### in line with the principles of equal treatment and transparency , the successful tenderer should not be replaced by another economic operator without reopening the concession to competition . however , the successful tenderer performing the concession may undergo certain structural changes during the performance of the concession , such as purely internal reorganisations , mergers and acquisitions or insolvency or be substituted on the basis of a contractual clause known to all tenderers and in line with the principles of equal treatment and transparency . such structural changes should not automatically require new award procedures for all concessions performed by that undertaking . ### in line with the principles of equal treatment and transparency , the successful tenderer should not be replaced by another economic operator without reopening the concession to competition . however , the successful tenderer performing the concession may undergo certain structural changes during the performance of the concession , such as purely internal reorganisations , mergers and acquisitions , transfer of property or assets between companies or insolvency or be substituted on the basis of a contractual clause known to all tenderers and in line with the principles of equal treatment and transparency . such structural changes should not automatically require new award procedures for all concessions performed by that undertaking .


### where the aggregate value of the lots is equal to or exceeds the threshold laid down in article 5 , this directive shall apply to the awarding of each lot . ### where the aggregate value of the lots is equal to or exceeds the thresholds laid down in article 5 , this directive shall apply to the awarding of each lot .


### unless otherwise provided in this directive or in the national law concerning access to information , and without prejudice to the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out in articles 27 and 35 of this directive , the contracting authority shall not disclose information forwarded to it by economic operators which they have designated as confidential , including , but not limited to , technical or trade secrets and the confidential aspects of tenders . ### unless otherwise provided in this directive or in the national law concerning access to information , and without prejudice to the obligations relating to the advertising of awarded concession contracts and to the information to candidates and tenderers set out in articles 27 and 35 of this directive , the grantor shall not disclose information forwarded to it by economic operators , in particular technical or trade secrets . failure to comply with this requirement shall render the grantor liable .


### paragraph 3 shall apply : to service concessions provided that at least 80 % of the average total turnover of the affiliated undertaking with respect to services in general for the preceding three years derives from the provision of services to undertakings with which it is affiliated ; b ) works concessions provided that at least 80 % of the average total turnover of the affiliated undertaking with respect to works in general for the preceding three years derives from the provision of works to undertakings with which it is affiliated . ### paragraph - 1 shall apply : to service concessions provided that at least 80 % of the average total turnover of the affiliated undertaking , taking into account all services provided by that undertaking over the preceding three years , derives from the provision of services to the contracting entity to which the undertaking is affiliated , or to the contracting entity which is itself subject to the dominant influence of another undertaking to which the undertaking granted the concession is affiliated ; b ) to works concessions provided that at least 80 % of the average total turnover of the affiliated undertaking , taking into account all works carried out by that undertaking over the preceding three years , derives from the provision of works to the contracting entity to which the undertaking is affiliated , or to the contracting entity which is itself subject to the dominant influence of another undertaking to which the undertaking granted the concession is affiliated .


### it has also proven necessary to clarify what should be understood as a single procurement , with the effect that the aggregate value of all concessions concluded for the purpose of this procurement has to be taken into account with regard to the thresholds of this directive , and that the procurement should be advertised as a whole , possibly split into lots . the concept of single procurement encompasses all supplies , works and services needed to carry out a particular project . indications for the existence of one single project can for instance consist in overall prior planning and conception by the contracting authority , the fact that the different elements purchased fulfil a single economic and technical function or that they are otherwise logically interlinked . ### this directive should only apply to concession contracts whose value is equal to or greater than a certain threshold , which should reflect the clear cross - border interest of concessions to economic operators located in other member states . consequently , the method of calculating the estimated value of a concession needs to be defined , and should be identical for works and services concessions , as most contracts are mixed . it should include taking into account the cumulative turnover of the concession concerned , excluding tax , over the duration of the contract estimated by the grantor . the value of a concession should take into account the value of all the works and / or services covered by the contract and forming part of the same concession project . indications for the existence of one single project can for instance consist in overall prior planning and conception by the grantor , the fact that the different elements of the concession fulfil a single economic and technical function or that they are otherwise logically interlinked .


### in order to ensure adequate advertisement of works and services concessions above a certain value awarded by contracting entities and by the contracting authorities , the award of such contracts should be preceded by the compulsory publication of a concession notice in the official journal of the european union . the thresholds should reflect the clear cross - border interest of concessions to economic operators located in other member states . to calculate the value of a services concession , account must be taken of the estimated value of all services to be provided by the concessionaire from the point of view of a potential tenderer . ### in order to ensure adequate advertisement of works and services concessions equal to or above a certain threshold , the award of such contracts should be preceded by the compulsory publication of a concession notice in the official journal of the european union .


### the decision - making bodies of the controlled legal person are composed of representatives of all participating contracting authorities or contracting entities as referred to in paragraph 1 subparagraph 1 of article 4 ; ### the decision - making bodies of the controlled legal person are composed of representatives of the participating contracting authorities or contracting entities as referred to in paragraph 1 subparagraph 1 of article 4 ;


### a ' public works concession ' means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works , where the consideration for the the works to be carried out consists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment . ### a ' works concession ' means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or entities awards the execution of works to one or more economic operators , where the consideration for that award consists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment ; a ‘ services concession’ means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or entities award the management of a service to one or more economic operators , where the consideration for that award consists either solely in the right to exploit the service that is the subject of the contract or in that right together with payment ; the right to exploit the works or services referred to in points and of this paragraph shall imply the transfer to the concessionaire of the substantial economic risk in exploiting these works or services , defined as the risk of exposure to the vagaries of the market . the concessionaire shall be deemed to assume the substantial operating risk where , under normal conditions of exploitation , it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject of the concession .


### the delegation of power referred to in articles 4 , 21 , 23 , 25 , 40 and 52 shall be conferred on the commission for an indeterminate period of time from the [ date of entry into force of the present directive ] . ### the power to adopt delegated acts referred to in articles 21 and 23 shall be conferred on the commission for an indeterminate period of time from the [ date of entry into force of this regulation ] .


### at least 90% of the activities of that legal person are carried out for the controlling contracting authorities or entities as referred to in paragraph 1 subparagraph 1 of article 4 or other legal persons controlled by the same contracting authority or entity ; ### at least 80 % of the activities of that legal person are carried out for the controlling contracting authorities or entities as referred to in paragraph 1 subparagraph 1 of article 4 or other legal persons controlled by the same contracting authority or entity .


### this directive should not in any way affect the freedom of member states or public authorities to decide on the direct provision of works or services to the public or on the outsourcing of such provision to third parties . member states or public authorities should remain free to define the characteristics of the service to be provided , including any conditions regarding the quality or price of the services , in order to pursue their public policy objectives ### this directive recognises and reaffirms the right of member states and public authorities to decide the means of administration they judge to be most appropriate for performing the works and providing the services for which they are responsible . this directive should not in any way affect the freedom of member states and public authorities to perform works or provide services directly to the public or to outsource such provision by delegating it to third parties . member states or public authorities shall retain the right to define and specify the characteristics of the services to be provided , including any conditions regarding the quality or price of the services , in order to pursue their public policy objectives


### electronic means of information and communication can greatly simplify the publication of contracts and increase the efficiency and transparency of concession award processes . they should become the standard means of communication and information exchange in concession award procedures . the use of electronic means also leads to time savings . as a result , provision should be made for reducing the minimum periods where electronic means are used , subject , however , to the condition that they are compatible with the specific mode of transmission envisaged at union level . moreover , electronic means of information and communication including adequate functionalities can enable contracting authorities and contracting entities to prevent , detect and correct errors that occur during procurement procedures . ### electronic means of information and communication can greatly simplify the publication of contracts and increase the efficiency , speed and transparency of concession award processes . they should become the standard means of communication and information exchange in concession award procedures . it should also be made obligatory to send a concession notice and an award notice and to make the concession documents available electronically .


