### public procurement plays a key role in the europe 2020 strategy as one of the market - based instruments to be used to achieve a smart , sustainable and inclusive growth while ensuring the most efficient use of public funds . for that purpose , the current public procurement rules adopted pursuant to directive 2004 / 17 / ec of the european parliament and of the council of 31 march 2004 coordinating the procurement procedures of entities operating in the water , energy , transport and postal services sectors and directive 2004 / 18 / ec of the european parliament and of the council of 31 march 2004 on the coordination of procedures for the award of public works contracts , public supply contracts and public service contracts have to be revised and modernised in order to increase the efficiency of public spending , facilitating in particular the participation of small and medium - sized enterprises in public procurement and to enable procurers to make better use of public procurement in support of common societal goals . there is also a need to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well - established case - law of the court of justice of the european union . ### public procurement plays a key role in the europe 2020 strategy as one of the market - based instruments to be used to achieve a smart , sustainable and inclusive growth while ensuring the most efficient use of public funds . for that purpose , the current public procurement rules adopted pursuant to directive 2004 / 17 / ec of the european parliament and of the council of 31 march 2004 coordinating the procurement procedures of entities operating in the water , energy , transport and postal services sectors and directive 2004 / 18 / ec of the european parliament and of the council of 31 march 2004 on the coordination of procedures for the award of public works contracts , public supply contracts and public service contracts have to be revised and modernised in order to enable procurer to make better use of public procurement in support of sustainable development , innovation , social inclusion and other common societal goals , thereby increasing the efficiency of public spending , ensuring best value for money , facilitating in particular the participation of small and medium - sized enterprises in public procurement and to enable procurers to make better use of public procurement in support of common societal goals . there is also a need to simplify the directives and to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well - established case - law of the court of justice of the european union . this directive provides legislation on how to buy . contracting authorities may set demands that are stricter or go further than current eu - legislation in order to reach the common objectives .


### furthermore , in technical specifications and in award criteria , contracting authorities should be allowed to refer to a specific production process , a specific mode of provision of services , or a specific process for any other stage of the life cycle of a product or service , provided that they are linked to the subject - matter of the public contract . in order to better integrate social considerations in public procurement , procurers may also be allowed to include , in the award criterion of the most economically advantageous tender , characteristics related to the working conditions of the persons directly participating in the process of production or provision in question . those characteristics may only concern the protection of health of the staff involved in the production process or the favouring of social integration of disadvantaged persons or members of vulnerable groups amongst the persons assigned to performing the contract , including accessibility for persons with disabilities . any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff members in their working environment . they should be applied in accordance with directive 96 / 71 / ec of the european parliament and of the council of 16 december 1996 concerning the posting of workers in the framework of the provision of services and in a way that does not discriminate directly or indirectly against economic operators from other member states or from third countries parties to the agreement or to free trade agreements to which the union is party . for service contracts and for contracts involving the design of works , contracting authorities should also be allowed to use as an award criterion the organisation , qualification and experience of the staff assigned to performing the contract in question , as this may affect the quality of contract performance and , as a result , the economic value of the tender . ### furthermore , in technical specifications and in award criteria , contracting authorities should be allowed to refer to life cycle characteristics , such as a specific production process , including for example social and environmental aspects , a specific mode of provision of services , functional or performance requirements aimed at minimizing or maximising environmental or social impacts , or a specific process for any other stage of the life cycle of a product or service , provided that they are linked to the subject - matter of the public contract . the link to the subject matter rule should be interpreted broadly . accordingly , in order to better integrate social considerations in public procurement , procurers may also be allowed to include , in the technical specifications and award criteria , characteristics related to the working conditions of the persons directly participating in the process of production or provision in question . those characteristics may for example concern the protection of health of the staff involved in the production process , gender balance , access to on - site vocational training , users ' involvement and consultation , affordability , human rights , ethical trade or the favouring of social integration of disadvantaged persons or members of vulnerable groups amongst the persons assigned to performing the contract , including accessibility for persons with disabilities . any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff members in their working environment . they should be applied in a way that does not discriminate directly or indirectly against economic operators from other member states or from third countries parties to the agreement or to free trade agreements to which the union is party . for service contracts and for contracts involving the design of works , contracting authorities should also be allowed to use as an technical specifications or award criteria the organisation , qualification and experience of the staff assigned to performing the contract in question , as this may affect the quality and sustainability of contract performance and , as a result , the economic value of the tender . contracting authorities may also integrate into technical specifications or award criteria social considerations relating to external social costs directly linked to the life - cycle , such as the impacts of production on the surrounding environment and adjacent communities . contracting authorities should lay down in the technical specifications obligations relating to social and employment conditions , health and safety at workplace , social security and working conditions as set out by eu and national laws , regulations or administrative provisions , arbitration award , collective agreement and contracts , and international labour law provisions listed in annex xi , that apply in the place where the work , service or supply is performed ; these obligations shall also apply in cross - border situations , where workers from one member state provide services in another member state .


