commission. This is a big deal and I will not let go of the piece. The challenge is too important for both caregivers, care structures and, mainly, for patients.

Alongside the positive elements that I have put forward constructively, two questions remain as well as a black point. First, the bill raises from 8,500 to 30,000 euros the threshold below which a contract can be concluded on simple accepted invoice with reduced procedures. With regard to this ceiling increase, we have requested an opinion from the Court of Auditors to clarify the work in committees. Our request was rejected. Therefore, we remain questionable in this regard. The future will tell us who was right and, in particular, if difficulties arise with regard to this ceiling increase.

Secondly, as far as business reviewers are concerned – we worked with Mr. Dispa on this bill - we would like to know whether, yes or not, one can consider exempting the financial statement certification services, the fulfillment of which is reserved by law or, under it, to corporate auditors. You said that this directive does not allow this exemption.

That being said, I have had several contacts with the Institute of Corporate Revisors.

He drew my attention to the fact that other Member States had provided for an exemption for the certifications of financial statements whose performance is reserved, by law, to corporate auditors. A lack of uniform treatment would be unacceptable, Mr. Minister. This would constitute a two-weight, two measures that would obviously be unacceptable. We are not going to resubmit today the amendment that Benoît Dispa and I had submitted. However, I would like you to ask your department to review the treatment reserved for the services of corporate auditors in other Member States. Make a European benchmarking. If it demonstrates that the information provided by the Institute of Corporate Auditors is correct and that there would be an imbalance with certain Member States in the form of a derogation from public procurement, I believe that this aspect of the problem should be reviewed. You should then grasp it. We had this discussion before, but I did not yet have this information. I would also like you to take the commitment not to close this issue definitively. This seems to me to be a minimum, given how some Member States provide for such an exemption.

Finally, the news of the last twenty-four hours has only strengthened our reservations regarding this bill – isn’t it, Mr. Dallemagne? We had already been concerned about the fragile nature of this bill with regard to the leverage that this text could give to our country in terms of fighting social dumping. If I say this, it is obviously – as I explained to Employment Minister Kris Peeters recently – following the yellow card sent by ten Member States to the draft of European Commissioner Marianne Thyssen.

Let’s call a cat a cat. A yellow card represents ten countries that consider that the European Commission infringes on their state prerogatives. Let’s keep the signals these countries send. They say to the other Member States: “Remove yourself at home if you want to apply this principle of equal pay for the same work, in the same place, regardless of the worker’s origin.” This is how it creates low-cost labour lines coming from abroad that clearly enter unfair competition, penalizing Belgian workers by causing job losses, as well as Belgian employers who are disadvantaged compared to employers who, from abroad, offer this low-cost labour.

You know it as well as I do. Entire sectors are heavily penalized, including construction, transportation, cleaning – and I could still cite many examples. As a committee, we proposed amendments – these were bills that I had already submitted and that we re-submitted in the form of amendments – designed to enable progress in this matter. We have based on two recent judgments of the Court of Justice of the European Union, dated February 2015 and November 2015, which determine that the award of public contracts may be subject by law to the observance of a minimum wage and that the vacation fee as well as the daily and travel allowances are part of this minimum wage. This helps to put workers on the same foot, to prevent employers from causing unfair competition by resorting to cheap labor in our country.

In Belgian social law, the law does not set a minimum wage. It is the collective agreements concluded within the parity committees that determine the applicable schemes or, if there is no active parity committee, the National Labour Council. If there is no specific scheme, the worker can rely on the guaranteed minimum monthly income, which includes certain amounts paid during the year.

In essence, today, both these judgments of the Court of Justice of the European Union, but also this yellow card of these ten member countries of the European Commission on the proposal of Commissioner Thyssen give all legitimacy, and even more power. They take our responsibility if we do not. This power must be taken by Belgium and the other Member States to legislate, and for clear legal provisions to apply, without any ambiguity, this principle of "equal work, equal pay". Thus, all those who do not apply it are clearly excluded. They must be excluded from all public procurement procedures.

