### 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 .


### 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 .


### 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 90% of the average total turnover of that legal person is generated by means of activities for the controlling contracting authorities or entities as referred to in paragraph 1 subparagraph 1 of article 4 or other legal persons controlled by the same contracting authority or entity ;


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


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


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


### for concessions above a certain value , it is appropriate to provide for a minimum coordination of national procedures for the award of such contracts based on principles of the treaty so as to guarantee the opening - up of concessions to competition and adequate legal certainty . those coordinating provisions should not go beyond what is necessary in order to achieve the aforementioned objectives . however , member states should be allowed to complete and develop further those provisions if they find it appropriate notably to better ensure compliance with the principles above . ### for concessions equal to or above a certain value , it is appropriate to provide for a minimum coordination of national procedures for the award of such contracts based on principles of the treaty so as to guarantee the opening - up of concessions to competition and adequate legal certainty . those coordinating provisions should not go beyond what is necessary in order to achieve the aforementioned objectives . however , member states should be allowed to complete and develop further those provisions if they find it appropriate notably to better ensure compliance with the principles above .


### 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 .


### paragraph 1 also applies where a controlled entity which is a contracting authority or contracting entity as referred to in paragraph 1 subparagraph 1 of article 4 awards a concession to its controlling entity , or to another legal person controlled by the same contracting authority , provided that there is no private participation in the legal person being awarded the public concession . ### paragraph 1 also applies where a controlled entity which is a contracting authority or contracting entity as referred to in paragraph 1 subparagraph 1 of article 4 awards a concession to its controlling entity , or to another legal person controlled by the same contracting authority or contracting entity , provided that there is no private participation in the legal person being awarded the public concession .


### selection of and qualitative assessment of candidates ### selection and qualitative assessment of candidates and tenderers and grounds for exclusion


### estimated total value of concession ; where the concession is divided into lots , this information shall be provided for each lot , together with detailed method of calculation of the estimated total value of the concession , in accordance with art . 6 ### estimated total value of concession .


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


### 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 .


### 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 .


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


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


### 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 . ### 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 500 000 . 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 .


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


### 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 .


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


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


### 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 .


### 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 ;


### 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 .


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


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


### 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 .


### the need for modification has been brought about by circumstances which a diligent contracting authority or entity could not foresee ### the need for modification has been brought about by circumstances which a diligent grantor could not foresee ;


### 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 .


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


### 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 .


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


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


### 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 .


### 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 .


### 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 awarded by a contracting authority or by a contracting entity to an economic operator which is a contracting entity or an association thereof , on the basis of a special or exclusive right that economic operator enjoys pursuant to applicable and published national law , regulations or administrative provisions , and which has been granted in accordance with the treaty and union sectoral legislation concerning the management of network infrastructure related to the activities set out in annex iii . this directive shall not apply where the service under concession has already been made subject to sector - specific legislation .


### 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 .


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


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


### 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 .


### in order to adapt to rapid technical and economic developments , the power to adopt acts in accordance with article 290 of the treaty should be delegated to the commission in respect of a number of non - essential elements of this directive . in fact , the technical details and characteristics of the devices for electronic receipt should be kept up to date with technological developments and administrative needs ; it is also necessary to empower the commission to make mandatory technical standards for electronic communication to ensure the interoperability of technical formats , processes and messaging in concession award procedures conducted using electronic means of communication taking into account technological developments and administrative needs . furthermore , the list of legislative acts of the union establishing common methodologies for the calculation of life - cycle costs should be quickly adapted to incorporate the measures adopted on a sectoral basis . in order to satisfy these needs , the commission should be empowered to keep the list of legislative acts including lcc methodologies up - to date . ### in order to adapt to rapid technical and economic developments , the power to adopt acts in accordance with article 290 tfeu should be delegated to the commission so that cpv reference numbers , including those in annexes i and x , can be updated if this is necessitated by the changes in the cpv nomenclature . it is of particular importance that the commission carry out appropriate consultations during its preparatory work , including at expert level . the commission should , when preparing and drawing up delegated acts , ensure the simultaneous , timely and appropriate transmission of all relevant documents to the european parliament and to the council .


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


### the 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 . ### 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 grantor belonging to that member state has awarded the concession in question without complying with its obligations under the treaties and this directive .