### concessions should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption , fraud to the detriment of the union ' s financial interests or money laundering . non - payment of taxes or social security contributions should also be sanctioned by mandatory exclusion at the level of the union . furthermore , contracting authorities and contracting entities should be given the possibility to exclude candidates or tenderers for serious violations of union or national law aimed at the protection of public interests compatible with the treaty or where the economic operator has shown significant or persistent deficiencies in the performance of a prior concession or concessions of a similar nature with the same contracting authority or contracting entity . ### concessions should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption , fraud to the detriment of the union ' s financial interests or money laundering . non - payment of taxes or social security contributions should also be sanctioned by mandatory exclusion at the level of the union . furthermore , contracting authorities and contracting entities should be given the possibility to exclude candidates or tenderers for serious violations of union or national law aimed at the protection of public interests compatible with the treaty if such a violation has been established by a court , or where the economic operator has shown significant or persistent deficiencies in the performance of a prior concession or concessions of a similar nature .


### when fixing the time limits for the submission of applications for the concession and submission of tenders , contracting authorities or contracting entities shall take account in particular of the complexity of the concession and the time required for drawing up tenders , without prejudice to the minimum time limits set out in article 37 . ### when fixing the time limits for the submission of applications or of tenders , the grantor shall take account in particular of the complexity of the concession and the time required for drawing up tenders or applications .


### the acquisition , development , production or co - production of programme material intended for broadcasting , defined as transmission and distribution using any form of electronic network , that are awarded by broadcasters , nor to concessions for broadcasting time , that are awarded to broadcasters ; ### the acquisition , development , production or co - production of programme material and related preparatory services for media services that are provided by broadcasters , nor to concessions for broadcasting time that are awarded to broadcasters ; media services being defined as including all transmission and distribution using any form of electronic network ;


### an agreement concluded between two or more contracting authorities or contracting entities as referred to in paragraph 1 subparagraph 1 of article 4 shall not be deemed to be a concession within the meaning of point 1 of paragraph 1 of article 2 of this directive , where the following cumulative conditions are fulfilled : ### an agreement concluded between two or more contracting authorities or contracting entities as referred to in paragraph 1 subparagraph 1 of article 4 shall not be deemed to be a concession where the following cumulative conditions are fulfilled :


### contracting authorities or contracting entities shall publish in the official journal of the european union a notice on such modifications . such notices shall contain the information set out in annex vii and be published in accordance with the provisions of article 28 . ### the grantor shall publish in the official journal of the european union a notice on such modifications . such notices shall contain the information set out in annex vii and be published in accordance with the provisions of article 28 .


### difficulties related to the interpretation of the concepts of concession and public contract have been source of continued legal uncertainty among stakeholders and have given rise to numerous judgments of the court of justice of the european union on this subject . therefore , the definition of concession should be clarified , in particular by referring to the concept of substantial operating risk . the main feature of a concession , the right to exploit the works or services , always implies the transfer to the concessionaire of an economic risk involving the possibility that it will not recoup the investments made and the costs incurred in operating the works or services awarded . the application of specific rules governing the award of concessions would not be justified if the contracting authority or entity relieved the contractor of any potential loss , by guaranteeing a minimal revenue , equal or higher to the costs that the contractor has to incur in relation with the performance of the contract . at the same time it should be made clear that certain arrangements which are fully paid by a contracting authority or a contracting entity should qualify as concessions where the recoupement of the investements and costs incurred by the operator for execution the work or provididng the service depends on the actual demand for or the availability of the service or asset . ### difficulties related to the interpretation of the concept of concession have generated continued legal uncertainty among stakeholders and have given rise to numerous judgments of the court of justice of the european union on this subject . therefore , the definition of concession should be clarified , in particular by referring to the concept of operating risk . the main feature of a concession , the right to exploit the works or services , always implies the transfer to the concessionaire of an economic risk involving the possibility that it will not recoup the investments made and the costs incurred in operating the works or services awarded under normal operating conditions . the application of specific rules governing the award of concessions would not be justified if the grantor relieved the concessionaire of any potential loss , by guaranteeing a minimal revenue , equal or higher to the costs that the contractor has to incur in relation with the performance of the contract . at the same time it should be made clear that certain arrangements which are fully paid by a contracting authority or a contracting entity should qualify as concessions where the recouping of the investments and costs incurred by the operator for execution the work or providing the service depends on the actual demand for or the availability of the service or asset .


### a modification of a concession during its term shall be considered substantial within the meaning of paragraph 1 , where it renders the concession substantially different from the one initially concluded . in any case , without prejudice to paragraph 3 and 4 , a modification shall be considered substantial where one of the following conditions is met : the modification introduces conditions which , had they been part of the initial concession award procedure , would have allowed for the selection of other applicants than those initially selected , or would have allowed for awarding the concession to another applicant or tenderer ; the modification changes the economic balance of the concession in favour of the concessionaire or the modification extends the scope of the concession considerably to encompass supplies , services or works not initially covered . ### substantial modification of a concession during its term shall require a new award procedure in accordance with this directive . a modification shall be considered substantial where one of the following conditions is met : the modification changes the nature of the concession ; the modification entails replacement of the concessionaire ; the modification introduces conditions which , had they been part of the initial concession award procedure , would have allowed for the selection of other applicants than those initially selected , or would have allowed for awarding the concession to another applicant or tenderer ; the modification changes the economic balance of the concession in favour of the concessionaire or the modification extends the scope of the concession considerably in that it encompasses supplies , services or works not initially covered .


### methods for calculating the estimated value of concessions the calculation of the estimated value of a concession shall be based on the total amount payable , net of vat , as estimated by the contracting authority or the contracting entity , including any form of option and any extension of the duration of the concession . 2 . the estimated value of a concession shall be calculated as the value of an entirety of works or services , even if purchased through different contracts , where the contracts are part of one single project . indications for the existence of one single project consist in overall prior planning and conception by the contracting authority or contracting entity , the fact that the different elements purchased fulfil a single economic and technical function or that they are otherwise logically interlinked . where the contracting authority or the contracting entity provides for prizes or payments to candidates or tenderers it shall take them into account when calculating the estimated value of the concession . 3 . the choice of the method used to calculate the estimated value of a concession shall not be made with the intention of excluding it from the scope of this directive . a works project or an entirety of services shall not be subdivided with the effect of preventing it from falling within the scope of this directive , unless justified by objective reasons . 4 . this estimate shall be valid at the moment at which the concession notice is sent , or , in cases where such notice is not foreseen , at the moment at which the contracting authority or the contracting entity commences the concession award procedure , in particular by defining the essential characteristics of the intended concession . 5 . with regard to public works concessions and works concessions , calculation of the estimated value shall take account of both the cost of the works and the total estimated value of the supplies and services that are made available to the contractor by the contracting authorities or entities provided that they are necessary for executing the works . 6 . where a proposed work or purchase of services may result in concessions being awarded at the same time in the form of separate lots , account shall be taken of the total estimated value of all such lots . 7 . where the aggregate value of the lots is equal to or exceeds the threshold laid down in article 5 , this directive shall apply to the awarding of each lot . 8 . contracting authorities or contracting entities may award concessions for individual lots without applying the provisions on the award provided for under this directive , provided that the estimated value net of vat of the lot concerned is less than eur 1 million . however , the aggregate value of the lots thus awarded without applying this directive shall not exceed 20% of the aggregate value of all the lots into which the proposed work or the proposed purchase of services has been divided . 9 . the value of services concessions shall be the estimated total value of services to be provided by the concessionaire during the whole duration of the concession , calculated in accordance with an objective methodology which shall be specified in the concession notice or in the concession documents . the basis for calculating the estimated concession value shall , where appropriate , be the following : for insurance services : the premium payable and other forms of remuneration ; b ) for banking and other financial services : fees , commissions , interest and other forms of remuneration ; c ) for design services : fees , commission payable and other forms of remuneration ; 10 . the value of concessions shall include both the estimated revenue to be received from third parties and the amounts to be paid by the contracting authority or the contracting entity . ### thresholds and methods for calculating the estimated value of concessions - 1 . this directive shall apply to the concessions the value of which is equal to or greater than eur 5 000 000 . the calculation of the estimated value of a concession shall be based on its turnover , net of taxes , accumulated over the duration of the contract , as estimated by the grantor . this estimate shall be valid at the moment at which the concession notice is sent , or , in cases where such notice is not foreseen , at the moment at which the grantor commences the concession award procedure . if the value is changed as a result of negotiations during the award procedure , the valid estimate shall be the estimate indicated at the time of signature of the contract . 2 . the estimated value of a concession shall be calculated as the value of an entirety of works and / or services which are part of one single concession project , including studies . the unique nature of the project can for instance be demonstrated by the existence of planning and conception by the grantor , the fact that the different elements purchased fulfil a single economic and technical function or that they are otherwise logically interlinked . 3 . the estimate of the value of a concession shall not be made with the intention of excluding it from the scope of this directive . 3a . the estimated value of the concession shall be calculated according to an objective method specified in the concession notice .