The majority were not interested in these amendments. of which act. You could not know at that time that there would be a yellow card on the European Commissioner’s project. You know it now. It is not too late. We have the opportunity to do so this afternoon. That is why we have submitted these amendments again to the plenary: we hope for significant progress. To postpone this decision for later is to waste time again and again.

Should we remember that, in the construction sector alone, the Confederation has mentioned the loss of 17,000 jobs in recent years? It should be remembered that this Construction Confederation repeats that it fears the loss of 20,000 jobs by 2019? It should be remembered that eight in ten entrepreneurs ⁇ losing one or more markets to foreign companies in 2014? There are many signs coming from the ground. They force us, Mr. Minister, dear colleagues, to take our responsibilities and, above all, not to retreat but to move forward voluntarily, not only in speeches, nor in measures that resemble measures and that do not allow to obtain the strongest leverage to exclude from public procurement those who do not respect these rules and these principles. So I suggest you move forward this afternoon, through amendments to this bill.

I dare hope that you will take the effort to grasp them and not make them a missed opportunity.

In the absence of new progress and given the major challenges posed by the fight against social dumping and, above all, the loss of jobs that this dumping leads to every month, we will abstain from this bill, and I say and repeat, despite the positive progress we have been able to ⁇ . I thank you

Mr. Speaker, dear colleagues, the issue of public procurement is an essential issue for workers today, not to mention that a debate underlying this issue of public procurement is that of the privatization of public services. A number of tasks that were previously carried out internally are outsourced, with proper employment conditions and the possibility to require compliance with environmental standards. It is therefore directly linked to the question of social dumping and the model of competition imposed by the European Union and our governments for thirty years.

As a committee, I recalled, in particular through concrete examples from the cleaning or construction sector, the enormous consequences that this had in terms of losing jobs and degrading employment in Belgium, as well as in terms of threatening trade union rights. This downward spiral concerning our jobs, wages and working conditions is seen somewhat everywhere and every day, for both Belgian and foreign workers.

Basically, the problem can only be solved by challenging this competitive logic and by revising the Workers' Delegation Directive. The demands raised by workers’ organisations are clear, including a few key principles: equal pay for equal work. Derogations from this principle should be legally prohibited. Social contributions must be calculated in accordance with the standards in force in the host country and paid to the home country’s social security fund.

Other principles, the principal contractor should be recognized fully responsible in case of social fraud in the organization and controls should be developed, including by trade unions.

It is these red threads that are the position of the PTB in relation to this project.

I will address various points without delaying too much since the debate has already taken place in the committee, but some points should be recalled.

The first point concerns the effectiveness of the sanctions provided for in the event of non-compliance. In the current bill, sanctions and exclusions from public procurement are provided, but they are optional and not mandatory in many cases. This is quite paradoxical, since it is contrary to the declaration of principle which is found in the exposition of the reasons and which says, I quote, "the observance of obligations in the fields of environmental, social and labour law is erected as a general principle when awarding public contracts". We therefore have a contradiction here and this is also the subject of an amendment since we demand that the reasons for exclusion be mandatory and not optional.

The second is the question of solidarity. This is an essential principle in the fight against social dumping since the contractor of a public procurement is engaged with the entire chain of its subcontractors. On the ground, it is known that the challenge is essential even if it is insufficient and insufficiently controlled and applied. The 2006 law stipulated this. In the current bill, one goes back on this device, providing that "solidarity liability no longer applies automatically."

This is indeed reinforced in the name of arguments of the type "it was little applied in practice, the coexistence of different regimes made the whole incomprehensible, which reinforced legal uncertainty, etc. “The

This is absurd and demonstrates that, behind the speech, there is no real will of the government to really fight against social dumping which is the essential element of our criticism of this project.

The third point that I would like to address quickly concerns the question of limiting the excessive use of subcontracting. We know that this is one of the means used to deflect regulations. In this sense, we support the demand of trade union organisations to create a legal instrument to prevent the use of subcontracting when all or part of the fixed staff of a company is temporarily unemployed and that this staff could have performed the subcontracting task as provided by the Agreement of the Group of 10 of 9 December 2015.

