### requests for information obtained by the competent authorities under this directive may be refused where the conditions down in article 4 of directive 2003 / 4 / ec are fulfilled . ### access to information under this directive may be restricted where the conditions laid down in article 4 of directive 2003 / 4 / ec are fulfilled .


### member states shall require the operator to draw up a document setting out the major - accident prevention policy and to ensure that it is properly implemented . the mapp shall be established in writing . it shall be designed to guarantee a high level of protection for human health and the environment . it shall be proportionate to the major - accident hazards . it shall include the operator ' s overall aims and principles of action , the role and responsibility of management and shall address safety culture with respect to the control of major - accident hazards . ### member states shall require the operator to draw up a document setting out the major - accident prevention policy and to ensure that it is properly implemented . the mapp shall be established in writing . it shall be designed to guarantee a high level of protection for human health , property and the environment . it shall be proportionate to the major - accident hazards . it shall include the operator ' s overall aims and principles of action , the role and responsibility of management and shall demonstrate how the high level of protection with respect to major - accident hazards is continuously ensured .


### the commission should be empowered to adopt delegated acts in accordance with article 290 of the treaty in respect of the adoption of criteria for derogations and amendments to the annexes of this directive . ### in order to adapt this directive to technical and scientific progress , the power to adopt acts in accordance with article 290 of the treaty on the functioning of the european union should be delegated to the commission in respect of amendments to part 3 of annex i , and the annexes ii to vi of this directive . it is of particular importance that the commission carry out appropriate consultations during its preparatory work , including at expert level . the commission , when preparing and drawing up delegated acts , should ensure a simultaneous , timely and appropriate transmission of relevant documents to the european parliament and council .


### member states shall ensure that the information referred to in annex v is permanently available to the public , including in an electronic format . the information shall be reviewed and where necessary updated at least once a year . ### the information shall be reviewed every three years and , where necessary , repeated and updated , at least if there is any modification within the meaning of article 10 . it shall also be permanently available to the public . the maximum period between the repetition of the information to the public shall , in any case , be no longer than five years . such information shall contain , at least , the information listed in annex v .


### the commission shall forward annually the lists referred to in the second subparagraph of this paragraph to the forum referred to in article 17 for information . ### the commission shall forward regularly the lists referred to in the second subparagraph of this paragraph to the forum referred to in article 17 for information .


### inspections shall whenever possible be coordinated with inspections under other union legislation and combined , where appropriate . ### inspections shall be coordinated with inspections under other union legislation , in particular directive 2010 / 75 / eu of the european parliament and of the council of 24 november 2010 on industrial emissions 1 , and , to the extent possible , combined . ______________ 1 oj l 334 , 17 . 12 . 2010 , p . 17 .


### where it is demonstrated to the satisfaction of a competent authority , on the basis of the criteria referred to in paragraph 4 of this article , that particular substances present at an individual establishment or any part thereof and listed in parts 1 or 2 of annex i are incapable of creating a major accident hazard , due to the specific conditions pertaining in the establishment such as the nature of the packaging and containment of the substance or the location and quantities involved , the member state of the competent authority may decide not to apply the requirements set out in articles 7 to 19 of this directive to the establishment concerned . ### without prejudice to paragraph 1 , where it is demonstrated on the basis of the criteria referred to in annex vii , that particular substances present at an individual establishment or any part thereof and listed in parts 1 or 2 of annex i are incapable of creating a major accident hazard , due to the specific conditions pertaining in the establishment regarding the nature of the packaging and containment of the substance or the location and quantities involved , the competent authority of the member state may decide not to apply the requirements set out in article 9 , point of article 10 , article 11 and article 13 of this directive to the establishment concerned .


### cooperate in informing the public and neighbouring establishments that fall outside the scope of this directive , and in supplying information to the authority responsible for the preparation of external emergency plans . ### supply details to the authority responsible for the preparation of external emergency plans so as to inform the public and neighbouring establishments that fall outside the scope of this directive .


