The award of works concessions is presently subject to a limited number of secondary law provisions, while service concessions are covered only by the general principles of the TFEU. This loophole gives rise to serious distortions of the Internal Market, notably the limited access of European undertakings, especially Small and Medium Enterprises, to the economic opportunities related to concession contracts. It is also at the origin of inefficiencies related to the lack of legal certainty.
The present draft is pursued in parallel to the revision of Public Procurement Directives1. It will result in the adoption of a separate legal instrument, regulating the award of concesssions. The two proposals: the one resulting from the revision of the public procurement framework and a directive on concessions, will be submitted for adoption by the Commision in December 2011.
The present Directive provides for a more precise definition of concession contracts, making reference to the notion of operational risk, explaining what types of risk are considered as operational and how to define the significant risk.
It submits services concessions to majority of the obligations which currently apply to the award of works concessions. Moreover, it extends their application to concession contracts in the utilities sector (the award of which is currently exempt from any secondary legislation).
Notably, in order to ensure transparency and equal treatment of all economic operators, the present Directive provides for compulsory publication of concession contracts above certain thresholds (applicable to the value of such contracts calculated following a methodology specified therein) and defines a minimum scope of information to be communicated to the users. For the same reason, it establishes a minimum deadline for the submission of interest in any concession contract covered by its rules, amounting to 52 days, as this is currently the case for the public works concessions.
Last but not least, the present Directive provides for an extension of the scope of application of the Remedies Directives (Directives 89/665/EEC and 92/13/EC, as amended by Directive 2007/66/EC) to all concession contracts above the threshold. This text guarantees to all interested party an effective possibility to challenge the award decision before a court and provides for some minimal judicial standards which have to be observed by contracting entities.
In addition to the extension of the aforementioned rules, the present Directive provides for obligations related to the award and selection criteria to be applied by the contracting entities while awarding concessions. These rules are less restrictive than similar provisions currently applicable to public contracts. Their purpose is mostly to ensure that such criteria be published in advance, that they are objective and not discriminatory. The present Directive will also establish some basic rules regarding the transparency and fairness of the negotiation process between the parties, reiterating the case law of the Court of Justice of the European Union
The limited character of the proposed rules allows for a joint framework covering concessions in both classic and the utilities sector, preserving specificities of the utilities when absolutely necessary.