### the agreement establishes a genuine cooperation between the participating contracting authorities aimed at carrying out jointly their public service tasks and involving mutual rights and obligations of the parties ; ### the purpose of the partnership is the provision of a public - service task conferred on all participating public authorities ;


### an agreement concluded between two or more contracting authorities shall not be deemed to be a public contract within the meaning of article 2 of this directive where the following cumulative conditions are fulfilled : ### an agreement concluded between two or more contracting authorities shall not be deemed to be a public contract within the meaning of article 2 of this directive and thus fall outside the scope of this directive where the following cumulative conditions are fulfilled :


### contracting authorities may decide not to award a contract to the tenderer submitting the best tender where they have established that the tender does not comply , at least in an equivalent manner , with obligations established by union legislation in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in annex xi . ### contracting authorities shall decide not to award a contract to the tenderer submitting the best tender where they have established that the tender does not comply , at least in an equivalent manner , with obligations established by union legislation in the field of environmental law or with obligations relating to social and employment conditions , such as health and safety at workplace , social security and working conditions as set out by eu and national laws , regulations or administrative provisions , arbitration award , collective agreement and contracts , and international labour law provisions listed in annex xi , that apply in the place where the work , service or supply is performed , including in the subcontracting chain .


### in the procurement documents , the contracting authority may ask or may be required by a member state to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors . ### in the procurement documents , the contracting authority shall ask or shall be required by a member state to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors and to give information on their subcontractors including their names , contact details and legal representatives . any change in the subcontracting chain and any new subcontractor shall be indicated without delay to the contracting authority , including their names , contact details and legal representatives .


### there is no private participation in the controlled legal person . ### there is no private participation in the controlled legal person , with the exception of legally enforced forms of private participation .


### member states may reserve the right to participate in public procurement procedures to sheltered workshops and economic operators whose main aim is the social and professional integration of disabled and disadvantaged workers or provide for such contracts to be performed in the context of sheltered employment programmes , provided that more than 30% of the employees of those workshops , economic operators or programmes are disabled or disadvantaged workers . ### member states may reserve the right to participate in public procurement procedures to sheltered workshops and economic operators whose main aim is the social and professional integration of disabled and disadvantaged workers or provide for such contracts to be performed in the context of sheltered employment programmes , provided that more than 30% of the employees of those workshops , economic operators or programmes are disabled and / or disadvantaged persons . ' disadvantaged persons ' includes amongst others : the unemployed , people experiencing particular difficulty in achieving integration , people at risk of exclusion , members of vulnerable groups and members of disadvantaged minorities . the call for competition may make reference to this provision .


### other categories of services continue by their very nature to have a limited cross - border dimension , namely what are known as 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 public contracts for these services , with a higher threshold of eur 500 000 . services to the person with values below this threshold will typically not be of interest to providers from other member states , unless there are concrete indications to the contrary , such as union financing for trans - border projects . contracts for services to the person above this threshold should be subject to union - wide transparency . given the importance of the cultural context and the sensitivity of these services , member states should be given wide discretion to organise the choice of the service providers in the way they consider most appropriate . the rules of this directive take account of that imperative , imposing only observance of basic principles of transparency and equal treatment and making sure that contracting authorities are able to apply specific quality criteria for the choice of service providers , such as the criteria set out in the voluntary european quality framework for social services of the european union ' s social protection committee . member states and / or public authorities remain free to provide these services themselves or to organise social services in a way that does not entail the conclusion of public contracts , for example through the mere financing of such services or by granting licences or authorisations to all economic operators meeting the conditions established beforehand by the contracting authority , without any limits or quotas , provided such a system ensures sufficient advertising and complies with the principles of transparency and non - discrimination . ### other categories of services continue by their very nature to have a limited cross - border dimension , namely what are known as 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 . by their very nature they are in general difficult to reconcile with internal market rules applying to public procurement . therefore , public authorities should prefer other ways of providing these services and must ensure high quality for the social services provided if they decide nevertheless to apply public procurement procedures . for a better protection of the quality of these services in public contracts , a specific regime should be established , with a higher threshold of eur 500 000 . services to the person with values below this threshold will typically not be of interest to providers from other member states , unless there are concrete indications to the contrary , such as union financing for trans - border projects . contracts for services to the person above this threshold should be subject to union - wide transparency . given the importance of the cultural context and the sensitivity of these services , member states should be given wide discretion to organise the choice of the service providers in the way they consider most appropriate . the essential role and wide discretion of national , regional and local authorities in providing , commissioning and organizing services of general interest is also in line with protocol 26 on services of general interest , article 14 of the treaty on the functioning of the european union and article 36 of the charter of fundamental rights . the rules of this directive take account of that imperative , imposing only observance of basic principles of transparency and equal treatment and making sure that contracting authorities apply specific quality criteria for the choice of service providers , such as the criteria set out in the voluntary european quality framework for social services of the european union ' s social protection committee , ensuring a high level of quality , safety and affordability , equal treatment and the promotion of universal access and of user rights . this means that principles such as quality , continuity , accessibility , availability and comprehensiveness of services , as well as democratic control and accountability are particularly important . member states and / or public authorities remain free to provide these services themselves , including vertical ' in - house ' provision or horizontal inter - municipal cooperation , or to organise social services in any other way that does not entail the conclusion of public contracts , for example through the mere financing of such services or by granting licences or authorisations to all economic operators meeting the conditions established beforehand by the contracting authority , without any limits or quotas , provided such a system ensures sufficient advertising and complies with the principles of transparency and non - discrimination . according to case law of the court , in particular the judgement in case c - 70 / 95 , contracting authorities may be allowed to reserve contracts to non - profit organisation , if such a restriction is provided for by national law and compatible with european law , if it is necessary and proportionate to attain certain societal goals of the national welfare system .