### 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 .


### 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 .


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


### 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 .


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


### 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


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


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


### there is considerable legal uncertainty as to how far cooperation between public authorities should be covered by concession award rules . the relevant case - law of the court of justice of the european union is interpreted differently between member states and even between contracting authorities or certain contracting entities . it is therefore necessary to clarify in what cases concessions concluded between such authorities are not subject to the application of public concession award rules . such clarification should be guided by the principles set out in the relevant case - law of the court of justice . the sole fact that both parties to an agreement are themselves contracting authorities or contracting entities under art . 4 does not as such rule out the application of concession award rules . however , the application of concession award rules should not interfere with the freedom of public authorities to decide how to organise the way they carry out their public service tasks . concessions awarded to controlled entities or cooperation for the joint execution of the public service tasks of the participating contracting authorities or entities should therefore be exempted from the application of the rules if the conditions set out in this directive are fulfilled . this directive should aim to ensure that any exempted public - public cooperation does not cause a distortion of competition in relation to private economic operators . neither should the participation of a contracting authority as a tenderer in a procedure for the award of a public contract cause any distortion of competition . ### there is considerable legal uncertainty as to how far cooperation between public authorities should be covered by concession award rules . the relevant case - law of the court of justice of the european union is interpreted differently between member states . it is therefore necessary to clarify in what cases the award of concessions concluded between such public authorities is not subject to the rules laid down in this directive . such clarification should be guided by the principles set out in the relevant case - law of the court of justice . the sole fact that both parties to an agreement are themselves contracting authorities or contracting entities under art . 4 does not as such rule out the application of concession award rules . the application of concession award rules must not interfere with the right of public authorities to decide freely how to organise the way they carry out their public service tasks . the award of concessions to controlled entities should therefore be exempted from the application of the rules if the conditions set out in this directive are fulfilled . the participation of a contracting authority as a tenderer in a procedure for the award of a concession should not cause any distortion of competition .


### the replacement of the concessionaire shall be considered a substantial modification within the meaning of paragraph 1 . however , the first subparagraph shall not apply in the event of universal or partial succession into the position of the initial contractor , following corporate restructuring operations , insolvency or on the basis of a contractual clause of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the concession and is not aimed at circumventing the application of this directive . ### paragraph 2 shall not apply in the event of universal or partial succession into the position of the initial contractor , following corporate restructuring operations , transfer of assets between undertakings , takeover of a concessionaire after the latter’s insolvency or on the basis of a contractual clause of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the concession and is not aimed at circumventing the application of this directive .


### 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 .


### 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 awarded by a contracting authority or by a contracting entity to an economic operator which is a contracting entity or an association thereof , on the basis of a special or exclusive right that economic operator enjoys pursuant to applicable and published national law , regulations or administrative provisions , and which has been granted in accordance with the treaty and union sectoral legislation concerning the management of network infrastructure related to the activities set out in annex iii . this directive shall not apply where the service under concession has already been made subject to sector - specific legislation .


### member states shall require railway undertakings operating passenger services to put in place and coordinate contingency plans to provide assistance to passengers , in the sense of article 18 of regulation no 1371 / 2007 , in the event of a major disruption to services . ### member states shall set up , and coordinate with respect to major eu routes , national contingency plans to provide assistance to passengers in the event of a major disruption to services triggered by natural or man - made disasters . each railway undertaking operating passenger services and station manager shall put in place its own contingency plan in accordance with national contingency plans .


### where on the date of entry into force of this directive , the infrastructure manager belongs to a vertically integrated undertaking , member states may decide not to apply paragraphs 2 to 4 of this article . in such case , the member state concerned shall ensure that the infrastructure manager performs all the functions referred to in article 3 and has effective organisational and decision - making independence from any railway undertaking in accordance with the requirements set in articles 7a to 7c . ### where the infrastructure manager belongs to a vertically integrated undertaking , member states may decide not to apply paragraphs 2 to 4 of this article . in such cases , the member state concerned shall ensure that the infrastructure manager performs all the functions referred to in article 3 and has effective organisational and decision - making independence from any railway undertaking in accordance with the requirements set in articles 7a to 7c .