The fourth point I would like to address is the question of the price criterion as the basis. Article 80 provides for the price as the first criterion for the award of the contract. This is the debate between the least saying and the best saying. This summarizes the whole logic of the law. This is the node of the problem. To lower prices, and even more with the European rules of free competition, there is de facto pressure on wages, working conditions and all social and environmental standards. This is at the heart of this logic of competition and dumping. This is part of the things that need to be changed in this law.

Finally, alongside these elements, there is the practical question of strengthening controls, which are currently completely insufficient. Recently, the figures of Mr. Tommelein, then in charge of federal powers. These revealed that of the 1,415 companies targeted by the checks, 633 were not in order, or virtually one in two. Of the 4 000 workers inspected, infringements were found in one in three cases (1 409 people). There are 20,000 public contracts in Belgium that represent 550,000 jobs. If there is no control, all these regulations, which are insufficient, remain dead letter and you find yourself with 50% of companies that do not comply with them.

That is why, dear colleagues, the PTB will vote against this project.

I will be very brief, so I will not go into detail.

The phenomenon of social dumping, as discussed by several colleagues, of course also plays a role in the award of public procurement. Contrary to what some speakers proclaimed, in principle, we fully agree with the concerns regarding social dumping. We too are convinced of the evil and perverse consequences of the detachments or of the detached labour. It leads to immense job destruction, as mentioned, and puts a number of economic sectors under huge pressure.

All good measures to combat this evil phenomenon are of course welcomed, but it is an exercise that must be done primarily at European level. Unfortunately, if we want to address the phenomenon of social dumping fundamentally, federal legislation will not bring sunshine. The demand to observe wage scales and the like is hardly enforceable. Cooperation with many countries that dispatch workers, so sending out to this country, is almost impossible. This has been proven by the past and the figures support this assertion.

The problem, of course, lies in the hopelessly outdated Deployment Directive, which calls for social dumping. As mentioned above, this must be addressed first and foremost at the European level. Also for public procurement, the system is therefore mainly used to bring massively cheap labor force to our country, who are working here for too long on our labour market. Initially, it was intended to bring missing expertise and know-how for short periods.

Solutions included at the European level include the significant reduction of the period of dispatch, an absolute condition for reducing dispatches to what they were intended for: short assignments by people with specific expertise and know-how that we do not have here.

In addition, in the long run, the debate on the payment of social security contributions can also be initiated, if we want to effectively combat the phenomenon of social dumping.

It seems pointless to provide for additional federal legislation if it has no impact on the underlying problem. In addition, there is the risk that Europe will be drawn on the finger for federal legislation that diverges from the European directive. I doubt the statement of the yellow card that was placed here. That is to say: pull your plan in your own country and the legitimacy now comes to the Member State, to do what it has to do. I don’t think that is entirely true.

Mr. Speaker, I just wanted to say that I fully agree with our group leader’s remarks and that it would be redundant to want to speak again. As a result, I will allow the debate to continue, leaving the floor to the other speakers.

First of all, I would like to thank you for your participation, under the supervision of the Chairman of the Committee on Finance, in the work on this important matter. I also thank you for the largely positive tone of a number of interventions.

We are joining. The situation is indeed extremely delicate, I would even say critical in terms of the consequences of social dumping. The phenomenon is important. It is expanding, affecting more and more sectors and deepening into a number of sectors where it was already known with consequences in terms of employment, in terms of loss of income for solidarity or in terms of loss of revenue for the State that are considerable.

This text and the provisions taken by the government will mark a turning point, a fundamental reform, will give an extraordinary strong sign to the sector both at home and abroad. This text constitutes one of the chapters of a whole series of recent provisions and decisions on combating social dumping.

I will not mention the other amendments, the procedures, the organizations, the provisions concerning the independent, the false independent, the associations, the organizational provisions concerning the forms A1. But I would like to cite the recent decision to engage no less than one hundred additional staff members, social supervisors dedicated specifically to the fight against social dumping.

In this case, we have not only adapted the texts and procedures, but we are also equipped with databases and their intersection, on the initiative of the Secretary of State for the fight against dumping and social fraud. We have therefore complementarily decided to equip ourselves with human resources because a reform that does not result in the possibility of implementing it would obviously be a reform that goes beyond its objective.