### the most economically advantageous tender ; ### the most socially , environmentally and economically advantageous tender ;


### without prejudice to national laws , regulations or administrative provisions concerning the remuneration of certain services , the criteria on which contracting authorities shall base the award of public contracts shall be one of the following : the most economically advantageous tender ; the lowest cost . ### without prejudice to national laws , regulations or administrative provisions concerning the remuneration of certain services , the criterion on which contracting authorities shall base the award of public contracts shall be the most economically advantageous and sustainable tender .


### there is no private participation in any of the contracting authorities involved . ### the task is carried out solely by the public authorities concerned there is no private participation in any of the contracting authorities involved with the exception of forms of legally enforced private participation .


### the contracting authority shall verify the information provided by consulting the tenderer . it may only reject the tender where the evidence does not justify the low level of price or costs charged , taking into account the elements referred to in paragraph 3 . ### the contracting authority shall verify the information provided by consulting the tenderer . it shall reject the tender where the evidence does not justify the low level of price or costs charged , taking into account the elements referred to in paragraph 3 .


### for service contracts and contracts involving the design of works , the organisation , qualification and experience of the staff assigned to performing the contract in question may be taken into consideration , with the consequence that , following the award of the contract , such staff may only be replaced with the consent of the contracting authority , which must verify that replacements ensure equivalent organisation and quality ; ### for service contracts and contracts involving the design of works , the organisation , qualification and experience of the staff assigned to performing the contract in question as well as the qualification and professional conduct of any subcontractor may be taken into consideration , with the consequence that , following the award of the contract , such staff may only be replaced with the consent of the contracting authority , which must verify that replacements ensure equivalent organisation , qualification and experience ;


### contracting authorities may decide not to award a contract to the tenderer submitting the best tender where they have established that the tender does not comply , at least in an equivalent manner , with obligations established by union legislation in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in annex xi . ### contracting authorities may decide not to award a contract to the tenderer submitting the best tender where they have established that the tender does not comply with obligations established by union or national legislation in the field of social and labour law or environmental law or collective agreements which apply in the place where the work , service or supply is performed or by the international social and environmental law provisions listed in annex xi and provided they are linked to the subject matter of the contract .


### any economic operator shall be excluded from participation in a contract where the contracting authority is aware of a decision having the force of res judicata establishing that it has not fulfilled obligations relating to the payment of taxes or social security contributions in accordance with the legal provisions of the country in which it is established or with those of the member state of the contracting authority . ### any economic operator shall be excluded from participation in a contract where the contracting authority is aware of a decision having the force of res judicata establishing that it has not fulfilled obligations relating to the payment of taxes , social security contributions or any other obligation relating to social and employment conditions , such as health and safety at workplace including the protection of workers who endeavour to improve the health and safety at their workplace , social security and working conditions as set out by eu and national laws , regulations or administrative provisions , arbitration award , collective agreement and contracts , and international labour law provisions listed in annex xi , that apply in the place where the work , service or supply is performed ; these obligations shall also apply in cross - border situations , where workers from one member state provide services in another member state


