### 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 .


### to ensure a real opening up of the market and a fair balance in the application of concession award rules in the water , energy , transport and postal services sectors it is necessary for the entities covered to be identified on a basis other than their legal status . it should be ensured , therefore , that the equal treatment of contracting entities operating in the public sector and those operating in the private sector is not prejudiced . it is also necessary to ensure , in keeping with article 345 of the treaty , that the rules governing the system of property ownership in member states are not prejudiced . ### entities covered by this directive should be identified on a basis other than their legal status . it should be ensured , therefore , that the equal treatment of contracting entities operating in the public sector and those operating in the private sector is not prejudiced . it is also necessary to ensure , in keeping with article 345 of the treaty , that the rules governing the system of property ownership in member states are not prejudiced .


### to service concessions provided that at least 80 % of the average total turnover of the affiliated undertaking with respect to services in general for the preceding three years derives from the provision of services to undertakings with which it is affiliated ; ### to service concessions provided that at least 80&#160 ; % of the activities of the affiliated undertaking which are subject of the service concession contract derives from the provision of services to undertakings with which it is affiliated ;


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


### concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists , normally , in the right to exploit the works or services that are the subject of the contract . the execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable . by contrast , certain state acts such as authorisations or licences whereby the state or a public authority establishes the conditions for the exercise of an economic activity , should not qualify as concessions . the same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources , such as land lease contracts whereby the state or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services . ### concessions are contracts for pecuniary interest concluded between one or more economic operators and one or more contracting authorities or entities and having as their object the acquisition of works or services where the consideration consists , normally , in the right to exploit the works or services that are the subject of the contract . the execution of these works or services are subject to specific binding obligations defined by the contracting authority or entity which are legally enforceable . by contrast , certain state acts such as authorisations or licences , or approval requirements for the provision of social services , whereby the state or a public authority establishes the conditions for the exercise of an economic activity , should not qualify as concessions . the same applies to certain agreements having as their object the right of an economic operator to exploit certain public domains or resources , such as tenancy contracts whereby the state or contracting authority or entity establishes only general conditions for their use without acquiring specific works or services . the general conditions contained in both tenancy and land lease contracts are rules concerning the transfer of the rented property to the tenant , the use thereof , the respective obligations of the landlord and the tenant with regard to the maintenance of the rented property , the duration of the lease and repossession by the landlord of the rented property , the rent and other costs borne by the tenant , including penalties .


### 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


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


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


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


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


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


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


### this directive establishes rules on the procedures for procurement by contracting authorities and by contracting entities with respect to concessions whose value is estimated to be not less than the thresholds laid down in article 5 . 2 . this directive applies to the acquisition of works or services , including supplies which are incidental to the subject matter of a concession , from economic operators chosen by either of the following : contracting authorities whether or not the works or services including the related supplies , are intended for a public purpose ; b ) contracting entities provided that the works or services including the related supplies , are intended for the pursuit of one of the activities referred to in annex iii . ### this directive establishes rules on the procedures for procurement by contracting authorities and by contracting entities with respect to concessions whose value is estimated to be not less than the thresholds laid down in article 5 , by one of the following actors : contracting authorities ; b ) contracting entities provided that the works or services are intended for the pursuit of one of the activities referred to in annex iii .


### relations between public authorities ### cooperation between contracting authorities


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


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


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


### 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 recoupment of the investments 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 . ### 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 contracting authority or entity relieved the contractor of any potential loss . however certain arrangements which are fully paid by a contracting authority or a contracting entity should qualify as concessions where the recoupment 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 .


### 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 award 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 , permits or licences , whereby the state or a public authority establishes the conditions for the exercise of an economic activity , should not be regarded as concessions . the same applies to certain agreements having as their object the entitlement to offer social services or the right to conclude agreements by means of which the state or the contracting authority or entity grants an economic operator the right to exploit certain public domains or resources , such as in rental or lease contracts on single pieces of land , particularly in the area of maritime or inland port sector , or in rights of way , and which as a rule establishes only general conditions for their use without turning the public authority into a recipient of specific works or services provided by the contracting partner .


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


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


### 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 falling within the scope of this directive shall be subject only to the obligation of paragraph 1 of article 27 .