### the modification changes the economic balance of the concession in favour of the concessionaire or ### the modification substantially changes the economic balance of the concession , or


### tenders shall be considered to be unacceptable in any of the following cases : ### tenders are considered unacceptable in the following cases :


### contracting authorities , whether or not the works or services , including the related supplies , are intended for a public purpose ; ### contracting authorities ;


### for each award , name , address including nuts code , telephone , fax number , email address and internet address of the successful tenderer including information whether the successful tenderer is small and medium enterprise , b ) information whether the concession was awarded to a consortium . ### for each award , name , address including nuts code , telephone , fax number , email address and internet address of the successful tenderer .


### in order to make it possible for all interested operators to submit applications and tenders , contracting authorities and contracting entities should be obliged to respect a minimum time limit for the receipt of such applications . ### in order to make it possible for all interested operators to submit applications or tenders , the grantor should be obliged to respect a minimum time limit for the receipt of such applications or tenders .


### the choice and application of proportional , non - discriminatory and fair selection criteria to economic operators is crucial for their effective access to the economic opportunities related to concessions . in particular , the possibility for a candidate to rely on the capacities of other entities can be decisive to enable the participation of small and medium sized enterprises . therefore , it is appropriate to provide that the selection criteria should relate exclusively to the technical , financial and economic capacity of operators , should be announced in the concession notice and cannot preclude an economic operator from relying on the capacities of other entities , regardless of the legal nature of its links with those entities , if the latter proves to the contracting authority or entity that it will have at its disposal the necessary resources . ### the choice and application of proportional , non - discriminatory and fair selection criteria to economic operators is crucial for their effective access to the economic opportunities related to concessions . in particular , the possibility for a candidate to rely on the capacities of other entities can be decisive to enable the participation of small and medium sized enterprises . therefore , it is appropriate to provide that the selection criteria should relate exclusively to the professional , technical and financial capacities of candidates , should be announced in the concession notice and cannot preclude a candidate from relying on the capacities of other entities , regardless of the legal nature of its links with those entities , if the latter proves to the grantor that it will have at its disposal the necessary resources .


### in view of the detrimental effects on competition , awarding concessions without prior publication should only be permitted in very exceptional circumstances . this exception should be limited to cases where it is clear from the outset that a publication would not trigger more competition , notably because there is objectively only one economic operator who can perform the concession . only situations of objective exclusivity can justify the award of a concession without publication to an economic operator , where the situation of exclusivity has not been created by the contracting authority or contracting entity itself in view of the future award procedure , and where there are no adequate substitutes , the availability of which should be assessed thoroughly . ### in view of the detrimental effects on competition , awarding concessions without prior publication should only be permitted in very exceptional circumstances . this exception should be limited to cases where it is clear from the outset that a publication would not trigger more competition , notably because there is objectively only one economic operator who can perform the concession , or where the subject of the concession concerns social services or other specific services with a minimal cross - border impact .


### concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists , normally , in the right to exploit the works or services that are the subject of the contract . the execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable . by contrast , certain state acts such as authorisations or licences whereby the state or a public authority establishes the conditions for the exercise of an economic activity , should not qualify as concessions . the same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources , such as land lease contracts whereby the state or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services . ### concessions are contracts for pecuniary interest through which one or more contracting authorities or entities awards the performance of works or the management of services for which they are responsible to one or more economic operators , and where the consideration for this delegation consists either in the right to execute and manage the works or provide the services which are the subject of the contract , or in that right together with payment . the execution of these works or services shall be subject to specific binding obligations defined by the grantor which are legally enforceable . by contrast , certain state acts such as authorisations or licences whereby the state or a public authority establishes the conditions for the exercise of an economic activity , should not qualify as concessions . the same applies to certain agreements through which the state or the contracting authority or entity awards an economic operator the right to exploit certain public domains or resources , such as land lease contracts , particularly in the maritime or inland ports sector , whereby the state or contracting authority or entity establishes only general conditions for their use without becoming a beneficiary of the specific works or services provided by the economic operator .


### a substantial modification of the provisions of a concession during its term shall be considered as a new award for the purposes of this directive and shall require a new concession award procedure in accordance with this directive . ### a concession may be modified during its term by means of a supplementary agreement unless the modifications are substantial .


### the duration of the concession shall be limited to the time estimated to be necessary for the concessionaire to recoup the investments made in operating the works or services together with a reasonable return on invested capital . ### the duration of the concession shall only be limited to the time estimated to be necessary for the concessionaire to amortise the initial and subsequent investments made in operating the works or services together with a reasonable return on invested capital .


### criteria referred to in article 39 which were used for award of the concession or concessions . ### criteria referred to in article 38a which were used for award of the concession or concessions .


### the duration of the concession shall be limited to the time estimated to be necessary for the concessionaire to recoup the investments made in operating the works or services together with a reasonable return on invested capital . ### the duration of the concession shall be limited . the duration of the contract shall take account of the time necessary for the concessionaire to recoup operating and investment costs , to provide a reasonable return on investment and to meet the targets set by the grantor , particularly performance of the service in question .


### contracting authorities or contracting entities may impose on economic operators requirements aimed at protecting the confidential nature of information which the contracting authorities or contracting entities make available throughout the concession award procedure . ### the grantor may impose on economic operators requirements aimed at protecting the confidential nature of information which it makes available throughout the concession award procedure .


### where one of the activities for which the concession subject to the provisions of this directive is intended is listed in annex iii and the other is not listed therein and where it is objectively impossible to determine for which activity the concession is principally intended , the concession shall be awarded in accordance with the provisions applicable to concessions awarded by contracting authorities . ### where one of the activities for which the concession coming under this directive is intended is listed in annex iii and the other is not listed therein and where it is objectively impossible to determine for which activity the concession is principally intended , the concession shall be awarded in accordance with the provisions applicable to concessions awarded by contracting authorities .


### the court of justice of the european union finds , in a procedure pursuant to article 258 of the treaty , that a member state has failed to fulfil its obligations under the treaties by the fact that a contracting authority or entity belonging to that member state has awarded the concession in question without complying with its obligations under the treaties and this directive . ### in cases in which the court of justice of the european union determines , in a procedure pursuant to article 258 of the treaty , that a member state has failed to fulfil its obligations under the treaties by the fact that a contracting authority or entity belonging to that member state has awarded the concession in question without complying with its obligations under the treaties and this directive , tenders must be promptly invited for the concession within six months . member states must establish the necessary legal prerequisites for this .