### contract performance conditions are compatible with this directive provided that they are not directly or indirectly discriminatory , are linked to the subject - matter of the contract and are indicated in the contract notice , the prior information notice used as a means of calling for competition or the procurement documents . they may , in particular , be intended to favour on - site vocational training , the employment of people experiencing particular difficulty in achieving integration , the fight against unemployment , protection of the environment or animal welfare . for instance , mention may be made , amongst other things , of the requirements — applicable during performance of the contract — to recruit long - term job - seekers or to implement training measures for the unemployed or young persons , to comply in substance with fundamental international labour organisation conventions , even where such conventions have not been implemented in national law , and to recruit more disadvantaged persons than are required under national legislation . ### contract performance conditions are compatible with this directive provided that they are not directly or indirectly discriminatory , are linked to the subject - matter of the contract and are indicated in the contract notice , the prior information notice used as a means of calling for competition or the procurement documents . they may , in particular , be intended to favour on - site vocational training , the employment of people experiencing particular difficulty in achieving integration , the fight against unemployment , protection of the environment or animal welfare . for instance , mention may be made , amongst other things , of the requirements — applicable during performance of the contract — to recruit long - term job - seekers or to implement training measures for the unemployed or young persons , to comply in substance with fundamental international labour organisation conventions , even where such conventions have not been implemented in national law , and to recruit more disadvantaged persons than are required under national legislation . as regards obligations relating to social and employment conditions , health and safety at workplace , social security and working conditions as set out by eu and national laws , regulations or administrative provisions , arbitration award , collective agreement and contracts , and international labour law provisions listed in annex xi , that apply in the place where the work , service or supply is performed , contracting authorities should lay down provisions fixing an appropriate level of protection in the contract performance clauses .


### conditions for performance of contracts contracting authorities may lay down special conditions relating to the performance of a contract , provided that they are indicated in the call for competition or in the specifications . those conditions may , in particular , concern social and environmental considerations . they may also include the requirement that economic operators foresee compensations for risks of price increases that are the result of price fluctuations and that could substantially impact the performance of a contract . ### conditions for performance of contracts contracting authorities may lay down special conditions relating to the performance of a contract , provided that they are indicated in the call for competition or in the specifications . those conditions shall include obligations relating to social and employment conditions , such as health and safety at workplace , social security and working conditions as set out by eu and national laws , regulations or administrative provisions , arbitration award , collective agreement and contracts , and international labour law provisions listed in annex xi , that apply in the place where the work , service or supply is performed ; these obligations shall also apply in cross - border situations , where workers from one member state provide services in another member state . they may also include the requirement that economic operators foresee compensations for risks of price increases that are the result of price fluctuations and that could substantially impact the performance of a contract .


### the exclusions provided for in paragraphs 1 to 4 shall cease to apply from the moment any private participation takes place , with the effect that ongoing contracts need to be opened to competition through regular procurement procedures . ### the exclusions provided for in paragraphs 1 to 4 shall cease to apply from the moment any private participation takes place , with the effect that ongoing contracts need to be opened to competition through regular procurement procedures , unless the private participation is legally enforced and / or the private participation was not foreseeable at the time of the initial contracting .


### furthermore , in technical specifications and in award criteria , contracting authorities should be allowed to refer to a specific production process , a specific mode of provision of services , or a specific process for any other stage of the life cycle of a product or service , provided that they are linked to the subject - matter of the public contract . in order to better integrate social considerations in public procurement , procurers may also be allowed to include , in the award criterion of the most economically advantageous tender , characteristics related to the working conditions of the persons directly participating in the process of production or provision in question . those characteristics may only concern the protection of health of the staff involved in the production process or the favouring of social integration of disadvantaged persons or members of vulnerable groups amongst the persons assigned to performing the contract , including accessibility for persons with disabilities . any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff members in their working environment . they should be applied in accordance with directive 96 / 71 / ec of the european parliament and of the council of 16 december 1996 concerning the posting of workers in the framework of the provision of services and in a way that does not discriminate directly or indirectly against economic operators from other member states or from third countries parties to the agreement or to free trade agreements to which the union is party . for service contracts and for contracts involving the design of works , contracting authorities should also be allowed to use as an award criterion the organisation , qualification and experience of the staff assigned to performing the contract in question , as this may affect the quality of contract performance and , as a result , the economic value of the tender . ### furthermore , in technical specifications and in award criteria , contracting authorities should be allowed to refer to life cycle characteristics , such as a specific production process , including for example social and environmental aspects , a specific mode of provision of services , functional or performance requirements aimed at minimizing or maximising environmental or social impacts , or a specific process for any other stage of the life cycle of a product or service , provided that they are linked to the subject - matter of the public contract . the link to the subject matter rule should be interpreted broadly . accordingly , in order to better integrate social considerations in public procurement , procurers may also be allowed to include , in the technical specifications and award criteria , characteristics related to the working conditions of the persons directly participating in the process of production or provision in question . those characteristics may for example concern the protection of health of the staff involved in the production process , gender balance , access to on - site vocational training , users ' involvement and consultation , affordability , human rights , ethical trade or the favouring of social integration of disadvantaged persons or members of vulnerable groups amongst the persons assigned to performing the contract , including accessibility for persons with disabilities . any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff members in their working environment . they should be applied in a way that does not discriminate directly or indirectly against economic operators from other member states or from third countries parties to the agreement or to free trade agreements to which the union is party . for service contracts and for contracts involving the design of works , contracting authorities should also be allowed to use as an technical specifications or award criteria the organisation , qualification and experience of the staff assigned to performing the contract in question , as this may affect the quality and sustainability of contract performance and , as a result , the economic value of the tender . contracting authorities may also integrate into technical specifications or award criteria social considerations relating to external social costs directly linked to the life - cycle , such as the impacts of production on the surrounding environment and adjacent communities . contracting authorities should lay down in the technical specifications obligations relating to social and employment conditions , health and safety at workplace , social security and working conditions as set out by eu and national laws , regulations or administrative provisions , arbitration award , collective agreement and contracts , and international labour law provisions listed in annex xi , that apply in the place where the work , service or supply is performed ; these obligations shall also apply in cross - border situations , where workers from one member state provide services in another member state .


