Council Decision (EU) 2017/43Show full title

DRAFT

DECISION No 1/2016 OF THE EU-UKRAINE ASSOCIATION COMMITTEE IN TRADE CONFIGURATION

of …

updating Annex XXI to the Association Agreement and giving a favourable opinion regarding the comprehensive roadmap on public procurement

THE ASSOCIATION COMMITTEE IN TRADE CONFIGURATION,

Having regard to the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part(1) (‘the Agreement’), and in particular Article 149, Article 153 and Article 463 thereof,

Whereas:

(1) In accordance with Article 486 of the Agreement, parts of the Agreement, including provisions on public procurement, are applied provisionally as of 1 January 2016.

(2) Article 149 of the Agreement provides that the value thresholds for public procurement contracts provided for in Annex XXI-P are to be revised regularly, beginning in the first even year following the entry into force of the Agreement and such revision is to be adopted by decision of the Association Committee in Trade configuration, as set out in Article 465(4) of the Agreement.

(3) Article 153 of the Agreement provides that Ukraine is to ensure that its public procurement legislation is gradually made compatible with the relevant Union acquis, in line with the schedule provided in Annex XXI to the Agreement.

(4) Several Union acts listed in Annex XXI to the Agreement have been recast or repealed and replaced by a new Union act since the initialling of the Agreement on 30 March 2012. In particular, the Union adopted and notified to Ukraine the following acts:

(a)

Directive 2014/23/EU of the European Parliament and of the Council(2);

(b)

Directive 2014/24/EU of the European Parliament and of the Council(3);

(c)

Directive 2014/25/EU of the European Parliament and of the Council(4).

(5) The above-mentioned Directives amended the value thresholds for public procurement contracts provided for in Annex XXI-P, which were subsequently amended by Commission Delegated Regulations (EU) 2015/2170(5), (EU) 2015/2171(6) and (EU) 2015/2172(7), respectively.

(6) Article 463(3) of the Agreement provides that the Association Council shall have the power to update or amend the Annexes to the Agreement.

(7) It is necessary to update Annex XXI to the Agreement in order to reflect the changes made to the Union acquis listed in that Annex, in accordance with Articles 149, 153 and 463 of the Agreement.

(8) The new Union acquis on public procurement has a new structure. It is appropriate to reflect this new structure in Annex XXI. In the interest of clarity, Annex XXI should be updated in its entirety and replaced by the Annex as set out in the Appendix to this Decision. It is furthermore appropriate to take into account the progress made by Ukraine in the process of approximation to the Union acquis.

(9) Article 465(2) of the Agreement specifies that the Association Council may delegate to the Association Committee in Trade configuration any of its powers, including the power to take binding decisions.

(10) The EU-Ukraine Association Council empowered the Association Committee in Trade configuration in its Decision No 3/2014(8) of 15 December 2014 to update or amend certain trade-related annexes.

(11) Article 152(1) of the Agreement stipulates that Ukraine shall submit to the Association Committee in Trade configuration a comprehensive roadmap for the implementation of the legislation related to public procurement with time schedules and milestones which should include all reforms in terms of legislative approximation to the Union acquis.

(12) Article 152(3) specifies that a favourable opinion by the Association Committee in Trade configuration is needed in order for the comprehensive roadmap to become a reference document for the process of implementation, namely for the legislative approximation of the public procurement related legislation to the Union acquis.

(13) It is therefore appropriate for the Association Committee in Trade configuration to adopt a decision giving favourable opinion regarding the comprehensive roadmap,

HAS ADOPTED THIS DECISION:

Article 1

Annex XXI to the Association Agreement between the European Union and the European Atomic Energy Community and their Member States of the one part, and Ukraine, of the other part, is hereby replaced by the updated version of the Annex, which is attached to this Decision.

Article 2

A favourable opinion is given regarding the comprehensive roadmap approved by the Ordinance of the Cabinet of Ministers of Ukraine of 24 February 2016 (number 175-p) adopted by the government of Ukraine on 24 February 2016.

Article 3

This Decision shall enter into force on the date of its adoption.