### if one of the activities for which the contract or the concession is intended is subject to this directive and the other is not subject to either this directive or [ directive 2004 / 18 / ec or 2004 / 17 / ec ] or 2009 / 81 / ec and if it is objectively impossible to determine for which activity the contract or the concession is principally intended , the contract or the concession shall be awarded in accordance with this directive . ### if one of the activities for which the concession is intended is subject to this directive and the other is not subject to this directive and if it is objectively impossible to determine for which activity the concession is principally intended , the concession shall be awarded in accordance with this directive .


### for the purposes of point of the first subparagraph , a tender shall be considered not to be suitable where : - it is irregular or unacceptable , and - it is completely irrelevant to the concession , being incapable of meeting the contracting authority or contracting entity’s needs as specified in the concession documents . tenders shall be considered to be irregular , where they do not comply with the concession documents or where the prices offered are sheltered from normal competitive forces . tenders shall be considered to be unacceptable in any of the following cases : where they have been received late ; b ) they have been submitted by tenderers who do not have the requisite qualifications ; c ) their price exceeds the contracting authority or contracting entity’s budget as determined prior to the launching of the concession award procedure and documented in writing ; d ) they have been found to be abnormally low ### for the purposes of paragraph 2 , a tender shall be considered not to be suitable where : it is completely irrelevant to the concession , being incapable of meeting the grantor ' s needs as specified in the concession documents ; b ) it is irregular , i . e . it does not comply with the concession documents ; c ) it is unacceptable where : it has been received late ; ii ) it has been submitted by a tenderer who does not have the requisite qualifications ; iii ) its value by far exceeds the grantor ' s budget as determined prior to the launching of the concession award procedure and documented in writing ; or iv ) its value has been found to be abnormally low .


### where it is aware of any other serious violation of provisions of european union or of national law aimed at the protection of public interests compatible with the treaty ; ### where it is aware of any other serious violation of provisions of european union law , national law aimed at the protection of public interests compatible with the treaty or serious breaches in the area of social , labour and environmental law ;


### there is no private participation in the controlled legal person . ### there are no private participations in the controlled legal person in excess of 10 % .


### in case of concessions awarded by contracting authorities where any increase in price is not higher than 50% of the value of the original concession . ### in case of concessions awarded by contracting authorities where the value of the intended modification does not exceed 50% of the updated initial value of the concession ;


### ‘ special or exclusive rights’ mean rights granted by a competent authority of a member state by way of any legislative , regulatory or administrative provision the effect of which is to limit the exercise of activities defined in annex iii to one or more entities , and which substantially affects the ability of other entities to carry out such activity . rights which have been granted by means of a procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria shall not constitute ' special or exclusive rights ' within the meaning of this directive . such procedure includes : procurement procedures with a prior call for competition in conformity with directive [ 2004 / 18 / ec or 2004 / 17 / ec ] or this directive b ) procedures pursuant to other legislative acts of the union , listed in annex xi , ensuring adequate prior transparency for granting authorisations on the basis of objective criteria . the commission shall be empowered to adopt delegated acts in accordance with article 46 to modify the list of the union legislative acts set out in annex xi where , due to the adoption of new union legislation or repeal of union legislation , such modification proves necessary . ### ‘ special or exclusive rights’ mean rights granted by a competent authority of a member state by way of any legislative , regulatory or administrative provision the effect of which is to limit the exercise of activities defined in annex iii to one or more entities , and which substantially affects the ability of other entities to carry out such activity .


### it has also proven necessary to clarify what should be understood as a single procurement , with the effect that the aggregate value of all concessions concluded for the purpose of this procurement has to be taken into account with regard to the thresholds of this directive , and that the procurement should be advertised as a whole , possibly split into lots . the concept of single procurement encompasses all supplies , works and services needed to carry out a particular project . indications for the existence of one single project can for instance consist in overall prior planning and conception by the contracting authority , the fact that the different elements purchased fulfil a single economic and technical function or that they are otherwise logically interlinked . ### this directive should only apply to concession contracts whose value is equal to or greater than a certain threshold , which should reflect the clear cross - border interest of concessions to economic operators located in other member states . consequently , the method of calculating the estimated value of a concession needs to be defined , and should be identical for works and services concessions , as most contracts are mixed . it should include taking into account the cumulative turnover of the concession concerned , excluding tax , over the duration of the contract estimated by the grantor . the value of a concession should take into account the value of all the works and / or services covered by the contract and forming part of the same concession project . indications for the existence of one single project can for instance consist in overall prior planning and conception by the grantor , the fact that the different elements of the concession fulfil a single economic and technical function or that they are otherwise logically interlinked .


### by way of derogation from paragraph 1 , the contracting authorities and entities shall not be required to publish a concession notice in any of the following cases : where no tenders or no suitable tenders or no applications have been submitted in response to a concession procedure , provided that the initial conditions of the concession contract are not substantially altered and on condition that a report is sent to the commission or to the national oversight body designated pursuant to article 84 of directive [ replacing directive 2004 / 18 / ec ] where they so request ; b ) where the works or services can be supplied only by a particular economic operator due to the absence of competition for technical reasons , the protection of patents , copyrights or other intellectual property rights or he protection of other exclusive rights and where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the concession award ; c ) for new works or services consisting in the repetition of similar works or services entrusted to the economic operator to which the same contracting authorities or contracting entities awarded an original concession subject to the obligation referred to in paragraph 1 , provided that such works or services are in conformity with a basic project for which the original concession was awarded . the basic project shall mention the extent of possible additional works or services and the conditions under which they will be awarded . as soon as the first project is put up for tender the total estimated cost of subsequent works or services shall be taken into consideration by the contracting authorities or contracting entities when they apply the provisions of article 5 ### by way of derogation from paragraph 1 , the grantor shall not be required to publish a concession notice where the works or services can be supplied only by a particular economic operator due to the absence of competition for technical reasons , the protection of patents , copyrights or other intellectual property rights or the protection of other exclusive rights and where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the concession award ;


### it is appropriate to exclude from the scope of this directive certain services concessions awarded to an economic operator which is itself a contracting authority or a contracting entity on the basis of an exclusive right which that operator enjoys under published national law or administrative act and which has been granted in accordance with the treaty and union sectoral legislation concerning the management of networks infrastructure related to the activities set out in annex iii , since such exclusive right makes it impossible to follow a competitive procedure for the award . by way of derogation and without prejudice to the legal consequences of the general exclusion from the scope of this directive , concessions as defined in article 8 should be subject to the obligation to publish a concession award notice in view of ensuring basic transparency unless the conditions of such transparency are provided for in sectoral legislation . ### it is appropriate to exclude from the scope of this directive certain services concessions awarded to an economic operator which enjoys an exclusive right under published national law , regulation or administrative act and which has been granted in accordance with the treaty and union sectoral legislation , since such exclusive right makes it impossible to follow a competitive procedure for the award . the concessions referred to are those concerning the management of network infrastructure relating to the activities set out in annex iii or those concerning an activity subject to a tariff regulated at national level . by way of derogation and without prejudice to the legal consequences of the general exclusion from the scope of this directive , concessions concerning the management of network infrastructure relating to the activities set out in annex iii should be subject to the obligation to publish a concession award notice in view of ensuring basic transparency unless the conditions of such transparency are provided for in sectoral legislation .


### contracting authorities shall specify , in the concession notice the conditions for participation relating to : suitability to pursue the professional activity ; economic and financial standing ; technical and professional ability . contracting authorities shall limit any conditions for participation to those that are appropriate to ensure that a candidate or tenderer has the legal and financial capacities and the commercial and technical abilities to perform the concession to be awarded . all requirements shall be related and strictly proportionate to the subject - matter of the contract , taking into account the need to ensure genuine competition . contracting authorities and contracting entities shall also indicate in the concession notice the reference or references to be submitted as proof of the economic operator ' s capacities . the requirements in respect of those references shall be non - discriminatory and proportionate to the subject - matter of the concession . ### the grantor shall verify the conditions for participation relating to the professional and technical ability and financial standing of candidates or tenderers and the reference or references to be submitted as proof in accordance with the requirements specified in the concession notice . those conditions shall be both related to and proportionate to the subject - matter of the contract , shall be non - discriminatory and may be accompanied by minimum requirements , wherever necessary .