A few of the above, if you wish. First of all, with regard to the question of price, I would like to emphasize the fact that we are dramatically advancing on this notion of economically most favorable offer. I insist . Price is a possible factor. We do not rule out the possibility in certain situations to award a contract on the basis of the price criterion. Many examples can illustrate how relevant this provision remains.

On the contrary, we generalize the use of the approach through the economically most favourable offer by integrating the generalization of this approach, organizing it and declining it. Contracting authorities, whether federal, regional, community, local or otherwise, now have all the tools to realise the change.

Secondly, as regards the provisions relating to the elements related, of course, to administrative simplification, electronic communication, innovation in particular with this mechanism of competition, new mechanisms of competitive dialogue, I think we have innovated and positively.

Furthermore, I think that the increase in the accepted bills to 30,000 euros corresponds well to the needs that a number of public authorities have identified and transmitted to us. I take this opportunity to say, Mr Daerden, that a lot of consultations have taken place. Did you know that the Inter-Federal Public Procurement Commission, which comprises all the representatives of the Regions, has met at least eleven times?

Did you know that this issue of the law on public procurement has been discussed twice in the consultation committee? Of course, additional contacts are always imaginable. But in this case, I think it is inaccurate to say that the dialogue was not organized, that the dialogue did not take place.

I would gladly accept the comments concerning the transmission of ministerial resolutions and the necessary consultations to be made, including with parliamentarians, concerning the technical aspects that ministerial resolutions will translate, even though we have taken care to include in the law as much as possible of the elements that we wanted to include in the legal text.

The dictatorship of the lowest price is not the case. I mentioned this with the generalization of the economically most favourable offer. This is not a missed meeting. I think this is probably one of the most important appointments, in terms of our legal arsenal, which brings us together today, ladies and gentlemen. Small and medium-sized enterprises, of course, are big winners of these provisions, which will compel them to justify why they did not choose to divide from an estimate of 135,000 euros of the amount of the market.

Furthermore, we are making great progress with regard to the process of execution and preparation of the preliminary drafts of arrests. In the midst of the discussions mentioned above, we expect to be able to propose them as early as next summer, so that all this device is implemented as soon as possible, again in 2016.

Madame Fonck, I would really like to emphasize one of the keys to the wheel, one of the pillars of this text. We assertly introduce mandatory exclusion mechanisms even before the contract is awarded, from the moment there is a presumption, a probability, a reputation of violation of social, labour or environmental rules.

Specifically, we will have to exclude including companies whose offer tends to conclude that there is an infringement. I invite you to review the legal provisions in terms of labour law on the social or environmental level to check how many behaviors can be punished criminally. For all of these companies, the exclusion will be strict prior to the award of the contract.

During the execution of the contract, even on a simple finding of the labour inspection, several immediate exclusions are also mandatory. For all others, exclusion from the market remains possible during the entire execution of the contract. The arsenal available to the contracting authorities is extraordinary rich.

I agree with several speakers who indicated that, of course, it will be necessary to inform and train correctly. Similarly, it will be up to regional custody authorities – for example in their role of awarding subsidised works – to indicate the use of these different devices.

These criteria relate in particular to the minimum remuneration that is defined by collective agreements and established by royal decrees. In fact, Ms. Fonck, the non-compliance with these salary standards is subject to criminal penalties. The tool is there. His employment is mandatory as soon as such sanctions are at stake.

I welcome the efforts of our European Commissioner, Marianne Thyssen, whose fight I know is difficult. You reminded it when referring to the yellow card procedure that some countries have just decided to activate. My message is the following.

As we wait to develop, in particular, the Deployment Directive or other legal arrangements at European level, let us already try to put all the organizational tools in the form of information or a database at the disposal of the Member States so that they can enforce the current EU legislation! Let us easily consult the provisions governing social security in each of the countries at European level! Let us centralize the information so that it is accessible to all social control services in all countries! Together with my government colleagues, we will make a number of proposals in this regard so that, in addition to the process of developing directives, we can put tools at the disposal of countries for their compliance with current European legislation.