### in order to increase the attractiveness of railway services for passengers , member states should be in a position to require railway undertakings operating domestic passenger services to participate in a common information and integrated ticketing scheme for the supply of tickets , through - tickets and reservations . if such a scheme is established , it should be ensured that it does not create market distortion or discriminate between railway undertakings . ### in order to increase the attractiveness of railway services for passengers , railway undertakings operating domestic passenger services should cooperate with one another to set up a common information and integrated ticketing scheme for the supply of tickets , through - tickets and reservations . if such a scheme is established , it should be ensured that it does not create market distortion or discriminate between railway undertakings .


### without prejudice to regulation no 1371 / 2007 and directive 2010 / 40 / eu , member states may require railway undertakings operating domestic passenger services to participate in a common information and integrated ticketing scheme for the supply of tickets , through - tickets and reservations or decide to give the power to competent authorities to establish such a scheme . if such a scheme is established , member states shall ensure that it does not create market distortion or discriminate between railway undertakings and that it is managed by a public or private legal entity or an association of all railway undertakings operating passenger services . ### after a period of five years following entry into force of this directive , the commission shall report to the european parliament and the council on the potential ticketing fragmentation between services under public service obligations in each member state . on the basis of this assessment , and without prejudice to regulation no 1371 / 2007 and directive 2010 / 40 / eu , the commission may submit a legislative proposal allowing member states to require railway undertakings operating domestic passenger services under public service obligations to participate in in a common information and integrated ticketing scheme for the supply of tickets , through - tickets and reservations or decide to give the power to competent authorities to establish such a scheme . other railway undertakings shall have access to these schemes on a free basis and free of charge for the purpose of selling tickets for services under public service obligations as an add - on to their own services .


### member states shall ensure that infrastructure managers set up and organise coordination committees for each network . membership of this committee shall be open at least to the infrastructure manager , known applicants in the sense of article 8 and , upon their request , potential applicants , their representative organisations , representatives of users of the rail freight and passenger transport services and , where relevant , regional and local authorities . member state representatives and the regulatory body concerned shall be invited to the meetings of the coordination committee as observers . ### member states shall ensure that infrastructure managers set up and organise coordination committees for each network . membership of this committee shall be open at least to the infrastructure manager , known applicants in the sense of article 8 and , upon their request , potential applicants , their representative organisations , representatives of users of the rail freight and passenger transport services and , where relevant , regional and local authorities . member state representatives and the regulatory body concerned shall be invited to the meetings of the coordination committee as observers . alternatively , already existing committees fulfilling the main criteria shall be allowed .


### without prejudice to regulation no 1371 / 2007 and directive 2010 / 40 / eu , member states may require railway undertakings operating domestic passenger services to participate in a common information and integrated ticketing scheme for the supply of tickets , through - tickets and reservations or decide to give the power to competent authorities to establish such a scheme . if such a scheme is established , member states shall ensure that it does not create market distortion or discriminate between railway undertakings and that it is managed by a public or private legal entity or an association of all railway undertakings operating passenger services . ### without prejudice to regulation no 1371 / 2007 and directive 2010 / 40 / eu , member states shall require railway undertakings operating domestic passenger services to participate in a common information and integrated ticketing scheme for the supply of tickets , through - tickets and reservations or decide to give the power to competent authorities to establish such a scheme . if such a scheme is established , member states shall ensure that it does not create market distortion or discriminate between railway undertakings and that it is managed by a public or private legal entity or an association of all railway undertakings operating passenger services .


### without prejudice to regulation no 1371 / 2007 and directive 2010 / 40 / eu , member states may require railway undertakings operating domestic passenger services to participate in a common information and integrated ticketing scheme for the supply of tickets , through - tickets and reservations or decide to give the power to competent authorities to establish such a scheme . if such a scheme is established , member states shall ensure that it does not create market distortion or discriminate between railway undertakings and that it is managed by a public or private legal entity or an association of all railway undertakings operating passenger services . ### without prejudice to regulation no 1371 / 2007 and directive 2010 / 40 / eu , member states shall require railway undertakings operating domestic passenger services to participate in a common information and integrated ticketing scheme for the supply of tickets , through - tickets and reservations or decide to give the power to competent authorities to establish such a scheme . when such a scheme is established , member states shall ensure that it does not create market distortion or discriminate between railway undertakings and that it is managed by a public or private legal entity or an association of all railway undertakings operating passenger services . a group of representatives of local and regional authorities shall be fully involved in decision - taking within that legal entity or association .