Done at …,

For the Association Committee in Trade configuration

The Chair

ANNEX XXI-A TO CHAPTER 8 INDICATIVE TIME SCHEDULE FOR INSTITUTIONAL REFORM, LEGISLATIVE APPROXIMATION AND MARKET ACCESS

Phase		Indicative time schedule	Market access granted to the EU by Ukraine	Market access granted to Ukraine by the EU
1.	Implementation of Articles 150(2) and 151 of this Agreement Agreement of the Reform Strategy set out in Article 152 of this Agreement	6 months after the entry into force of this Agreement	Supplies for central government authorities	Supplies for central government authorities
2.	Approximation and implementation of basic elements of Directive 2014/24/EU and of Directive 89/665/EEC	3 years after the entry into force of this Agreement	Supplies for state, regional and local authorities and bodies governed by public law	Supplies for state, regional and local authorities and bodies governed by public law	Annexes XXI-B and XXI-C
3.	Approximation and implementation of basic elements of Directive 2014/25/EU and of Directive 92/13/EEC	4 years after the entry into force of this Agreement	Supplies for all contracting entities in the utilities sector	Supplies for all contracting entities	Annexes XXI-D and XXI-E
4.	Approximation and implementation of other elements of Directive 2014/24/EU. Approximation and implementation of Directive 2014/23/EU	6 years after the entry into force of this Agreement	Service and works contracts and concessions for all contracting authorities	Service and works contracts and concessions for all contracting authorities	Annexes XXI-F, XXI-G, and XXI-H
5.	Approximation and implementation of other elements of Directive 2014/25/EU	8 years after the entry into force of this Agreement	Service and works contracts for all contracting entities in the utilities sector	Service and works contracts for all contracting entities in the utilities sector	Annexes XXI-I and XXI-J

ANNEX XXI-B TO CHAPTER 8

BASIC ELEMENTS OF DIRECTIVE 2014/24/EUof 26 February 2014 on public procurement(Phase 2)

ANNEX XXI-C TO CHAPTER 8

BASIC ELEMENTS OF DIRECTIVE 89/665/EECof 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (Directive 89/665/EEC)as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (Directive 2007/66/EC) and by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (Directive 2014/23/EU)(Phase 2)

ANNEX XXI-D TO CHAPTER 8

BASIC ELEMENTS OF DIRECTIVE 2014/25/EUof 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors(Phase 3)

ANNEX XXI-E TO CHAPTER 8

BASIC ELEMENTS OF COUNCIL DIRECTIVE 92/13/EECof 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (Directive 92/13/EEC)as amended by Directive 2007/66/EC and Directive 2014/23/EU(Phase 3)

ANNEX XXI-F TO CHAPTER 8

I. OTHER NON-MANDATORY ELEMENTS OF DIRECTIVE 2014/24/EU

(Phase 4)

The elements of Directive 2014/24/EU set out in this Annex are not mandatory but recommended for approximation. Ukraine may approximate these elements within the time-frame set in Annex XXI-B

II. NON-MANDATORY ELEMENTS OF DIRECTIVE 2014/23/EU

(Phase 4)

The elements of Directive 2014/23/EU set out in this Annex are not mandatory but recommended for approximation. Ukraine may approximate these elements within the time-frame set in Annex XXI-B

ANNEX XXI-G TO CHAPTER 8

I. OTHER MANDATORY ELEMENTS OF DIRECTIVE 2014/24/EU

(Phase 4)

II. MANDATORY ELEMENTS OF DIRECTIVE 2014/23/EU

(Phase 4)

ANNEX XXI-H TO CHAPTER 8

OTHER ELEMENTS OF DIRECTIVE 89/665/EECas amended by Directive 2007/66/EC and Directive 2014/23/EU(Phase 4)

ANNEX XXI-I TO CHAPTER 8 (Phase 5)

I. OTHER MANDATORY ELEMENTS OF DIRECTIVE 2014/25/EU

II. OTHER NON-MANDATORY ELEMENTS OF DIRECTIVE 2014/25/EU

The further elements of Directive 2014/25/EU set out in this Annex are not mandatory but recommended for approximation. Ukraine may approximate these elements within the time-frame set in Annex XXI-B.

ANNEX XXI-J TO CHAPTER 8

OTHER ELEMENTS OF DIRECTIVE 92/13/EECas amended by Directive 2007/66/EC and Directive 2014/23/EU(Phase 5)

ANNEX XXI-K TO CHAPTER 8

I. PROVISIONS OF DIRECTIVE 2014/24/EU OUTSIDE THE SCOPE OF APPROXIMATION

The elements of Directive 2014/24/EU listed in this Annex are not subject to the process of approximation.