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


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


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


### 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 .


### 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


### 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 tenderers , be linked to the subject matter of the contract and not offer to the contracting authority or contracting entity an unrestricted freedom of choice . they should be accompanied by minimum requirements that allow the information provided by the tenderers to be effectively verified .


### 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 .


### 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 ;


### contracting entities shall notify to the commission or the national oversight body , at their request , the following information regarding the application of paragraphs 2 and 3 of article 11 and of article 12 . ### contracting entities shall notify to the commission or the competent national authorities , at their request , the following information regarding the application of paragraphs 2 and 3 of article 11 and of article 12 .


### 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 ;


### 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 .


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


### 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 above a certain threshold . consequently , the method of calculating the estimated value of a concession needs to be defined , and should be identical for works and service concessions , as most contracts are mixed .


### 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 .


### 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 .


### 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 . ### this directive is based on the relevant case - law of the court of justice of the european union it clarifies in line with this case - law under which conditions the award of concessions concluded between public authorities is not subject to the scope of 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 . however , the application of concession award rules must not interfere with the right of public authorities to decide how to organise the way they carry out their public service tasks . the award of concessions 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 this directive if the conditions are fulfilled .


### 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 .


### ‘ execution of works’ means the execution , or both the design and execution , of works related to one of the activities referred to in annex i or of a work , or the realisation , by whatever means , of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work . ### ‘ execution of works’ means the execution , or both the design and execution , of works related to one of the activities referred to in annex i or of a work , or the realisation , by whatever means , of a work corresponding to the requirements specified by the grantor exercising a decisive influence on the type or design of the work .


### 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 , member states will have to require railway undertakings operating passenger services to participate in a common information and through ticketing scheme for the supply of tickets , through - tickets and reservations . when such a scheme is established , there will be a need to ensure that it is interoperable and can be integrated into other national or european schemes , and that it does not create market distortion or discriminate between railway undertakings .


### directive 2012 / 34 / eu of the european parliament and of the council of 21 november 2012 establishing a single european railway area establishes a single european railway area with common rules on the governance of railway undertakings and infrastructure managers , on infrastructure financing and charging , on conditions of access to railway infrastructure and services and on regulatory oversight of the rail market . with all these elements in place , it is now possible to complete the opening of the union railway market and reform the governance of infrastructure managers with the objective of ensuring equal access to the infrastructure . ### directive 2012 / 34 / eu of the european parliament and of the council of 21 november 2012 establishing a single european railway area establishes a single european railway area with common rules on the governance of railway undertakings and infrastructure managers , on infrastructure financing and charging , on conditions of access to railway infrastructure and services and on regulatory oversight of the rail market . with all these elements in place , it is now possible to complete the opening of the union railway market and reform the governance of infrastructure managers with the objective of ensuring equal access to the infrastructure in order to improve the quality of rail services europe - wide while safeguarding social standards and employment conditions .


### over the past decade , the growth of passenger traffic by rail has been insufficient to increase its modal share in comparison to cars and aviation . the 6&#160 ; % modal share of passenger transport for rail in the european union has remained fairly stable . rail passenger services have not kept pace with evolving needs in terms of offer or quality . ### over the past decade , the european motorway network has grown by 27&#160 ; % , but the railway network in use has shrunk by 2&#160 ; % . furthermore , the growth of passenger traffic by rail has been insufficient to increase its modal share in comparison to cars and aviation . the 6&#160 ; % modal share of passenger transport for rail in the european union has remained fairly stable and rail passenger services have not kept pace with evolving needs in terms of offer or quality .


### 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 , and where relevant to the charging and capacity allocation bodies under article 7 , known applicants in the sense of article 8 and , upon their request , potential applicants , their representative organisations , representatives of users of rail freight and passenger transport services and of railway sector workers and regional and local authorities . member state representatives and the regulatory body concerned shall be invited to the meetings of the coordination committee as observers .


### 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 , member states should require railway undertakings operating domestic and international passenger services to participate in a common information and through ticketing scheme for the supply of tickets , through - tickets and reservations . such a scheme should not create market distortion or discriminate between railway undertakings .


### 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 , member states should 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 including all social requirements . the ticket - service should not create barriers for people with disabilities , elderly people , families or people which need special support .