### paragraph 3 shall apply : to service concessions provided that at least 80 % of the average total turnover of the affiliated undertaking with respect to services in general for the preceding three years derives from the provision of services to undertakings with which it is affiliated ; b ) works concessions provided that at least 80 % of the average total turnover of the affiliated undertaking with respect to works in general for the preceding three years derives from the provision of works to undertakings with which it is affiliated . ### paragraph - 1 shall apply : to service concessions provided that at least 80 % of the average total turnover of the affiliated undertaking , taking into account all services provided by that undertaking over the preceding three years , derives from the provision of services to the contracting entity to which the undertaking is affiliated , or to the contracting entity which is itself subject to the dominant influence of another undertaking to which the undertaking granted the concession is affiliated ; b ) to works concessions provided that at least 80 % of the average total turnover of the affiliated undertaking , taking into account all works carried out by that undertaking over the preceding three years , derives from the provision of works to the contracting entity to which the undertaking is affiliated , or to the contracting entity which is itself subject to the dominant influence of another undertaking to which the undertaking granted the concession is affiliated .


### in the light of the results of the evaluation conducted by the commission on the reform of public procurement rules it is appropriate to exclude from the full application of this directive only those services which have a limited cross - border dimension , namely the so - called services to the person such as certain social , health and educational services . these services are provided within a particular context that varies widely amongst member states , due to different cultural traditions . a specific regime should therefore be established for concession for these services which takes into account the fact that they are newly regulated . an obligation to publish a prior information notice and a concession award notice of any concession with a value equal to or greater than thresholds established in this directive is an adequate way to provide information on business opportunities to potential tenderers as well as on the number and type of contracts awarded to all interested parties . furthermore , member states should put in place appropriate measures with reference to the award of concession contracts for these services aimed at ensuring compliance with the principles of transparency and equal treatment of economic operators while allowing contracting authorities and contracting entities to take into account the specificities of the services in question . member states should ensure that contracting authorities and contracting entities may take into account the need to ensure quality , continuity , accessibility , availability and comprehensiveness of the services , the specific needs of different categories of users , the involvement and empowerment of users and innovation . ### in the light of the results of the evaluation conducted by the commission on the reform of public procurement rules it is appropriate to exclude from the full application of this directive only those services which have a limited cross - border dimension , namely the so - called services to the person such as certain social , health and educational services . these services are provided within a particular context that varies widely amongst member states , due to different cultural traditions . a specific regime should therefore be established for concession for these services which takes into account the fact that they are newly regulated . an obligation to publish a concession award notice for any concession with a value equal to or greater than the thresholds established in this directive is an adequate way to ensure compliance with the principle of transparency while allowing the grantor to take into account the specificities of the services in question . member states should ensure that the grantor may take into account the need to ensure innovation and , in accordance with protocol 26 to the treaty on the functioning of the european union , a high level of quality , safety and affordability , equal treatment and the promotion of universal access and of users’ rights .


### it is necessary to clarify the conditions under which modifications of a concession during its execution require a new award procedure , taking into account the relevant case - law of the court of justice of the european union . a new award procedure is required in case of material changes to the initial concession , demonstrating the intention of the parties to renegotiate essential terms or conditions of that concession . this is notably the case if the amended conditions would have had an influence on the outcome of the procedure , had they been part of the initial procedure . an exceptional and temporary extension of the term of the concession strictly aimed at ensuring the continuity of the provision of the service pending the award of a new concession should not normally qualify as a material change to the initial concession . ### it is necessary to clarify the conditions under which modifications of a concession during its execution require a new award procedure , taking into account the relevant case - law of the court of justice of the european union . any concession in progress may be modified by means of a supplementary agreement , subject to the provisions of this directive . a new award procedure is required , however , in the case of material changes to the initial concession , demonstrating the intention of the parties to renegotiate essential terms or conditions of that concession . this is notably the case if the amended conditions would have had an influence on the outcome of the procedure , had they been part of the initial procedure . an exceptional and temporary extension of the term of the concession strictly aimed at ensuring the continuity of the provision of the service pending the award of a new concession should not normally qualify as a material change to the initial concession .


### given the importance of the cultural context and the sensitivity of these services , member states should be given wide discretion to organise the choice of the service providers in the way they consider most appropriate . the rules of this directive do not prevent member states to apply specific quality criteria for the choice of service providers , such as the criteria set out in the voluntary european quality framework for social services of the european union ' s social protection committee . member states and / or public authorities remain free to provide these services themselves or to organise social services in a way that does not entail the conclusion of concessions , for example through the mere financing of such services or by granting licences or authorisations to all economic operators meeting the conditions established beforehand by the contracting authority or contracting entity , without any limits or quotas , provided such system ensures sufficient advertising and complies with the principles of transparency and non - discrimination . ### given the importance of the cultural context and the sensitivity of these services , member states are given wide discretion to organise the choice of the service providers in the way they consider most appropriate . the rules of this directive do not prevent member states to apply specific quality criteria for the choice of service providers , such as the criteria set out in the voluntary european quality framework for social services of the european union ' s social protection committee . member states and / or public authorities remain free to provide these services themselves or to organise social services in a way that does not entail the conclusion of concessions , for example through the mere financing of such services or by granting licences or authorisations to or concluding agreements with all economic operators meeting the conditions established beforehand by the contracting authority or contracting entity , without any limits or quotas , provided such system ensures sufficient advertising and complies with the principles of transparency and non - discrimination . .


### the choice of the method used to calculate the estimated value of a concession shall not be made with the intention of excluding it from the scope of this directive . a works project or an entirety of services shall not be subdivided with the effect of preventing it from falling within the scope of this directive , unless justified by objective reasons . ### the choice of the method used to calculate the estimated value of a concession shall not be made with the intention of excluding it from the scope of this directive . a works project or an entirety of services shall not be subdivided with the effect of preventing it from falling within the scope of this directive , unless justified by objective reasons , such as taking smes into consideration .


### the notion of special or exclusive rights is central to the definition of the scope of this directive , since entities which are neither contracting entities pursuant to article 4 nor public undertakings are subject to its provisions only to the extent that they exercise one of the activities covered on the basis of such rights . it is therefore appropriate to clarify that rights which have been granted by means of a procedure based on objective criteria , notably pursuant to union legislation , and for which adequate publicity has been ensured do not constitute special or exclusive rights for the purposes of this directive . this legislation should include directive 98 / 30 / ec of the european parliament and of the council of 22 june 1998 concerning common rules for the internal market in natural gas , directive 96 / 92 / ec of the european parliament and of the council of 19 december 1996 concerning common rules for the internal market in electricity , directive 97 / 67 / ec of the european parliament and of the council of 15 december 1997 on common rules for the development of the internal market of community postal services and the improvement of quality of service , directive 94 / 22 / ec of the european parliament and of the council of 20 may 1994 on the conditions for granting and using authorisations for the prospection , exploration and production of hydrocarbons and regulation no 1370 / 2007of the european parliament and of the council of 23 october 2007 on public passenger transport services by rail and by road and repealing council regulations nos 1191 / 69 and 1107 / 70 . the increasingly diverse forms of public action made it necessary to define more clearly the notion of procurement itself . the union rules on concessions refer to the acquisition of works or services for a consideration consisting in exploitation of those works or services . the notion of acquisition should be understood broadly in the sense of obtaining the benefits of the works or services in question not requiring in all cases a transfer of ownership to contracting authorities or contracting entities . furthermore , the mere financing of an activity , which is frequently linked to the obligation to reimburse the amounts received where they are not used for the purposes intended , does not usually fall under this directive . ### the notion of special or exclusive rights is central to the definition of the scope of this directive , since entities which are neither contracting entities pursuant to article 4 nor public undertakings are subject to these provisions only to the extent that they exercise one of the activities covered on the basis of such rights .