II. PROVISIONS OF DIRECTIVE 2014/23/EU OUTSIDE THE SCOPE OF APPROXIMATION

The elements of Directive 2014/23/EU listed in this Annex are not subject to the process of approximation.

ANNEX XXI-L TO CHAPTER 8 PROVISIONS OF DIRECTIVE 2014/25/EU OUTSIDE THE SCOPE OF APPROXIMATION

The elements listed in this Annex are not subject to the process of approximation.

ANNEX XXI-M TO CHAPTER 8 PROVISIONS OF DIRECTIVE 89/665/EEC AS AMENDED BY DIRECTIVE 2007/66/EC AND DIRECTIVE 2014/23/EU OUTSIDE THE SCOPE OF APPROXIMATION

The elements listed in this Annex are not subject to the process of approximation.

ANNEX XXI-N TO CHAPTER 8 PROVISIONS OF DIRECTIVE 92/13/EEC AS AMENDED BY DIRECTIVE 2007/66/EC AND DIRECTIVE 2014/23/EU OUTSIDE THE SCOPE OF APPROXIMATION

The elements listed in this Annex are not subject to the process of approximation.

ANNEX XXI-O TO CHAPTER 8 UKRAINE: INDICATIVE LIST OF ISSUES FOR COOPERATION

1. Training, in Ukraine and EU countries, of Ukrainian officials from government bodies engaged in public procurement;

2. Training of suppliers interested participating in public procurement;

3. Exchange of information and experience on best practice and regulatory rules in the sphere of public procurement;

4. Enhancement of the functionality of the public procurement website and establishment of a system of public procurement monitoring;

5. Consultations and methodological assistance from the EU Party in application of modern electronic technologies in the sphere of public procurement;

6. Strengthening the bodies charged with guaranteeing a coherent policy in all areas related to public procurement and the independent and impartial consideration (review) of contracting authorities' decisions. (Cf. Article 150 paragraph 2 of this Agreement)

ANNEX XXI-P TO CHAPTER 8 THRESHOLDS

1. The value thresholds mentioned in Article 149(3) of this Agreement shall be for both Parties:

(a)

EUR 135 000 for public supply and service contracts awarded by central government authorities and design contests awarded by such authorities;

(b)

EUR 209 000 in the case of public supply and public service contracts not covered by point (a);

(c)

EUR 5 225 000 in the case of public works contracts;

(d)

EUR 5 225 000 in the case of works contracts in the utilities sector;

(e)

EUR 5 225 000 in the case of concessions;

(f)

EUR 418 000 in the case of supply and service contracts in the utilities sector;

(g)

EUR 750 000 for public service contracts for social and other specific services;

(h)

EUR 1 000 000 for service contracts for social and other specific services in the utilities sector.

2. The EUR thresholds quoted in paragraph 1 shall be adapted to reflect the thresholds applicable under the EU Directives at the moment of the entry into force of this Agreement.

(1)

OJ L 161, 29.5.2014, p. 3.

(2)

Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ L 94, 28.3.2014, p. 1).

(3)

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).

(4)

Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ L 94, 28.3.2014, p. 243).

(5)

Commission Delegated Regulation (EU) 2015/2170 of 24 November 2015 amending Directive 2014/24/EU of the European Parliament and of the Council in respect of the application thresholds for the procedures for the award of contracts (OJ L 307, 25.11.2015, p. 5).

(6)

Commission Delegated Regulation (EU) 2015/2171 of 24 November 2015 amending Directive 2014/25/EU of the European Parliament and of the Council in respect of the application thresholds for the procedures for the award of contracts (OJ L 307, 25.11.2015, p. 7).

(7)

Commission Delegated Regulation (EU) 2015/2172 of 24 November 2015 amending Directive 2014/23/EU of the European Parliament and of the Council in respect of the application thresholds for the procedures for the award of contracts (OJ L 307, 25.11.2015, p. 9).

(8)

Decision No 3/2014 of the EU-Ukraine Association Council of 15 December 2014 on the delegation of certain powers by the Association Council to the Association Committee in Trade configuration [2015/980] (OJ L 158, 24.6.2015, p. 4).