### 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 .


### 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 and , where appropriate , to the charging body and allocation body referred to in article 7 , paragraph 2 , 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 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 require railway undertakings operating passenger services to put in place and coordinate , on a commercial basis and under the supervision of the regulatory body , 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 .


### granting union railway undertakings the right of access to railway infrastructure in all member states for the purpose of operating domestic passenger services may have implications for the organisation and financing of rail passenger services provided under a public service contract . member states should have the option of limiting such right of access where it would compromise the economic equilibrium of those public service contracts and where approval has been given by the relevant regulatory body . ### granting union railway undertakings the right of access to railway infrastructure in all member states for the purpose of operating domestic passenger services may have implications for the organisation and financing of rail passenger services provided under a public service contract . member states should have the option of limiting such right of access where it would compromise the economic equilibrium of those public service contracts or the quality of the service that they provide and where approval has been given by the relevant regulatory body .


### the network shall participate in the market monitoring activities referred to in article 15 and benchmark the efficiency of infrastructure managers on the basis of common indicators and quality criteria , such as the reliability , capacity , availability , punctuality and safety of their networks , asset quality and utilisation , maintenance , renewals , enhancements , investments and financial efficiency . ### the network shall participate in the market monitoring activities referred to in article 15 and benchmark the efficiency and effectiveness of infrastructure managers on the basis of common indicators and quality criteria , such as the reliability , capacity , availability , punctuality and safety of their networks , asset quality and utilisation , maintenance , renewals , enhancements , investments and financial efficiency .


### 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 may require railway undertakings operating domestic passenger services to participate in a common information and integrated ticketing scheme for the supply of network , timetable and train traffic information , 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 its costs are shared equitably amongst all benefiting railway undertakings , based on their respective contributions to and benefits from the scheme , that it does not create market distortion or discriminate between railway undertakings and that it is managed by an independent public or private legal entity , by one of the concerned railway undertakings or by an association of all railway undertakings operating passenger services .


### granting union railway undertakings the right of access to railway infrastructure in all member states for the purpose of operating domestic passenger services may have implications for the organisation and financing of rail passenger services provided under a public service contract . member states should have the option of limiting such right of access where it would compromise the economic equilibrium of those public service contracts and where approval has been given by the relevant regulatory body . ### granting union railway undertakings the right of access to railway infrastructure in all member states for the purpose of operating domestic passenger services may have implications for the organisation and financing of rail passenger services provided under a public service contract . member states should have the option of limiting such right of access where it would compromise the economic equilibrium or service quality of those public service contracts and where approval has been given by the relevant regulatory body .


### 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 .


### for the purposes of establishing whether a work is an orphan work , the organisations referred to in article 1 shall ensure that a diligent search is carried out for each work , by consulting the appropriate sources for the category of works in question . ### for the purposes of establishing whether a work is an orphan work , the organisations referred to in article 1 shall ensure that a diligent search is carried out in good faith , by consulting the appropriate sources for the category of works in question .


### it is appropriate to provide that authors are entitled to put an end to the orphan status in case they come forward to claim their works . ### where rightholders come forward to claim their works , it is appropriate for them to have the possibility to put an end to the orphan status of those works in respect of themselves .


### the exclusive rights for authors of reproduction and of making available to the public of their works , as harmonised under directive 2001 / 29 / ec of the european parliament and council of 22 may 2001 on the harmonisation of certain aspects of copyright and related rights in the information society , require the consent of the author prior to the digitisation and making available of a work . ### the exclusive rights for rightholders of reproduction and of making available to the public of their works , as harmonised under directive 2001 / 29 / ec of the european parliament and council of 22 may 2001 on the harmonisation of certain aspects of copyright and related rights in the information society , require the consent of the rightholder prior to the digitisation and making available of a work .