### 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 .


### 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 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 .


### the absence of clear rules at union level governing the award of concession contracts gives rise to legal uncertainty and to obstacles to the free provision of services and causes distortions in the functioning of the internal market . as a result , economic operators , in particular small and medium enterprises , are being deprived of their rights within the internal market and miss out on important business opportunities , while public authorities may not find the best use of public money so that eu citizens benefit from quality services at best prices . an adequate legal framework for the award of concessions would ensure effective and non - discriminatory access to the market to all union economic operators and legal certainty , favouring public investments in infrastructures and strategic services to the citizen . ### the absence of clear rules at union level governing the award of concession contracts gives rise to legal uncertainty and to obstacles to the free provision of services and causes distortions in the functioning of the internal market . as a result , economic operators , in particular small and medium enterprises , are being deprived of their rights within the internal market and miss out on important business opportunities , while public authorities may not find the best use of public money so that eu citizens benefit from quality services at best prices . an adequate , balanced and flexible legal framework for the award of concessions would ensure effective and non - discriminatory access to the market to all union economic operators and legal certainty , favouring public investments in infrastructures and strategic services to the citizen .


### the absence of clear rules at union level governing the award of concession contracts gives rise to legal uncertainty and to obstacles to the free provision of services and causes distortions in the functioning of the internal market . as a result , economic operators , in particular small and medium enterprises , are being deprived of their rights within the internal market and miss out on important business opportunities , while public authorities may not find the best use of public money so that eu citizens benefit from quality services at best prices . an adequate legal framework for the award of concessions would ensure effective and non - discriminatory access to the market to all union economic operators and legal certainty , favouring public investments in infrastructures and strategic services to the citizen . ### the absence of clear rules at union level governing the award of concession contracts gives rise to legal uncertainty and to obstacles to the free provision of services and causes distortions in the functioning of the internal market . as a result , economic operators , in particular small and medium - sized enterprises , are being deprived of their rights within the internal market and miss out on important business opportunities , while public authorities may not find the best use of public money so that eu citizens benefit from quality services at best prices . an adequate legal framework for the award of concessions would ensure effective and non - discriminatory access to the market to all union economic operators and legal certainty , favouring public investments in infrastructures and strategic services to the citizen . a general principle should be established at european level whereby the award of concessions would be open to smes so as to improve their access opportunities on the concession market .


### 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


### concessions which have as their object both services within the meaning of article 17 and other services shall be awarded in accordance with the provisions applicable to the type of service that characterises the main object of the contract in question . ### where a services concession contract falling within the scope of this directive has as its object both services within the meaning of article 17 and other services , the provisions of this directive shall apply in the basis of the type of service that characterises the main object of the contract in question , determined by reference to the respective costs of the services concerned .


### 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 . furthermore , grantors 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 grantor .


### 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 , as is the case with owners of seaside businesses set up on property under 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 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 ;


### 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 .


### 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 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 contracting entities entrusts the execution of works to one or more economic operators , where the consideration for this delegation 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 contracting entities entrusts the operation of a service for which they are responsible to one or more economic operators , where the consideration for this delegation consists either solely in the right to exploit the service which is the subject of the contract or in that right together with payment . the right to exploit the works or services 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 - matter of the concession .


### the absence of private participation referred to in paragraphs 1 to 4 shall be verified at the time of the award of the concession or of the conclusion of the agreement . ### the absence of private participations in excess of 10 % referred to in paragraphs 1 to 4 shall be verified at the time of the award of the concession or of the conclusion of the agreement .


### 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 which are the subject of the contract 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 ; activities 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 include activities carried out for third parties where the service forms part of the contracting authority’s statutory remit or is performed for other contracting authorities .


### 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 .


### concessions for social and other specific services listed in annex x falling within the scope of this directive shall be subject to the obligation of paragraph 3 of art . 26 and of paragraph 1 of article 27 . ### concessions for social and other specific services listed in annex x of this directive shall be subject only to the obligation of paragraphs 1 and 3 of article 27 .


### 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 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 . equally , agreements having as their object the right of an economic operator to exploit certain public domains or resources , such as public domain and private land lease contracts whereby the state or contracting authority or entity only establishes general conditions and / or specific binding and legally enforceable obligations that relate to the use of the land , without acquiring specific works or services , should not qualify as concessions . in the framework of these public domain and private land lease contracts , the following terms are to be considered as conditions and obligations that purely aim at regulating the use of the land : terms concerning entry into possession by the tenant , the use to which the public domain or resource is to be put , the obligations of the contracting parties regarding the maintenance of the public domain or resource , the duration of the contract and the giving up of possession by the tenant , the fee or rent and the incidental charges to be paid by the tenant .