### the specific process of production or provision of the requested works , supplies or services or of any other stage of its life cycle as referred to in point of article 2 , to the extent that those criteria are specified in accordance with paragraph 4 and they concern factors directly involved in these processes and characterise the specific process of production or provision of the requested works , supplies or services . ### the specific process of production or provision of the requested works , supplies or services or of any other stage of its life cycle or life cycle characteristics as referred to in points and of article 2 , to the extent that those criteria are specified in accordance with paragraph 4 and they concern factors directly involved in these processes and characterise the specific process of production or provision of the requested works , supplies or services .


### public procurement plays a key role in the europe 2020 strategy as one of the market - based instruments to be used to achieve a smart , sustainable and inclusive growth while ensuring the most efficient use of public funds . for that purpose , the current public procurement rules adopted pursuant to directive 2004 / 17 / ec of the european parliament and of the council of 31 march 2004 coordinating the procurement procedures of entities operating in the water , energy , transport and postal services sectors and directive 2004 / 18 / ec of the european parliament and of the council of 31 march 2004 on the coordination of procedures for the award of public works contracts , public supply contracts and public service contracts have to be revised and modernised in order to increase the efficiency of public spending , facilitating in particular the participation of small and medium - sized enterprises in public procurement and to enable procurers to make better use of public procurement in support of common societal goals . there is also a need to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well - established case - law of the court of justice of the european union . ### public procurement plays a key role in the europe 2020 strategy as one of the market - based instruments to be used to achieve a smart , sustainable and inclusive growth while ensuring the most efficient use of public funds . for that purpose , the current public procurement rules adopted pursuant to directive 2004 / 17 / ec of the european parliament and of the council of 31 march 2004 coordinating the procurement procedures of entities operating in the water , energy , transport and postal services sectors and directive 2004 / 18 / ec of the european parliament and of the council of 31 march 2004 on the coordination of procedures for the award of public works contracts , public supply contracts and public service contracts have to be revised and modernised in order to enable procurers in the public sector to make better use of public procurement in support of sustainable development and other higher common societal goals thereby increasing the efficiency of public spending , while ensuring the best possible outcome in cost - benefit ratio terms and facilitating in particular the participation of small and medium - sized enterprises in public procurement . there is also a need to simplify eu rules on public procurement , particularly with regard to the method used to achieve the sustainability objectives which should be included in public procurement policy , and to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well - established case - law of the court of justice of the european union .


### under article 11 of the treaty on the functioning of the european union , environmental protection requirements must be integrated into the definition and implementation of the union policies and activities , in particular with a view to promoting sustainable development . this directive clarifies how the contracting authorities may contribute to the protection of the environment and the promotion of sustainable development , whilst ensuring that they can obtain the best value for money for their contracts . ### under articles 9 , 10 and 11 of the treaty on the functioning of the european union , environmental protection requirements and the concepts of the socially - sustainable production process must be integrated into the definition and implementation of the union policies and activities , in particular with a view to promoting sustainable development and ensuring , throughout the supply chain , compliance with rules on public health and safety , social standards and national and union labour laws . this directive clarifies how the contracting authorities contribute to the protection of the environment and the promotion of sustainable development , and in regard to technical specifications and award criteria use the powers of discretion at their disposal to select the ones that are the most likely to achieve socially sustainable public procurement whilst ensuring contracts still obtain best value for money for their purpose .


### council decision 94 / 800 / ec of 22 december 1994 concerning the conclusion on behalf of the european community , as regards matters within its competence , of the agreements reached in the uruguay round multilateral negotiations approved in particular the world trade organisation agreement on government procurement , hereinafter referred to as the ‘ agreement’ . the aim of the agreement is to establish a multilateral framework of balanced rights and obligations relating to public contracts with a view to achieving the liberalisation and expansion of world trade . for contracts covered by the agreement , as well as by other relevant international agreements by which the union is bound , contracting authorities fulfil the obligations under these agreements by applying this directive to economic operators of third countries that are signatories to the agreements . ### council decision 94 / 800 / ec of 22 december 1994 concerning the conclusion on behalf of the european community , as regards matters within its competence , of the agreements reached in the uruguay round multilateral negotiations , approved in particular the world trade organisation agreement on government procurement , hereinafter referred to as the ' agreement ' . within this multilateral framework of balanced rights and obligations relating to public contracts , the member states should make every effort to ensure that eu enterprises and those of third countries receive equal treatment in the single market , in order to facilitate the integration of small and medium - sized enterprises and stimulate employment and innovation in the union . for contracts covered by the agreement , as well as by other relevant international agreements by which the union is bound , contracting authorities fulfil the obligations under these agreements by applying this directive to economic operators of third countries that are signatories to the agreements .