### the duration of the concession shall be limited to the time estimated to be necessary for the concessionaire to recoup the investments made in operating the works or services together with a reasonable return on invested capital . ### the duration of concessions shall be limited . the grantor shall estimate the duration on the basis of the works or services requested . when the cost of investments must be met by the concessionaire , the duration of a concession shall reflect the nature and amount of the investments involved and may not , under these circumstances , exceed the normal amortisation period . if the concessionaire is not required to make investments , the duration of the concession shall reflect the amount of time deemed necessary to meet the objectives set in the contract , in particular as regards the provision of the service in question . 2 . the normal amortisation period shall correspond to the time that concessionaires could reasonably be expected to take to recoup their investment costs and secure a reasonable return on invested capital .


### value and main financial terms of the awarded concession , including fees and prices . ### value and main financial terms of the awarded concession .


### methods for calculating the estimated value of concessions the calculation of the estimated value of a concession shall be based on the total amount payable , net of vat , as estimated by the contracting authority or the contracting entity , including any form of option and any extension of the duration of the concession . 2 . the estimated value of a concession shall be calculated as the value of an entirety of works or services , even if purchased through different contracts , where the contracts are part of one single project . indications for the existence of one single project consist in overall prior planning and conception by the contracting authority or contracting entity , the fact that the different elements purchased fulfil a single economic and technical function or that they are otherwise logically interlinked . where the contracting authority or the contracting entity provides for prizes or payments to candidates or tenderers it shall take them into account when calculating the estimated value of the concession . 3 . the choice of the method used to calculate the estimated value of a concession shall not be made with the intention of excluding it from the scope of this directive . a works project or an entirety of services shall not be subdivided with the effect of preventing it from falling within the scope of this directive , unless justified by objective reasons . 4 . this estimate shall be valid at the moment at which the concession notice is sent , or , in cases where such notice is not foreseen , at the moment at which the contracting authority or the contracting entity commences the concession award procedure , in particular by defining the essential characteristics of the intended concession . 5 . with regard to public works concessions and works concessions , calculation of the estimated value shall take account of both the cost of the works and the total estimated value of the supplies and services that are made available to the contractor by the contracting authorities or entities provided that they are necessary for executing the works . 6 . where a proposed work or purchase of services may result in concessions being awarded at the same time in the form of separate lots , account shall be taken of the total estimated value of all such lots . 7 . where the aggregate value of the lots is equal to or exceeds the threshold laid down in article 5 , this directive shall apply to the awarding of each lot . 8 . contracting authorities or contracting entities may award concessions for individual lots without applying the provisions on the award provided for under this directive , provided that the estimated value net of vat of the lot concerned is less than eur 1 million . however , the aggregate value of the lots thus awarded without applying this directive shall not exceed 20% of the aggregate value of all the lots into which the proposed work or the proposed purchase of services has been divided . 9 . the value of services concessions shall be the estimated total value of services to be provided by the concessionaire during the whole duration of the concession , calculated in accordance with an objective methodology which shall be specified in the concession notice or in the concession documents . the basis for calculating the estimated concession value shall , where appropriate , be the following : for insurance services : the premium payable and other forms of remuneration ; b ) for banking and other financial services : fees , commissions , interest and other forms of remuneration ; c ) for design services : fees , commission payable and other forms of remuneration ; 10 . the value of concessions shall include both the estimated revenue to be received from third parties and the amounts to be paid by the contracting authority or the contracting entity . ### thresholds and methods for calculating the estimated value of concessions - 1 . this directive shall apply to the concessions the value of which is equal to or greater than eur 5 000 000 . the calculation of the estimated value of a concession shall be based on its turnover , net of taxes , accumulated over the duration of the contract , as estimated by the grantor . this estimate shall be valid at the moment at which the concession notice is sent , or , in cases where such notice is not foreseen , at the moment at which the grantor commences the concession award procedure . if the value is changed as a result of negotiations during the award procedure , the valid estimate shall be the estimate indicated at the time of signature of the contract . 2 . the estimated value of a concession shall be calculated as the value of an entirety of works and / or services which are part of one single concession project , including studies . the unique nature of the project can for instance be demonstrated by the existence of planning and conception by the grantor , the fact that the different elements purchased fulfil a single economic and technical function or that they are otherwise logically interlinked . 3 . the estimate of the value of a concession shall not be made with the intention of excluding it from the scope of this directive . 3a . the estimated value of the concession shall be calculated according to an objective method specified in the concession notice .


### this directive shall not apply to services concessions awarded by a contracting authority or by a contracting entity to an economic operator which is a contracting entity or an association of thereof , on the basis of an exclusive right that economic operator enjoys pursuant to applicable and published national law , regulation or administrative provision , and which has been granted in accordance with the treaty and union sectoral legislation concerning the management of networks infrastructure related to the activities set out in annex iii . ### this directive shall not apply to services concessions concerning networks infrastructure related to the activities set out in annex iii , if the services concession is awarded to an economic operator on the basis of an exclusive right that economic operator enjoys pursuant to applicable and published law , regulation or administrative provision , or the services concession relates to an activity which , when this directive enters into force , is the subject of a nationally regulated tariff laid down in law or regulation , or the services concession is awarded to an economic operator on the basis of an exclusive right that economic operator enjoys pursuant to applicable and published law , regulation or administrative provision , or in respect of services to which regulated , non - discriminatory access is available when this directive enters into force .


### description of the procurement : nature and extent of works , nature and quantity or value of supplies , nature and extent of services . where the concession is divided into lots , this information shall be provided for each lot . where appropriate , description of any options . ### description of the contract : nature and extent of works , nature and extent of services .


### the acquisition , development , production or co - production of programme material intended for broadcasting , defined as transmission and distribution using any form of electronic network , that are awarded by broadcasters , nor to concessions for broadcasting time , that are awarded to broadcasters ; ### the acquisition , development , production or co - production of programme material and related preparatory services for media services that are provided by broadcasters , nor to concessions for broadcasting time that are awarded to broadcasters ; media services being defined as including all transmission and distribution using any form of electronic network ;


### concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists , normally , in the right to exploit the works or services that are the subject of the contract . the execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable . by contrast , certain state acts such as authorisations or licences whereby the state or a public authority establishes the conditions for the exercise of an economic activity , should not qualify as concessions . the same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources , such as land lease contracts whereby the state or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services . ### concessions are contracts for pecuniary interest through which one or more contracting authorities or entities awards the performance of works or the management of services for which they are responsible to one or more economic operators , and where the consideration for this delegation consists either in the right to execute and manage the works or provide the services which are the subject of the contract , or in that right together with payment . the execution of these works or services shall be subject to specific binding obligations defined by the grantor which are legally enforceable . by contrast , certain state acts such as authorisations or licences whereby the state or a public authority establishes the conditions for the exercise of an economic activity , should not qualify as concessions . the same applies to certain agreements through which the state or the contracting authority or entity awards an economic operator the right to exploit certain public domains or resources , such as land lease contracts , particularly in the maritime or inland ports sector , whereby the state or contracting authority or entity establishes only general conditions for their use without becoming a beneficiary of the specific works or services provided by the economic operator .