### in order to promote learning and culture , member states should permit libraries , educational establishments and museums which are publicly accessible , as well as archives , film heritage institutions and public service broadcasting organisations , to make available and reproduce orphan works , provided such use fulfils their public interest missions , notably preservation , restoration and the provision of cultural and educational access to works contained in their collections . film heritage institutions should , for the purposes of this directive , cover organisations designated by member states to collect , catalogue , preserve and restore films forming part of their cultural heritage . ### in order to promote learning and culture , member states should permit libraries , educational establishments and museums which are publicly accessible , as well as archives , film heritage institutions and broadcasting organisations , to make available and reproduce , within the meaning of directive 2001 / 29 / ec , orphan works , provided such use fulfils their public interest missions and guarantees cultural and educational access to them . film heritage institutions should , for the purposes of this directive , cover organisations designated by member states to collect , catalogue , preserve and restore films forming part of their cultural heritage .


### the commission shall keep under constant review the development of rights information sources and shall , at the latest one year after the entry into force of this directive , and at annual intervals thereafter , submit a report concerning the possible inclusion in the scope of application of this directive of works or other protected subject matter not currently included in such scope , and in particular phonograms and stand alone photographs and other images . ### the commission shall keep under constant review the development of rights information sources and shall , at the latest one year after the entry into force of this directive , and at annual intervals thereafter , submit a report concerning the possible inclusion in the scope of application of this directive of works or other protected subject matter not currently included in such scope , and in particular stand alone photographs and other images .


### for reasons of international comity , this directive should only apply to works that are first published or broadcast in a member state . ### for reasons of international comity , this directive should only apply to works that are first published , exhibited , or broadcast in the territory of a member state .


### for the purposes of this directive , cinematographic , audio and audiovisual works in the archives of public service broadcasting organisations should be understood as including works commissioned by such organisations for their exclusive exploitation . ### for the purposes of this directive , sound recordings and cinematographic and audiovisual works in the archives of broadcasting organisations should be understood as including works commissioned by such organisations for their exploitation .


### 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 protected by copyright and neighbouring rights 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 .


### the exclusive rights for authors of reproduction and of making available to the public of their works , as harmonised under directive 2001 / 29 / ec of the european parliament and council of 22 may 2001 on the harmonisation of certain aspects of copyright and related rights in the information society , require the consent of the author prior to the digitisation and making available of a work . ### the exclusive rights for rightholders of reproduction and of making available to the public of their works , as harmonised under directive 2001 / 29 / ec of the european parliament and council of 22 may 2001 on the harmonisation of certain aspects of copyright and related rights in the information society , require the consent of the author prior to the digitisation and making available of a work .


### for reasons of international comity , this directive should only apply to works that are first published or broadcast in a member state . ### for reasons of international comity , this directive should only apply to works that are first published or broadcast in the territory of a member state .


### it is appropriate to provide that authors are entitled to put an end to the orphan status in case they come forward to claim their works . ### where rightholders come forward to claim their works , it is appropriate for them to have the possibility to put an end to the orphan status of those works .


### a work shall be considered an orphan work if the rightholder in the work is not identified or , even if identified , is not located after a diligent search for the rightholder has been carried out and recorded in accordance with article 3 . ### a work protected by copyright shall be considered an orphan work if one or more copyright or related rights holders are not identified or , even if identified , is not located after a diligent search for the rightholder has been carried out and recorded in accordance with article 3 .


### a diligent search is required to be carried out only in the member state of first publication or broadcast . ### a diligent search is required to be carried out only in the member state in whose territory the work was first published or broadcast . it shall be carried out in good faith and in a reasonable scope prior to the use of the work .


### cinematographic or audiovisual works contained in the collections of film heritage institutions , or ### sound recordings or cinematographic or audiovisual works that were first published , exhibited or broadcast in the territory of a member state at least five years earlier , or


### member states shall ensure that a rightholder in a work considered to be orphan has , at any time , the possibility of putting an end to the orphan status . ### where a work considered to be orphan has only one rightholder , member states shall ensure that that rightholder has , at any time , the possibility of putting an end to the orphan status .


### for the purposes of this directive , cinematographic , audio and audiovisual works in the archives of public service broadcasting organisations should be understood as including works commissioned by such organisations for their exclusive exploitation . ### for the purposes of this directive , cinematographic , audio and audiovisual works in the archives of broadcasting organisations should be understood as including works commissioned by such organisations for their exclusive exploitation .