### 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 .


### name and address of the oversight body and the body responsible for review and , where appropriate , mediation procedures . precise information concerning the deadline for review procedures , or if need be , the name , address , telephone number , fax number and email address of the service from which this information may be obtained . ### name and address of the body responsible for review and , where appropriate , mediation procedures . precise information concerning the deadline for review procedures , or if need be , the name , address , telephone number , fax number and email address of the service from which this information may be obtained .


### 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 .


### 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 ;


### the participating contracting authorities or entities shall do not perform on the open market more than 10% in terms of turnover of the activities which are relevant in the context of the agreement ; ### the participating contracting authorities or entities shall not perform on the open market more than 20 % in terms of turnover of the activities which are relevant in the context of the agreement ;


### 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 ; ### to service concessions provided that at least 80 % of the average total turnover of the affiliated undertaking with respect to services that are the subject of service concessions for the preceding three years derives from the provision of services to undertakings with which it is affiliated ;


### 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 .


### 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


### at least 90% of the activities of that legal person are carried out for the controlling contracting authority or entity or for other legal persons controlled by that contracting authority or entity ### at least 80 % of the activities of that legal person are carried out for the controlling contracting authority or entity or for other legal persons controlled by that contracting authority or entity


### however , the choice between awarding a single concession and awarding a number of separate concessions may not be made with the objective of excluding it from the scope of this directive . ### however , the choice between awarding a single concession and awarding a number of separate concessions shall not be made with the objective of excluding it from the scope of this directive .


### with regard to the criteria referred to in paragraph 1 , an economic operator may , where appropriate and for a particular concession , rely on the capacities of other entities , regardless of the legal nature of its links with them . it shall , in that case , prove to the contracting authority or the contracting entity that it will have at its disposal , throughout the period of the concession , the necessary resources , for example , by producing an undertaking by those entities to that effect . with regard to economic and financial standing , contracting authorities and contracting entities may require that the economic operator and those entities are jointly liable for the execution of the contract . ### with a view to meeting the conditions for participation laid down in paragraph 1 , an economic operator may , where appropriate and for a particular concession , rely on the capacities of other entities , regardless of the legal nature of its links with them . it shall , in that case , prove to the grantor that it will have at its disposal , throughout the period of the concession , the necessary resources , for example , by producing an undertaking by those entities to that effect . with regard to financial standing , the grantor may require that the economic operator and those entities are jointly liable for the execution of the contract .


### 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 the management of networks infrastructure related to the activities set out in annex iii or to services concessions for an activity set out in annex iii which , when this directive enters into force , are the subject of a nationally regulated tariff laid down in law or regulation where such concessions are awarded to an economic operator on the basis of an exclusive right that the latter 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 . by way of derogation from the first subparagraph , where sectoral legislation referred to in the first subparagraph does not provide for sector specific transparency obligations , the requirements of article 27 and shall apply


### 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 the concession documents , the contracting authority or contracting entity may ask or may be required by a member state to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors . ### in the concession documents , the grantor may ask or may be required by a member state to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors .


### 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 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 tenancy contracts whereby the state or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services . the general conditions contained in both tenancy and land lease contracts are rules concerning the transfer of the rented property to the tenant , the use thereof , the respective obligations of the landlord and the tenant with regard to the maintenance of the rented property , the duration of the lease and repossession by the landlord of the rented property , the rent and other costs borne by the tenant .