### in order to ensure equal access to the infrastructure , any conflicts of interest resulting from integrated structures encompassing infrastructure management and transport activities should be removed . removing incentives to discriminate against competitors is the only way to guarantee equal access to the railway infrastructure . it is a requirement for the successful opening of the market for domestic passenger transport services by rail . this should also remove the potential for cross - subsidisation , which exists in such integrated structures , and which also leads to market distortions . ### in order to ensure equal access to the infrastructure , integrated structures should be shaped in such a way that no conflicts of interest emerge between infrastructure management and transport activities . removing potential incentives to discriminate against competitors is the only way to guarantee equal access to the railway infrastructure . it is a requirement for the successful opening of the market for domestic passenger transport services by rail . this should also remove the potential for cross - subsidisation , which exists in such integrated structures , and which also leads to market distortions .


### member states should therefore be required to ensure that the same legal or natural person or persons are not entitled to exercise control over an infrastructure manager and , at the same time , exercise control or any right over a railway undertaking . conversely , control over a railway undertaking should preclude the possibility of exercising control or any right over an infrastructure manager . ### this directive aims to establish free and fair competition between all railway undertakings , and therefore precludes a railway undertaking from retaining a vertically integrated model as defined in article 3 .


### points 5 to 8 of article 1 shall apply from 1 january 2018 [ in time for the working timetable starting on 14 december 2019 ] . ### points 5 to 8 of article 1 shall apply from 1 january 2017 [ in time for the working timetable starting on 14 december 2018 ] . the provisions of this directive shall not require a member state to grant , before that date , the right of access referred to in article 10 of this directive to railway undertakings and their directly or indirectly controlled subsidiaries , licensed in a member state where access rights of a similar nature are not granted . for the purposes of this paragraph , control shall be constituted by rights , contracts or any other means which , either separately or in combination and having regard to the considerations of fact or law involved , confer the possibility of exercising decisive influence on an undertaking , in particular by : ownership or the right to use all or part of the assets of an undertaking ; rights or contracts which confer decisive influence on the composition , voting or decisions of the organs of an undertaking .


### member states may limit the right of access provided for in article 10 to passenger services between a given place of departure and a given destination when one or more public service contracts cover the same route or an alternative route if the exercise of this right would compromise the economic equilibrium of the public service contract or contracts in question . ### member states may limit the right of access provided for in article 10 to passenger services between a given place of departure and a given destination when one or more public service contracts cover the same route or an alternative route if the exercise of this right would compromise the economic equilibrium of the public service contract or contracts in question . competent authorities and infrastructure managers shall give advance notice to all interested parties of capacity requests pursuant to regulation 1370 / 2007 that may conflict with the rights of access pursuant to article 10 of this directive . all passenger services that are not part of a public service contract shall be referred to as open access services . if a competent authority creates a new public service contract , or extends the scope of an existing one , in the sense of using more infrastructure capacity than was previously used , the undertakings that provide existing open access services which may be affected by that decision shall not be subject to any limitations in access rights . these undertakings shall receive advance notice of the decision and , if justified , financial compensation based on a decision of the regulatory body , based on a procedure analogous to the one defined in this article for determining a prejudice to economic equilibrium .


### by 31 december 2024 , the commission shall evaluate the impact of this directive on the rail sector and shall submit to the european parliament , the council , the european economic and social committee and the committee of the regions a report on its implementation . ### by 31 december 2024 , the commission shall evaluate the impact of this directive on the rail sector and shall submit to the european parliament , the council , the european economic and social committee and the committee of the regions a report on its implementation . that evaluation shall take into account the views expressed by the european regulatory body on whether discriminatory practices or other types of distortion of competition persist .