### this directive applies to works first published or broadcast in a member state and which are : ### this directive applies to works protected by copyright , which are contained in the collections of organisations referred to in article 1 and which are :


### works published in the form of books , journals , newspapers , magazines or other writings , and which are contained in the collections of publicly accessible libraries , educational establishments , museums or archives , or ### works in the form of books , journals , newspapers , magazines or other writings and printed materials , or


### under this regulation , the union will provide assistance to address global , regional , national and local human rights and democratisation issues in partnership with civil society understood to span all types of social action by individuals or groups that are independent from the state and active in the field of human rights and democracy support . ### under this regulation , the union will provide assistance to address global , regional , national and local human rights and democratisation issues in partnership with civil society ; it ranges from human rights defenders as defined by the un declaration on human rights defenders , to individuals or groups that are independent from the state and that are at risk due to the lack of freedom of expression and of association in their countries and that are active in the field of human rights and democracy support .


### supporting and consolidating democratic reforms in third countries , by enhancing participatory and representative democracy , strengthening the overall democratic cycle , and improving the reliability of electoral processes , in particular by means of election observation missions . ### supporting and consolidating democratic reforms in third countries , by enhancing the good governance as well as participatory and representative democracy , strengthening the overall democratic cycle , and improving the reliability of electoral processes , in particular by means of election observation missions .


### the fight against racism and xenophobia and discrimination based on any ground , including sex , race , colour , ethnic or social origin , genetic features , language , religion or belief , political or any other opinion , membership of a national minority , property , birth , disability , age or sexual orientation ; ### the fight against racism and xenophobia and discrimination based on any ground , including sex , race , colour , ethnic or social origin , genetic features , language , religion or belief , political or any other opinion , membership of a national minority , property , birth , disability , age or sexual orientation or gender identity ;


### the fight against racism and xenophobia and discrimination based on any ground , including sex , race , colour , ethnic or social origin , genetic features , language , religion or belief , political or any other opinion , membership of a national minority , property , birth , disability , age or sexual orientation ; ### the fight against racism and xenophobia and discrimination based on any ground , including sex , race , colour , ethnic or social origin , genetic features , language , religion or belief , political or any other opinion , membership of a national minority , property , birth , disability , age , sexual orientation or gender identity ;


### furthermore , whilst democracy and human rights objectives must be increasingly mainstreamed in all external assistance financing instruments , union assistance under this regulation will have a specific complementary and additional role by virtue of its global nature and its independence of action from the consent of third country governments and other public authorities . this will allow for cooperation with civil society on sensitive human rights and democracy issues possible , providing the flexibility to respond to changing circumstances . it should also provide union capacity to articulate and support specific objectives and measures at international level which are neither geographically linked nor crisis related and which may require a transnational approach or involve operations both within the union and in a range of third countries . moreover , it will provide the necessary framework for operations , such as support for independent european union election observation missions requiring policy coherence , a unified management system and common operating standards . ### furthermore , whilst democracy and human rights objectives must be increasingly mainstreamed in all external assistance financing instruments , union assistance under this regulation will have a specific complementary and additional role by virtue of its global nature and its independence of action from the consent of third country governments and other public authorities . this will allow for cooperation and partnership with civil society on sensitive human rights and democracy issues possible , providing the flexibility to respond to changing circumstances . if other instruments do not apply , it may also provide union capacity to articulate and support specific objectives and measures at international level which are neither geographically linked nor crisis related and which may require a transnational approach or involve operations both within the union and in a range of third countries . moreover , it will provide the necessary framework for operations , such as support for independent european union election observation missions requiring policy coherence , a unified management system and common operating standards .


### articles 78 to 84 , 89 and 90 of regulation no 1907 / 2006 shall apply mutatis mutandis taking into account the role of the agency with respect to this regulation . ### in article 74 , the second paragraph is replaced by the following : articles 77 , 78 to 84 , 86 , 89 and 90 of regulation no 1907 / 2006 shall apply mutatis mutandis , taking into account the role of the agency with respect to this regulation .