### it is appropriate to exclude from the scope of this directive certain services concessions awarded to an economic operator which is itself a contracting authority or a contracting entity on the basis of an exclusive right which that operator enjoys under published national law or administrative act and which has been granted in accordance with the treaty and union sectoral legislation concerning the management of networks infrastructure related to the activities set out in annex iii , since such exclusive right makes it impossible to follow a competitive procedure for the award . by way of derogation and without prejudice to the legal consequences of the general exclusion from the scope of this directive , concessions as defined in article 8 should be subject to the obligation to publish a concession award notice in view of ensuring basic transparency unless the conditions of such transparency are provided for in sectoral legislation . ### it is appropriate to exclude from the scope of this directive certain services concessions awarded to an economic operator which is itself a contracting authority or a contracting entity on the basis of an exclusive right which that operator enjoys under published national law or an administrative act , as in the case of public - domain maritime concessions for recreational tourist purposes , and which has been granted in accordance with the treaty and union sectoral legislation concerning the management of networks infrastructure related to the activities set out in annex iii , since such an exclusive right makes it impossible to follow a competitive procedure for the award . by way of derogation and without prejudice to the legal consequences of the general exclusion from the scope of this directive , concessions as defined in article 8 should be subject to the obligation to publish a concession award notice in view of ensuring basic transparency unless the conditions of such transparency are provided for in sectoral legislation .


### contracting authorities and contracting entities can be faced with external circumstances that they could not foresee when they awarded the concession . in this case , a certain degree of flexibility is needed to adapt the concession to these circumstances without a new award procedure . the notion of circumstances that a diligent contracting authority or contracting entity could not foresee refers to those circumstances which could not be predicted despite reasonably diligent preparation of the initial award by the contracting authority or contracting entity , taking into account its available means , the nature and characteristics of the specific project , good practice in the field in question and the need to ensure an appropriate relationship between the resources spent in preparing the award and its foreseeable value . however , this cannot apply in cases where a modification results in an alteration of the nature of the overall procurement , for instance by replacing the works , supplies or services to be procured by something different or by fundamentally changing the type of procurement since , in such a situation , a hypothetical influence on the outcome may be assumed . ### grantors can be faced with external circumstances that they could not foresee when they awarded the concession . in this case , a certain degree of flexibility is needed to adapt the concession to these circumstances without a new award procedure . the notion of circumstances that a diligent grantor could not foresee refers to those circumstances which could not be predicted despite reasonably diligent preparation of the initial award by the grantor , taking into account its available means , the nature and characteristics of the specific project , good practice in the field in question and the need to ensure an appropriate relationship between the resources spent in preparing the award and its foreseeable value . however , this cannot apply in cases where a modification results in an alteration of the nature of the overall concession , for instance by replacing the works or services for which the contract is to be awarded by something different or by introducing conditions such that an influence on the outcome may be assumed .


### contracts which have as their object both services and supplies shall be awarded in accordance with this directive where the main object of the contract in question are services and where they are concessions within the meaning of point of the first paragraph of article 2 ### where contracts have as their object concessions covered by this directive as well as procurement or other elements not covered by it , the part of the contract which constitutes a concession covered by this directive shall be awarded in accordance with the provisions thereof . where the different parts of the contract in question are not separable , the application of this directive shall be determined by the main subject of that contract , established on the basis of the respective values of the concession , the items to be procured or other elements not covered by the directive .


### the delegation of power referred to in articles 4 , 21 , 23 , 25 , 40 and 52 , may be revoked at any time by the european parliament or by the council . a revocation decision shall put an end to the delegation of the power specified in that decision . it shall take effect the day following the publication of the decision in the official journal of the european union or at a later date specified therein . it shall not affect the validity of any delegated acts already in force . ### the delegation of power referred to in articles 21 and 23 may be revoked at any time by the european parliament or the council . the revocation decision shall put an end to the delegation of the power specified in that decision . it shall take effect the day following the publication of the decision in the official journal of the european union or at a later date specified therein . it shall not affect the validity of any delegated acts already in force .


### by way of derogation from paragraph 1 , the contracting authorities and entities shall not be required to publish a concession notice in any of the following cases : where no tenders or no suitable tenders or no applications have been submitted in response to a concession procedure , provided that the initial conditions of the concession contract are not substantially altered and on condition that a report is sent to the commission or to the national oversight body designated pursuant to article 84 of directive [ replacing directive 2004 / 18 / ec ] where they so request ; b ) where the works or services can be supplied only by a particular economic operator due to the absence of competition for technical reasons , the protection of patents , copyrights or other intellectual property rights or he protection of other exclusive rights and where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the concession award ; c ) for new works or services consisting in the repetition of similar works or services entrusted to the economic operator to which the same contracting authorities or contracting entities awarded an original concession subject to the obligation referred to in paragraph 1 , provided that such works or services are in conformity with a basic project for which the original concession was awarded . the basic project shall mention the extent of possible additional works or services and the conditions under which they will be awarded . as soon as the first project is put up for tender the total estimated cost of subsequent works or services shall be taken into consideration by the contracting authorities or contracting entities when they apply the provisions of article 5 ### by way of derogation from paragraph 1 , the grantor shall not be required to publish a concession notice where the works or services can be supplied only by a particular economic operator due to the absence of competition for technical reasons , the protection of patents , copyrights or other intellectual property rights or the protection of other exclusive rights and where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the concession award ;


### in the light of the results of the evaluation conducted by the commission on the reform of public procurement rules it is appropriate to exclude from the full application of this directive only those services which have a limited cross - border dimension , namely the so - called services to the person such as certain social , health and educational services . these services are provided within a particular context that varies widely amongst member states , due to different cultural traditions . a specific regime should therefore be established for concession for these services which takes into account the fact that they are newly regulated . an obligation to publish a prior information notice and a concession award notice of any concession with a value equal to or greater than thresholds established in this directive is an adequate way to provide information on business opportunities to potential tenderers as well as on the number and type of contracts awarded to all interested parties . furthermore , member states should put in place appropriate measures with reference to the award of concession contracts for these services aimed at ensuring compliance with the principles of transparency and equal treatment of economic operators while allowing contracting authorities and contracting entities to take into account the specificities of the services in question . member states should ensure that contracting authorities and contracting entities may take into account the need to ensure quality , continuity , accessibility , availability and comprehensiveness of the services , the specific needs of different categories of users , the involvement and empowerment of users and innovation . ### in the light of the results of the evaluation conducted by the commission on the reform of public procurement rules it is appropriate to exclude from the full application of this directive only those services which have a limited cross - border dimension , namely the so - called services to the person such as certain social , health and educational services . these services are provided within a particular context that varies widely amongst member states , due to different cultural traditions . a specific regime should therefore be established for concession for these services which takes into account the fact that they are newly regulated . an obligation to publish a concession award notice for any concession with a value equal to or greater than the thresholds established in this directive is an adequate way to ensure compliance with the principle of transparency while allowing the grantor to take into account the specificities of the services in question . member states should ensure that the grantor may take into account the need to ensure innovation and , in accordance with protocol 26 to the treaty on the functioning of the european union , a high level of quality , safety and affordability , equal treatment and the promotion of universal access and of users’ rights .


### works concessions provided that at least 80 % of the average total turnover of the affiliated undertaking with respect to works in general for the preceding three years derives from the provision of works to undertakings with which it is affiliated . ### works concessions provided that at least 80 % of the activities of the affiliated undertaking with respect to works in general for the preceding three years derive from the provision of works to undertakings with which it is affiliated .


### such notices shall contain the information set out in annex v or in relation to concessions for social services and other specific services the information set out in vi and be published in accordance with the provisions of article 28 ### concession award notices shall contain the information set out in annex v or in relation to concessions for social services and other specific services the information set out in vi and be published in accordance with the provisions of article 28 .