### member states shall also ensure the same legal or natural person or persons are not allowed : ### member states shall also ensure the same legal or natural person or persons are not allowed , directly or indirectly :


### without prejudice to regulation no 1371 / 2007 and directive 2010 / 40 / eu , member states may require railway undertakings operating domestic passenger services to participate in a common information and integrated ticketing scheme for the supply of tickets , through - tickets and reservations or decide to give the power to competent authorities to establish such a scheme . if such a scheme is established , member states shall ensure that it does not create market distortion or discriminate between railway undertakings and that it is managed by a public or private legal entity or an association of all railway undertakings operating passenger services . ### without prejudice to regulation no 1371 / 2007 and directive 2010 / 40 / eu , railway undertakings operating domestic passenger services shall work together with a view to participating in a common information and integrated ticketing scheme for the supply of tickets , through - tickets and reservations . member states may decide to give the power to competent authorities to establish such a scheme . if such a scheme is established , member states shall ensure that it does not create market distortion or discriminate between railway undertakings and that it is managed by a public or private legal entity or an association of all railway undertakings operating the passenger services concerned .


### points 5 to 8 of article 1 shall apply from 1 january 2018 [ in time for the working timetable starting on 14 december 2019 ] . ### points 5 to 8 of article 1 shall apply from 1 january 2017 [ in time for the working timetable starting on 14 december 2018 ] .


### member states shall require railway undertakings operating passenger services to put in place and coordinate contingency plans to provide assistance to passengers , in the sense of article 18 of regulation no 1371 / 2007 , in the event of a major disruption to services . ### member states shall set up and coordinate with respect to major eu routes , national contingency plans to provide assistance to passengers in the event of a major disruption to services .


### in order to ensure equal access to the infrastructure , any conflicts of interest resulting from integrated structures encompassing infrastructure management and transport activities should be removed . removing incentives to discriminate against competitors is the only way to guarantee equal access to the railway infrastructure . it is a requirement for the successful opening of the market for domestic passenger transport services by rail . this should also remove the potential for cross - subsidisation , which exists in such integrated structures , and which also leads to market distortions . ### in order to secure equal access to the infrastructure , a key role is played by the national regulatory body which is independent in its organisation , funding decisions , legal structure and decision - making from any infrastructure manager , charging body , allocation body and notified body . it must therefore be given corresponding powers . only in this way can fair competition be guaranteed . independent regulation is a requirement for the successful opening of the market for domestic passenger transport services by rail . furthermore the potential should be removed for cross - subsidisation , which exists in such integrated structures , and which leads to market distortions .


### the coordination committee shall have the power to request relevant information from the infrastructure manager on points to in order to be able to carry out these tasks . ### without prejudice to commercial confidentiality , the coordination committee shall have the power to request relevant information from any of its members on points to in order to be able to carry out these tasks .


### member states shall ensure that infrastructure managers set up and organise coordination committees for each network . membership of this committee shall be open at least to the infrastructure manager , known applicants in the sense of article 8 and , upon their request , potential applicants , their representative organisations , representatives of users of the rail freight and passenger transport services and , where relevant , regional and local authorities . member state representatives and the regulatory body concerned shall be invited to the meetings of the coordination committee as observers . ### member states shall ensure that infrastructure managers set up and organise coordination committees for each network . membership of this committee shall be open at least to the infrastructure manager , known applicants in the sense of article 8 and , upon their request , potential applicants , their representative organisations , representatives of users of the rail freight and passenger transport services , rail worker representatives and the relevant regional and local authorities . member state representatives and the regulatory body concerned shall be invited to the meetings of the coordination committee as observers .


### the coordination committee shall draw up rules of procedure that include , in particular , rules on participation in and frequency of meetings which shall be at least quarterly . a report of the coordination committee ' s discussions shall be submitted annually to the infrastructure manager , the member state , the regulatory body concerned and the commission with an indication of the respective positions taken by the committee members . ### the coordination committee shall draw up rules of procedure that include , in particular , rules on participation in and frequency of meetings which shall be at least quarterly . a report of the coordination committee ' s discussions shall be submitted annually to the infrastructure manager , the member state and the regulatory body concerned with an indication of the respective positions taken by the committee members .


### creating a legal framework to facilitate the digitisation and dissemination of works for which no author is identified or , even if identified , is not located , so called orphan works , is a key action of the digital agenda for europe , as set out in the communication from the commission to the european parliament , the council , the european economic and social committee and the committee of regions – a digital agenda for europe . ### creating a legal framework to facilitate the digitisation and dissemination of works subject to copyright protection for which no rightholder is identified or , even if identified , is not located , so called orphan works , is a key action of the digital agenda for europe , as set out in the communication from the commission to the european parliament , the council , the european economic and social committee and the committee of regions – a digital agenda for europe .