### summary details of the inspections carried out pursuant to article 19 and of the main findings from the latest inspection conclusions , together with a reference or / link to the related inspection plan . ### the conclusions of the inspections carried out pursuant to article 19 .


### member states shall ensure that the public is able to give its opinion on the following matters : ### member states shall ensure that the public is given early and effective opportunities to participate in the following matters and procedures :


### without prejudice to article 4 , in order to adapt annexes i to vii to technical progress , the commission shall adopt delegated acts in accordance with article 24 . ### without prejudice to article 4 , in order to adapt part 3 of annex i and annexes ii to vi to technical and scientific progress , the commission shall adopt delegated acts in accordance with article 24 .


### the updated safety report shall be sent to the competent authority without delay . ### the updated safety report shall be sent to the competent authority and local authorities without delay .


### annex i to directive 96 / 82 / ec lists the dangerous substances falling within its scope , inter alia by reference to certain provisions of council directive 67 / 548 / eec of 27 june 1967 on the approximation of the laws , regulations and administrative provisions relating to the classification , packaging and labelling of dangerous substances as well as directive 1999 / 45 / ec of the european parliament and of the council of 31 may 1999 concerning the approximation of the laws , regulations and administrative provisions of the member states relating to the classification , packaging and labelling of dangerous preparations . those directives have been replaced by regulation no 1272 / 2008 of the european parliament and of the council of 16 december 2008 on classification , labelling and packaging of substances and mixtures , which implements within the union the globally harmonised system of classification and labelling of chemicals that has been adopted at the international level , within the structure of the united nations . that regulation introduces new hazard classes and categories only partially corresponding to those used under the previous arrangements . annex i to directive 96 / 82 / ec therefore needs to be amended to align it to that regulation while maintaining the existing levels of protection of that directive . ### annex i to directive 96 / 82 / ec lists the dangerous substances falling within its scope , inter alia by reference to certain provisions of council directive 67 / 548 / eec of 27 june 1967 on the approximation of the laws , regulations and administrative provisions relating to the classification , packaging and labelling of dangerous substances as well as directive 1999 / 45 / ec of the european parliament and of the council of 31 may 1999 concerning the approximation of the laws , regulations and administrative provisions of the member states relating to the classification , packaging and labelling of dangerous preparations . those directives have been replaced by regulation no 1272 / 2008 of the european parliament and of the council of 16 december 2008 on classification , labelling and packaging of substances and mixtures , which implements within the union the globally harmonised system of classification and labelling of chemicals that has been adopted at the international level , within the structure of the united nations . that regulation introduces new hazard classes and categories only partially corresponding to those used under the previous arrangements . certain hazard categories would however not be classified under that system due to absence of criteria within that framework . annex i to directive 96 / 82 / ec therefore needs to be amended to align it to that regulation while maintaining the existing levels , or further increase the level , of protection of that directive .


### where it is demonstrated , on the basis of the criteria referred to in paragraph 4 of this article , that particular substances covered by parts 1 or 2 of annex i are incapable of creating a major accident hazard , in particular due to their physical form , properties , classification , concentration or generic packaging , the commission may list those substances in part 3 of annex i by delegated acts in accordance with article 24 . ### where it is demonstrated , on the basis of the criteria set out in annex vii to this directive , that particular substances or mixtures covered by parts 1 or 2 of annex i are under specific conditions incapable of creating a major accident hazard , due to their physical form , properties , classification , concentration or generic packaging , and should thus benefit from a derogation , the commission may adopt delegated acts in accordance with article 24 in order to list those substances and mixtures together with the applicable conditions in part 3 of annex i .


### where it is demonstrated , on the basis of the criteria referred to in paragraph 4 of this article , that particular substances covered by parts 1 or 2 of annex i are incapable of creating a major accident hazard , in particular due to their physical form , properties , classification , concentration or generic packaging , the commission may list those substances in part 3 of annex i by delegated acts in accordance with article 24 . ### where it is demonstrated , on the basis of the criteria referred to in paragraph 4 of this article , that particular substances covered by parts 1 or 2 of annex i are incapable of creating a major accident hazard , in particular due to their physical form , properties , classification , concentration or generic packaging , the commission may submit a legislative proposal to list those substances in part 3 of annex i .