### the acquisition or rental , by whatever financial means , of land , existing buildings or other immovable property or concerning rights thereon ; however financial service concessions awarded at the same time as , before or after the contract of acquisition or rental , in whatever form , shall be subject to this directive ; ### the acquisition , rental or lease , by whatever financial means , of land , existing buildings or other immovable property or concerning rights thereon ;


### 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 .


### 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 ;


### 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 .


### 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 award the execution of works for which they are responsible 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 ;


### financial services in connection with the issue , sale , purchase or transfer of securities or other financial instruments within the meaning of directive 2004 / 39 / ec of the european parliament and of the council , central bank services and operations conducted with the european financial stability facility ; ### financial services in connection with the issue , sale , purchase or transfer of securities or other financial instruments within the meaning of directive 2004 / 39 / ec of the european parliament and of the council , central bank services and transactions conducted with the european financial stability facility as well as operations to raise money or capital for the contracting authority ;


### 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 .


### for the purposes of point of the first subparagraph , a tender shall be considered not to be suitable where : ### for the purposes of paragraph 5 , 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 .


### 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 , with or without private participation , and 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 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 .


### 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 . ### the value of the intended modification is not higher than 50% of the updated value of the concession . the value shall be updated in accordance with the provisions of article 2a .


### there is no private participation in the controlled legal person . ### there is no private participation in the controlled legal person , except where this is a mandatory statutory requirement in the relevant member states .


### 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 force may be modified by means of a supplementary agreement . 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 . nevertheless , where a contract has reached its term the grantor and the concessionaire shall refrain from extensions for purposes of investments not essential to the performance of the concession and which would be implemented solely with a view to extending the duration thereof .


### 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 .


### 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 .


### such an authority or entity exercises over the legal person concerned a control which is similar to that which it exercises over its own departments ### such an authority or entity exercises over the legal person concerned a control which is equivalent to that which it exercises over its own departments , i . e . it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person . with a view to determining whether such control is being exercised , account may also be taken of factors such as the level of representation on administrative , management or supervisory bodies , the relevant provisions of the articles of association or the ownership arrangements


### 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 .


### in order to ensure transparency and equal treatment , criteria for the award of concessions should always comply with some general standards . these should be disclosed in advance to all potential tenderers , be related to the subject matter of the contract and should not offer to the contracting authority or contracting entity an unrestricted freedom of choice . they should ensure the possibility of effective competition and be accompanied by requirements that allow the information provided by the tenderers to be effectively verified . in order to comply with these standards while improving legal certainty , member states may provide for the use of the criterion of the most economically advantageous tender . ### in order to ensure transparency and equal treatment , criteria for the award of concessions should always comply with some general standards . these should be disclosed in advance to all candidates or tenderers and be related to the subject matter of the contract . they should ensure the possibility of effective competition and be accompanied by minimum requirements that allow the information provided by the candidates or tenderers to be effectively verified by the grantor .


### a review of so - called prioritary and non - prioritary services by the commission has shown that it is not justified to restrict the full application of procurement law to a limited group of services . as a result , this directive should apply to a number of services , which both showed a potential for cross - border trade . ### in the context of the reform of public contract rules , a review of so - called priority and non - priority services by the commission has shown that it is not justified to restrict the full application of procurement law to a limited group of services . as a result , this directive should apply to a number of services , which both showed a potential for cross - border trade .


### 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 .


### 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 .


### 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 .


### 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 .


### 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 .


### 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 .


### 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 .


### 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 .


### 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 ;


### 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 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 , or approval requirements for the provision of social services , 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 tenancy contracts whereby the state or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services . the general conditions contained in both tenancy and land lease contracts are rules concerning the transfer of the rented property to the tenant , the use thereof , the respective obligations of the landlord and the tenant with regard to the maintenance of the rented property , the duration of the lease and repossession by the landlord of the rented property , the rent and other costs borne by the tenant , including penalties .


### 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 .


### 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 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 .


### at least 90% of the activities of that legal person are carried out for the controlling contracting authority or entity or for other legal persons controlled by that contracting authority or entity ### at least 90% of the average total turnover of that legal person is generated by means of activities carried out for the controlling contracting authority or entity or for other legal persons controlled by that contracting authority or entity


### 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 for the purposes of this directive 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 , even if they are termed ‘ concessions’ in some member states , certain state acts such as qualifications , authorisations , or licences whereby the state or a public authority establishes the conditions for the exercise of an economic activity or permits an economic operator to carry out works or exercise economic activities , including activities in the form of services , should not be considered concessions within the meaning of this directive . 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 .


### 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 .


### 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