### in order to ensure adequate advertisement of works and services concessions above a certain value awarded by contracting entities and by the contracting authorities , the award of such contracts should be preceded by the compulsory publication of a concession notice in the official journal of the european union . the thresholds should reflect the clear cross - border interest of concessions to economic operators located in other member states . to calculate the value of a services concession , account must be taken of the estimated value of all services to be provided by the concessionaire from the point of view of a potential tenderer . ### in order to ensure adequate advertisement of works and services concessions equal to or above a certain threshold , the award of such contracts should be preceded by the compulsory publication of a concession notice in the official journal of the european union .


### in case of concessions awarded by contracting authorities where any increase in price is not higher than 50% of the value of the original concession . ### in case of concessions awarded by contracting authorities where the value of the intended modification does not exceed 50% of the updated initial value of the concession ;


### it has also proven necessary to clarify what should be understood as a single procurement , with the effect that the aggregate value of all concessions concluded for the purpose of this procurement has to be taken into account with regard to the thresholds of this directive , and that the procurement should be advertised as a whole , possibly split into lots . the concept of single procurement encompasses all supplies , works and services needed to carry out a particular project . indications for the existence of one single project can for instance consist in overall prior planning and conception by the contracting authority , the fact that the different elements purchased fulfil a single economic and technical function or that they are otherwise logically interlinked . ### this directive should only apply to concession contracts whose value is equal to or greater than a certain threshold , which should reflect the clear cross - border interest of concessions to economic operators located in other member states . consequently , the method of calculating the estimated value of a concession needs to be defined , and should be identical for works and services concessions , as most contracts are mixed . it should include taking into account the cumulative turnover of the concession concerned , excluding tax , over the duration of the contract estimated by the grantor . the value of a concession should take into account the value of all the works and / or services covered by the contract and forming part of the same concession project . indications for the existence of one single project can for instance consist in overall prior planning and conception by the grantor , the fact that the different elements of the concession fulfil a single economic and technical function or that they are otherwise logically interlinked .


### unless otherwise provided in this directive or in the national law concerning access to information , and without prejudice to the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out in articles 27 and 35 of this directive , the contracting authority shall not disclose information forwarded to it by economic operators which they have designated as confidential , including , but not limited to , technical or trade secrets and the confidential aspects of tenders . ### unless otherwise provided in this directive or in the national law concerning access to information , and without prejudice to the obligations relating to the advertising of awarded concession contracts and to the information to candidates and tenderers set out in articles 27 and 35 of this directive , the grantor shall not disclose information forwarded to it by economic operators , in particular technical or trade secrets . failure to comply with this requirement shall render the grantor liable .


### the duration of the concession shall be limited to the time estimated to be necessary for the concessionaire to recoup the investments made in operating the works or services together with a reasonable return on invested capital . ### the duration of concessions shall be limited . the grantor shall estimate the duration on the basis of the works or services requested . when the cost of investments must be met by the concessionaire , the duration of a concession shall reflect the nature and amount of the investments involved and may not , under these circumstances , exceed the normal amortisation period . if the concessionaire is not required to make investments , the duration of the concession shall reflect the amount of time deemed necessary to meet the objectives set in the contract , in particular as regards the provision of the service in question . 2 . the normal amortisation period shall correspond to the time that concessionaires could reasonably be expected to take to recoup their operating and investment costs and secure a reasonable return on invested capital .


### this directive shall not apply to services concessions awarded by a contracting authority or by a contracting entity to an economic operator which is a contracting entity or an association of thereof , on the basis of an exclusive right that economic operator enjoys pursuant to applicable and published national law , regulation or administrative provision , and which has been granted in accordance with the treaty and union sectoral legislation concerning the management of networks infrastructure related to the activities set out in annex iii . ### this directive shall not apply to services concessions concerning networks infrastructure related to the activities set out in annex iii , if the services concession is awarded to an economic operator on the basis of an exclusive right that economic operator enjoys pursuant to applicable and published law , regulation or administrative provision , or the services concession relates to an activity which , when this directive enters into force , is the subject of a nationally regulated tariff laid down in law or regulation , or the services concession is awarded to an economic operator on the basis of an exclusive right that economic operator enjoys pursuant to applicable and published law , regulation or administrative provision , or in respect of services to which regulated , non - discriminatory access is available when this directive enters into force .


### it is appropriate to exclude certain service and works concessions awarded to an undertakings affiliated to contracting entities , having as its principal activity the provision of such services or works to the group of which it is part , rather than offering them on the market . it is also appropriate to exclude certain service and works concessions awarded by a contracting entity to a joint venture which is formed by a number of contracting entities for the purpose of carrying out activities covered by this directive and of which that entity is part . however , it is appropriate to ensure that this exclusion does not give rise to distortions of competition to the benefit of the undertakings or joint ventures that are affiliated with the contracting entities ; it is appropriate to provide a suitable set of rules , in particular as regards the maximum limits within which the undertakings may obtain a part of their turnover from the market and above which they would lose the possibility of being awarded concessions without calls for competition , the composition of joint ventures and the stability of links between those joint ventures and the contracting entities of which they are composed . ### it is appropriate to exclude certain service and works concessions awarded to undertakings affiliated to contracting entities which are not contracting authorities , having as their principal activity the provision of such services or works to the group of which they are part , rather than offering them on the market . it is also appropriate to exclude certain service and works concessions awarded by a contracting entity to a joint venture which is formed by a number of contracting entities which are not contracting authorities for the purpose of carrying out activities covered by this directive and of which that entity is part . however , it is appropriate to ensure that this exclusion does not give rise to distortions of competition to the benefit of the undertakings or joint ventures that are affiliated with the contracting entities ; it is appropriate to provide a suitable set of rules , in particular as regards the maximum limits within which the undertakings may obtain a part of their turnover from the market and above which they would lose the possibility of being awarded concessions without calls for competition , the composition of joint ventures and the stability of links between those joint ventures and the contracting entities of which they are composed .


### public procurement plays a key role in the europe 2020 strategy as one of the market - based instruments to be used to achieve a smart , sustainable and inclusive growth while ensuring the most efficient use of public funds . the award of works concessions is presently subject to basic rules of directive 2004 / 18 / ec of the european parliament and of the council of 31 march 2004 on the coordination of procedures for the award of public works contracts , public supply contracts and public service contracts while the award of services concessions with a cross - border interest is subject to the principles of the treaty , and in particular the principle of free movement of goods , freedom of establishment and freedom to provide services as well as to the principles deriving therefrom such as equal treatment , non - discrimination , mutual recognition , proportionality and transparency . there is a risk of legal uncertainty related to different interpretations of the principles of the treaty by national legislators and of wide disparities among the legislations of different member states . such risk has been confirmed by the extensive case law of the court of justice of the european union but which has only partially addressed certain aspects of the award of concession contracts . hence , a uniform concretisation of the treaty principles across all member states and the elimination of discrepancies in their understanding following therefrom is necessary at the union level in order to eliminate persisting distortions of the internal market . ### public procurement plays a key role in the europe 2020 strategy as one of the market - based instruments to be used to achieve a smart , sustainable and inclusive growth while ensuring the most efficient use of public funds . the award of works concessions is presently subject to basic rules of directive 2004 / 18 / ec of the european parliament and of the council of 31 march 2004 on the coordination of procedures for the award of public works contracts , public supply contracts and public service contracts while the award of services concessions with a cross - border interest is subject to the principles of the treaty , and in particular the principle of free movement of goods , freedom of establishment and freedom to provide services as well as to the principles deriving therefrom such as equal treatment , non - discrimination , mutual recognition , proportionality and transparency . there is a risk of legal uncertainty related to different interpretations of the principles of the treaty by national legislators and of wide disparities among the legislations of different member states . such risk has been confirmed by the case law of the court of justice of the european union but which has only partially addressed certain aspects of the award of concession contracts . hence , a uniform concretisation of the treaty principles across all member states and the elimination of discrepancies in their understanding following therefrom is necessary at the union level in order to eliminate persisting distortions of the internal market .