### where it is demonstrated , on the basis of the criteria referred to in paragraph 4 of this article , that particular substances covered by parts 1 or 2 of annex i are incapable of creating a major accident hazard , in particular due to their physical form , properties , classification , concentration or generic packaging , the commission may list those substances in part 3 of annex i by delegated acts in accordance with article 24 . ### where it is demonstrated , on the basis of the criteria set out in annex vii to this directive , that particular substances or mixtures covered by parts 1 or 2 of annex i are under specific conditions incapable of creating a major accident hazard , in particular due to their physical form , properties , classification , concentration or generic packaging , and should thus benefit from a derogation , the commission may adopt delegated acts in accordance with article 17 and 24 in order to list those substances and mixtures together with the applicable conditions , in part 3 of annex i .


### without prejudice to paragraph 4 , the operator shall periodically review and where necessary update the notification , at least every five years . the operator shall send the updated notification to the competent authority without delay . ### without prejudice to paragraph 4 , the operator shall periodically review and where necessary update the notification , at least every five years . the operator shall send the updated notification to the competent authority and local authorities without delay .


### the safety report is made available to the public upon request subject to article 21 ; where article 21 applies , an amended report in the form of a non - technical summary , which shall include at least general information on major - accident hazards , potential effects and the requisite behaviour in the event of an accident , shall be made available ; ### the safety report is made available to the public upon request subject to article 21 ; where article 21 applies , an amended report in the form of a non - technical summary , which shall include at least general information on major - accident hazards , potential effects on human health and the environment and the requisite behaviour in the event of an accident , shall be made available ;


### where the member state concerned has decided that an establishment close to the territory of another member state is incapable of creating a major - accident hazard beyond its boundary for the purposes of article 11 and is not therefore required to produce an external emergency plan under article 11 , it shall so inform the other member state . ### where the member state concerned has decided that an establishment close to the territory of another member state is incapable of creating a major - accident hazard beyond its boundary for the purposes of article 11 and is not therefore required to produce an external emergency plan under article 11 , it shall inform the other member state of that decision and of its reasons for taking that decision .


### this directive shall not apply to services concessions awarded by a contracting authority or by a contracting entity to an economic operator which is a contracting entity or an association of thereof , on the basis of an exclusive right that economic operator enjoys pursuant to applicable and published national law , regulation or administrative provision , and which has been granted in accordance with the treaty and union sectoral legislation concerning the management of networks infrastructure related to the activities set out in annex iii . ### this directive shall not apply to services concessions concerning the management of network infrastructure related to the activities set out in annex iii or to services concessions for an activity set out in annex iii which , when this directive enters into force , are the subject of a nationally regulated tariff for vulnerable groups of customers laid down in law or regulation where such concessions are awarded to an economic operator on the basis of an exclusive right that the latter enjoys pursuant to applicable and published national law , regulation or administrative provision , and which has been granted in accordance with the treaty and union sectoral legislation . by way of derogation from the first subparagraph , where sectoral legislation referred to in the first subparagraph does not provide for sector - specific transparency obligations , the requirements of article 27 and shall apply .


### with regard to the criteria referred to in paragraph 1 , an economic operator may , where appropriate and for a particular concession , rely on the capacities of other entities , regardless of the legal nature of its links with them . it shall , in that case , prove to the contracting authority or the contracting entity that it will have at its disposal , throughout the period of the concession , the necessary resources , for example , by producing an undertaking by those entities to that effect . with regard to economic and financial standing , contracting authorities and contracting entities may require that the economic operator and those entities are jointly liable for the execution of the contract . ### if subcontracting is employed , the economic operator shall prove to the contracting authority or the contracting entity that it will have at its disposal , throughout the period of the concession , the necessary resources , by producing an undertaking by those entities to that effect . the legal requirements laid down in paragraphs 5 to 7 of this article must also be met by the subcontractors . the economic operator shall certify that they are not covered by any of the exclusion criteria . with regard to economic and financial standing , the economic operator shall be liable for all its subcontractors , irrespective of the legal relationship between it and the undertakings concerned .


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


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


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


### such an authority or entity exercises over the legal person concerned a control which is similar to that which it exercises over its own departments ### such an authority or entity exercises over the legal person concerned a control which is similar to that which it exercises over its own departments ; this shall be deemed to be the case where it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person ; with a view to determining whether such control is being exercised , account may also be taken of factors such as the level of representation on administrative , management or supervisory bodies , the relevant provisions of the articles of association or the ownership arrangements ; it is not a mandatory requirement that the controlled legal person be wholly owned by the contracting authority or entity .


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


### this directive shall not apply to services concessions awarded by a contracting authority or by a contracting entity to an economic operator which is a contracting entity or an association of thereof , on the basis of an exclusive right that economic operator enjoys pursuant to applicable and published national law , regulation or administrative provision , and which has been granted in accordance with the treaty and union sectoral legislation concerning the management of networks infrastructure related to the activities set out in annex iii . ### this directive shall not apply to services concessions concerning the management of networks infrastructure related to the activities set out in annex iii or to services concessions for an activity set out in annex iii which , when this directive enters into force , are the subject of a nationally regulated tariff laid down in law or regulation where such concessions are awarded to an economic operator on the basis of an exclusive right that the latter enjoys pursuant to applicable and published national law , regulation or administrative provision , and which has been granted in accordance with the treaty and union sectoral legislation . by way of derogation from the first subparagraph , where sectoral legislation referred to in the first subparagraph does not provide for sector specific transparency obligations , the requirements of article 27 and shall apply


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


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


### 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 entities , 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 , with the exception of legally enforced forms of private participation .