Dear colleagues, there is indeed an implacable finding that we must share today. The EU directives are the same for everyone. We agree very well. Why is it then that our country is impacted far more widely than most of the countries around us by social dumping? Demonstration, of course, refers to our own decisions, to our own organizations, to our control capabilities. There is no reason that, in the equal legal context of Europe, our country is so much more impacted than others. This is why we decided to take the bull by the horns.

As you have seen, I have made a very strong move, not only by telling you that we will propose legal texts, commitments, procedural revisions. Our goal is very simple, it is a goal in terms of results, statistics, effective reduction of social dumping in our country.

I conclude with the specific questions I have been asked. I have taken a good note, and I highlight, Mrs. Fonck, the work you have done in the committee on hospital, medical, paramedical contracts. This is a matter we are working on. And since we are talking about the employment relationship, it is a file that requires a lot of finesse in its analysis in order to comply with the European directive. I confirm here that our scope, our text, of course, excludes hospital contracts, para-hospital contracts and other contracts in hospital, medical and paramedical contexts.

With regard to the auditors, you have learned that a number of countries would have considered to have to exclude the auditors, or in any case certain tasks from them, when they perform as tasks entrusted by law. I immediately asked our team to make us a circumstance benchmarking to see what’s going on, and I’ll keep you informed.

I conclude with a reply concerning the judicial officers, Mr. Piedboeuf, to indicate that they are well excluded from the scope of the tasks that are explicitly entrusted to them by a jurisdiction or by law. We refer here in particular to Articles 519 §2, 4°, 6°, 8° and 519 §1, 1°. I say well in particular.

Ladies and gentlemen, I would really like to thank you for this important work. I am convinced that this text must mark a turning point, a strong turning point. I am convinced... Mr. Nollet, keep your ability to marvel and fight! Keep your ability to overturn mountains! This case is extraordinary difficult.

I would like to conclude with a very friendly appeal by asking all those who exercise responsibilities, whether in the context of public authorities, whether in a series of structures, not to hesitate, as soon as the royal decrees have denied all this, to implement this.

If the Chairman of the Finance Committee invites us to do so, I am ready to do, with you, a monitoring of the evolution of the consequence of these legal provisions in terms of social dumping. I am ready to evaluate the results and I remain listening to the provisions that could be proposed in the future.

Mr. Minister, I will react on two points.

As for the aspect of the prize, I hear well the spectacular advance expressed by the minister. In fact, it introduced the dramatic advance of the directive into the law. He could have gone further, but he did not. I would like to nuance compared to a missed appointment, but it is at least a forced appointment. What you did was mandatory, so you don’t have much merit. And what you could have done in addition, you didn’t do it by saying you trust the contracting authorities. Why don’t you do it if you really believe it?

You tell us that you want to move forward, but the arrested are still not there.

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Will they be adopted on Friday? I have asked you many times about the date. You have not advanced any timing commitments compared to your stops and, during that time, dumping continues to create job loss! So, commit yourself to a short timing, fast, accurate, with real content in these stops!

Mr. Minister, you tell us that, thanks to the dramatic advancement of this bill, the contracting authorities will no longer be forbidden to resort to other criteria than the single price criterion. You can do reverse readings – and you like that – of the contents of the texts.

What you are told is that by leaving the price criterion, you preserve the legitimacy of using only that criterion as an argument of choice. And you also know well that a whole series of contracting authorities, by ease, will keep this habit of operation.

The directive allowed you to go further. Environmentalists are often blamed for wanting to go further and faster than legislative texts. Here, you were simply asked to respect and respond to everything that this directive allows. You did less than what the directive allowed you to do. This is not an ambitious project, it is the minimalist translation of the directive. You did not want to make this law a real anti-dumping tool and a real tool for more sustainable markets.

With regard to the arrests, Mr. Minister, you do not cease to pretend that you want to work in transparency. “I’m a minister who wants to come in front of parliamentarians to give all the elements,” you say. We are discussing in the final phase. The vote will take place. I suppose your stops are ready; what prevents you from telling us what they contain, from giving us the timing? Nothing prevents you. You are not asked to submit your resolutions to vote; you are asked to respect what you say, to work in transparency.