### revenue of the agency referred to in article 96 of regulation no 1907 / 2006 shall not be used for carrying out tasks under this regulation . revenue of the agency referred to in paragraph 1 of this article shall not be used for carrying out tasks under regulation no 1907 / 2006 . ### in article 78 , the second subparagraph shall be replaced by the following : ' revenue of the agency referred to in article 96 of regulation no 1907 / 2006 shall not be used for carrying out tasks under this regulation , unless it is for a joint purpose . revenue of the agency referred to in paragraph 1 of this article shall not be used for carrying out tasks under regulation no 1907 / 2006 , unless it is for a joint purpose . '


### promoting sustainable transport and removing bottlenecks in key network infrastructures : ### promoting efficient co - modality aiming at sustainable , safe and eco - efficient transport and mobility , while focusing on improving existing infrastructure , bridging missing - links in cross - border connections and removing bottlenecks in key network infrastructures , including connections to regional , local , rural and urban areas ;


### supporting a multimodal single european transport area by investing in the trans - european transport network network ; ### supporting a sustainable , safe and efficient co - modal single european transport area by investing in the trans - european transport network while focusing on the integration of the member states which acceded to the european union on or after 1 may 2004 and their infrastructure needs based on solidarity and territorial cohesion , while focusing on the eco - efficiency of modernising existing infrastructure in the short term and avoiding the reliance on the long term realisation of very large projects ;


### investments in infrastructure providing basic services to citizens in the areas of energy , environment , transport , and information and communication technologies ; ### investments in infrastructure providing basic services to citizens in the areas of energy , environment , sustainable tourism and transport , and information and communication technologies ;


### supporting a multimodal single european transport area by investing in the trans - european transport network network ; ### supporting a multimodal single european transport area within the trans - european transport network network ;


### developing new business models for smes , in particular for internationalisation ; ### developing new business models for smes , including for the development of eco - businesses , for accessing local markets and internationalisation ;


### investing in health and social infrastructure which contribute to national , regional and local development , reducing inequalities in terms of health status , and transition from institutional to community - based services ; ### investing in health and social infrastructure which contribute to national , regional and local development , reducing inequalities in terms of health status , and transition from institutional to community - based services , in particular for vulnerable groups including those in situations of homelessness and housing exclusion ;


### investing in education , skills and lifelong learning by developing education and training infrastructure ; ### investing in affordable quality childcare , education , skills and lifelong learning by developing education , training and cultural infrastructure , including initial and continuous and dual training ;


### promoting low - carbon strategies for urban areas ; ### promoting climate compatible and energy - saving strategies for mountain areas ;


### protecting the environment and promoting resource efficiency : ### protecting the environment , biodiversity and ecosystems , and promoting resource efficiency :


### promoting sustainable transport and removing bottlenecks in key network infrastructures : supporting a multimodal single european transport area by investing in the trans - european transport network network ; enhancing regional mobility through connecting secondary and tertiary nodes to ten - t infrastructure ; developing environment - friendly and low - carbon transport systems and promoting sustainable urban mobility ; developing comprehensive , high quality and interoperable railway system ; ### promoting sustainable transport and removing bottlenecks in key network infrastructures through : supporting a multimodal single european transport area by investing in the trans - european transport network network ; enhancing regional mobility through connecting secondary and tertiary nodes to ten - t infrastructure , including multimodal nodes ; developing and improving environment - friendly , and low - carbon transport systems including inland waterways and maritime transport , ports , multimodal links and airport infrastructure , in order to promote sustainable regional and local mobility ; developing and rehabilitating comprehensive , high quality and interoperable railway system , and promoting noise - reduction measures ; improving energy efficiency and security of supply through the development of smart energy distribution , storage and transmission systems and through the integration of distributed generation from renewable sources ;


### at least 20% of the total erdf resources at national level shall be allocated to the thematic objective set out in point 4 of article 9 of regulation no [ … ] / 2012 [ cpr ] ; ### at least 22% of the total erdf resources at national level shall be allocated to the thematic objective set out in point 4 of article 9 of regulation no [ … ] / 2012 [ cpr ] ;


### supporting dedicated investment for adaptation to climate change ; ### supporting dedicated investment for eco - system based adaptation to climate change ;


### promoting sustainable transport and removing bottlenecks in key network infrastructures : ### promoting intermodal , sustainable transport and mobility , while focusing on improving existing infrastructure , removing rail bottlenecks in key network infrastructures and filling in missing trans - border links