### 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 ; ### the bulk of the activities of that legal person is 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 ; the member states may specify the mandatory minimum proportion of turnover controlled by the contracting authority ;


### for the purposes of this directive , supply of electricity includes generation and wholesale of electricity . ### for the purposes of this directive , supply of electricity includes generation and supply .


### a ' public works concession ' means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works , where the consideration for the the works to be carried out consists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment . ### a ' works concession ' means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or entities award the execution of works for which they are responsible to one or more economic operators , where the consideration for that award consists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment ;


### the choice and application of proportional , non - discriminatory and fair selection criteria to economic operators is crucial for their effective access to the economic opportunities related to concessions . in particular , the possibility for a candidate to rely on the capacities of other entities can be decisive to enable the participation of small and medium sized enterprises . therefore , it is appropriate to provide that the selection criteria should relate exclusively to the technical , financial and economic capacity of operators , should be announced in the concession notice and cannot preclude an economic operator from relying on the capacities of other entities , regardless of the legal nature of its links with those entities , if the latter proves to the contracting authority or entity that it will have at its disposal the necessary resources . ### the choice and application of proportional , non - discriminatory and fair selection criteria to economic operators is crucial for their effective access to the economic opportunities related to concessions . in particular , the possibility for a candidate to rely on the capacities of other entities can be decisive to enable the participation of small and medium sized enterprises . therefore , it is appropriate to provide that the selection criteria should relate to the technical , financial and economic capacity of operators , but also , as regards services of general economic interest , their compliance with environmental , social and cohesion - related provisions , as well as with the objectives of a high level of quality , safety and affordability , equal treatment and the promotion of universal access and of user rights , should be announced in the concession notice and cannot preclude an economic operator from relying on the capacities of other entities , regardless of the legal nature of its links with those entities , if the latter proves to the contracting authority or entity that it will have at its disposal the necessary resources .


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


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


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


### the controlled legal person does not draw any gains other than the reimbursement of actual costs from the public contracts with the contracting authorities . ### the controlled legal person does not draw any gains other than the recouping of the operating and investment costs it incurs in performing the concessions with the contracting authorities or contracting entities , as defined in article 4 , point 1 .


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


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


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


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


### contracting authorities shall specify , in the concession notice the conditions for participation relating to : ### contracting authorities shall specify , in the concession notice the conditions for participation in particular relating to :


### 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 .


### 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 .


### 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 entities , 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 , with the exception of legally enforced forms of private participation .


### 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 . ### 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 clearly identified in the light of the particular tasks laid down by the public authorities . 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 .


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


### there is no private participation in any of the contracting authorities or entities involved . ### the task is carried out solely by the public authorities concerned and there is no active private participation in any of the contracting authorities or entities involved with the exception of forms of legally enforced private participation .


### 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 . ### a specific regime is 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 .


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


### contracting authorities or contracting entities may impose on economic operators requirements aimed at protecting the confidential nature of information which the contracting authorities or contracting entities make available throughout the concession award procedure . ### the grantor may impose on economic operators requirements aimed at protecting the confidential nature of information which it makes available throughout the concession award procedure . failure to comply with this requirement shall render the economic operator liable


### 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 contracting authority or entity could not anticipate


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


### contracting authorities shall limit any conditions for participation to those that are appropriate to ensure that a candidate or tenderer has the legal and financial capacities and the commercial and technical abilities to perform the concession to be awarded . all requirements shall be related and strictly proportionate to the subject - matter of the contract , taking into account the need to ensure genuine competition . ### contracting authorities shall limit any conditions for participation to those that are appropriate to ensure that a candidate or tenderer has the legal and financial capacities and the commercial and technical abilities to perform the concession to be awarded .


### 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 may be 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 . concessions may also concern the delegation of the management of services , particularly services of general economic interest , for a fixed period of time , for a specific activity and in a defined area . these are not therefore public ‘ purchases’ , ‘ acquisitions’ or ‘ public contracts’ . 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 .


### 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 , or entities , 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 , with the exception of forms of non - profit private participations inherent to the controlling awarding authority or to the controlled legal person present in some social enterprises responsible for the execution of a public service task created specifically to fulfil the general interest requirements , which are not industrial and commercial by nature and are governed by the laws in force in member states .


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


### having regard to the treaty on the functioning of the european union , and in particular article 53 , article 62 and article 114 thereof , ### having regard to the treaty on the functioning of the european union , and in particular article 14 , article 53 , article 62 and article 114 thereof , and protocol 26 thereto ,


### 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 .